SPEAKERS CONTENTS INSERTS
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66–013
2000
INNOCENCE PROTECTION ACT OF 2000
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 4167
JUNE 20, 2000
Serial No. 142
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Crime
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BILL McCOLLUM, Florida, Chairman
STEVE CHABOT, Ohio
BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
CHARLES T. CANADY, Florida
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MARTIN T. MEEHAN, Massachusetts
STEVEN R. ROTHMAN, New Jersey
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
GLENN R. SCHMITT, Chief Counsel
DANIEL J. BRYANT, Chief Counsel
RICK FILKINS, Counsel
CARL THORSEN, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
HEARING DATE
June 20, 2000
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TEXT OF BILL
H.R. 4167
OPENING STATEMENT
Gekas, Hon. George W., a Representative in Congress From the State of Pennsylvania, and presiding chairman, Subcommittee on Crime
WITNESSES
Bloodsworth, Kirk, Baltimore, MD
Bright, Stephen B., Esq., director, Southern Center for Human Rights, Atlanta, GA
Campbell, Ward, Esq., deputy attorney general, Sacramento, CA
Coleman, Jr., James E., Esq., professor of law, Duke University, Durham, NC
Delahunt, Hon. William D., a Representative in Congress From the State of Massachusetts
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Kogan, Justice Gerald, Alliance for Ethical Government, University of Miami School of Law, Coral Gables, FL
LaHood, Hon., Ray, a Representative in Congress From the State of Illinois
Neufeld, Peter, Esq., The Innocence Project, New York, NY
Ryan, George H., Governor, State of Illinois
Spitzer, Eliot, attorney general, State of New York
Van Meveren, Stuart, district attorney, Eighth Judicial District, Fort Collins, CO
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bright, Stephen B., Esq., director, Southern Center for Human Rights, Atlanta, GA: Prepared statement
Campbell, Ward, Esq., deputy attorney general, Sacramento, CA: Prepared statement
Camps, Enid, deputy attorney general, State of California: Prepared statement
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Coleman, Jr., James E., Esq., professor of law, Duke University, Durham, NC: Prepared statement
Delahunt, Hon. William D., a Representative in Congress From the State of Massachusetts: Prepared statement
Kogan, Justice Gerald, Alliance for Ethical Government, University of Miami School of Law, Coral Gables, FL: Prepared statement
LaHood, Hon., Ray, a Representative in Congress From the State of Illinois: Prepared statement
McCollum, Hon. Bill, a Representative in Congress From the State of Florida, and chairman, Subcommittee on Crime: Prepared statement
Neufeld, Peter, Esq., The Innocence Project, New York, NY: Prepared statement
Ryan, George H., Governor, State of Illinois: Prepared statement
Spitzer, Eliot, attorney general, State of New York: Prepared statement
Van Meveren, Stuart, district attorney, Eighth Judicial District, Fort Collins, CO: Prepared statement
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APPENDIX
Material submitted for the record
INNOCENCE PROTECTION ACT OF 2000
THRUSDAY, JUNE 20, 2000
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 1:31 p.m. in room 2141, Rayburn House Office Building, Hon. George W. Gekas [acting chairman of the subcommittee] presiding.
Present: Representatives George W. Gekas, Lamar S. Smith, Charles T. Canady, Bob Barr, Asa Hutchinson, John Conyers, Jr., Robert C. Scott, Sheila Jackson Lee, Anthony D. Weiner, and Henry J. Hyde [ex officio].
Staff present: Glenn R. Schmitt, chief counsel; Bobby Vassar, minority counsel; and Veronica L. Eligan, staff assistant.
OPENING STATEMENT OF PRESIDING CHAIRMAN GEKAS
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Mr. GEKAS. The Subcommittee on the Judiciary will come to order. We note the presence of a hearing quorum, with Members on both sides of the aisle assembling for the purpose of this hearing.
The chairman of the committee, Mr. Hyde, is present, as are other Members, and, importantly enough, the two Members who are cosponsors of the principal piece of legislation before the Judiciary Committee are also in attendance, the gentleman from Illinois, Mr. LaHood, and the gentleman from Massachusetts, Mr. Delahunt.
We will proceed with an opening statement on the part of the Chair, who will be doubling for the chairman of the Subcommittee on Crime, Mr. McCollum of Florida. I will ask unanimous consent that the opening statement of Chairman McCollum be made a part of the record, and we will summarize by stating that this testimony that we are to receive today, along with the overall debate that is to be had in this very important subject matter, emanates principally from the rapid developments in the collection and use of DNA evidence, and the people in law enforcement and out are convinced that this is a truly wave of the future in the prosecution of cases, with the proper use of evidence.
It does not, however, in any way dampen the interest of law enforcement officers in bringing criminals to justice; it is simply that we want to make sure that the innocent are protected in every stage of the proceedings that begin with charges being made against them and end up in court.
[The prepared statement of Mr. McCollum follows:]
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PREPARED STATEMENT OF HON. BILL MCCOLLUM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRMAN, SUBCOMMITTEE ON CRIME
Today the Subcommittee will hold a hearing on H.R. 4167, ''The Innocence Protection Act'' introduced by the gentleman from Massachusetts, a Member of the Full Judiciary Committee, Congressman William Delahunt.
Although this hearing has been called to examine a particular bill, what this hearing really is about is whether our criminal justice system does, in fact, produce just results. Today we will hear testimony from several witnesses who believe our system, more often than we think, allows innocent persons to be put in jail, and perhaps even to be executed, and that there are steps we can take to prevent that. Other witnesses here today will say the problem, to the extent it exists, is nowhere near as great as recent stories in the press would have us believe. They tell us the overwhelming number of people incarcerated in this country are there because they committed the crime for which they were convicted. And they tell us there is no proof that an actually innocent person has ever been executed in this country.
But whoever is right, it is appropriate for those of us who make the laws to stop from time to time and take stock of whether our system does, in fact, produce justice. There would be no greater injustice than for an innocent man or woman to be executed and it is incumbent on us, if we are to be a just society, to do all we can to make sure this never happens in America. No society can call itself ''just'' if it knowingly allows innocent people to remain in prison for crimes they did not commit. I think all of us would agree we should take whatever steps are necessary to ensure that anyone who is wrongly imprisoned has a process by which they can seek this justice. And so I welcome the inquiry that the bill under review today is causing. While I have concerns as to many of the provisions in this bill, I have no concern at the idea that by working together, we can make our system more likely to produce justice more often. And if legislation is needed to ensure that that will occur, then so be it.
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But I think it is appropriate for me to also say today that the criminal justice system must work to ensure justice for all, not just for those who have been convicted. Victims of crime are no less deserving of justice than are those who are incarcerated. Justice is found in a system that guarantees swift, certain, and severe punishment for those found to have committed a crime. Few things are more harrowing for the family of a murder victim than to see the perpetrator of the crime stall and delay his trial, and then once he is convicted, bring appeal after appeal in order to delay his punishment for as long as possible. Each appeal simply reopens the wounds of the family whose loved one was taken from them.
Society as a whole, also, deserves justice. Our citizens deserve to know those who threaten them—whether it be through acts of physical violence, through the sale of drugs that poison the minds of their children, or through acts that ruin their future by stealing their economic well-being—and that all these criminals will be removed from society in an effective manner. Today's hearing is about the larger question of whether actually innocent people are imprisoned in this country and, if so, what we should do about that.
And so I welcome this hearing on what justice is due—both to those who are incarcerated and to the rest of our society. I welcome the discussion we will have today on this bill. And I welcome the distinguished witnesses who will come before us today.
Mr. GEKAS. The bill speaks for itself, and, of course, the cosponsors will more eloquently than any others be able to pronounce its main attributes, and we will be able to weigh their projection of the evidence before them and of their testimony as we proceed with the overall debate in this important matter.
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[The bill, H.R. 4167, follows:]
106TH CONGRESS
2D SESSION
H. R. 4167
To reduce the risk that innocent persons may be executed, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 4, 2000
Mr. DELAHUNT (for himself, Mr. LAHOOD, Mr. CONYERS, Mr. SCARBOROUGH, Mr. SCOTT, Mr. HOUGHTON, Mr. STUPAK, Mr. BOEHLERT, Ms. SCHAKOWSKY, Mr. BARRETT of Wisconsin, and Mr. HASTINGS of Florida) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To reduce the risk that innocent persons may be executed, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ''Innocence Protection Act of 2000''.
(b) TABLE OF CONTENTS.—The table of contents for this Act is as follows:
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Sec. 1. Short title; table of contents.
TITLE I—EXONERATING THE INNOCENT THROUGH DNA TESTING
Sec. 101. Findings and purposes.
Sec. 102. DNA testing in Federal criminal justice system.
Sec. 103. DNA testing in State criminal justice systems.
Sec. 104. Prohibition pursuant to section 5 of the 14th amendment.
TITLE II—ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES
Sec. 201. Amendments to Byrne grant programs.
Sec. 202. Effect on procedural default rules.
Sec. 203. Capital representation grants.
TITLE III—COMPENSATING THE UNJUSTLY CONDEMNED
Sec. 301. Increased compensation in Federal cases.
Sec. 302. Compensation in State death penalty cases.
TITLE IV—MISCELLANEOUS PROVISIONS
Sec. 401. Accommodation of State interests in Federal death penalty prosecutions.
Sec. 402. Alternative of life imprisonment without possibility of release.
Sec. 403. Right to an informed jury.
Sec. 404. Annual reports.
Sec. 405. Discretionary appellate review.
Sec. 406. Sense of Congress regarding the execution of juvenile offenders and the mentally retarded.
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TITLE I—EXONERATING THE INNOCENT THROUGH DNA TESTING
SEC. 101. FINDINGS AND PURPOSES.
(a) FINDINGS.—Congress makes the following findings:
(1) During the past decade, deoxyribonucleic acid testing (referred to in this section as ''DNA testing'') has emerged as the most reliable forensic technique for establishing the guilt or innocence of a criminal defendant.
(2) In 1994, Congress authorized funding to improve the quality and availability of DNA analysis for law enforcement identification purposes. Since then, States have been awarded over $50,000,000 in DNA-related grants.
(3) A 1996 Department of Justice study found that in approximately 20 to 30 percent of the cases referred for DNA testing, the results excluded the primary suspect. This finding strongly suggests that without such testing, many of these individuals might have been wrongfully convicted on the basis of mistaken eyewitness identification testimony or other flawed evidence.
(4) In at least 65 cases in the United States and Canada, DNA evidence has lead to the exoneration of innocent men and women who were wrongfully convicted. This number includes at least 8 individuals sentenced to death, some of whom came within days of being executed.
(5) In at least 14 cases, postconviction DNA testing that has exonerated an innocent person has also enhanced public safety by providing evidence that led to the apprehension of the actual perpetrator.
(6) Experience has shown that it is not unduly burdensome to make DNA testing available to inmates. The cost of such testing is relatively modest and has decreased in recent years. Moreover, the number of cases in which post conviction DNA testing is appropriate is small and will decrease as pretrial testing becomes more common.
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(7) Despite the proven value and cost-effectiveness of DNA testing, access to such testing has sometimes been denied on the basis of laws in more than 30 States that require a motion for a new trial based on newly discovered evidence of innocence to be filed within 6 months or less. The result is that laws intended to prevent the use of evidence that has become less reliable over time have been used to preclude the use of DNA evidence that remains highly reliable even decades after trial.
(8) In some cases, States have relied on time limits and other procedural barriers to deny release to inmates even when DNA testing has demonstrated their actual innocence.
(9) The National Commission on the Future of DNA Evidence has urged that postconviction DNA testing be permitted in the relatively small number of cases in which it is appropriate, notwithstanding procedural rules that might be involved to preclude such testing, and notwithstanding the inability of the inmate to pay for the testing.
(10) Although the Supreme Court has never announced a standard for addressing constitutional claims of innocence, in Herrera v. Collins, 506 U.S. 390 (1993), a majority of the Court expressed the view that ''a truly persuasive demonstration of 'actual innocence' '' made after trial would render imposition of punishment by a State unconstitutional.
(11) If biological material is not preserved and subjected to DNA testing in appropriate cases, there is a significant risk that persuasive evidence of innocence will not be detected and, accordingly, that innocent persons will be unconstitutionally incarcerated or executed.
(12) To prevent violations of the Constitution of the United States that the Supreme Court anticipated in Herrera v. Collins, it is necessary and proper to enact national legislation that ensures that the Federal Goverment and the States will take measures to preserve biological material for DNA testing and permit such testing in appropriate cases.
(b) PURPOSES.—The purposes of this title are to—
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(1) substantially implement the Recommendations of the National Commission on the Future of DNA Evidence in the Federal criminal justice system, by ensuring the availability of DNA testing in appropriate cases;
(2) prevent the imposition of unconstitutional punishments through the exercise of power granted by clause 1 of section 8 and clause 2 of section 9 of article I of the Constitution of the United States and section 5 of the 14th amendment to the Constitution of the United States; and
(3) ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing, by requiring the preservation of DNA evidence for a limited period.
SEC. 102. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.
(a) IN GENERAL.—Part VI of title 28, United States Code, is amended by inserting after chapter 155 the following:
''CHAPTER 156—DNA TESTING
''Sec.
''2291. DNA testing.
''2292. Preservation of biological material.
''§2291. DNA testing
''(a) APPLICATION.—Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court established by an Act of Congress may, at any time after conviction, apply to the court that entered the judgment for forensic DNA testing of any biological material that—
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''(1) is related to the investigation or prosecution that resulted in the judgment;
''(2) is in the actual or constructive possession of the Government; and
''(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.
''(b) NOTICE TO GOVERNMENT.—
''(1) IN GENERAL.—The court shall notify the Government of an application made under subsection (a) and shall afford the Government an opportunity to respond.
''(2) PRESERVATION OF REMAINING BIOLOGICAL MATERIAL.—Upon receiving notice of an application made under subsection (a), the Government shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.
''(c) ORDER.—The court shall order DNA testing pursuant to an application made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the applicant that the applicant was wrongfully convicted or sentenced.
''(d) COST.—The cost of DNA testing ordered under subsection (c) shall be borne by the Government or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the means to pay.
''(e) COUNSEL.—The court may at any time appoint counsel for an indigent applicant under this section.
''(f) POST-TESTING PROCEDURES.—
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''(1) PROCEDURES FOLLOWING RESULTS UNFAVORABLE TO APPLICANT.—If the results of DNA testing conducted under this section are unfavorable to the applicant, the court—
''(A) shall dismiss the application; and
''(B) in the case of an applicant who is not indigent, may assess the applicant for the cost of such testing.
''(2) PROCEDURES FOLLOWING RESULTS FAVORABLE TO APPLICANT.—If the results of DNA testing conducted under this section are favorable to the applicant, the court shall—
''(A) order a hearing, notwithstanding any provision of law that would bar such a hearing; and
''(B) enter any order that serves the interests of justice, including an order—
''(i) vacating and setting aside the judgment;
''(ii) discharging the applicant if the applicant is in custody;
''(iii) resentencing the applicant; or
''(iv) granting a new trial.
''(g) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.
''§2292. Preservation of biological material
''(a) IN GENERAL.—Notwithstanding any other provision of law and subject to subsection (b), the Government shall preserve any biological material secured in connection with a criminal case for such period of time as any person remains incarcerated in connection with that case.
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''(b) EXCEPTION.—The Government may destroy biological material before the expiration of the period of time described in subsection (a) if—
''(1) the Government notifies any person who remains incarcerated in connection with the case, and any counsel of record or public defender organization for the judicial district in which the judgment of conviction for such person was entered, of—
''(A) the intention of the Government to destroy the material; and
''(B) the provisions of this chapter;
''(2) no person makes an application under section 2291(a) within 90 days of receiving notice under paragraph (1) of this subsection; and
''(3) no other provision of law requires that such biological material be preserved.''.
(b) TECHNICAL AND CONFORMING AMENDMENT.—The analysis for part VI of title 28, United States Code, is amended by inserting after the item relating to chapter 155 the following:
''156. DNA Testing2291''.
SEC. 103. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS. |
(a) DNA IDENTIFICATION GRANT PROGRAM.—Section 2403 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk–2) is amended—
(1) in paragraph (2)—
(A) in the matter preceding subparagraph (A), by striking ''shall'' and inserting ''will'';
(B) in subparagraph (C), by striking ''is charged'' and inserting ''was charged or convicted''; and
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(C) in subparagraph (D), by striking ''and'' at the end;
(2) in paragraph (3)—
(A) by striking ''shall'' and inserting ''will''; and
(B) by striking the period at the end and inserting ''; and''; and
(3) by adding at the end the following:
''(4) the State will—
''(A) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and
''(B) make DNA testing available to any person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to any person convicted in a court established by an Act of Congress.''.
(b) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANT PROGRAM.—Section 503(a)(12) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)) is amended—
(1) in subparagraph (B)—
(A) in clause (iii), by striking ''is charged'' and inserting ''was charged or convicted''; and
(B) in clause (iv), by striking ''and'' at the end;
(2) in subparagraph (C), by striking the period at the end and inserting ''; and''; and
(3) by adding at the end the following:
''(D) the State will—
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''(i) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and
''(ii) make DNA testing available to a person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to a person convicted in a court established by an Act of Congress.''.
(c) PUBLIC SAFETY AND COMMUNITY POLICING GRANT PROGRAM.—Section 1702(c) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd–1(c)) is amended—
(1) in paragraph (10), by striking ''and'' at the end;
(2) in paragraph (11), by striking the period at the end and inserting ''; and''; and
(3) by adding at the end the following:
''(12) if any part of funds received from a grant made under this subchapter is to be used to develop or improve a DNA analysis capability in a forensic laboratory, or to obtain or analyze DNA samples for inclusion in the Combined DNA Index System (CODIS), certify that—
''(A) DNA analyses performed at such laboratory will satisfy or exceed the current standards for a quality assurance program for DNA analysis, issued by the Director of the Federal Bureau of Investigation under section 210303 of the DNA Identification Act of 1994 (42 U.S.C. 14131);
''(B) DNA samples and analyses obtained and performed by such laboratory will be accessible only—
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''(i) to criminal justice agencies for law enforcement purposes;
''(ii) in judicial proceedings, if otherwise admissible under applicable statutes and rules;
''(iii) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which the defendant was charged or convicted; or
''(iv) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes;
''(C) the laboratory and each analyst performing DNA analyses at the laboratory will undergo, at regular intervals not exceeding 180 days, external proficiency testing by a DNA proficiency testing program that meets the standards issued under section 210303 of the DNA Identification Act of 1994 (42 U.S.C. 14131); and
''(D) the State will—
''(i) preserve all biological material secured in connection with a State criminal case for not less than the period of time that biological material is required to be preserved under section 2292 of title 28, United States Code, in the case of a person incarcerated in connection with a Federal criminal case; and
''(ii) make DNA testing available to any person convicted in State court to the same extent, and under the same conditions, that DNA testing is available under section 2291 of title 28, United States Code, to a person convicted in a court established by an Act of Congress.''.
SEC. 104. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH AMENDMENT.
(a) REQUEST FOR DNA TESTING.—
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(1) IN GENERAL.—No State shall deny a request, made by a person in custody resulting from a State court judgment, for DNA testing of biological material that—
(A) is related to the investigation or prosecution that resulted in the conviction of the person or the sentence imposed on the person;
(B) is in the actual or constructive possession of the State; and
(C) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.
(2) EXCEPTION.—A State may deny a request under paragraph (1) upon a judicial determination that testing could not produce noncumulative evidence establishing a reasonable probability that the person was wrongfully convicted or sentenced.
(b) OPPORTUNITY TO PRESENT RESULTS OF DNA TESTING.—No State shall rely upon a time limit or procedural default rule to deny a person an opportunity to present noncumulative, exculpatory DNA results in court, or in an executive or administrative forum in which a decision is made in accordance with procedural due process.
(c) REMEDY.—A person may enforce subsections (a) and (b) in a civil action for declaratory or injunctive relief, filed either in a State court of general jurisdiction or in a district court of the United States, naming either the State or an executive or judicial officer of the State as defendant. No State or State executive or judicial officer shall have immunity from actions under this subsection.
TITLE II—ENSURING COMPETENT LEGAL SERVICES IN CAPITAL CASES
SEC. 201. AMENDMENTS TO BYRNE GRANT PROGRAMS.
(a) CERTIFICATION REQUIREMENT; FORMULA GRANTS.—Section 503 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753) is amended—
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(1) in subsection (a), by adding at the end the following:
''(13) If the State prescribes, authorizes, or permits the penalty of death for any offense, a certification that the State has established and maintains an effective system for providing competent legal services to indigents at every phase of a State criminal prosecution in which a death sentence is sought or has been imposed, up to and including direct appellate review and postconviction review in State court.''; and
(2) in subsection (b)—
(A) by striking ''(b) Within 30 days after the date of enactment of this part, the'' and inserting the following:
''(b) REGULATIONS.—
''(1) IN GENERAL.—The''; and
(B) by adding at the end the following:
''(2) CERTIFICATION REGULATIONS.—The Director of the Administrative Office of the United States Courts, after notice and an opportunity for comment, shall promulgate regulations specifying the elements of an effective system within the meaning of subsection (a)(13), which elements shall include—
''(A) a centralized and independent appointing authority, which shall have authority and responsibility to—
''(i) recruit attorneys who are qualified to represent indigents in the capital proceedings specified in subsection (a)(13);
''(ii) draft and annually publish a roster of qualified attorneys;
''(iii) draft and annually publish qualifications and performance standards that attorneys must satisfy to be listed on the roster and procedures by which qualified attorneys are identified;
''(iv) periodically review the roster, monitor the performance of all attorneys appointed, provide a mechanism by which members of the Bar may comment on the performance of their peers, and delete the name of any attorney who fails to complete regular training programs on the representation of clients in capital cases, fails to meet performance standards in a case to which the attorney is appointed, or otherwise fails to demonstrate continuing competence to represent clients in capital cases;
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''(v) conduct or sponsor specialized training programs for attorneys representing clients in capital cases;
''(vi) appoint lead counsel and co-counsel from the roster to represent a defendant in a capital case promptly upon receiving notice of the need for an appointment from the relevant State court; and
''(vii) report the appointment, or the failure of the defendant to accept such appointment, to the court requesting the appointment;
''(B) compensation of private attorneys for actual time and service, computed on an hourly basis and at a reasonable hourly rate in light of the qualifications and experience of the attorney and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases;
''(C) reimbursement of private attorneys and public defender organizations for attorney expenses reasonably incurred in the representation of a client in a capital case, computed on an hourly basis reflecting the local market for such services; and
''(D) reimbursement of private attorneys and public defender organizations for the reasonable costs of law clerks, paralegals, investigators, experts, scientific tests, and other support services necessary in the representation of a defendant in a capital case, computed on an
hourly basis reflecting the local market for such services.''.
(b) CERTIFICATION REQUIREMENT; DISCRETIONARY GRANTS.—Section 517(a) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3763(a)) is amended—
(1) in paragraph (3), by striking ''and'' at the end;
(2) in paragraph (4), by striking the period at the end and inserting ''; and''; and
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(3) by adding at the end the following:
''(5) satisfies the certification requirement established by section 503(a)(13).''.
(c) DIRECTOR'S REPORTS TO CONGRESS.—Section 522(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3766b(b)) is amended—
(1) in paragraph (4), by striking ''and'' at the end;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
''(5) descriptions and a comparative analysis of the systems established by each State in order to satisfy the certification requirement established by section 503(a)(13), except that the descriptions and the comparative analysis shall include—
''(A) the qualifications and performance standards established pursuant to section 503(b)(2)(A)(iii);
''(B) the rates of compensation paid under section 503(b)(2)(B); and
''(C) the rates of reimbursement paid under subparagraphs (C) and (D) of section 503(b)(2); and''.
(d) EFFECTIVE DATE.—
(1) IN GENERAL.—Subject to paragraph (2), the amendments made by this section shall apply with respect to any application submitted on or after the date that is 1 year after the date of enactment of this Act.
(2) EXCEPTION.—The amendments made by this section shall not take effect until the amount made available for a fiscal year to carry out part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 equals or exceeds an amount that is $50,000,000 greater than the amount made available to carry out that part for fiscal year 2000.
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(e) REGULATIONS.—The Director of the Administrative Office of the United States Courts shall issue all regulations necessary to carry out the amendments made by this section not later than 180 days before the effective date of those regulations.
SEC. 202. EFFECT ON PROCEDURAL DEFAULT RULES.
Section 2254(e) of title 28, United States Code, is amended—
(1) in paragraph (1), by striking ''In a proceeding'' and inserting ''Except as provided in paragraph (3), in a proceeding''; and
(2) by adding at the end the following:
''(3) In a proceeding instituted by an indigent applicant under sentence of death, the court shall neither presume a finding of fact made by a State court to be correct nor decline to consider a claim on the ground that the applicant failed to raise such claim in State court at the time and in the manner prescribed by State law, unless—
''(A) the State provided the applicant with legal services at the stage of the State proceedings at which the State court made the finding of fact or the applicant failed to raise the claim; and
''(B) the legal services the State provided satisfied the regulations promulgated by the Director of the Administrative Office of the United States Courts pursuant to section 503(b)(2) of title I of the Omnibus Crime Control and Safe Streets Act of 1968.''.
SEC. 203. CAPITAL REPRESENTATION GRANTS.
Section 3006A of title 18, United States Code, is amended—
(1) by redesignating subsections (i), (j), and (k) as subsections (j), (k), and (l), respectively; and
(2) by inserting after subsection (h) the following:
''(i) CAPITAL REPRESENTATION GRANTS.—
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''(1) DEFINITIONS.—In this subsection—
''(A) the term 'capital case'—
''(i) means any criminal case in which a defendant prosecuted in a State court is subject to a sentence of death or in which a death sentence has been imposed; and
''(ii) includes all proceedings filed in connection with the case, including trial, appellate, and Federal and State postconviction proceedings;
''(B) the term 'defense services' includes—
''(i) recruitment of counsel;
''(ii) training of counsel;
''(iii) legal and administrative support and assistance to counsel;
''(iv) direct representation of defendants, if the availability of other qualified counsel is inadequate to meet the need in the jurisdiction served by the grant recipient; and
''(v) investigative, expert, or other services necessary for adequate representation; and
''(C) the term 'Director' means the Director of the Administrative Office of the United States Courts.
''(2) GRANT AWARD AND CONTRACT AUTHORITY.—Notwithstanding subsection (g), the Director shall award grants to, or enter into contracts with, public agencies or private nonprofit organizations for the purpose of providing defense services in capital cases.
''(3) PURPOSES.—Grants and contracts awarded under this subsection shall be used in connection with capital cases in the jurisdiction of the grant recipient for 1 or more of the following purposes:
''(A) Enhancing the availability, competence, and prompt assignment of counsel.
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''(B) Encouraging continuity of representation between Federal and State proceedings.
''(C) Decreasing the cost of providing qualified counsel.
''(D) Increasing the efficiency with which such cases are resolved.
''(4) GUIDELINES.—The Director, in consultation with the Judicial Conference of the United States, shall develop guidelines to ensure that defense services provided by recipients of grants and contracts awarded under this subsection are consistent with applicable legal and ethical proscriptions governing the duties of counsel in capital cases.
''(5) CONSULTATION.—In awarding grants and contracts under this subsection, the Director shall consult with representatives of the highest State court, the organized bar, and the defense bar of the jurisdiction to be served by the recipient of the grant or contract.''.
TITLE III—COMPENSATING THE UNJUSTLY CONDEMNED
SEC. 301. INCREASED COMPENSATION IN FEDERAL CASES.
Section 2513 of title 28, United States Code, is amended by striking subsection (e) and inserting the following:
''(e) DAMAGES.—
''(1) IN GENERAL.—The amount of damages awarded in an action described in subsection (a) shall not exceed $50,000 for each 12-month period of incarceration, except that a plaintiff who was unjustly sentenced to death may be awarded not more than $100,000 for each 12-month period of incarceration.
''(2) FACTORS FOR CONSIDERATION IN ASSESSING DAMAGES.—In assessing damages in an action described in subsection (a), the court shall consider—
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''(A) the circumstances surrounding the unjust conviction of the plaintiff, including any misconduct by officers or employees of the Federal Goverment;
''(B) the length and conditions of the unjust incarceration of the plaintiff; and
''(C) the family circumstances, loss of wages, and pain and suffering of the plaintiff.''.
SEC. 302. COMPENSATION IN STATE DEATH PENALTY CASES.
(a) CRIMINAL JUSTICE FACILITY CONSTRUCTION GRANT PROGRAM.—Section 603(a) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3769b(a)) is amended—
(1) in paragraph (5), by striking ''and'' at the end;
(2) in paragraph (6), by striking the period at the end and inserting ''; and''; and
(3) by adding at the end the following:
''(7) reasonable assurance that the applicant, or the State in which the applicant is located—
''(A) does not prescribe, authorize, or permit the penalty of death for any offense; or
''(B)(i) has established and maintains an effective procedure by which any person unjustly convicted of an offense against the State and sentenced to death may be awarded reasonable damages upon substantial proof that the person did not commit any of the acts with which the person was charged; and
''(ii)(I) the conviction of that person was reversed or set aside on the ground that the person was not guilty of the offense or offenses of which the person was convicted;
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''(II) the person was found not guilty of such offense or offenses on new trial or rehearing; or
''(III) the person was pardoned upon the stated ground of innocence and unjust conviction.''.
(b) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to any application submitted on or after the date that is 1 year after the date of enactment of this Act.
TITLE IV—MISCELLANEOUS PROVISIONS
SEC. 401. ACCOMMODATION OF STATE INTERESTS IN FEDERAL DEATH PENALTY PROSECUTIONS.
(a) RECOGNITION OF STATE INTERESTS.—Chapter 228 of title 18, United States Code, is amended by adding at the end the following:
''§3599. Accommodation of State interests; certification requirement
''(a) IN GENERAL.—Notwithstanding any other provision of law, the Government shall not seek the death penalty in any case initially brought before a district court of the United States that sits in a State that does not prescribe, authorize, or permit the imposition of such penalty for the alleged conduct, except upon the certification in writing of the Attorney General or the designee of the Attorney General that—
''(1) the State does not have jurisdiction or refuses to assume jurisdiction over the defendant with respect to the alleged conduct;
''(2) the State has requested that the Federal Goverment assume jurisdiction; or
''(3) the offense charged is an offense described in section 32, 229, 351, 794, 1091, 1114, 1118, 1203, 1751, 1992, 2340A, or 2381, or chapter 113B.
''(b) ''STATE DEFINED.—In this section, the term 'State' means each of the several States of the United States, the District of Columbia, and the territories and possessions of the United States.''.
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(b) TECHNICAL AND CONFORMING AMENDMENT.—The analysis for chapter 228 of title 18, United States Code, is amended by adding at the end the following:
''3599. Accommodation of State interests; certification requirement.''.
SEC. 402. ALTERNATIVE OF LIFE IMPRISONMENT WITHOUT POSSIBILITY OF RELEASE.
Section 408(l) of the Controlled Substances Act (21 U.S.C. 848(l)), is amended by striking the first 2 sentences and inserting the following: ''Upon a recommendation under subsection (k) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law.''.
SEC. 403. RIGHT TO AN INFORMED JURY.
(a) ADDITIONAL REQUIREMENTS.—Section 20105 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13705) is amended by striking subsection (b) and inserting the following:
''(b) ADDITIONAL REQUIREMENTS.—To be eligible to receive a grant under section 20103 or 20104, a State shall provide assurances to the Attorney General that—
''(1) the State has implemented policies that provide for the recognition of the rights and needs of crime victims; and
''(2) in any capital case in which the jury has a role in determining the sentence imposed on the defendant, the court, at the request of the defendant, shall inform the jury of all statutorily authorized sentencing options in the particular case, including applicable parole eligibility rules and terms.''.
(b) EFFECTIVE DATE.—The amendments made by this section shall apply with respect to any application for a grant under section 20103 or 20104 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 13703; 13704) that is submitted on or after the date that is 1 year after the date of enactment of this Act.
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SEC. 404. ANNUAL REPORTS.
(a) REPORT.—Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Attorney General shall prepare and transmit to Congress a report concerning the administration of capital punishment laws by the Federal Goverment and the States.
(b) REPORT ELEMENTS.—The report required under subsection (a) shall include substantially the same categories of information as are included in the Bureau of Justice Statistics Bulletin entitled ''Capital Punishment 1998'' (December 1999, NCJ 179012), and the following additional categories of information:
(1) The percentage of death-eligible cases in which a death sentence is sought, and the percentage in which it is imposed.
(2) The race of the defendants in death-eligible cases, including death-eligible cases in which a death sentence is not sought, and the race of the victims.
(3) An analysis of the effect of Witherspoon v. Illinois, 391 U.S. 510 (1968), and its progeny, on the composition of juries in capital cases, including the racial composition of such juries, and on the exclusion of otherwise eligible and available jurors from such cases.
(4) An analysis of the effect of peremptory challenges, by the prosecution and defense respectively, on the composition of juries in capital cases, including the racial composition of such juries, and on the exclusion of otherwise eligible and available jurors from such cases.
(5) The percentage of capital cases in which life without parole is available as an alternative to a death sentence, and the sentences imposed in such cases.
(6) The percentage of capital cases in which life without parole is not available as an alternative to a death sentence, and the sentences imposed in such cases.
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(7) The percentage of capital cases in which counsel is retained by the defendant, and the percentage in which counsel is appointed by the court.
(8) A comparative analysis of systems for appointing counsel in capital cases in different States.
(9) A State-by-State analysis of the rates of compensation paid in capital cases to appointed counsel and their support staffs.
(10) The percentage of cases in which a death sentence or a conviction underlying a death sentence is vacated, reversed, or set aside, and the reasons therefore.
(c) PUBLIC DISCLOSURE.—The Attorney General or the Director of the Bureau of Justice Assistance, as appropriate, shall ensure that the reports referred to in subsection (a) are—
(1) distributed to national print and broadcast media; and
(2) posted on an Internet website maintained by the Department of Justice.
SEC. 405. DISCRETIONARY APPELLATE REVIEW.
Section 2254(c) of title 28, United States Code, is amended—
(1) by inserting ''(1)'' after ''(c)''; and
(2) by adding at the end the following:
''(2) For purposes of paragraph (1), if the highest court of a State has discretion to decline appellate review of a case or a claim, a petition asking that court to entertain a case or a claim is not an available State court procedure.''.
SEC. 406. SENSE OF CONGRESS REGARDING THE EXECUTION OF JUVENILE OFFENDERS AND THE MENTALLY RETARDED.
It is the sense of Congress that the death penalty is disproportionate and offends contemporary standards of decency when applied to a person who is mentally retarded or who had not attained the age of 18 years at the time of the offense.
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Mr. GEKAS. With that, the Chair yields, if need be, to the gentleman from Virginia, Mr. Scott, who is poised, I believe, for an opening statement.
The gentleman from Virginia?
Mr. SCOTT. Thank you, Mr. Chairman. I would like to thank you for scheduling this hearing on the Innocence Protection Act of 2000.
Our system of criminal law and procedure is premised on the presumption of innocence, the golden thread of common law dating back to the Romans. One Roman was quoted as saying that, ''It is better to let the crime of a guilty person go unpunished than to condemn the innocent,'' and Blackstone, in his commentaries, wrote that ''The law holds it is better that ten guilty persons escape than one innocent suffer.''
In recent years, the advent of DNA has shown us, however, that we have been violating this principle with astounding frequency. The FBI data reveals that about 25 percent of suspects who are DNA tested are exonerated. As bad as it is to be wrongfully accused of committing any crime, it would seem unimaginable to languish on death row for years for a murder you did not commit; yet that is exactly what is happening all over the country.
Since the death penalty was reinstated in 1977, 87 people in death row have been exonerated. In at least one instance we will hear about today, the number of exonerations in one State has exceeded the number of executions.
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While DNA is uncontrovertible proof that innocent people are sentenced to death in our country, despite our reverence for the presumption of innocence, DNA evidence is simply a way of revealing that there are fatal flaws in the system.
The real question we have to answer, Mr. Chairman, is: what is wrong with a system where, but for the DNA evidence, innocent people would be put to death?
Death penalties have been erroneously meted out based on our willingness to tolerate significant defects in our system. As we have seen in the recent case of the Ramparts situation in Los Angeles or the former boxer, Ruben ''Hurricane'' Carter, police and prosecutorial misconduct is one serious flaw. We add to that the inaccurate witness identifications, the use of jailhouse snitches, confused confessions by mentally retarded defendants, and ineffective representation. All of those have led to the unjust application of death penalties.
A 23-year study conducted by Professor James Liebman of Columbia University involving 4,500 capital cases in 34 States revealed that courts found serious reversible error in 68 percent of the capital cases. Of these, 82 percent were not sentenced to death upon retrial, including 7 percent who were found to be innocent of the capital charge.
I understand that the Innocence Project finds that, in about a third of the cases it handles in which DNA evidence is still available, convicted defendants were found to be outright innocent. When we consider that the reason they were convicted is due to flaws in our criminal justice system, there is every reason to believe that the percentage of erroneous convictions is the same in the cases where the DNA evidence is not available.
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A notion that flaws in our system can be addressed through a governor's clemency powers is clearly an inadequate response to the serious problem.
Our criminal justice principles are designed to ensure a fair trial for all accused persons. The ultimate questions of life, death, or freedom should not depend on the political popularity of the moment, the political popularity of the governor or the defendant, or whether the governor is in an election campaign, or any such vagary.
Furthermore, the governor's office is an inappropriate forum to decide such cases. The governor has no subpoena power, no right or opportunity to cross examine key witnesses or to observe witnesses subjected to cross examination by advocates familiar with the case, nor does the governor have other investigatory powers to ensure fairness. The forum for testing the reliability of evidence is the trial, not the political forum of the governor's office.
H.R. 4167 goes a long way in addressing these flaws in our criminal justice system which puts innocent people on death row; however, there are flaws in the administration of the death penalty in this country which 4167 does not address. There has been overwhelming evidence, for example, that for some time now the death penalty has been administered in a racially discriminatory manner.
A March, 1994, study by the Subcommittee of Civil and Constitutional Rights of this committee entitled, ''Racial Disparities in the Federal Death Penalty Prosecutions, 1988 to 1994,'' revealed the following: ''Racial minorities are being prosecuted under Federal death penalty law far beyond their proportion in the general population or the population of criminal offenders.''
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Analysis of prosecutions under the Federal death penalty provisions of the Anti Drug Abuse Act of 1988 reveals that 89 percent of the defendants selected for capital prosecution have been either African American or Mexican American.
In February of that year, then U.S. Supreme Court Justice Harry A. Blackmun, after voting to uphold death penalties for a number of years, wrote the following: ''Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and, despite the efforts of the States and the courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.''
Mr. Chairman, I believe that it is our responsibility to ensure that people are not mistakenly put to death or deprived of their freedom on account of preventable errors or flaws in our criminal justice system.
We have a bill before us which would take us a good way toward providing that assurance, and a list of witnesses who can guide us in our efforts, and I look forward to their testimony and working with you in furtherance of this vitally-important goal.
Thank you, Mr. Chairman.
We now recognize the gentleman from Michigan, Mr. Conyers, the ranking minority member, for an opening statement.
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Mr. CONYERS. Thank you, Chairman Gekas, and I thank you for calling this hearing. And I also commend the chairman of the full committee, Henry Hyde, who is here, as well.
I want to say to my colleague, Mr. Scott, that is one of the most moving statements that I have heard you make in the time that we have served together.
I am not surprised to see the persons that are here, Members of Congress, Mr. Delahunt and Mr. LaHood, to take this up.
I just have a relatively few minutes worth of comments, because the hearing is very timely.
This month, researchers at Columbia University released a study that should give pause to even the strongest supports of the death penalty, because it found that a shocking two out of three death penalty convictions have been overturned on appeal. They were overturned because of police and prosecutorial misconduct, as well as serious errors by incompetent court-appointed defense attorneys with little experience in trying capital cases.
How can we contend that we provide equal justice under the law when we do not provide adequate representation to the poor in cases where a life hangs in the balance?
As Sister Helen Prudjean said, ''The death penalty is a poor person's issue. Always remember that—after all the rhetoric that goes on in the legislative assemblies, in the end, when the deck is cast out, it is the poor who are selected to die in this country.''
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Seventy-five percent of those whose death sentences were set aside were later given lesser sentences after retrials in plea bargains or by order of a judge. An additional 7 percent were found not guilty on retrial.
We, the Congress, must bear our share of responsibility for this deplorable situation. In 1996, we defunded the death penalty resource centers, the State offices which ensure adequate representation to the poor in capital cases.
The Judiciary Committee has been singular in its leadership of the rush to execute. Since 1994, we have created countless new capital crimes, and at the same time, in the so-called ''Effective Death Penalty Act,'' we reduced appeals for those on death rows. Rather than making sure that a capital case is done right, this committee decided we should just get it over with.
In short, while others, like Governor Ryan in Illinois, have recognized the flaws in the death penalty, the Congress still just doesn't get it. This system is broken.
Regardless of our differences of opinion about the death penalty, I hope we can agree that an error rate of two out of three is simply too high. If we are not going to abolish the death penalty, we should, at the very least, begin to reform this flawed system of punishment, and so I cosponsor the bill that is before us. It would institute a few extremely significant reforms in the death penalty. It is by no means a cure-all, but it is a reasonable starting point.
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The most important reforms in the bill are ensuring that convicted offenders have a chance at proving their innocence through DNA testing—I think the American people would be shocked to discover that this is not the law or the practice already—and ensuring that the indigent defendants have access to competent counsel in capital cases. It is far too frequent an occurrence that an indigent defendant in a capital case is furnished a lawyer who has never tried a death penalty case.
It is common for these inexperienced attorneys to give up after a client is found guilty and present no evidence at the sentencing phase. This is literally the phase of a trial where a man's life hangs in the balance.
Still unaddressed are the massive racial disparities referred to by Mr. Scott in the death penalty. Since its reinstatement, the death penalty has been used to execute 143 African American persons for killing white victims only, and 11 whites have been put to death for killing a black victim. In fact, more than 80 percent of those on death row are there for killing a white person, even though whites make up only half of the homicide victims each year.
How can our Nation tolerate a system of justice that places more worth on one person's life than another?
We are also not addressing the morality of State-sponsored killing. Last year during the debate on juvenile justice legislation we heard much criticism about the contribution of pop culture to a culture of violence. It is ironic that, as these critics claim to deplore violence, they offered amendment that imposed the death penalty in connection with juvenile crime.
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Which cheapens the value of life more, a video game or a society that executes innocent people?
We also must recognize that we are not just holding a hearing today, we are also holding a vigil. On June 22, in Texas, Gary Graham is scheduled to be executed. There are many who believe that Graham is innocent because he was convicted on the testimony of one eyewitness and a rigged police lineup. Graham's attorneys have now found new witnesses who contend that he was not the man who committed the crime.
Unfortunately, DNA testing will not help Gary Graham because he was convicted on no evidence, not even a shred of physical evidence. That is why I have asked my friend, the chairman, Henry Hyde, of the Judiciary Committee to consider a wide-ranging set of hearings on the death penalty. I am hoping that, with this proposal and the measure before us, we will take that first courageous step.
Thank you.
Mr. GEKAS. We thank the gentleman.
We invite the remainder of members of the committee to submit their opening statements, if any they have, for the record so we can proceed with our fellow Members who are poised to testify.
We have with us today the gentleman from Massachusetts, William Delahunt, who represents the 10th District in Massachusetts, who is a graduate of Middlebury College and a lawyer by education at Boston College, who served in many different capacities in law enforcement in his area, as well as having served in the Coast Guard for many, many years. He is a member of the Judiciary Committee and has been a valuable contributor to the issues that the committee has considered over the years since 1996.
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Mr. LaHood, Ray LaHood, comes to us from the 18th District of Illinois. He is a graduate of Bradley College and presently serves on the board of that institution. He is best known throughout the land as the speaker designate in the House of Representatives, who wields the gavel with aplomb and fairness throughout all the times that he is appointed to do so. He came to his job very honestly, because he was a stalwart administrative assistant to the beloved Robert Michael, long-time minority leader in the House of Representatives.
Mr. LaHood is not a member of the Judiciary Committee, but he might as well be.
We begin with the testimony of the gentleman from Massachusetts, Mr. Delahunt.
STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. DELAHUNT. Mr. Chairman, members of the subcommittee, the system by which we try capital cases in this country is failing. A recent Columbia University Study, as alluded to by Mr. Conyers, concluded that some seven out of ten death penalty cases contain serious reversible errors. A failure of such magnitude calls into question the fairness and integrity of the American justice system, itself.
In January Government George Ryan imposed a moratorium on executions in Illinois pending a report by a commission he established to review the causes of what he called his State's abysmal record in capital cases.
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Since 1976, when the death penalty was reinstated in Illinois, 12 executions have occurred. At the same time, 13 men have been exonerated. And these exonerations were prompted by reporters from the ''Chicago Tribune'' and journalism students at Northwestern University who developed evidence that overturned the death sentences. This was not a case of the system correcting itself.
While I applaud and admire the work of the journalism students, it should not be left to them to discover the truth. The system, itself, must be accountable.
Before I continue, let me acknowledge the critical role played by Governor Ryan, a conservative republican and a proponent of the death penalty. Governor, it was your dramatic—and I might add courageous—action that precipitated this unprecedented national debate on the question of wrongful convictions, and we are all in your debt.
A sense of fundamental fairness is a distinctly American trait, and I submit that no law, however, popular, will long survive if its fairness in its implementation is in doubt.
Proponents of the death penalty should take note of this. Public support for capital punishment has declined from 80 percent in 1994 to 65 percent today, and if these problems are not addressed, efforts to repeal the death penalty will gain momentum in States like New Hampshire, where a conservative republican legislature enacted a repeal measure only to be vetoed by a democratic governor.
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So it is in all our interest, whether you support the death penalty or whether you oppose it, to address the problems that have been identified in Illinois, because the Illinois experience is not aberrational, it is the norm. This has been confirmed by the previously-mentioned Columbia study of over 4,000 capital cases in 28 States during a 23-year period.
Now, some have suggested that the high rate of reversals shows that the system is working, but that is nonsense. We cannot know whether the appeals process is catching all of the errors or not, and we do definitively know that the errors are not being caught at the trial stage and innocent people are serving lengthy sentences for crimes that they did not commit.
It is critical that we restore public confidence, not just in the reliability of capital trials, but in the overall integrity of the American justice system, for the American people presume that truth is relentlessly pursued, that every needed resource and every possible safeguard is incorporated into that effort, especially in capital cases; yet, if it does not occur in capital cases, how can they have confidence that the justice system is less fraught with error in non-capital cases?
According to former FBI Director William Sessions, who is the father of our colleague Pete Sessions from Texas, 33 of the first 100 non-capital cases in which DNA was utilized by the FBI led to the exoneration of the primary suspects. In each case, the individual had been positively identified by eyewitnesses and by blood type identification as the perpetrator of the crime. I submit we should find that particularly disturbing.
The search for the truth is a fallible process. It is, after all, a human endeavor. DNA testing has allowed us to examine what went wrong. It has been, if you will, a spotlight on the frailties of our justice system. Judges, jurors, police, eyewitnesses, defense attorneys, and prosecutors, themselves, are all human beings. And I can personally testify as a prosecutor as having made almost tragic mistakes.
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But we do have the means at our disposal to minimize the possibility of error, especially where lives are at stake. The Innocence Protection Act will do just that. Its two main provisions embrace the most important tools for minimizing the possibility of error—DNA testing and competent legal services.
While I welcome, I am sure with many others, the forensic use of DNA, we cannot forget that, in a substantial majority of cases, biological evidence susceptible to DNA testing simply is unavailable. And DNA testing has revealed that the most significant problem with the death penalty is the lack of adequate legal services.
Capital cases are complex matters. They cannot be handled by lawyers who lack the proper training, experience, and resources to prepare a proper defense, let alone by lawyers who are incompetent, unprepared, or impaired by substance abuse, which has been the case. That is why the bill provides for minimum standards for competence of counsel and gives States resources to apply them.
These measures do not impose an undue burden on the system. And, given what we have learned, we should act with a sense of urgency. We must prevent the conviction and execution of innocent people and we must ensure that the truly guilty are held responsible and are punished. Only if we do this will we be worthy of the moral authority we so often proclaim.
Thank you, Mr. Chairman.
Mr. GEKAS. We thank the gentleman.
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[The prepared statement of Mr. Delahunt follows:]
PREPARED STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Chairman, and members of the Committee:
I'm pleased to be here today, together with Congressman LaHood, to discuss our legislation. Thank you for scheduling this hearing and for giving us the opportunity to testify.
The Innocence Protection Act of 2000 is a bipartisan package of concrete reforms that will help reduce the risk that innocent persons will be put to death. Its two principal provisions concern the two most important tools by which the possibility of error can be minimized: DNA testing and competent legal representation.
This legislation arose out of a growing national awareness that the machinery by which we try capital cases in this country has gone seriously and dangerously awry.
Since the reinstatement of the death penalty in 1976, a total of 642 men and women have been executed in the United States, including 44 so far this year alone. During this same period, 85 people—more than one out of every 100 men and women sentenced to death in the United States—have been exonerated after spending years on death row for crimes they did not commit.
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It's cases like these that convinced such organizations as the American Bar Association—which has no position on the death penalty per se—to call for a halt to executions until each jurisdiction can ensure that it has taken steps to minimize the risk that innocent persons may be executed.
It's cases like these that convinced Governor Ryan—a Republican and a supporter of the death penalty—to put a stop to executions in Illinois until he could be certain that ''everyone sentenced to death in Illinois is truly guilty.''
It's cases like these that should convince every American that Governor Ryan and the American Bar Association are right. We may not all agree on the ultimate morality or utility of capital punishment. Indeed, you have before you a pair of cosponsors who differ on that question. I spent my career as a prosecutor in opposition to the death penalty. Congressman LaHood is a supporter of the death penalty. But we agree profoundly that a just society cannot engage in the killing of the innocent. We have come together today in this bipartisan effort to help prevent what Governor Ryan has called ''the ultimate nightmare, the state's taking of innocent life.''
I have heard some suggest that the concerns expressed by Governor Ryan are somehow peculiar to the State of Illinois. Nothing could be further from the truth. The system is fallible everywhere it is in place.
Only last week we received fresh evidence of this with the release of the first comprehensive statistical study ever undertaken of modern American capital appeals. The study, led by Professor James Liebman of Columbia University, looked at over 4,500 capital cases in 34 states over a 23- year period. According to the study, the courts found serious, reversible error in 68 percent of the capital sentences handed down over this period. And when these individuals were retried, 82 percent of them were found not to deserve the death penalty, and 7 percent were found innocent of the capital crime altogether.
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These are shocking statistics, Mr. Chairman. It is hard to imagine many other human enterprises that would continue to operate with such a sorry record. I dare say that if seven out of every 10 NASA flights burned up in the upper atmosphere, we'd be reassessing the space program. If commercial airlines operated their planes with a 68 percent failure rate, we'd all be taking the train.
Yet even if these statistics are wildly exaggerated, where the taking of human life is involved, it seems to me we must strive to reach ''zero tolerance'' for error. As Governor Ryan recently said, ''99.5 percent isn't good enough'' when lives are in the balance.
And as Attorney General Spitzer said at last week's Senate hearing, questions of innocence are of such monumental importance that they defy the cold utilitarian calculus of cost benefit analysis. Some have complained that the bill would be too burdensome or expensive for the States. In fact, the bill merely encourages the states to meet minimum standards and gives them substantial latitude to develop their own means of doing so. The costs it imposes are relatively modest and will continue to decline as pretrial testing becomes more routine. And the cost of providing competent counsel is a bargain compared to the high costs to the system of lengthy incarceration and appeals. Let alone the costs to society of allowing actual perpetrators to roam the streets free and undetected. Yet even if the financial burden were far greater, would anybody seriously want to argue that society should spare any expense that might prevent the conviction and execution of an innocent person?
Others have criticized the bill by claiming that it would open the floodgates to a veritable Niagara Falls of fresh appeals and delays, as each new technological refinement becomes available. This argument is also spurious. The bill requires the States to honor requests for DNA testing only if the biological material was not previously subjected to DNA analysis, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results. It also permits a State to deny the request if a court determines that testing could not produce noncumulative evidence establishing a reasonable probability that the person was wrongfully convicted or sentenced.
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Similar legislation in the State of New York has caused no avalanche of litigation of the kind the critics fear. But it has led to the exoneration and release of seven human beings since it went into effect in 1994.
And what is the alternative? To erect new arbitrary deadlines and technical legal hurdles that deny testing regardless of the merits of the case? The recent proposal introduced by Senator Hatch would preclude testing if the applicant missed the statutory 30-month deadline by so much as a single day. This would leave open the possibility that a person could be executed in the very course of establishing his innocence. That would be a high price to pay for missing a deadline, Mr. Chairman.
The same Senate proposal would also deny relief in cases in which the evidence would demonstrate, not actual innocence, but rather that the applicant's conduct was not such as to merit the death penalty under applicable State law. Such is the case with Ricky McGinn, the Texas inmate whose execution has been delayed by Governor Bush pending completion of DNA testing. The Innocence Protection Act would allow a person like Ricky McGinn to prove that he does not deserve to die. The Hatch legislation would offer him no relief whatsoever.
At a more fundamental level, the legislation would offer no relief at all to those who are facing execution or long prison terms because they lacked competent legal representation at trial.
As the groundswell for reform has continued to build, most of the public attention has been focused on DNA testing. This is understandable. The Subcommittee will hear from a number of witnesses today who will testify to the extraordinary developments that have made DNA testing the most reliable forensic technique for establishing the guilt or innocence of criminal defendants. It has resulted in the exoneration of at least 70 innocent men and women, including at least eight individuals who had been sentenced to death. In at least 16 cases, DNA testing that has exonerated an innocent person has also led to the apprehension of the actual perpetrator.
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Our bill would help ensure that biological material is preserved and that DNA testing is made available in every appropriate case. But I want to emphasize that DNA testing—as valuable as it may be—is not a panacea for the problems with the death penalty. When an innocent person is exonerated after spending years on death row, it means that the system has failed. Neither DNA testing nor any other technology can make that person whole.
When the system fails, one of the primary reasons is the lack of competent legal assistance. Capital cases are complex matters. They cannot be handled by lawyers who lack the proper training and experience, let alone by lawyers who are incompetent, unprepared, or impaired by substance abuse. That is why our bill would also address the urgent need to improve the availability of competent counsel in capital cases.
Indeed, if we fail to do this, the right to DNA testing itself may prove an empty illusion—especially for those inmates who lack the education or mental acuity to pursue the matter themselves.
In closing, Mr. Chairman, we must acknowledge that the justice system is a human artifact. And nothing we can do will bring absolute certainty. Judges, jurors, police, eyewitnesses, defense attorneys, and prosecutors themselves—all are human beings, and all make mistakes. As a prosecutor for over 20 years, I certainly made my share of them. But we do have the means at our disposal to minimize the possibility of error. And where lives are at stake, we have a responsibility to put those tools to use.
The Innocence Protection Act will help ensure that fewer mistakes are made in capital cases. And that when mistakes are made, they are caught in time.
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It was a decade ago that John J. Curtin, Jr., then the President of the American Bar Association, declared that ''a system that would take life must first do justice.'' We are still struggling to do justice in death penalty cases, and I believe this bill will materially advance that goal.
Thank you, Mr. Chairman.
Mr. GEKAS. We turn to the gentleman from Illinois.
STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. LAHOOD. Thank you, Mr. Chairman. Thank you for chairing this committee. I think I also want to pay special thanks to Chairman Hyde. I know that we would not be having this hearing without the fact that he really has agreed to hold this hearing. I think I have probably talked to the chairman at least once a week about this legislation, and I am so grateful to him for agreeing to hold the hearing and also for being here. Chairman Hyde, we appreciate that very much.
I also want to thank Governor Ryan. I think, for those of you that know, we have a very big State. Illinois is a very large State. Governor Ryan could be in many different places in Illinois today, but he has taken the time to come here. He took the time to be with us when we announced our legislation in the House. I appreciate the leadership.
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I know that Chairman Hyde will have some other things to say about the governor, but if I could say one thing about Governor Ryan, I think that perhaps when he first got involved in this issue he really did not realize what kind of impact he was going to have on this issue, and I think, if he will be remembered for anything in Illinois, it certainly will be for his leadership on this issue.
Let me begin my testimony by saying I am an advocate of the death penalty. Since I started running for office in 1994, I have been a proponent of the death penalty. But I believe sincerely in my heart that we have to get it 100 percent correct; that if the death penalty is going to be imposed as a sentence, we have to be 100 percent sure that that is the correct penalty. There is no better time than now to take the appropriate measures to correct the wrongs that have occurred in our capital punishment system across the country.
Since the reinstatement of the death penalty in 1976, over 620 people have been executed nationwide, and during that same time 87 death row inmates have been exonerated. That is one innocent finding for every seven executions.
In my home State of Illinois, 12 people have been executed, while 13 people have been exonerated.
Additionally, according to the recent study which has been alluded to, 68 percent of all death penalty decisions are overturned. That is nearly seven of every ten cases. These statistics, alone, ought to cause second thoughts in the minds of everyone.
In addition to the horror of taking innocent life, the prospect of having a guilty person still on the street is chilling, and so I have cosponsored this bipartisan bill with my friend, Bill Delahunt, which I truly believe will help to address some of the issues.
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Our bill, the Innocence Protection Act, is a bill that will build safeguards into the Federal law to ensure that our country's system is as fair and just as possible.
There are two elements to our legislation. First, our bill gives those accused of murder access to new DNA technology that may not have been available at the time of their trial. DNA is a relatively new technology which has already saved the lives of eight innocent people on death row. Kirk Bloodsworth, who is here today in the audience and will testify, was freed due to DNA evidence after being convicted of a crime he did not commit, and I think when you hear his story you will find it very compelling.
Although DNA evidence was responsible for freeing eight of the eighty-seven exonerated men, other factors played an important role in the other seventy-nine cases. This brings me to the second key element of our legislation, which is one of competent counsel.
Our legislation ensures that the attorneys in whose hands these lives are placed are qualified. The stories of incompetent attorneys are all too familiar. In Illinois, alone, 22 defendants have been sentenced to death while being represented by attorneys who have either been disbarred or suspended at some time during their legal careers.
Under our system, our system of laws where attorneys become so important, it is just critical that these defendants have competent counsel. In some cases, attorneys have even been found sleeping or under the influence of alcohol during the trial.
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I believe ensuring competent counsel is a vitally important step in the right direction toward fixing our capital punishment system.
The Attorney General recently recommended changes in our system to ensure that capital defendants have adequate legal representation. The death penalty, itself, is an issue that divides many people, but there should be no division on the idea that those accused of murder should be afforded a capable and competent attorney. If our society is to administer the ultimate punishment, our society should allow the accused to be represented by competent counsel and have access to the most recent technology available.
Regardless of what one thinks of the death penalty—and there is great division—we can all agree that we must avoid the ultimate nightmare of condemning an innocent person to death, and I believe that Bill and I begin from the premise that we have a flawed system, and we believe the way to correct our flawed system is to enact this legislation that is being proposed today.
We have over 60 cosponsors now of our legislation, and we welcome any of you that have not cosponsored it to do so. We think it is a very good bill.
I believe the biggest job that we have now is to persuade you, Mr. Chairman, that this is a good bill, and that you might hold a hearing of the full committee, mark up this bill, bring it to the House floor. I can't think of any better way to debate the issue of the death penalty, whether the system is flawed or not, than to do it with the 435 Members, so I truly hope that you will consider our request and I am looking forward to visiting with you as often as you will have me bother you on the House floor.
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Thank you, Mr. Chairman.
[The prepared statement of Mr. LaHood follows:]
PREPARED STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. Chairman, I would like to thank you and the members of the Crime Subcommittee for holding this hearing and allowing me the opportunity to testify today on a very important and controversial subject. Governor Ryan showed great leadership and tremendous courage by imposing a moratorium on Illinois death penalty earlier this year. His actions have caused this issue to explode. There is no better time than now to take the appropriate measures to correct the wrongs that have occurred in our capitol punishment system across this country.
Since the reinstatement of the death penalty in 1976, over 620 people have been executed nationwide. During that same time, 87 death row inmates have been exonerated. That is one innocent finding for every seven executions. In my home state of Illinois, 12 people have been executed, while 13 people have been exonerated. Additionally, according to a recent study conducted by Professor Jim Liebman of the Columbia University School of Law, 68% of all death penalty decisions are overturned. That is nearly seven of every ten cases. These statistics alone ought to cause second thoughts in the minds of everyone. In addition to the horror of taking an innocent life, the prospect of having a guilty person still on the streets is chilling.
I have sponsored a bipartisan bill with Congressman Bill Delahunt that I truly believe will help to address some of these issues. H.R. 4167, the Innocence Protection Act, is a bill that will build safeguards into federal law to ensure that our country's system is as fair and as just as possible. There are two key elements to this legislation.
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First, our bill gives those accused of murder access to new DNA technology that may not have been available at the time of their trial. DNA is a relatively new technology, which has already saved the lives of eight innocent people on death row. Kirk Bloodsworth, whose testimony you will hear later, was also freed due to DNA evidence after being convicted of a crime he did not commit.
Although DNA evidence was responsible for freeing 8 of the 87 exonerated men and women, other factors played an important role in the other 79 cases. This brings me to the second key element of our legislation, which is one of competent counsel.
Our legislation ensures that the attorneys, in whose hands these lives are placed, are qualified. The stories of incompetent attorneys are all too familiar in these cases. In Illinois alone, 22 defendants have been sentenced to death while being represented by attorneys who have either been disbarred or suspended at some time during their legal careers. In some cases, attorneys have even been found sleeping or under the influence of alcohol during the trial. I believe ensuring competent counsel is a vitally important step in the right direction toward fixing our capital punishment system.
Even Attorney General Janet Reno has recently recommended changes in our system to ensure that capital defendants have adequate legal representation.
The death penalty itself is an issue that divides many people, but there should be no division on the idea that those accused of murder should be afforded a capable attorney. If our society is to administer the ultimate punishment, our society should allow the accused to be represented by competent counsel and have access to the most recent technology available. Regardless of what one thinks of the death penalty, we can all agree that we must avoid the ultimate nightmare of condemning an innocent person to death.
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Again, Mr. Chairman, thank you and the Subcommittee for allowing me to testify today.
Mr. HYDE. Mr. Chairman, I know this is unusual and we do not usually question the Congressional witnesses, but I just have a semi-question to ask my friend, Mr. LaHood, if I may have your permission.
Mr. GEKAS. The gentleman is recognized.
Mr. HYDE. Everything you say is, of course, true, and I think particularly the smirching of the legal profession is incompetent counsel being assigned to try death cases, and I have to ask a rhetorical question. What is the matter with the judge? Can't the judge see that counsel is either asleep or not sober or not up to the task, inadequate? And do not judges have a duty to ensure a fair trial?
This is rhetorical, because the answer to all of those questions is yes.
So, in addition to facilitating the use of DNA and better police work and better trial work, we need judges to be a little more sensitive to the quality of justice they are presiding over, which is not part of the legislation but it ought to be part of our answer to this very difficult problem.
Mr. LAHOOD. If I may, Mr. Chairman, it is a very, very good point, Chairman Hyde. Our bill, although we did not mention it, does address the issue of making sure that judges give the proper instructions to juries about what they are about to undertake as they deliberate.
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That does not go to the issue that you raise, but the issue you raise is obviously a very, very important issue.
Mr. HYDE. I thank you and Mr. Delahunt for——
Mr. DELAHUNT. Mr. Chair, if I just may respond, because, again——
Mr. GEKAS. The gentleman is recognized.
Mr. DELAHUNT. Thank you, Mr. Chairman.
Within the title dealing with the issue of competency of counsel, one of the most significant provisions is the establishment of standards and a certification process that I believe, Mr. Chairman, would obviate the concerns that you have, and I think that we all share. It would be a professionalizing, if you will, of the system in terms of those who represent individuals subject to the ultimate sanction in a democracy.
Mr. HYDE. Well, I just think we need judges, too, to get into this program and be a little more sensitive to the quality of justice they are presiding over.
Thank you for bringing this to our attention. Even if you are bringing undue pressure on me, I welcome it.
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Thank you.
Mr. GEKAS. The Chair will invoke cloture on any further testimony on the part of the witnesses. We excuse them with our thanks, and we will proceed to the next panel.
Before we do, the minority ranking member, Mr. Scott, has requested that the Chair inquire if there be any other Members who wish to make an opening statement before we begin with the testimony of the next witnesses. I see some hands.
Is there anybody on this side of the aisle who wishes to do so?
[No response.]
Mr. GEKAS. If not, I now ask again of the witnesses, are they willing to withdraw their request for opening statements, submit them for the record, so that we can proceed with Governor Ryan?
Mr. WEINER. In the spirit of compromise, Mr. Chairman, I will keep my remarks brief.
Mr. GEKAS. We recognize the gentleman.
Mr. WEINER. Thank you, Mr. Chairman. I wanted the opportunity to thank our two colleagues who have just spoken so eloquently.
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Mr. Chairman, I am a supporter of the death penalty, but recent reports of inadequate representation, prosecutorial misconduct, of mistaken witness accounts, of the failure to give defendants the high-tech tools like DNA that they need, and the dubious use of jailhouse snitches, these reports are accumulating virtually daily. All this has lead many death penalty supporters to endorse a moratorium on further executions.
Mr. Chairman, one of those people is me. Governor Ryan I believe has it right. Let us take a procedural step back. Let us prepare for a cooling off period to review some of the outstanding cases.
There is nothing weak about this approach. There is nothing that makes it soft on criminals. All it does is argue forcefully that justice in a civilized society demands that cases like this, where there is no margin for error, are gotten correct.
At the very least, we should endorse and pass H.R. 4167 that my two colleagues just spoke to, and I thank the chairmen of the subcommittee and the full committee for holding this hearing.
I yield back my time.
Mr. GEKAS. Does any other Member wish to be recognized for an opening statement?
Ms. JACKSON LEE. Mr. Chairman?
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Mr. GEKAS. The lady from Texas is recognized.
Ms. JACKSON LEE. I will continue to raise these issues throughout this hearing, but I, too, would like to thank my colleagues for their presentation.
Governor Ryan, for your presentation and your presence here today, I will wait on your testimony to add some additional questions.
But might I simply say the importance of our presence here today? I, like my colleagues, do not believe that this is a discussion of whether you are for or against the death penalty. In some heinous instances, I have advocated or at least have supported legislation that has had the death penalty as it has been tied to the vicious acts against children and other offenses, but I think that this does speak to our very underpinnings and infrastructure of law, of the Constitution, of the Bill of Rights.
If we are to be a Nation of laws, to subject or to admit ourselves or submit ourselves to following the law, then it has to be on the basis of having faith in the legal system and the judiciary system. We are stakeholders in that system. And the only way that we can have a system that all of us, regardless of our economic standing, regardless of whether we are defined as a pauper or a prince, have the sense that we can go into a court of law, regardless of the accusations, and get a fair trial.
You will hear me speak more this afternoon of what we will be facing in Texas on June 22, 2000, and that is the execution of Gary Graham. The discussion on Gary Graham should be nothing more or nothing less than the rightness and the fairness of the trial that he had and whether all the facts have been presented. I believe not. And so, in many instances, I think we need to add added tools—that is, the DNA tool, that is a possible moratorium to determine what we are doing right and what we are doing wrong.
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I look forward to this hearing to be able to provide us with the data, with the personal testimony, and the evidence of experts to share with us what this Congress, representing the entire Nation, should try to do to make it right.
I yield back.
Mr. GEKAS. We thank the lady.
The gentleman from Texas, Mr. Smith, asks for recognition, which is granted.
Mr. SMITH. Thank you, Mr. Chairman.
I do not have an opening statement, but I would like unanimous consent to put into the record two articles, one from today's ''Washington Post'' by Robert V. Penbionco and the other from yesterday's ''Wall Street Journal'' by Paul G. Cassell.
Mr. GEKAS. Without objection, the articles will be entered into the record.
[The information referred to follows:]
Newspaper: The Wall Street Journal
Title: . . . Oh Yeah? Name One
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Date: June 20, 2000
Byline: Robert V. Pambianco
Opponents of capital punishment may feel their fortunes are finally changing. For the first time in years, polls show public support for the death penalty softening. Politicians opposed to capital punishment have been emboldened to come out of hiding with proposals at both the state and federal levels to adopt moratoriums on executions similar to the one recently announced in Illinois. The New Hampshire legislature recently voted to eliminate the death penalty in that state (a purely symbolic gesture in a state that has not executed anyone in nearly 60 years.) And some prominent conservatives have joined the anti-death penalty cause.
This change in climate is likely connected to several factors, including the strong economy, falling come rates and the public's general sense of contentment. A strong majority still supports capital punishment, but it is hardly surprising that people would be less emphatic about punishment in times of happiness and reduced fear of crime.
Aside from general societal trends, however, there is little doubt that death-penalty opponents have managed to shift the terms of the debate so as to make their position more palatable to a skeptical public.
Opponents have recognized that they cannot change public opinion on the morality of the death penalty. They know it is an argument they cannot win. Moreover, they have recognized the futility of fighting case by case—another losing proposition. Whenever public attention is focused on the specifics of capital crimes, there is little compassion for the defendants. For contrary to the claims of opponents of capital punishment, death sentences are reserved for a tiny handful of the worst murders—those involving a particularly high degree of violence and cruelty.
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Hence the new strategy, which focuses on utilitarian arguments about fairness rather than what is just. Don't talk about the morality of capital punishment, and don't try to argue that specific death row prisoners should not be executed. Instead, argue that the problem with capital punishment is that the system is hopelessly flawed and likely to lead to the execution of many innocent people. Indeed a key component of this campaign appears to be creating the widespread perception, made possible via sympathetic media, that many innocents have already been put to death.
The problem is that the whole argument assumes a false premise, to wit that there is some evidence innocent people are being executed. No such evidence exists; none. Nowhere can opponents point to a case of such an execution's taking place in modem times.
The best opponents can do is point to cases of individuals who were sentenced to die but who, for one reason or another, were later exonerated or had their sentences reduced. But these folks are alive. They are anything but evidence that innocent people are being executed. Yet anti-capital punishment activists have adopted the bizarre position that the judicial system's success in addressing cases where there was a chance of a wrongful execution is actually evidence that the system cannot work.
Indeed, the very study that opponents of the death penalty use to support their innocence argument pointed to only one case since 1976 of a supposedly innocent person's being executed. In fact, there is no proof of an innocent person's being executed since 1900. But even taking the opponents numbers at face value, the only conclusion one can draw is that they confirm that the system bends over backward to ensure that only the guilty are put to death.
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Opponents similarly have tried to make much out of DNA evidence, as if to suggest that this will reveal scores of wrongly accused on death row. If anything, however, DNA evidence only increases the certainty about the guilt of the sentenced. As every law student learns in evidence class, at criminal trials it is not normally the defense that is trying to get evidence admitted before the jury, since it usually bolsters the prosecution's case.
The innocence argument is disingenuous, because the activists are not merely concerned about protecting the innocent. They are morally opposed to capital punishment in all cases, no matter what the level of evidence against the prisoner and no matter how brutal the crime. The innocence question is a publicity prop.
In only a handful of death row appeals are there claims of actual innocence that are not patently absurd. Indeed, the majority of prisoners on death row do not claim in their appeals that they are factually innocent of the crime (i.e., they didn't do it). Prosecutors do not bring capital murder charges where the facts are ambiguous—and for a very good reason: They don't want to risk losing a conviction because a jury might be worried about a death sentence in a tough case.
Opponents of capital punishment are entitled to their opinion and they are certainly entitled to try to sway public opinion on the validity of this form of punishment. But they should do so openly and sincerely. It is a sign of the weakness of their position that they have adopted innocence as their rallying cry.
For supporters of capital punishment the challenge is to refocus the debate where it belongs. Are there some crimes that are so serious that no other punishment is appropriate? Does capital punishment save lives? Those are the real issues. Let the debate proceed.
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66013Ia.eps
Mr. GEKAS. It has now come to the time when we will invite the second panel to approach the table, and we will yield to the gentleman, Mr. Hyde, the chairman of the Judiciary Committee, for purposes of introduction.
Mr. HYDE. Thank you, Mr. Gekas.
Our witness on the second panel today is The Honorable George H. Ryan, governor of the State of Illinois. Governor Ryan was elected the 39th governor of our State November 3, 1998, and has a distinguished record of public service prior to becoming governor. He was speaker of the Illinois House of Representatives and served in there as a member before becoming speaker. He served as Illinois Secretary of State for 8 years. He was a lieutenant governor for 8 years, and now he is the governor. He is a lifelong resident of Kankakee, Illinois, a pharmacist by profession. He served with the U.S. Army in Korea, and later obtained his bachelor's degree in pharmacy from Farris State College in Michigan.
Governor Ryan has taken a vital interest in issues of the death penalty. He has shown that he has a very open mind and a great sensitivity to this complicated and difficult and emotional problem, and, by declaring a moratorium on executions in Illinois to have us all catch our breath and study the impact of technology on proving guilt, he has taken a great leadership role and has had influence nationwide.
It is a great pleasure to introduce Governor Ryan, and we deeply thank you for coming to give us the benefit of your views.
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Mr. GEKAS. We thank the gentleman.
Governor Ryan, as per custom, we will accept your written statement for the record. We will ask you very kindly to try to restrict your remarks to about five minutes, but if it goes over I am not going to object. I will not hit the gavel. I do not think any Member will, but we ask you to keep that in mind because we have a long afternoon in front of us.
Governor, please proceed.
STATEMENT OF GEORGE H. RYAN, GOVERNOR, STATE OF ILLINOIS
Mr. RYAN. Thank you very much, Chairman Gekas. I want to thank you for the opportunity, and my friends, Congressman Hyde and Congressman LaHood, Congressman Delahunt, and the distinguished members of this subcommittee for the opportunity to be here. I am delighted to have the opportunity to come by this afternoon and share some thoughts with you.
My mission, as I was invited here today, was to tell you why and how we came about to the position that we are in for the moratorium for the death penalty. We have had opportunities to do that throughout the State of Illinois. This is the first time that I have had an opportunity to come before the Congress and to be a part of this.
I want to compliment Congressman Ray LaHood and Congressman Bill Delahunt of Massachusetts for posing the Innocence Protection Act, along with Senator Patrick Leahy of Vermont, who I have also had an opportunity to work with on this issue.
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As you all know, in January of this year I declared a moratorium on executions in Illinois until a commission that I empaneled could get to the bottom of Illinois' broken capital punishment system.
In the weeks before my decision, the courts exonerated the 12th and the 13th individuals of crimes for which they had been convicted and sentenced to death. That is 13 people that were wrongly convicted, 13 people who were almost executed for mistakes made in our capital punishment system. And those are the 13 of which we know, and it exceeds the 12 inmates we executed in Illinois since the death penalty was reinstated in 1977.
In one case, a man named Anthony Porter was two days from being executed for allegedly killing two people in 1982. He had ordered his last meal, and he had been fitted for his burial suit. Fortunately, lawyers handling his legal appeal won a temporary stay of execution because of questions over his mental competence and his very low IQ. That gave journalism students from Northwestern University a few more days to investigate. They obtained a video statement from a Milwaukee man who confessed to the murders and an affidavit from a witness who admitted he gave false statements about Porter during some lengthy questioning by police. College journalism students saved an innocent man from being executed. It was not the civil justice system.
I soon realized that Illinois' system was nowhere near perfect, and that, as governor, I was presiding over a system that was, in fact, very deeply flawed. That is because my experiences with these two cases were followed by a ''Chicago Tribune'' investigation in late 1999 and follow-up reports in early 2000. These reports created some grave doubts in my mind about our system.
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The ''Tribune'' found that, since the death penalty was reinstated in Illinois, half of the nearly 300 capital cases had been reversed for new trial or sentencing hearings, 33 death row inmates had been represented at trial by an attorney who had been disbarred or suspended, and, like Congressman Hyde, for the life of me I can't understand how that can ever happen. I can't imagine how a judge would let somebody sit in a courtroom in a drunken stupor, a drug-induced stupor, or sound asleep in any kind of a case, be it a civil case or criminal case, but especially in a capital case.
We had 35 African American death row inmates that had been convicted or condemned by an all-white jury. I might add that about 100 of the 160 death row inmates in Illinois are African Americans. Prosecutors used jailhouse informants to convict or condemn 46 death row inmates.
In Illinois we had let these problems fester for far too long. The Illinois system, without question, was clearly broken.
I couldn't guarantee that an innocent man or woman would not be put to death based on the system as it was. I personally believe that providing for the death penalty can be a proper societal response for heinous crimes that shock our sensibilities. Many people believe the same thing. But I also believe there is a deep wellspring of fairness in people all across this country, not just in Illinois. They want a system that is fair and will not convict and execute the innocent.
I called the moratorium because I have grave concerns about our State's shameful record of convicting innocent people and putting them on death row. How do you prevent another Anthony Porter, another innocent person from paying the ultimate penalty for a crime they did not commit?
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As I said when I announced the moratorium and many times since, I cannot support a system which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the taking of an innocent life.
It is in that spirit of fairness and justice that I believe the Innocence Protection Act was introduced. It seeks to reduce the risk that innocent people are executed. It would ensure that the convicted are afforded an opportunity to prove their innocence through DNA testing. Five of the exonerated thirteen in Illinois were cleared by DNA evidence. DNA technology can, indeed, protect the innocent, and for that matter the technology can also strengthen prosecutions.
Illinois has been a leader in this area, providing for post-conviction DNA testing since 1998. Through a program that we have called the ''capital litigation fund,'' we make use of this key evidence pre-trial, and I doubled the funding for this program this year so we can increase it. I think it went from $7 million to $14 million in our State, so we can have the opportunity pre-trial to use key evidence.
One of the most important tools to post-conviction testing, as well as for criminal investigations and prosecutions, is investing in the laboratories and the technicians required to get the job done. We are on the cutting edge of technology in every area you can think of in this country today, whether it is agriculture technology, whether it is biomedical technology, and certainly it is on the cutting edge of criminal technology. Life has changed in the last 10 or 15 years. More drugs, newer, sophisticated equipment for gangs and criminals to work with. That means we have to have every tool available to not only prosecute but to defend the innocent.
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We are doing our part in Illinois. Not only do we allow post-conviction testing, but we have long been at the forefront of forensic sciences. Illinois has the third-largest forensic science lab system in the world. We are behind only the FBI and Scotland Yard. We are the leading State crime lab in the Nation.
As I said, my Administration cap is investing $4 million in the next fiscal year on State-wide training of new technicians. It takes 2 years to train personnel to handle this fast-changing, highly technical field, but we need more resources—resources that could come from the proposed National Forensic Science Improvement Act also before this committee. That act would create $768 million in block grants over 5 years to help improve the quality, the availability, the timeliness, and the credibility of forensic services across the country.
In Illinois, these block grants could help us catch up with a ten-month backlog of cases from Chicago and the State of Illinois. That backlog is 2,500 cases. That is just unacceptable, because it really defeats the purpose of the DNA technology. That means investigators can't match evidence from unsolved crimes against updated records. That means, in some cases, innocent people are sitting in jail waiting for the evidence that clears them to be processed by the crime lab. It also means that some criminals continue to walk the streets.
For example, DNA evidence helped Chicago police identify and arrest an alleged serial rapist who had been terrorizing the south side of Chicago. There could be other offenders out there, and we could find them if we had the resources to continue to build our DNA databases. We could use the funds from the National Forensic Science Improvement Act to convert the existing Chicago and Illinois State Police forensic and suspect files to the national uniform DNA standard. That conversion will help us convict only the guilty and protect the innocent in future cases all across this country and in the State of Illinois.
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I understand last week that the House Judiciary Crime Subcommittee passed a measure to help States clear the DNA backlog—perhaps $50 million over 5 years to help States process their DNA evidence. This initiative is very important, because the DNA case backlog will only grow more and more sophisticated as DNA evidence is obtained in criminal investigations. This proposal, taken in tandem with the National Forensic Science Improvement Act, would provide major assistance to States trying to improve their justice system.
In Illinois, we have had death row inmates, as I said, who are represented by incompetent lawyers. One lawyer represented a defendant in a capital case ten days after he came off suspension by the Attorney Registration and Disciplinary Commission.
The Federal Goverment once provided programs for training for lawyers who try capital cases. We could use that program again to ensure criminal defense lawyers have all of the training and assistance that they need.
DNA testing is not the only answer to our problems in Illinois. We need to look at the whole system, and my Commission is just beginning its work.
Former Federal Judge Frank McGuire is the chairman of that Commission. The panel is co-chaired by former Senator Paul Simon and former U.S. Attorney Thomas Sullivan. The members include a noted author and former Federal prosecutor, Scott Toreau. Cook County Public Defender Rita Frye, lends us her defense expertise for indigent defendants, and former FBI and CIA director, as well as Federal district court and appellate court juris, Judge William Webster, is serving as a special advisor to the panel.
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They are just some of the citizens and attorneys and public servants who have given their time to look at just how the Illinois death penalty system became so broken and if it is possible to fix.
If we all agree—I am sure that we do—there is absolutely no margin for error when it comes to putting a person to death, and unless the Commission can report back to me that there are precautions we can take to build a flawless system, I am not sure anyone will be executed again as long as I am governor.
Since I declared a moratorium, a public dialogue has begun on the question of fairness to the application of the death penalty, and, as I said when I made the decision, until I can be sure that everyone sentenced to death in Illinois is truly guilty and until I can be sure with moral certainty that no innocent man or woman is facing lethal injection, no one will meet that fate.
Like you, the members of this panel, I am a strong proponent of tough criminal penalties, of supporting laws and programs to help police and prosecutors keep drug dealers and gun runners and dangerous criminals off the streets, but we must ensure the public safety of our citizens, but in doing so we must ensure that the ends of justice are served.
It is really all about fairness. It is about right and wrong, and this concept is fundamental to the American system of justice.
I want to thank all of you for the opportunity that I have had to come before you to testify before this panel, and I hope that my recounting of our experience in Illinois helps you to consider these important bills. I know that you will do all that you can to help the governors and the people of this country build a better and a more fair justice system throughout the United States.
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Mr. Hyde, I want to thank you, Mr. Gekas, and ladies and gentlemen of the panel. Thanks for your time here today.
Mr. GEKAS. The time of the gentleman has expired. We thank him.
[The prepared statement of Governor Ryan follows:]
PREPARED STATEMENT OF GEORGE H. RYAN, GOVERNOR, STATE OF ILLINOIS
Thank you very much Mr. Chairman.
It is a pleasure to be before this committee.
It is very good to be on Capitol Hill, working with my long time friend Chairman Henry Hyde and with my good friend from Peoria, Congressman Ray LaHood on this important issue and on so many programs, policies and projects important to the people of Illinois and the nation.
I also met today with my good friend, Speaker Denny Hastert.
The entire country is benefiting from his leadership and his dedication.
I've known the Speaker a long time and I have always admired his intelligence, his willingness to study the issues and develop innovative solutions, and his commitment to doing what he believes is right.
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I want to commend Congressman Ray LaHood and Congressman William Delahunt of Massachussets for proposing the Innocence Protection act along with Sen. Patrick Leahy of Vermont.
As you know, in January of this year, I declared a moratorium on executions in Illinois until a commission I empanelled could get to the bottom of my state's broken capital punishment system.
In the weeks before my decision, the courts exonerated the 12th and 13th individuals of crimes for which they had been convicted and sentenced to death row.
That's 13 people wrongly convicted. 13 people who were almost executed for mistakes made in our Capital Punishment system.
Those are the 13 of which we know—and it exceeds the 12 inmates we executed in Illinois since the death penalty was reinstated in 1977.
In one case, a man named Anthony Porter was two days from being executed for allegedly killing two people in 1982.
He had ordered his last meal and been fitted for his burial clothes.
Fortunately, lawyers handling his legal appeal won a temporary stay of execution because of questions over his mental competence and his low IQ.
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That gave journalism students from Northwestern University a few more days to investigate.
They obtained a videotaped statement from a Milwaukee man who confessed to the murders and an affidavit from a witness who admitted he gave false statements about Porter during lengthy questioning by police.
College Journalism students saved an innocent man from being executed.
Just weeks later, I had to make a decision about another man on death row.
He was convicted of a brutal rape and murder.
After the experience of the Porter case, I pored over every record.
I agonized for weeks and ultimately decided to allow the execution to take place.
It was the right decision to make,
but in a perfect system it is a difficult decision for a Governor to make, whether they are an experienced lawyer or a pharmacist from Kankakee.
I soon realized the Illinois system was nowhere near perfect—and that as Governor, I was presiding over a system that was, in fact, deeply flawed.
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That is because my experiences with these two cases were followed by a Chicago Tribune investigation in late 1999 and follow-up reports in early 2000.
Those reports created grave doubts in my mind about our system.
The Tribune found:
That since the death penalty was reinstated in Illinois, half of the nearly 300 capital cases had been reversed for a new trial or sentencing hearing.
33 Death Row inmates had been represented at trial by an attorney who had been disbarred or suspended. How does that happen?
35 African American Death Row inmates had been convicted or condemned by an all-white jury.
I might add that about 100 of the 160 death row inmates in Illinois are African American.
Prosecutors used jailhouse informants to convict or condemn 46 Death Row inmates.
In Illinois, we had let these problems fester for too long.
The Illinois system was clearly broken.
I could not guarantee that an innocent man or woman would not be put to death.
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Now, I personally believe that providing for the death penalty can be a proper societal response for heinous crimes that shock our sensibilities.
Many Illinois people believe the same thing.
But, I also believe there is a deep wellspring of FAIRNESS in the people of Illinois and in the United States of America.
They want a system that is fair, that will not convict and execute the innocent.
I called a moratorium, because I have grave concerns about our state's shameful record of convicting innocent people and putting them on Death Row.
How do you prevent another Anthony Porter—another innocent man or woman from paying the ultimate penalty for a crime he or she did not commit?
As I said when I announced the moratorium and many times since: I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life.
It is in that spirit of fairness and justice that I believe the Innocence Protection Act was introduced.
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It seeks to reduce the risk that innocent people are executed.
It would ensure that the convicted are afforded an opportunity to prove their innocence through DNA testing.
Five of the exonerated -13 in Illinois were cleared by DNA evidence.
DNA technology can indeed protect the innocent.
For that matter, the technology could also strengthen prosecutions.
Illinois has been a leader in this area, providing for post conviction DNA testing since 1998.
And we now provide the lawyers to help make use of this key evidence.
I doubled the funding for the Capital Litigation Fund, which I signed into law last year.
We will be providing for good counsel to help convicts take this evidence and mount appeals.
One of the most important tools to post conviction testing as well as for criminal investigations and prosecutions is investing in the laboratories and technicians required to get the job done.
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That is absolutely necessary for the intent of the Innocence Protection Act to be fulfilled.
We are doing our part in Illinois. Not only do we allow post conviction testing we have long been at the forefront of forensic sciences.
Illinois has the third largest forensic science lab system in the world behind only the FBI and Scotland Yard.
It is the leading state crime lab in the nation.
My administration is investing $4 million in the next fiscal year on statewide training of new technicians.
It takes 2 years to train personnel to handle this fast changing, highly technical field.
But we need more resources—resources that could come from the proposed National Forensic Science Improvement Act also before this committee.
It would create $768 million in block grants over 5 years to help improve the quality, timeliness and credibility of forensic services across the country.
In Illinois, these block grants could help us catch up with a TEN MONTH backlog of cases from Chicago and the state of Illinois.
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That is a backlog of 2,500 cases.
That is just unacceptable—it defeats the purpose of the DNA technology.
That means investigators can't match evidence from unsolved crimes against updated records.
That means, in some cases, innocent people are sitting in jail waiting for the evidence that clears them to be processed by the crime lab.
It also means some criminals continue to walk the streets.
For example, DNA evidence helped Chicago Police identify and arrest an alleged serial rapist who had been terrorizing the South Side of Chicago.
There could be other offenders out there and we could find them if we have the resources to continue to build our DNA databases.
We could use the funds from the National Forensic Science Improvement Act to convert the existing Chicago and Illinois State Police forensic and suspect files to the national uniform DNA standard.
That conversion will help us convict only the guilty and protect the innocent in future cases in Illinois, and across the country.
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I understand last week the House Judiciary Crime Subcommittee passed a measure to help states clear the DNA backlog—perhaps $50 million over 5 years to help states process their DNA evidence.
This initiative is very important because the DNA case backlog will only grow as more and more sophisticated DNA evidence is obtained in criminal investigations.
This proposal, in tandem with the National Forensic Science Improvement Act, would provide major assistance to states trying to improve their justice systems.
As I said, in Illinois we have had death row inmates who were represented by incompetent lawyers.
One lawyer represented a defendant in a capital case 10 days after he came off of suspension by the Attorney Registration and Disciplinary Commission.
The Federal Goverment once provided programs for training for lawyers who try capital cases.
We could use that program again to ensure criminal defense lawyers have all of the training and assistance they need.
DNA testing is not the only answer to our problems in Illinois.
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We need to look at the whole system and my Commission is just beginning its work.
It is chaired by dedicated public servants, whose names are synonymous with integrity and fairness: former Federal Judge Frank McGarr is the chairman.
The panel is co-chaired by former Sen. Paul Simon and former U.S. Attorney Thomas Sullivan.
The members include noted author and former federal prosecutor Scott Turow, who lends his sense of fairness and compassion.
Cook County Public Defender Rita Fry lends us her defense expertise and sensitivity for indigent defendants.
A man with an international reputation for leadership, one of our country's most distinguished public servants, former FBI and CIA Director as well as federal district court and appellate court jurist, Judge William Webster is serving as a special advisor.
They are just some of the citizens, attorneys and public servants who are giving of their time to look at just how the Illinois death penalty system became so broken.
There is no margin for error when it comes to putting a person to death.
Unless they can report back to me that there are precautions we can take to build a flawless system, I am not sure anyone will be executed again as long as I am governor.
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Since I declared the moratorium, a public dialogue has begun on the question of the fairness of the application of the death penalty.
As I said when I made the decision: until I can be sure that everyone sentenced to death in Illinois is truly guilty until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate.
Like the members of this panel, I am a strong proponent of tough criminal penalties, of supporting laws and programs to help police and prosecutors keep drug dealers, gun runners, and dangerous criminals off the streets.
We must ensure the public safety of our citizens but, in doing so, we must ensure that the ends of justice are served—it is all about FAIRNESS.
This concept is fundamental to the American System of Justice.
I want to thank you for allowing me the opportunity to testify before this panel.
I hope that my recounting our experience in Illinois helps you as you consider these very important bills.
I know you will do all you can to help Governors and the people of this country build a better and more fair justice system.
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Thank you.
Mr. GEKAS. Now we ask you to indulge the questions of the members of the committee.
I just have one question, as chairman. The question of competent counsel over the years has, itself, bred strong debate. What is competent counsel? Are you going to have—does your Commission have the duty to determine qualifications of what might be considered competent counsel to be appointed in capital cases? For instance, numbers of years of practice of law, how many cases in criminal court did they defend, those kinds of criteria? Do you have a picture you can paint for us as to qualifications for competent counsel?
Mr. RYAN. Well, Chairman Gekas, I do not. I am a pharmacist by trade.
Mr. GEKAS. Yes. You are probably better qualified.
Mr. RYAN. I may well be. I do not know. But I have a very competent panel that I put together——
Mr. GEKAS. Yes.
Mr. RYAN. [continuing.] Of experienced people that I am sure can come up with what is competent for counsel and what isn't. And I have not given any specific direction other than to look at the system and come back with an answer as to whether it can be repaired or not. But I do not think that it takes a whole lot to figure out whether somebody is asleep in a courtroom, whether they are drunk, or whether they are not. I mean, that should be a pretty obvious solution, so I am sure that the panel will come back.
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As I said earlier, there were some Federal monies at one time, I think, to train people for cases like this, for capital cases, and that has kind of dried up.
I might add, Mr. Delahunt and to Mr. LaHood, that there are no dollars in your program, and we ought to have some money in that program. States could use that very much.
Mr. GEKAS. The Chair now yields to the gentleman from Michigan, Mr. Conyers, the ranking minority member, a period of five minutes for questions to the governor.
Mr. CONYERS. Governor Ryan, you set a tremendous example for all of the governors and all of us in public office, as well. I am proud that you have come here and I am proud of what you have done.
DNA is the thing that can provide a window into flaws in cases.
Could we, for the few minutes that we share with each other, consider the wider point that was made by Bill Delahunt? If this is the circumstance in capital cases, what do you think the circumstance is in non-capital cases?
Mr. RYAN. Well, Mr. Conyers, I am glad you asked that question. I do not know whether you have been prompted or not, but let me say that I had the same thoughts. There has got to be a lot of innocent people sitting in jail throughout the State of Illinois, if not throughout the country, that have been represented by the same kind of counsel, are falsely imprisoned or wrongly imprisoned, and, as a result of that, I have also ordered a rewrite of the Illinois State Criminal Code, which is 40 years old.
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As I said earlier, things have changed in 40 years. Crime has a whole new aspect to it. Gangs are different. They have new tools, technology that they use—telephones, electronic communications. The drug situation is like it has never been in this country before. We had a drug problem 10 years ago that is a lot worse now than it ever was, and it is a lot more sophisticated, and our laws in Illinois were 40 years old and we needed to rewrite them, and that is where we are in the process of rewriting the whole criminal code.
Mr. CONYERS. Thank you.
There were a number of things that prompted that question. You know, I have been on this committee and the Criminal Justice Subcommittee and the Crime Subcommittee for almost all of the years I have been in the Congress, and what I am leading into is the consideration of the role of police in the criminal justice system.
As one who supports the police and regularly enjoys their endorsement, I have to point out to you that in many areas, especially big cities, we seem to be in almost a crime wave among police officers of misconduct, of violence, of perjured testimony, of sometimes refusing to show up, the old Blue Flu phenomenon. And so I am concerned about this larger question of the police role, of the prosecutors' role.
You know, this isn't going on just among the capital cases. I think we have perhaps a serious problem that—I am not suggesting that you can repair it all from your place or me from mine, but I think that the acknowledgement of it is very important.
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We have already mentioned the judges. Many judges are fully aware of what is going on in their courtrooms. Prosecutors are really very informed, and police have gotten to learn their way around the jury room pretty fairly.
So what I am suggesting is that there is, even as important as this measure is—and we do these things one at a time—but I see a larger problem out there in which race is a factor, in which the criminalization of young African Americans is going on and on and on. We are now privatizing the prison system.
Have these matters come to your attention or have you been prompted to consider them the same way we were both prompted to think about the police question?
Mr. RYAN. Mr. Conyers, I believe that that is a part of the overall problem. I mean, that is a part of it—the judges, the prosecutors, the police, the jailhouse informants.
Mr. CONYERS. Yes.
Mr. RYAN. Those are all part of the problem with the system within Illinois. That is the only one that I can speak to. I would have to assume that it is probably in other areas of the country, maybe nationwide. It probably is. But those are all things that need to be looked at and need to be studied, and if there are errors that need to be corrected.
Mr. CONYERS. You are willing to study those, as well?
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Mr. RYAN. I am.
Mr. CONYERS. Thank you.
Mr. GEKAS. We thank the gentleman.
We now recognize the gentleman from Texas, Mr. Smith, for a period of five minutes for the purpose of examination.
Mr. SMITH. Thank you, Mr. Chairman.
Governor Ryan, I just have a couple of questions. The first is that you mentioned a while ago that ''the death penalty can be a proper societal response for heinous crimes that shock our responsibilities.'' I just wanted to ask you that if H.R. 4167 were enacted and became law, would you then lift the moratorium in Illinois?
Mr. RYAN. H.R. 4167? Is that the one that we are talking here today?
Mr. SMITH. Yes, it is.
Mr. RYAN. The Innocence Protection Act. No. No, I can't say that I would lift the moratorium. I have empaneled a group of distinguished people to look at our system in Illinois, and I would certainly let them come back with some report before I would make a decision.
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Mr. SMITH. Okay. Thank you.
My second question is that we can all be relieved, as I understand it, that no person executed in Illinois has subsequently been found to be innocent. Is that your understanding, as well?
Mr. RYAN. Well, that would be a pretty broad statement for me to make. I do not know that, and only the future, I guess, will tell. I know that, through the efforts of some young journalism students at Northwestern, we saved a fellow's life that was innocent.
I have been governor for almost 18 months now. In that time I have had one death penalty case before me. It was a horrendous case. It was a young woman that was mutilated and murdered and raped, and I had to make the decision whether the person that was found guilty was executed or not. I want to tell you, it was a very anguishing moment. Somebody said earlier that it really shouldn't be up to the governor to make these final decisions, there ought to be other ways to do this. That was a very tough decision to make, and I did a lot of research and a lot of work and went back and looked at it on several occasions. But I found in the end and was satisfied that he was guilty and allowed the execution to go forth. That is the only one I have had since I have been governor.
Mr. SMITH. But isn't it accurate to say that to date no person who has been executed has subsequently been found to be innocent?
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Mr. RYAN. I think that is true, probably, from what I have heard. And there are probably people coming on the next panel that could probably better answer that question, but that is what I guess has been said, but I can't tell you whether that is truthful or not. I do not know.
Mr. SMITH. Thank you, Governor Ryan. I appreciate it.
Mr. RYAN. Thank you.
Mr. SMITH. I will yield back the balance of my time.
Mr. GEKAS. We thank the gentleman.
We now recognize the gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
Governor, I want to again, as others have, congratulate you on taking a stand on a very controversial issue and just congratulate you on that stand.
Mr. RYAN. Thank you.
Mr. SCOTT. I think I was the one to mention that the governor's office is an inappropriate place to have this decided. I still think you need the governor involved as the final gate to the gas chamber or the execution, but we should not rely on the governor as an essential part of the criminal justice process.
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For example, you have suggested that the students saved the man. I assume that if you had not had a confession and an affidavit, if you had only had the information from the trial, there's no telling what decision would have been made at that point.
Mr. RYAN. Well, there was a delay in the trial as a result of this poor fellow's low IQ, and as a result of that the students that were studying the process had a little more time and came up with evidence that found him not guilty.
Mr. SCOTT. Now, do you have subpoena power to compel witness testimony?
Mr. RYAN. No.
Mr. SCOTT. Do you have other kinds of investigatory powers or the ability to watch witnesses being cross examined to determine how truthful they may be, from your own point?
Mr. RYAN. I could sit in on the hearings of the Pardon and Parole Board, I am sure, and sit in on the trials that go on, if I chose to do so.
Mr. SCOTT. During your deliberations, did advocates on both sides call you and encourage you to do one thing or the other?
Mr. RYAN. On the one case that I have had, I called them, frankly, to make sure that we had a guilty person or an innocent person. I wanted to be sure.
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Mr. SCOTT. Would the fact that someone would be in the middle of a campaign or other politically-sensitive times complicate this decision?
Mr. RYAN. Well, I guess we have all been in the political arena. We can all make our own decision about that.
Mr. SCOTT. Thank you.
Mr. Chairman, I would like to yield the balance of my time to the gentleman from Massachusetts.
Mr. DELAHUNT. I have no questions, Governor, other than just simply to state what I said earlier, which is a collective thank you. You are a man of great common sense, and really I think this is what it is about, and at the same time of uncommon courage. Congratulations.
I yield back.
Mr. RYAN. Thank you very much.
Mr. GEKAS. Thank you.
Does anyone seek recognition? The gentleman from Florida, Mr. Canady.
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Mr. CANADY. Thank you, Mr. Chairman.
Governor, I want to thank you for being with us here today. I appreciate your testimony.
Let me ask you this: how many people are currently under a sentence of death in the State of Illinois, approximately?
Mr. RYAN. It is 161.
Mr. CANADY. And I understand that you have imposed an across-the-board moratorium on all executions. What I am curious about is whether it is your view that there are questions about the sentences of all those people who are under sentence of death. I understand there may be some cases where questions arise, and I understand the desire to take special care and special caution, and I understand that, as a governor, your responsibility for carrying out sentences of death is something that, quite properly, is a very weighty responsibility and something you take very seriously.
But I am puzzled that you would impose an across-the-board moratorium when, in fact, I suspect that there are at least some folks who are under sentence of death where there is no question that they are, in fact, guilty of the crime of which they have been convicted and are properly subjected to the death penalty.
Mr. RYAN. Well, you are probably right, Mr. Canady, but let me say that I have empaneled a group of people to look at a system that did not work, a system that was broken, and I asked them to come back with some recommendations. And when they come back with their recommendations and they can guarantee me that they do not have attorneys that are drunk, that they do not have jailhouse informants, and they do not have bad information, and they have used all of the technology available to put somebody to death, then I will rethink my position on whether we ought to do that or not in Illinois. But until that Commission comes back—and I do not know what the time line is because I did not give them one—I think I would rather be safe than sorry, frankly.
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Mr. CANADY. Again, I understand your perspective, but it seems to me that, in cases where there is no doubt, where the evidence is clear and overwhelming of the person's guilt where, in fact, there may be DNA evidence that supports the conclusion of guilt, as well as eyewitness testimony—I do not know if there is a particular case that would have both of those—it seems to me strange to say that we are not going to carry forward with a system of justice because we believe that there are systemic problems.
You are the governor and you have the power to make that decision, but I find that curious.
One point I would make and that I think we all should bear in mind is something that was pointed out in an article recently written by Paul Cassell. He pointed to a statistic which I think is interesting. The Bureau of Justice statistics has found that, of the 52,000 inmates serving time for homicide—now, these are not all people on death row, but people who are serving time for homicide—more than 800 had previously been convicted of murder. That is, they are repeat offenders. They are repeat murderers.
I find that to be a very troubling statistic, as well, that there are at least 800 people who have died after someone was convicted of murder and then released to murder again.
I think that, as we look at these issues—and quite properly—about protecting the innocent, I think we need to also be concerned about protecting the innocent from people who engage in this kind of conduct more than once.
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Mr. RYAN. I certainly agree with that, Representative, and I want to say that the best case I can give you about presumed absolutely guilty is the Anthony Porter case, the case that really caught my attention.
Here is a fellow that was convicted. Eyewitnesses had—I think everything was there. They were ready to kill him. They even measured him for his suit. If it hadn't been for the fact that he got just a permanent delay or temporary delay in his hearing and an opportunity for some journalism students to look at it, he would be six feet deep right now.
I think that, when you talk about absolute certainty of people that should go to the death chamber, at least in Illinois I want to make sure that it is certain, and if it means waiting a few months, I am willing to do that.
Now, I am not saying that we are not going back to the death penalty and execute those people that are guilty, but I want to make sure that the system is in place and it works and it works well. There is no place for error here.
Somebody pointed out earlier—not here, but at another hearing I was at—that it is 99.5 percent effective, the system. I do not want to be that five-tenths of a percent where it does not work, and I do not believe you do, either.
Mr. CANADY. Thank you, Governor. I appreciate your perspective on this, and we thank you for being with us today.
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Mr. RYAN. Thank you very much.
Mr. GEKAS. The time of the gentleman has expired.
We turn to the gentleman from New York, Mr. Weiner, for a period of five minutes.
Mr. WEINER. Thank you, Mr. Chairman.
Welcome, Governor. I appreciate your testimony.
I am a little bit puzzled, I must confess, from the gentleman from Florida's suggestion is if you can look at 147 cases and say, ''This one smells fishy. This one smells fishy,'' and go back and look at them. There's not a magic goof meter that they give you when you are elected governor that you can wave over a file to determine whether it was done right. Very often the cases that are the most vexing are the ones that go unnoticed. I think the governor is correct in saying that we should look at all of them.
I just have a brief question before I yield to Mr. Delahunt for a question.
One of the arguments that prosecutors frequently make and the families of the victims frequently make, Governor, is that there has to be a sense of finality to these cases, that it is an important concept that is in our justice system that at some point you close the books on these cases, and also there is a legal argument that is made that at a certain point the evidence that you start getting years and years out is less fresh, it is less able for both sides, the prosecution and the defense, to put on a case, and that is the argument for the statute of limitations and it is the argument for why at some point you close the book on these things.
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Are you concerned that, as you go through this process of reviewing all these cases, that they are essentially for the families of the victims and for the system; that essentially we are opening up these, in some cases, wounds that had closed and starting to review these cases in toto? And I guess the shorter version is: how are you taking steps in your State to ensure that the review that goes on now, with some of the evidence trails being cold as ice—that process is scary to the victims' families, as well.
Mr. RYAN. Again, it is just a situation where you have to look at it, you have to use the tools that you have, and that is what is important about this proposal that is before you now is the fact that DNA evidence is available that probably was not available 10 years ago, and we ought to use all of those factors that are available. We need to make sure that we use every tool that is around.
Again, I do not know if there is any real sure way to do all of those things, but I do know that DNA is a positive method of testing and should be used in cases where it ought to be used.
It isn't like we are not going to give justice to people that have committed capital crimes and need to be put to death. I am in a moratorium. That means we are delaying what we are doing right now until we have a better system to make sure that it works, and that is all this is, and there will probably still be some folks that will go to death.
Mr. WEINER. Governor, one of your fellow governors has argued that in his State there has never been a person put to death that did not deserve that fate and that was not guilty of the crime he was accused of. You answered this question in a different form for Mr. Canady, I believe. Can you make that kind of a broad-stroke statement about the State of Illinois?
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Mr. RYAN. Since I have been governor?
Mr. WEINER. Okay. So let's——
Mr. RYAN. I have only executed one person, and I feel very secure about that.
Mr. WEINER. Okay. But you certainly can't say that in the history of the State of Illinois or in recent years——
Mr. RYAN. I do not know. I mean, I do not know that I could. I do not know. I have not looked at the cases. I am not familiar with it.
I think the case that you speak of, of course, is—the individual has said that he has reviewed the cases, he felt that the people have been through the system, and that they were guilty. That is, I think, what a governor should do, or at least that is the charge I have in Illinois. I do not know what the charge is in other States, and I am not here to tell other governors how to do their system.
Mr. WEINER. Thank you.
I yield the balance of my time to the gentleman from Massachusetts.
Mr. DELAHUNT. I thank the gentleman for yielding. I just wanted to make an observation about the observation by my friend from Florida, Mr. Canady.
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I think we all are concerned about those 800 repeat offenders, but I think it is important to understand that this proposal cosponsored by myself and Ray LaHood is not just simply about protecting innocent people from being wrongfully convicted.
As importantly, it is about public safety, because I dare say, Governor, that in those cases—I think you indicated that there are now some 13 individuals that were charged with capital crimes that were convicted and served on death row and had been exonerated.
What I would suggest is that there are 13, possibly more, individuals who committed those crimes that are now walking the streets.
Hopefully your experience and your efforts in that regard have restarted those investigations and there have been hopefully some successful prosecutions that have resulted in convicting the truly guilty and punishing them accordingly. If you have any data, we would certainly welcome that.
Mr. RYAN. I think we have some. We will submit it.
Mr. GEKAS. The time of the gentleman has expired.
We turn to the gentleman from Arkansas, Mr. Hutchinson, for a period of five minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
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Thank you, Governor Ryan, for your testimony today and for the testimony of the sponsors of this legislation, Mr. Delahunt and Mr. LaHood. I have had many discussions with them, and I think there are some very important aspects of this issue that we need to seriously look at.
In reference to your statements about the competency of counsel, this is a real important aspect of any application of the death penalty. Does Illinois have a public defender system?
Mr. RYAN. Yes.
Mr. HUTCHINSON. And it did during the time that the death penalty was imposed that has been of concern to you?
Mr. RYAN. Yes.
Mr. HUTCHINSON. And in that public defender system, is there a specialized panel of death penalty qualified attorneys that would be appointed in death penalty cases?
Mr. RYAN. Just if they are the public defender. I think in the case of this Anthony Porter, he was defended by a public defender.
Mr. HUTCHINSON. Has your Commission determined yet or have you reached any conclusions as to whether a public defender system provides the type of quality defense counsel versus appointed counsel from the regular bar?
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Mr. RYAN. Well, we have 102 counties, so they all have their own public defenders and their own system, but my Commission hasn't reported back to me. They have not made any reports back to me on anything yet.
Mr. HUTCHINSON. I would be interested in learning the result of that, because some States still do not use a public defender system but use appointed counsel, and there is an argument as to where the best-qualified representation comes from. I guess we go back to the old standard that if you are recognized as a qualified attorney, then certainly you should be appointed and take your appointments in those type of criminal cases.
Mr. RYAN. I think that is an option that is available to the judge in Illinois. He can either appoint the public defender or a special counsel.
Mr. HUTCHINSON. Has there been any concern about racial disparity and the application of the system in Illinois?
Mr. RYAN. Yes. I said that there have been—I forget the number now—35 or 36 African Americans that were convicted by an all-white jury, and the numbers are disproportionate as to African Americans and non-African Americans.
Mr. HUTCHINSON. In terms of more African Americans receiving the death penalty than non-African Americans?
Mr. RYAN. Right.
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Mr. HUTCHINSON. Is that not counter to the statistic nationally? What I saw was in 1998 there were 68 executions, and of those 68 executions 40 were white. So is Illinois an aberration to that, or do you dispute that statistic?
Mr. RYAN. Well, we have ended up with more African Americans and Hispanics on death row than whites in other States, than in comparison with other States.
Mr. HUTCHINSON. So it could be a problem, for some reason, in Illinois versus a nationwide problem?
Mr. RYAN. Could be.
Mr. HUTCHINSON. Now, finally—and I am just making an observation here, Governor Ryan, because a number of the challenges to the death penalty and the DNA testing that is available today have called into question the reliability of eyewitness testimony, and I think in our society we have to have some protections in regard to eyewitness testimony and their account. That is why we have the rules being able to challenge their motive and what they have been promised, such as plea bargains, and things of that nature. But ultimately it is up to the jury to weigh the credibility of that eyewitness versus a defendant who may or may not testify or other witnesses, and we have to accept their conclusion.
I guess—and I am just asking your reaction—one of the concerns I have is that if we basically say an eyewitness testimony lacks veracity and reliability from the outset, then I wonder, particularly in assault cases, rape cases, where women are victimized, whether the woman will be reluctant to come forward because she is the only witness, she is the only eyewitness, and if you start with a presumption that that is not sufficient, then I am just concerned that the ultimate impact will be less reported assaults on women and the fact that prosecutors would be less reluctant to pursue these cases.
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This is not a death penalty issue. Mr. Conyers raised the question, ''How about non-capital cases?'' So I just wonder whether this debate, even though it is very important, might have an unintended consequence on harming witnesses coming forward.
Do you want to respond to that?
Mr. RYAN. Well, I would certainly hope it would not. I think eyewitness testimony is probably very important and certainly shouldn't be disregarded in any fashion. It should be used and let the jury decide.
Mr. HUTCHINSON. I think that is an important observation, and that is historically what we have done. You know, the defense attorney has got to get in there and competently challenge the testimony. The defense has to make a decision whether they are going to put the defendant on the stand or not and challenge the witness' testimony, and finally that jury has got to make the decision. They have got to look them in the eye and make that decision.
I think we just need to keep that in mind as we go through this debate.
I thank you again, Governor Ryan, for your leadership on this.
Mr. RYAN. You bet.
Mr. GEKAS. The time of the gentleman has expired.
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We now yield five minutes to the lady from Texas, Ms. Jackson Lee.
Ms. JACKSON LEE. Governor, first of all, let me offer an apology for the extensive questioning that you have received this afternoon. It is not in any way a reflection upon our lack of respect for your leadership and your position. I thank you for delaying your air travel so that all of us would have an opportunity.
I want to add an added appreciation for what you have actually done. I think it is more than you would imagine, and I would assume that the story will be fully told in history books that recount this time and this era.
This is the dilemma that I have been quarreling with, because I happen to be engaged now with the immediacy of the time of a pending execution of an individual that I have requested and joined with others, after much deliberation, and certainly study, that he should receive a new trial, and so I know that I am, at this juncture, in the emotional mix of what an execution of what I believe someone who has not gotten a fair trial can occur.
But what you have accomplished—and I want to pose some questions along this line—you have created in your State, and I believe in the Nation, a realistic debate on the death penalty and death sentence, and that is what we had not had.
I served as a local municipal court judge before I came here to this Congress and to sit in this Judiciary Committee room, and so I hold great respect for pharmacists, because they make better jurors, but I hold great respect for this judicial system and this legal system.
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But as I have taken up this cause, along with many others, some on the death penalty—in particular, my situation is with Gary Graham, a constituent—I have been bombarded with the debating tactics and tools of what we have heard in this committee room, with no disrespect to those perspectives—the fact that convicted criminals will go free to kill and murder again, the fact of whether we are diminishing the victim's family and their loss.
I would imagine that you have spent much time before the press saying, ''No way,'' as I have said, ''can we take away from the tragedy of someone losing a loved one.''
And then the other thing that we contend with is that these folks sometimes tend to be bad actors, they have had a bad record.
But in doing that I would like to ask you this question about how we have to make these decisions. Right now we are dealing with Presidential politics. I have tried my best to keep a man's life or his survival or his death out of Presidential politics. How are you answering the question to those in Illinois who would raise the question, ''These are bad people anyhow'' or raise the question that you are letting or ultimately keeping alive someone who has done something anyhow and raise the specter of debate to the level that we need it to be at?
I happen to support and will be joining in legislation for a National Innocence Commission modeled after yours. I think it is a brilliant idea, and the reason is because we can't tell what is happening in other States around the Nation. That is not a blame emphasis, it is to find facts and to also provide some standards, which I will raise with you again.
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But I would simply like to know how do you part the waters on those who would indicate that we are forgetting the victims, or, as well, that these individuals have been not the best citizens in the past?
Mr. RYAN. Well, there isn't any question that we are not dealing with angels when we talk about these folks that we are talking about. They are probably guilty in some form of one crime or another or have probably pretty long rap sheets, at least the people that I have seen.
But in my State I have not—all I have done is put a hold on things until we can find out what we have to do to make sure that we are right in what we do, and so that is my answer—that there will be retribution for those that deserve it and it has been done in a fair and equal manner, and that they are, in fact, guilty of the crime they have committed.
Ms. JACKSON LEE. I think if we can express that point nationally we would get far in this debate.
Let me also put into the record a note, because I know that a colleague raised the issue of whether or not we know or the fact that the system works because we have discovered that people have been proven innocent through the habeas corpus and other appeals. Might I note that the ''Chicago Tribune'' noted that, of the 131 Texas inmates that were executed under our present governor, it involved 40 trials in which defense attorneys presented no evidence or only a single witness, 43 of those cases included defense attorneys who had been or were sanctioned for misconduct, and 23 of those were using the testimony of a convicted felon or someone with a bad reputation, if you will.
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That means that those who are dead at this point, frankly dead, we do not really know what has happened to them, and so we have to fix the system for the living.
What is your thought about the idea of the single witness being the only witness, protecting that witness to the extent that you want to encourage others to come forward—I am like you, all witnesses are welcomed—but yet understanding that in many instances the single witness, if there are other legitimate witnesses who have not been heard, creates an atmosphere of unfairness, and it really attacks the system so that that is also a component of not having a fair trial.
I assume in your Commission you are looking at cases where there are only a single witness, where there weren't DNA. Your Commission is not just to look at whether DNA was used, but also other aspects of the trial. Is that my understanding? Is that how they are charged to investigate?
Mr. RYAN. I did not really charge them. I only charged them to look at the system, and where that leads them at this point is up to them, and they have only had, I think, two or three meetings at this point.
But, again, I am not sure that I understand what your question is, but we have to use everything available. If there is a witness that says that they witnessed or saw a crime committed, that should be noted and presented to the jury in some fashion. I do not think there is any question about it.
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Ms. JACKSON LEE. And if there are witnesses that have not been heard who had a different perspective, I would imagine that they should have their day in court, as well?
Mr. RYAN. Well, I am not sure what all the legal ramifications of that would be, how that would work if there are witnesses that have not had an opportunity to testify. You are the folks that work in this system every day. How does that work? Does the defense bring it in? Does the prosecution bring it in? And if either one of them do, how do they get there?
Mr. GEKAS. The time of the lady has expired.
Ms. JACKSON LEE. I thank the gentleman. I hope that any commission that we have on this issue will involve itself on all those questions. Thank you very much.
Mr. RYAN. Let me add that you really do not need to apologize for the questions I have received here today. I have been around this system a while and I understand how it works.
Ms. JACKSON LEE. Excellent, Governor. Thank you very much.
Mr. RYAN. And I appreciate the opportunity to come before the committee.
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Ms. JACKSON LEE. Thank you for your presence.
Mr. GEKAS. The Chair now recognizes the gentleman from Georgia, Mr. Barr, for a period of five minutes.
Mr. BARR. Thank you, Mr. Chairman.
Governor, how many district attorneys are there in your State?
Mr. RYAN. Are you talking about county State's attorneys?
Mr. BARR. Yes, sir.
Mr. RYAN. There are 102.
Mr. BARR. Okay. How many of those endorse this legislation?
Mr. RYAN. How many have what?
Mr. BARR. How many of those 102 prosecuting attorneys endorse this legislation?
Mr. RYAN. The Congressional legislation?
Mr. BARR. Yes, sir.
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Mr. RYAN. I have no idea.
Mr. BARR. Okay. Have you asked them?
Mr. RYAN. We have that provision in Illinois. The DNA testing provision is available.
Mr. BARR. Have you asked them their opinion on this legislation?
Mr. RYAN. I have not.
Mr. BARR. Okay. Are you aware of the fact that the National Association of Attorneys General is very strongly opposed to this legislation?
Mr. RYAN. No, I am not.
Mr. BARR. Have you read this legislation?
Mr. RYAN. I have been briefed on it.
Mr. BARR. Have you read it?
Mr. RYAN. No.
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Mr. BARR. Do you support it?
Mr. RYAN. I do.
Mr. BARR. And you have not read it?
Mr. RYAN. No.
Mr. BARR. Well, you might——
Mr. RYAN. I spent 20 years in the Illinois General Assembly and did not read all of the bills that I supported. [Laughter.]
Mr. RYAN. I would guess if we are all honest with each other, we would probably make that same statement.
Mr. BARR. Well, and I am sure that you have very fine journalism students also in your State, but you are the elected chief executive officer of your State. You are testifying here before Congress today on very far-reaching, important legislation that would affect not only your State but certainly every death penalty case now or in the future in your State, but other States, as well, and you are saying you endorse legislation that you have not even read.
Mr. RYAN. I said that I have endorsed the DNA testing, and that is part of this legislation. Now, I do not know. Maybe there are some other parts of this legislation that you think I shouldn't endorse.
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Mr. BARR. Yes. If you ask me, I think there are, and I think any governor ought to take a very, very close look at this for some of the same reasons that the Association of Attorneys General does not endorse it. There are very serious questions of federalism in this legislation.
Now, if you want the Federal Goverment and, in particular, the Department of Justice to tie your hands as the governor with regard to how to conduct every single death penalty case in your State, then you ought to endorse this legislation, but if you have some concerns about that, your proper prerogative and role and responsibility as the chief executive officer respecting principles of federalism, then I would suggest you take a close look at this.
If I could, one of the areas, for example, into which this goes, this would require a State to pay up to $100,000 a year to an inmate who is ''unjustly imprisoned,'' whatever that means. It does not define it. That is, I presume, the same in Illinois as it is in my home State of Georgia, far in excess of the average annual income for even a family of four, to say nothing of a particular individual; yet, this legislation will mandate that—that however one defines somebody being unjustly imprisoned, there would be jurisdiction to go into Federal court to receive compensation, including pain and suffering, up to $100,000 a year.
Mr. DELAHUNT. If the gentleman would yield?
Mr. BARR. No. That is just one particular provision of this legislation. It would also require, for example, among its other terms, that your courts, the courts of the State of Illinois, maintain certain evidence virtually indefinitely.
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It would also provide that, before an attorney who is already a member of the Illinois Bar, which I presume is a very learned, professional bar association with very high standards, before they would be able to perform defense work for a capital case and withstand the challenges that this particular law would thereafter impose on them, that they would have to be certified not by you, not by the State of Illinois, but by the U.S. Department of Justice, so they would now become involved by law in mandating these specific requirements for every single attorney to practice capital law in your State.
These are just some of the particular provisions in this legislation that I think and a number of attorneys general believe raise very serious questions about federalism, and I really would suggest that you take a much closer look at it.
I was also intrigued, Governor, by your written testimony as delivered here today that you look for a guarantee, yet you also would be satisfied if there were a moral certainty that a person has been properly convicted.
I do not know that a moral certainty is the same thing as an absolute guarantee, and I do not know how one ever reaches, other than to say we can never have an execution, that the system guarantees that nobody will ever be executed. That is somewhat different from a moral certainty. So I think that I have some real problems with your position. I certainly respect it.
I would like to ask one specific question, though, and that is—maybe you can enlighten us—the specific authority as the chief executive officer under Illinois law where you can override, other than on an individual case and an individual finding of a capital sentence, a whole category of cases, and is this being challenged in the courts of Illinois?
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Mr. RYAN. Well, I would guess the moratorium is done on an individual basis. There are no cases before me right now. There are some that are about to come, but I would just postpone them. So you can name it whatever you want to name it and however it works or is called. It is a moratorium, but each case comes to me individually and I just postpone it until I get a report back from my committee.
Mr. GEKAS. The time of the gentleman has expired. All time has expired for the——
Mr. RYAN. I would just like to add to the gentleman from Georgia that I stand reprimanded, Congressman, on the fact that I have not read the bill, but I thought part of the process was here that we came and exchanged ideas, and part of—these bills are not just passed as they are introduced. At least that has always been my experience. There are opportunities to work with them. But I came only to share my ideas, based on what I thought was important about the DNA testing and what ought to be used there. But I thank you for your comments.
Mr. GEKAS. And the committee is very appreciative of your appearance, of your sacrifice in time, and we know that we will be in touch as this debate continues. We thank the gentleman from the bottom of our hearts.
Mr. RYAN. Thank you very much.
Mr. GEKAS. We are now prepared to empanel the second set of witnesses, or the third set. We will begin the introductions while they are assembling at the desk.
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Kirk Bloodsworth was convicted and sentenced to death in 1985 for the murder of a young girl in Maryland. After his convictions and at the suggestion of his new lawyer, DNA testing on evidence from the crime showed that he could not have committed the crime. He was released from prison in 1993, 9 years after his arrest, and was the first capital defendant freed as a result of DNA testing.
Stephen B. Bright is the director of the Southern Center for Human Rights in Atlanta. He is in his 18th year as director of the center, a public interest legal project whose mission is to protect the rights of people in the criminal justice and correction system of the south. Mr. Bright also currently teaches at several universities, including Yale, Harvard, and Emory Law Schools, and was a recipient of the American Bar Association's Thurgood Marshall Award in 1998.
Ward A. Campbell is the deputy attorney general for the State of California. Mr. Campbell appeared as a witness for the Senate Judiciary Committee in 1993 on ''Innocence and the Death Penalty.'' He was the recipient of the 1999 Attorney General's Award for Excellence in Legal Services and Excellence in Team Litigation and is the chairperson of the Criminal Procedure Working Group of the National Association of Attorneys General. He received his undergraduate and law degrees from the University of California at Davis.
James E. Coleman, Jr., is a professor of the practice of law at Duke University School of Law, where he teaches criminal law, legal ethics, and seminar on the death penalty. He currently is Chair of the Section of Individual Rights and Responsibilities of the American Bar Association, on whose behalf he testifies today. He received his bachelor's degree from Harvard College and his law degree from Columbia.
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Gerald Kogan is co-chair of the Constitution Project's National Committee to Prevent Wrongful Executions. Justice Kogan has also served as chief justice of the Florida Supreme Court, as well as head of the capital crimes prosecution unit in Dade County, Florida. He has also served as a defense counsel and as special counsel to the Florida Legislature's Select Committee on Organized Crime and Law Enforcement. He received his bachelor's and law degrees from the University of Miami.
Peter Neufeld is a co-founder and director of The Innocence Project, which represents more than 200 inmates seeking post-conviction release through DNA testing. Mr. Neufeld is co-chair of the National Association of Criminal Defense Lawyers' DNA Task Force. In 1995, he was appointed by the governor to the New York State Commission on Forensic Science, which has responsibility for regulating all State and local crime laboratories. He recently authored the book, ''Actual Innocence,'' together with Barry Scheck. Mr. Neufeld is a graduate of the University of Wisconsin and received his law degree from New York University School of Law.
We now yield to the gentleman from New York, Mr. Weiner, for the purpose of introducing the next named member of the panel.
Mr. WEINER. Thank you, Mr. Chairman.
I just want to join in welcoming Mr. Neufeld, as well, who I believe is from Brooklyn, and also particularly welcome our Attorney General, Mr. Spitzer, who has, in his brief tenure thus far as the Attorney General, redefined the office and has been aggressive on environmental law and consumer protection and challenging negligent gun manufacturers, but is also known to many of us as a tough prosecutor. I think he served as a district attorney on some small island not far from Brooklyn and Queens. I want to welcome him here, as well.
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Mr. GEKAS. And we continue with introducing the last member of the panel. Stuart Van Meveren is the district attorney for the 8th Judicial District of Fort Collins, Colorado, a position he has held for 28 years. He also is president of the National District Attorneys Association and testifies today on their behalf. He received his undergraduate and law degrees from the University of South Dakota.
We say to the members of the panel that, as is the custom, the written statements that have been produced by all of you will be automatically made a part of the record. We will try to proscribe your oral testimony to five minutes and ask that you try to review it within that time. We have an extensive number of panelists and a limited amount of time. We ask you to try to conform to that, with due fairness on the part of the Chair in applying the clock.
We begin then, as you are facing me, with Mr. Bloodsworth.
We have in mind that Mr. Spitzer has a time problem, and as we get down the line and we see that we are running short we will skip over the other panelists for that purpose.
Mr. Bloodsworth?
STATEMENT OF KIRK BLOODSWORTH, BALTIMORE, MD
Mr. BLOODSWORTH. I would like to thank the committee for having me here today. It has been a long battle for me, 17 years worth, and what I am going to read today is a statement that I read before, but it has a profound effect on exactly how I feel and what happened to me.
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Seven years ago I was in a prison cell. I could not imagine at that time that I would be invited before you to share my experiences with you. I was in prison for a total of 8 years, 11 months, and 19 days for a crime I did not commit.
I was released from prison on June 28, 1993, and have been free for more than 6 years after new technology, DNA, that was not available at the time of my trial proved that I was innocent for a crime of which I had been convicted.
Seventeen years ago, in 1984, I was a 23-year-old, newly-married former Marine. I had never been arrested for anything in my life. I had served 4 years in the Marine Corps and was honorably discharged. I was working full time. Although I had problems like many young men and persons have, I hadn't envisioned this nightmare that I was about to enter into.
On July 25, 1984, Dawn Hamilton, an innocent nine-year-old little girl, was brutally raped and murdered in a woods near her home. I had never met Dawn or her family and knew nothing about the crime. However, I looked like a composite of the last man seen with Dawn. The police received an anonymous tip that I looked like the composite. When the police interviewed me, I told them I did not commit the crime and voluntarily allowed them to take a picture of me and also hair samples and so forth. Later, my picture was selected by witnesses. I was identified in a line-up by several witnesses as the man who was last seen with Dawn Hamilton.
From the moment of my arrest and from the time of my release I told anyone and everyone that I did not commit this crime. At my first trial, several people, all of them strangers to me, identified me as the last man seen with the little girl. I had a full jury trial, at which I testified and my friends and family members testified that I was with them during the time of the crime. The jury believed the eyewitnesses and did not believe us.
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I was convicted, and after a sentencing hearing I was sentenced to death. One of the loneliest feelings I had ever had was when the judge sentenced me to death, and after he had pronounced the sentence the courtroom erupted in applause.
I was convicted and was sentenced to death. People in the courtroom erupted in applause and stared at me with feelings of glee. At that point I started to realize that this was no longer a dream, that this was a reality, that it was a very real possibility I was going to die an innocent man.
At that point, at my second trial the prosecution presented many of the same witnesses, and again I was convicted. I chose to be sentenced by a judge this time, and at the time I had written this I had reviewed what he had said in the trial, and I would like to read it back to you. This is from my trial transcript.
The judge asked me, ''Is there anything you would like to tell the—'' excuse me, my attorney asked me, ''Is there anything you would like to tell the judge before he passes sentence?'' And I said, ''Yes. I feel very sorry for what happened to the child and for the family and what they must be going through. There is no way in my conscience that I could kill a little girl—or anybody, for that matter. I respect life and just couldn't do it and I did not. You have got the wrong man. And if you sentence me to death, Judge, there is no way down the road we can pull it back. I have no idea who killed the child. All I know is I did not.
''When they close the doors on the gas chamber, that is it. You can't pull it back. And that is what has happened here. But you just can't bring me back, Judge. Once I am dead, that is it, like you can't bring back the little girl.
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''I feel sorry for what happened to the child, but I am not your killer, and if you kill me we are never going to find out.''
I do not know why the judge did not sentence me to death in the second trial. Maybe my statement had some impact. I do not know. All I know is I was sentenced to two consecutive life sentences and I would have died in prison saying I was innocent.
I remember when I first spoke to who is now The Honorable Judge Moran here in the District of Columbia, and he told me that, since I was beyond my direct appeal, the chances of winning a new trial were extremely small because the courts were no longer concerned with whether I was innocent or guilty, they assumed I was guilty. And I remember this statement shockingly. There I was in prison for something I did not do, and it was hitting me that the courts would not be interested in whether I was innocent or guilty.
During his investigation, Judge Moran had all the evidence re-examined by a laboratory in California, Forensic Science Laboratory, run by Dr. Edward Blake. In 1984, they had no DNA that could measure this type of thing. It was not available at the time, and I simply had to wait until technology caught up with my case. The FBI also tested the evidence. As a result, the prosecution and the court agreed to dismiss the case and simply set me free.
Since I have been released, many people have asked me, ''What does it all mean?'' Could I have been executed? Does the fact that I was not executed finally mean and finally release me that the system worked? Can I put this behind me?
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I do not know all the answers. Does the system work? In my mind it does not. I had a lawyer that worked for me at the time, a very compassionate man that believed in me and saved my life.
I was released after 8 years, 11 months, and 19 days in prison, all of that time not knowing whether I would be executed or whether I would spend the rest of my life in prison. My life has been taken from me and been destroyed. I was separated from my family and branded the worst thing possible—a child killer and rapist.
I cannot put into words what it is like to live under these circumstances, but I will try.
Did the system work? My family lived through this nightmare with me. My father spent his entire life savings. As a result, he cannot retire, and at 72 he must still work. My mother, whom I loved and who stood with me right beside me, died five months before I was released. She never heard the results of the DNA tests, but she knew her son and she knew her son couldn't commit such a crime.
I am not a lawyer. I do not pretend to know all of the technical niceties and arguments about appeals. I do have a personal reaction, however.
When I hear some people say that the system is fine but we need to speed it up, they are all guilty anyway, and we should not be concerned with all the technicalities or with the convicted or executed, and, even if that happens, that is the price we pay for democracy, bull I say.
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These statements and others like them stun me and sadden me. The people who make these statements were not with me during those 9 years I was in prison. You see, when people say these things, they are not talking about a hypothetical person, they are talking about me. Despite all of the protections provided by the system, I would have been executed saying that I was innocent and having nobody hear what I was saying. I was going to spend the rest of my life in prison for something I did not do. I was the person whose life was destroyed and who lost his family. I was not and am not a hypothetical person. I was just a regular person with hopes and dreams like everyone else, nothing special.
For 7 years I have been free. It has been very confusing to me. Things have changed so much since I was last free. I am still adjusting, to this day, to my freedom. It is difficult not to become bitter about what I have missed. I am having great difficulty putting my life back together, but I am trying, with family and friends, to make it happen.
However, I am not the same person, and no one will be able to replace what I have lost. I am overwhelmed with words of support that I receive from people of Maryland and throughout the country. People who I do not even know come up to me and hug me and shake my hand and tell me what happened to me made them think and change their minds.
I do not know why all these things happened to me. Maybe there is some reason for all of this. And I believe maybe it is today.
This bill is very important. It addresses a lot of issues far and wide. The Government and the systems of justice we have in this country are for the people. It is for the innocent man, not for the guilty man. We need competent attorneys. You would not drive a cab if you knew that the taxi driver was going to be asleep at the wheel.
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Also, the people that have this happen to them need compensation, need meaningful compensation. To tell you the truth, $100,000 isn't enough. We need more. We need DNA testing, across the board look, and we need to stop executing people in this country now.
I do not know why all these things happened to me. There must be some reason. These things happen to just ordinary people like us. If it can happen to me, it can happen to you, it can happen to your child, your son, your daughter. It can happen to anybody.
Thank you.
Mr. GEKAS. We thank you very much for the testimony.
Is there any other member besides Mr. Spitzer of this particular panel who has a pressing time problem? You want me to skip around?
Mr. VAN MEVEREN. Mr. Chairman, it is not pressing at this point in time, but probably 5 would be my limit to catch my airplane.
Mr. GEKAS. We hope that we can complete everything by about 4:15. Does that stretch—we will try to do it by 4:15. At least that is a chart for my own behavior.
Mr. Neufeld?
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STATEMENT OF PETER NEUFELD, ESQUIRE, THE INNOCENCE PROJECT, NEW YORK, NY
Mr. NEUFELD. Thank you very much, Mr. Chairman, and thank you very much members of the committee.
I am the co-founder and co-director of the Innocence Project of the Benjamin Cardozo School of Law in New York City. To date, there have been 67 people who were convicted in courts of law in this country, had their convictions affirmed on appeal, only to be exonerated through the use of DNA evidence. Our Innocence Project at Cardozo Law School either represented or assisted 39 of those 67 men. We have litigated the issues involving access to DNA testing in more than half the States in this Union.
What I am here to tell you first and foremost, members of this committee, is that these are people who not only did the system fail in terms of their jury trials, but these are people for whom the appellate remedies in this country failed, as well.
Unlike the Liebman study that was referred to by some of you earlier in these proceedings, these are people who never had their convictions vacated during those direct appeals. But for the intervention of DNA testing, sometimes because there was consent from prosecutors but more often than not because we had to litigate it in courts, litigate it in courts where there were procedural bars, where judges simply said, ''I am not going to allow an innocent person to die on my watch,'' but for those two situations, these people would still be in prison.
What is extraordinary about it, and it refers to some of the comments made by some of the Congressmen earlier this afternoon, is that in every single one of these cases—in almost every single case, identification was an issue. Eyewitnesses testified, but not once did the jury for these 67 people find that the eyewitness testimony was unreliable. More importantly, in not one of these cases did an appellate court, using the conventional Supreme Court tools for assessing the reliability of eyewitness identification, intervene and decide that, no, this was unreliable and this conviction should be vacated.
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But we know, because of the wonderful window that DNA testing affords us, that those eyewitness identifications were, in fact, unreliable. In a third of these 67 cases that we have reviewed, the individuals had grossly incompetent lawyers, and for those of you who are lawyers on this committee—and I know that many of you were, in fact, prosecutors—you are all familiar with the Constitutional standard for ineffective assistance of counsel, the so-called ''Strickland test.'' But I am here to tell you that for a third of these people, where there was no question that counsel was ineffective, indeed they were factually innocent people; that in only one case did an appellate court vacate that conviction finding that counsel provided incompetent and ineffective assistance, so clearly the Strickland test did not work for these people, as well. The traditional appellate remedies simply did not work.
I am here today on behalf of my constituents. My constituents are the 200 people who we currently represent who have been turned down by prosecutors and courts around this country simply seeking a DNA test to prove their innocence. Our constituents are a thousand other people who are backlogged, who have written to us and pleaded with us for our help.
We have cases that have been pending for 3 and 4 years before we can even get to them ourselves. It sometimes takes another 2 years before we can collect the files so we can go into court and make a compelling case for innocence. Any statute of limitation would be a barrier for these individuals. In fact, in New York State, where we had a statute enacted in 1994, a fellow just last year, Vincent Jenkins, came forward 5 years after the statute was enacted and got DNA testing which proved that he had spent 16 years in prison for a crime he did not commit. If there was a 30-month window for this statute, as has been proposed in some corridors, people like Vincent Jenkins would have the door slammed shut on them. We cannot accept the statute of limitations.
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The other key issue for you to think about here today, besides the statute of limitations, is the necessity to preserve evidence. It is a waste of time to simply afford people DNA testing unless you also require the States to preserve the evidence for that testing. Of the cases that our Innocence Project has taken on to date, 75 percent have had to have been closed out. These are case where people otherwise meet our criteria for acceptance but we have had to close out those cases because the evidence has either been lost or destroyed.
Right now we have 67 exonerations. I can't tell you how many hundreds more we would have had the evidence only been available for testing. And it is not enough to simply say that preservation will be triggered by a motion filed by an inmate. The preservation has to be generalized and be across the board. And it is not expensive and it is not an undue hardship.
In the State of Virginia, for instance, where it does not even require that they preserve the evidence, they simply do it as a matter of course. And the evidence can be kept at room temperature. It can be kept in a plain storage room and, given the integrity of DNA evidence, it can be tested with certainty 10, 15, and 20 years later.
If you do not have a general rule, you actually encourage people to go out there and start destroying evidence. Such was the case for Kevin Bird after the Kevin Bird pardoning in Texas. When Mr. Bird was pardoned by the governor in Texas, the clerk in Harris County, Texas, ordered that 50 rape kits be destroyed, entered into a contract with a waste management company to continue the destruction of these rape kits. Every day that those rape kits are destroyed it makes it impossible for somebody who might be factually innocent to prove his innocence. That is why we need across-the-board preservation.
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And, finally, any requirements on inmates for getting this kind of testing must be kept flexible. The notion that the evidence was not available at the time of trial as a practical matter just does not make sense. DNA technology, as you have already been told, is rapidly evolving. There are kinds of technology that we can use today that were unavailable just 16 months ago. We can now use the kind of testing that Governor Bush ordered in the McGinn case, where you can look at a single hair which has no root. That kind of technology simply did not exist 2 years ago in this country. And so it goes with DNA testing.
More importantly, there are so many cases we can tell you about where defense lawyers simply failed to ask for DNA testing at trial, where prosecutors simply failed to ask for it. Are we going to punish the defendant for that?
There is a case right now in New York State of a man named James O'Donnell. In 1998 he was convicted on an attempted sodomy. There was no semen in the case, so nobody bothered to ask for DNA testing, neither the prosecutor nor the defense attorney. But, indeed, the perpetrator had bitten the victim and left his saliva behind, and the victim, to defend herself, scratched at that perpetrator and collected tissue from that man under her fingernails, and the police officer appropriately and responsibly collected those biological materials.
Two years later, DNA testing was done a month ago, and, sure enough, the tissue underneath the fingernails, the saliva that was deposited on her body did not come from the man who was convicted, they came from someone else.
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Are we going to say to Mr. O'Donnell that he must remain in prison simply because his lawyer and the prosecutor failed to ask for DNA testing 2 1/2 years ago? I submit to you we cannot do that.
And when you are thinking finally about that ultimate bar, that ultimate bar, please be flexible because when you are talking about somebody who can show that they have a bona fide claim of actual innocence, if you scrutinize the cases too carefully you will find people here like Kirk Bloodsworth, where you would say or a judge might say, ''Well, there were five eyewitness, not just one like we have in the Graham case in Texas, but five eyewitnesses. Surely, he is not entitled to DNA testimony.''
In 20 percent of these unjust conviction cases, confessions were introduced against the defendant. It turned out, as a result of the DNA evidence, that we now know that those confessions were simply false. Please do not allow other evidence to interfere with the ability of new, highly-evolved technological, scientific evidence which can first and foremost prove that a lot of guilty people are, in fact, guilty and, at the same time, prove that a lot of innocent people were unjustly convicted.
Mr. GEKAS. The time of the gentleman——
Mr. NEUFELD. Every day that this legislation waits, more evidence will be destroyed, more evidence will be lost, and the 200 people that we represent and the thousand people who are backlogged will never have an opportunity to get their day in court and prove their innocence.
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Thank you very much.
Mr. GEKAS. The time of the gentleman has expired.
[The prepared statement of Mr. Neufeld follows:]
PREPARED STATEMENT OF PETER NEUFELD, ESQUIRE, THE INNOCENCE PROJECT, NEW YORK, NY
There have been at least 67 post-conviction DNA exonerations in the United States. Our Innocence Project at the Benjamin N. Cardozo School of Law has either assisted or been the attorney of record in 39 of those cases, including 8 men who served time on death row. For all of these men, existing appellate remedies failed to catch the mistakes and correct the injustice. In one third of the exonerations, bad lawyering contributed to their convictions yet in only one case was ineffective assistance of counsel recognized by an appellate court. Mistaken eyewitness identification was a critical factor in almost 90% of the unjust convictions yet not a single trial or appellate court found the eyewitness testimony to be unreliable.
In 15 of the 67 post-conviction exonerations, DNA testing has not only remedied a terrible miscarriage of justice, but led to the identification of the real perpetrator. Every time an innocent man is sent to prison or death, the real perpetrator remains at liberty committing more crimes.
In most of the 67 exonerations, the prosecutor did not consent to DNA testing. Instead, defense attorneys were compelled to litigate access to the evidence. For the 67 innocent men, the average length of incarceration before exoneration exceeded ten years. The average delay caused by litigation, where DNA testing was eventually permitted and led to an exoneration, is 4.5 years. At the Innocence Project, we continue to represent dozens of men who so far have been turned down by prosecutors and courts in their bid to secure DNA testing. Each day of further delay increases the likelihood that the critical biological evidence will be lost or destroyed. Indeed in almost 75% of the cases initially accepted by the Innocence Project—matters where it has been established that a favorable DNA result would be sufficient to vacate the inmate's conviction—the files are ultimately closed because the relevant biological evidence was not preserved. Many of these men may be actually innocent but they shall remain in prison or die because there is simply nothing left to test. Our project's sixteen law students are in a race against time to secure genetic testing for our 200 clients before the evidence vanishes. Another 1000 cases are backlogged, awaiting assignment to the overwhelmed law students. It is for these men, and the dozens more who continue to write to us each month—who appeal to us as the ''court of last resort''—that the Innocence Protection Act is so desperately needed.
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The primary impediment to exonerating wrongfully convicted inmates through the use of DNA testing has been a legal roadblock—restrictive statutes of limitation. Thirty-three states have statutes of limitations of six months or less on motions to present newly discovered evidence of innocence. Similarly, federal habeas corpus applications have a six-month statute of limitations in capital cases and a one-year statute in all other matters.
As you consider this historic legislation, I would urge you to keep these key points in mind:
1. There Should Be No Statute Of Limitations.
New York enacted its post-conviction DNA testing statute in 1994. Had New York created a 30 month window from the date of enactment, it would have slammed shut on Vincent Jenkins who spent sixteen years in prison for a crime he did not commit. The DNA testing that set him free was conducted in January 1999, more than four years after the law was enacted. We continue to receive letters from and on behalf of New York inmates who for whatever reason were previously unaware of the opportunity for testing. It simply isn't fair to punish factually innocent prisoners who may be retarded or, as a result of a wrongful conviction, suffer a debilitating mental illness.
In the report, Recommendations For Handling Post-Conviction DNA
Applications, and in the model statute, the Commission on the Future of DNA Evidence did not create any time limits or statute of limitations for making a post-conviction DNA application. The key requirements were substantive—the inmate has to show a reasonable probability that DNA testing would demonstrate he was wrongly convicted or sentenced. I can assure you, based on the work of the Innocence Project, which has done, by far, more post-conviction DNA litigation than anyone else, that the Commission's decision not to create any new time limits or statute of limitations was a considered judgment and a correct one. When one is dealing with old cases (10, 15, sometimes 20 years old) it is difficult to assemble police reports, lab reports, and transcripts of testimony that are necessary to show that a DNA test would demonstrate innocence or cause a reduction in sentence. Indigent inmates serving hard time do not have the resources or access to counsel to gather the necessary materials expeditiously. Frequently, it takes us 4 years or more to get the necessary materials together and to locate the biological evidence.
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That was true for Dennis Fritz and Ron Williamson who were exonerated with DNA testing in April of 1999 in Oklahoma. Dennis received a life sentence. Ron came within 5 days of execution. DNA testing also identified the person, through a DNA databank hit, who probably committed the rape homicide. It was true for Clyde Charles of Houma, Louisiana who spent 19 years in Angola Prison, the so-called ''Farm,'' and 9 years trying, unsuccessfully, to get a DNA test within the state courts of Louisiana—they said he was too late—until we got a federal judge to grant relief pursuant to a Section 1983 suit for injunctive relief. It was true for Herman Atkins
of Riverside, California who was released in February of 2000. It was true for Neil Miller of Boston who was released only because, after many years of trying through the courts, District Attorney Ralph Martin consented to DNA testing. It was true for A. B. Butler of Tyler, Texas who was pardoned three weeks ago by Governor Bush after 17 years in jail for a crime he did not
commit. Butler attempted unsuccessfully pro se to get DNA testing through the courts for 7 years; he only got testing after the Centurion Ministries and attorney Randy Schaefer got involved and obtained consent to testing from local district attorney.
One purpose of this legislation is a recognition that actual innocence should trump procedural obstacles to freedom. It should be enough for the inmate to show that a DNA test would provide non-cumulative, exculpatory evidence that he was wrongfully convicted or sentenced.
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2. There Should Be A Duty To Preserve Biological Evidence While An Inmate Is Incarcerated.
Calvin Johnson of Georgia was exonerated after 17 years in prison for a crime he didn't commit but only because, by sheer chance, an assistant district attorney noticed a dumpster full of sealed boxes of trial evidence in the hallway of the courthouse about to be thrown out. The rules for preservation of biological evidence are totally haphazard across the country. There should be a general requirement to preserve biological evidence and an opportunity for law enforcement, upon notice to an inmate, to move for destruction of the evidence in an orderly way. A general preservation rule is preferable to one that requires an inmate to file a motion for DNA testing to trigger the state's obligation to preserve evidence. That latter approach might encourage the wholesale and precipitous destruction of biological evidence. In Harris County Texas, shortly after Kevin Byrd, cleared by DNA testing, was pardoned by the governor, the clerk ordered the destruction of fifty rape kits.
Preservation is neither burdensome nor unduly expensive. In Virginia, where the law would permit destruction of samples soon after conviction, local courthouses routinely save samples for decades in a comparatively traceable fashion. The suggestion that expensive freezer equipment would have to be built with high energy costs is mistaken. As long as the evidence is stored in a dark dry room, air conditioned in the summer, the evidence will remain robust for years.
This would not only preserve the rights of inmates to produce proof of their innocence through DNA testing, but help law enforcement re-test old cases to catch the real perpetrators.
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3. Inmates Should Not Have To Prove That The Technology Was ''Unavailable'' At The Time Of Trial.
In the vast majority of post-conviction DNA exonerations some form of DNA testing was, in theory, available to the defendant at the time of trial. In some instances the form of DNA testing available was not sensitive enough to produce a result, but later testing was able to produce irrefutable evidence of innocence. For example, Kirk Bloodsworth of Maryland, who received a death sentence, had inconclusive DNA testing using RFLP (Restriction Fragment Length Polymorphism Testing) but was exonerated by PCR (Polymerase Chain Reaction) testing.
At other times, requests for available DNA testing were wrongfully denied by trial courts, or incompetent lawyers failed to request the testing. In May, 1998, James O'Donnell was convicted by a New York jury of attempted sodomy. Because it was an ''attempt'', there was no semen and hence neither the prosecutor nor the defense attorney requested DNA typing. But the assailant had bitten the victim and the victim, defensively, scratched the skin of her attacker. The police specialists had promptly swabbed the bite mark for saliva and collected the scrapings from beneath the fingernails. Last month it was revealed that the saliva and tissue left by the perpetrator, did not come from Mr. O'Donnell. Should Mr. O'Donnell remain in prison simply because neither his counsel nor the prosecutor adequately appreciated the evolving applications of this revolutionary technology?
In other cases, early forms of DNA testing, which were not very discriminating (e.g., the PCR DQ Alpha test), failed to exclude a defendant at the time of trial, but a more discriminating DNA test, developed years later, produced proof of innocence. The technology is always advancing and that is why it is wise to provide for the opportunity to prove innocence with new, more accurate DNA testing. Indeed, this is precisely the course Governor Bush adopted in the Randy McGinn reprieve decision. Mitochondrial DNA testing, one of the more sensitive tests that will be used in the McGinn case, can now get results by extracting DNA from the shaft of a hair; previously, one needed a hair with a fleshy root to get a result. At the Innocence Project, we screen new cases to make sure they meet our criteria. Our resources are meager. Nevertheless, we do not reject cases simply because there may be significant inculpatory non-biological evidence. In four of the exonerations, three or more eye witnesses testified with certainty at the original trials. The DNA proved they were wrong. If the number of eyewitnesses should be a factor, then Kirk Bloodsworth—identified by five witnesses—should never have received testing. I have attached to my testimony, the opinion piece of a rape victim, Jennifer Thompson, published this past Sunday in the New York Times for it demonstrates how certainty does not ensure reliability. In fifteen of the exonerations, confessions and admissions were introduced at trial. Generally, this type of evidence can be the most compelling and probative of guilt. The DNA proved the confessions were false. Had Tony Snyder's purported confession prevented him from securing post-conviction DNA testing, he would be fourteen years into his 45 year sentence.
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4. There Must Be More Funding To Provide Competent Counsel, Especially In Capital Cases.
Recent revelations reported by the Chicago Tribune about the lack of adequate counsel for inmates on Death Row in Illinois and Texas are troubling but not surprising. The American Bar Association has long been on record about this crisis, and in our book, Actual Innocence, we discuss at great length the terrible problem of incompetent counsel we found among the individuals exonerated with post-conviction DNA testing. DNA testing only helps correct conviction of the innocent in a narrow class of cases; most homicides do not involve biological evidence that can be determinative of guilt or innocence. Nothing guarantees the conviction of the innocent more than a bad or underfunded lawyer. We have to rely on the adversary system, and the key to that system is a defense lawyer who is qualified, has adequate funds for investigation and experts, and is compensated well enough to provide good representation.
5. Post-Conviction DNA Exonerations Provide An Unprecedented Opportunity To Improve the Criminal Justice System.
Post-conviction DNA exonerations have a special value for improving the entire criminal justice system. Never before have so many people been exonerated so quickly without any debate about their actual innocence. The fact that DNA testing can exonerate the wrongly convicted is hardly news; what is more important, however, is to figure out how the innocent got convicted in the first place. That is why Barry Scheck, Jim Dwyer and I wrote Actual Innocence. We not only tell the stories of the innocent wrongly convicted but identify systemic causes: Mistaken eyewitness identification, false confessions, fraudulent and junk forensic science, defense lawyers literally asleep in the courtroom, prosecutors and police who cross the line, jailhouse informants and the insidious problem of race. We present mainstream solutions to these problems that conservatives and liberals, Republicans and Democrats, prosecutors and defense lawyers can all support. Certainly one of the most critical reforms is the Innocence Protection legislation you consider today. I urge you to pass a bill this year before more evidence is destroyed or degrades and the slim hope innocent men have to achieve their freedom disappears.
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Mr. GEKAS. Mr. Bright?
STATEMENT OF STEPHEN B. BRIGHT, ESQUIRE, DIRECTOR, SOUTHERN CENTER FOR HUMAN RIGHTS, ATLANTA, GA
Mr. BRIGHT. Mr. Chairman, thank you, and members of the committee, thank you very much for the time.
I want to talk if I might, Mr. Chairman and members of the committee, about the second title of this act, because I think it is critically important. That is the part that goes to the right to counsel, because DNA evidence is only available in a very small number of cases.
I attached to my statement an article that was in Sunday's ''New York Times'' by a woman who was a victim of a rape who talked about how, during that assault, she studied carefully the features of her assailant, identified a person, convicted him, later said it was not a second person who had bragged that he had done it, convicted him a second time, only to find DNA evidence to later show that that had been a mistake.
If that woman had witnessed a murder in which there was no biological evidence, in which there was no DNA evidence, she would be as certain today as she was until the DNA evidence proved her wrong. And so we have to depend upon the adversary system, and unfortunately it is breaking down.
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I might also say we can't depend on the appeals process. Look at the Porter case that Governor Ryan talked about. Anthony Porter had been through all of the State and Federal review and his conviction had been affirmed over and over again. The only reason he was not executed was because of a question about whether he was mentally competent to be executed, whether he understood why he was going to be executed.
If his IQ had been 10 points higher, he would have been put to death and everybody who says ''We have never executed an innocent person'' would go right ahead saying that we have never executed an innocent person.
Unfortunately, in many jurisdictions the adversary system exists only for the rich, and whether we are talking north or south, east or west, there are courts in this country where it is better to be rich and guilty than to be poor and innocent.
I have watched this process now for over 20 years. I have seen people in Georgia represented in four different cases that I have had by court-appointed lawyers who referred to their own clients with a racial slur. I represented a woman in Alabama whose case had to be stopped for a day mid-trial because her lawyer fell down objecting and was so drunk he could not get up off the floor, and they sent the lawyer to the jail and the next day produced both lawyer and client from the county jail in Talladega, Alabama, and sentenced her to death.
I have seen two cases in which mentally-impaired inmates had sexual relations with the court-appointed lawyers that handled their cases; cases where the lawyers were drunk, where the lawyers were asleep, where the lawyers were impaired by drugs.
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And, just to tell you how bad it is, I was at the Court of Appeals for the fifth circuit just 2 weeks ago watching an argument in which the Texas Solicitor General's Office asked that court to reverse a case in which the Judge Hittner in Houston had granted a new trial to Calvin Burdine because his lawyer slept through the trial. If I had been there and had seen it myself, I would not have believed it.
The argument made by the Solicitor General for Texas was that a sleeping lawyer is no different than a drunk lawyer, a drug-impaired lawyer, a lawyer with Alzheimer's disease, or a lawyer who is having a psychotic break. Apparently, all of those types of lawyers are acceptable.
The court actually engaged counsel in that argument. One of the judges said, ''Well, counsel, isn't it different to have a lawyer who is drunk, who is impaired but still functioning, as opposed to a sleeping lawyer who is completely unconscious?''
As a member of the legal profession, I can just say I was glad there was not a fifth grade class watching those arguments, because those arguments were a disgrace to our legal system and to our legal profession, that we would have somebody seriously talking about allowing a man to be executed when the person slept through the trial.
But, of course, one of the judges in the fifth circuit—and this is published in The Reporters and in my statement—had said, ''The Constitution, as interpreted by the courts, does not require in a death penalty case that the accused be represented by able or effective counsel.''
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These are not isolated instances. In one city, alone—Houston, Texas—there have been three cases in which the lawyers slept through the trial; all of those cases were upheld on appeal by the Texas Court of Criminal Appeals. That is why we need this legislation.
Mr. Hyde asked earlier, ''How is it that a judge can preside—'' that is what my law students asked me—how could a judge preside at a trial which was described in the Houston Chronicle as follows: ''His mouth kept falling open and his head lolled back on his shoulders, and he would wake up just long enough to catch himself, and it happened again and again and again.'' How could a judge preside over a case like that?
And Doug Schaffer, the judge in that particular case, explained that the Constitution guarantees you the right to a lawyer, but it does not guarantee the lawyer has to be awake. That is what passes for justice, Mr. Chairman, in many of our cases.
I would close with this note. Many of these people who have been found innocent have been found innocent by serendipity and luck because some group of students, some lawyer with resources took an interest in their case. There are many, many people for whom there is no journalism class, there was no lawyer, and they are now dead, and we will never know how many Anthony Porters there are.
Thank you.
Mr. GEKAS. The time of the gentleman has expired.
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[The prepared statement of Mr. Bright follows:]
PREPARED STATEMENT OF STEPHEN B. BRIGHT, ESQUIRE, DIRECTOR, SOUTHERN CENTER FOR HUMAN RIGHTS, ATLANTA, GA
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to address the subcommittee regarding the Innocence Protection Act of 2000, H.R. 4167. I would like to address the provisions of Title II of the Act, ''Ensuring Competent Legal Services in Capital Cases.'' This Title could be called the ''Criminal Justice Integrity Act.''
Title II is crucial to minimizing the possibility of executing innocent people. People are wrongfully convicted because of poor legal representation, mistaken identifications, reliance on the unreliable testimony of informants, police and prosecutorial misconduct and other reasons. Unfortunately, DNA testing is available to correct these mistakes in only a small percentage of cases in which there is evidence that can be tested. In most cases, we must rely on a properly working adversary system to bring out all the facts and help the courts find the truth.
Of course there will still be conviction of the innocent. There is no better example of why that is so than an article which appeared in last Sunday's New York Times, ''I Was Certain, but I Was Wrong,'' by Jennifer Thompson. In that article, the victim of a rape describes her certainty in identifying the man she was convinced had raped her in 1984. She was equally certain that another suspect, Bobby Poole, who had bragged of the rape, had not been her assailant. But eleven years after the terrible incident, DNA evidence established that Bobby Poole had indeed committed the crime. The man she had identified was released after 11 years in prison. I am appending a copy of the article to my statement. Because that case involved a rape, evidence could be tested for DNA. However, if Ms. Thompson had witnessed a murder in which no evidence was left by the perpetrator, her mistake would have remain undetected. Her certainty that she had identified the right man would remain to this day.
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Our only hope in such cases is that a properly working adversary system will prevent such errors. The defense lawyer has an obligation to scrutinize the prosecution's case, to consult with the client, to conduct a thorough and independent investigation, to consult with experts, and take other steps to determine the truth.
The wealthy person accused of a crime can retain the services of competent lawyers to provide these services. But 90 percent of those accused of crimes are poor. They are dependent upon lawyers assigned to defend them by the same state that seeks to take their lives. In many states in which the death penalty is most frequently imposed, there is no working adversary system in cases involving poor defendants. In those states, it is better to be rich and guilty than poor and innocent because the poor are represented by court-appointed lawyers who often lack the skill, resources, and often even the inclination to defend a case properly.
There are exceptions. Some states, like Colorado and New York, not only have public defender offices, but capital defender offices that specialize in the defense of capital cases. But other states, such as Alabama, Georgia, Mississippi, and Texas, have no state-wide public defender system. There are some outstanding lawyers who will occasionally take a capital case, but they find those cases drain them emotionally and financially. In states where there are hundreds of capital cases pending at any one time, there are not nearly enough good lawyers willing to take the cases for the small amount of money paid to defend them. And there are conscientious lawyers who, although lacking in experience, training and resources, attempt to do the best they can in defending people in capital cases. But again, those lawyers represent only a very small percentage of those facing death in states where scores of capital cases are pending trial at one time.
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I.
I have closely observed the quality of legal representation provided to the poor in capital cases for over 20 years. It is a scandal. I have seen four cases in Georgia in which counsel referred to their clients with a racial slur. I had a case in Alabama in which my client was represented by a lawyer so drunk that her trial had to be suspended for a day and the lawyer sent to jail to sober up. The next day, both lawyer and client were produced from jail and trial resumed. I have seen cases in Missouri and Alabama in which the defense lawyers had sexual relations with their clients. I have seen cases where defense lawyers were impaired by alcohol, drugs or infirmity. I have seen case after case in which the defense lawyer for a person facing the death penalty was denied an investigator and funds for expert assistance. I have seen case after case in which the lawyer was a spectator, not an advocate.(see footnote 1)
Two weeks ago, on June 5, I watched as a representative of the Texas Solicitor General's office argued to a federal court of appeals that it should reverse a district court's decision granting a new trial to Calvin Burdine because his lawyer, Joe Frank Cannon, slept through trial. The lawyer for Texas argued that Burdine's conviction and death sentence should be reinstated because a sleeping lawyer is no different from a lawyer who is intoxicated, under the influence of drugs, suffering from Alzheimer's disease or having a psychotic break. The judges even engaged the assistant solicitor general on the point, asking whether there was not some difference between a lawyer who was merely impaired by alcohol and a lawyer who was completely unconscious. The assistant solicitor general argued that while Burdine had received 'shoddy' representation, it was not so bad that he was entitled to a new trial.
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Believe it or not, the standard for counsel is so low in some courts that this argument passes the laugh test, even if it does not pass the fairness test. Judge Alvin Rubin, in concurring in the denial of habeas relief in one capital case, observed that, ''The Constitution, as interpreted by the courts, does not require that the accused, even in a capital case, be represented by able or effective counsel.''(see footnote 2) The Burdine case is only one of many examples of that.
What does it say about our system of justice when a state is arguing that a man should be put to death even though his lawyer slept through trial? What confidence can we expect the public to have in a court system in which lawyers sleep through trial?
Mr. Burdine's case was only one of three cases in a single city, Houston, in which defense lawyers have slept through trial. One of those trials was described by the Houston Chronicle as follows:
Seated beside his client—a convicted capital murderer—defense attorney John Benn spent much of Thursday afternoon's trial in apparent deep sleep.
His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit upright. Then it happened again. And again. And again.
Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.
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When state District Judge Doug Shaver finally called a recess, Benn was asked if he truly had fallen asleep during a capital murder trial.
''It's boring,'' the 72-year old longtime Houston lawyer explained.
Court observers said Benn seems to have slept his way through virtually the entire trial.(see footnote 3)
My law students often ask me how a judge can preside over such a trial. The judge presiding over McFarland's trial, Doug Shaffer, explained ''[t]he Constitution doesn't say the lawyer has to be awake.'' The Texas Court of Criminal Appeals affirmed McFarland's conviction and death sentence, as it did in two other cases in which defense lawyers slept through trial. The United States District Court in Houston, in finding that attorney Joe Frank Cannon slept during Calvin Burdine's trial, found that Cannon had also slept during the trial of Carl Johnson.(see footnote 4) However, Johnson will not receive relief. He was executed in 1995.(see footnote 5)
For poor people facing the death penalty, this is what is means to be represented by the ''dream team.''
A recent case decided by the U.S. Court of Appeals for the Fifth Circuit illustrates the remarkable casualness with which some judges appoint defense counsel to represent someone facing the death penalty. A trial judge in Houston appointed an attorney who had never tried a capital case to represent Pamela Perillo. That attorney asked another lawyer with whom he ''ran several machine shops'' to assist in the defense.(see footnote 6) The judge appointed the other lawyer. One might ask what running a machine shop has to do with defending a person at a capital trial. But it was much worse than that. The co-owner of the machine shops had defended the state's key witness against Perillo at a separate trial. The lawyer had continued to represent the witness in obtaining immunity in testifying against another participant and knew that the client-witness had given new and damaging testimony about Perillo at that trial that was inconsistent with testimony the witness had given at an earlier trial. The lawyer even went over the witnesses'' prior testimony from the two earlier trials with the witness, who was staying at the lawyer's home, and ''mapped out'' the cross-examination he would be conducting the next day at Perillo's trial. The lawyer failed to impeach the testimony of his client-witness, thereby not pursuing ''a plausible defensive strategy.''
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These are only the most egregious examples of the poor quality of legal representation that one sees every day. At least 12 people represented by Joe Frank Cannon, who had a self-described reputation of trying capital cases like ''greased lightening,'' were sentenced to death and most have been executed. Even though he slept during trials, judges in Houston continued to appoint him to cases. And some would argue that Mr. Cannon was not the worst lawyer assigned by judges in Houston to represent the poor in Houston. Some would say that designation goes to Ron Mock, who by his own estimate may have had more clients sentenced to death than any lawyer in the country. One of Mr. Mock's clients, Gary Graham, is scheduled to be executed by Texas on Thursday. Mr. Graham may well be innocent. He was convicted on the basis of a single identification. But Mr. Mock did not investigate and did not present evidence of other witnesses to the crime who said that Graham was not the perpetrator. Unfortunately, in Mr. Graham's case, there is no DNA evidence to answer the question of his guilt or innocence. And the adversarial process broke down, so we will never know whether he is guilty.
II.
The old adage ''you get what you pay for'' applies with particular force in the legal system, and many states pay very little to lawyers appointed to defend capital cases. A study of death cases in Kentucky several years ago found that one-third of those sentenced to death had been represented by lawyers who were later been disbarred, suspended or convicted of crimes. A study last year of death cases in Illinois found in 33 of the 285 cases in which death was imposed the defense lawyers were later disbarred or suspended.(see footnote 7) And just recently, a study of the cases of the last 131 people executed in Texas found that in 43 of the cases—about one third—the attorney was later disbarred, suspended or otherwise sanctioned.(see footnote 8)
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States also fail to provide a structure, such as there is on the prosecution side, so that lawyers are trained and supervised and build an expertise in criminal law and the sub-speciality of capital punishment law. The lawyer who defended Wallace Fugate at his capital trial in Georgia had never heard of Furman v. Georgia, the case which declared Georgia's death penalty law unconstitutional in 1972, or Gregg v. Georgia, the case which upheld Georgia's current death penalty law in 1976. He could not recall ever having had an investigator in over 40 years of defending people in court- appointed cases and thought he may have had an expert on one occasion. Another lawyer who handled the cases of a several people sentenced to death in Georgia, when asked to name all the criminal cases with which he was familiar, answered, ''the Miranda and Dred Scott.'' (Dred Scott was not a criminal case.)
An American Bar Association report found:
Georgia's recent experience with capital punishment has been marred by examples of inadequate representation ranging from virtually no representation at all by counsel, to representation by inexperienced counsel, to failures to investigate basic threshold questions, to lack of knowledge of governing law, to lack of advocacy on the issue of guilt, to failure to present a case for life at the penalty phase. . . .
. . . Defense representation is not necessarily better in other death penalty states. In Tennessee, for another example, defense lawyers offered no evidence in mitigation in approximately one-quarter of all death sentences affirmed by the Tennessee Supreme Court since the Tennessee legislature promulgated its current death penalty statute.
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One of the very important provisions of Title II is the requirement of an independent authority for appointing attorneys in capital cases. Judges should not be involved in the assignment of counsel to indigent defendants. In a recent survey of Texas judges, almost half said that an attorney's reputation for moving cases quickly, regardless of the quality of the defense, was a factor that entered into their appointment decisions.(see footnote 9) One-forth of the judges said an attorney's contribution to the judge's campaigns was a factor in appointing counsel. When the judges were asked whether contributions influenced appointments by other judges they knew, over half said that judges they knew based their appointments in criminal cases in part on whether the attorneys were political supporters or had contributed to the judge's political campaign. Lawyers and court personnel's perception is that the influence of campaign contributions on elected judges decisions is even more significant, with 79% of the lawyers and 69% of the court personnel saying they believe campaign contributions effect judges' decisions.
The same factors influence some judges in other states. But even where judges make decisions based upon which lawyer will provide the most competent representation, there is the danger that the lawyer may not always provide the zealous representation that the Constitution requires because of fear—whether justified or not—that the lawyer risks losing future appointments from the judge. For lawyers whose entire practice is made up of appointments from the court, such fears may considerably chill their performance.
III.
We should be able to depend upon a working adversary system to sort the guilty from the innocent, but we are not able to. We have been very fortunate that the innocence of some of those condemned to die in our courts has been discovered by sheer happenstance and good luck. A few of many examples illustrates the point.
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Gary Nelson was represented at his capital trial in Georgia in 1980 by a solo practitioner who had never tried a capital case. This court-appointed lawyer, who was struggling with financial problems and a divorce, was paid at a rate of only $15 to $20 per hour. His request for co-counsel was denied. The case against Nelson was entirely circumstantial, based on questionable scientific evidence, including the opinion of a prosecution expert that a hair found on the victim's body could have come from Nelson. Nevertheless, the appointed lawyer was not provided funds for an investigator and, knowing a request would be denied, did not seek funds for an expert. Counsel's closing argument was only 255 words long. The lawyer was later disbarred for other reasons.
Nelson had the good fortune to be represented pro bono in postconviction proceedings by lawyers willing to spend their own money to investigate Nelson's case. They discovered that the hair found on the victim's body, which the prosecution expert had linked to Nelson, lacked sufficient characteristics for microscopic comparison. Indeed, they found that the Federal Bureau of Investigation had previously examined the hair and found that it could not validly be compared. As a result of such inquiry, Gary Nelson was released after eleven years on death row.
Frederico Martinez-Macias was represented at his capital trial in El Paso, Texas, by a court-appointed attorney paid only $11.84 per hour.(see footnote 10) Counsel failed to present an available alibi witness, relied upon an incorrect assumption about a key evidentiary point without doing the research that would have corrected his erroneous view of the law, and failed to interview and present witnesses who could have testified in rebuttal of the prosecutor's case. Martinez-Macias was sentenced to death. Martinez-Macias received competent representation for the first time when the Washington, D.C., firm of Skadden, Arps, Slate, Meagher & Flom took his case pro bono. After a full investigation and development of facts regarding his innocence, Martinez-Macias won federal habeas corpus relief. An El Paso grand jury refused to re-indict him and he was released after nine years on death row. Similarly, volunteer lawyers from the Houston firm of Vincent & Elkins established in federal habeas corpus proceedings that Ricardo Aldape Guerra had been convicted in violation of the Constitution and was innocent. He was released and he returned to Mexico.
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Anthony Porter came within hours of execution before the journalism class at Northwestern proved his innocence by obtaining a confession from another person. In Porter's case there was no DNA evidence. Fortunately, the journalism students remained persistent even after the case had been ''thoroughly reviewed'' by both the Illinois and federal courts, and conclusively established his innocence by proving that someone else committed the crime.
For the vast majority of those sentenced to death, there are no volunteer lawyers or journalism students who come forward and examine their cases. For example, Exzavious Gibson, a may whose IQ has been tested between 76 and 82, was forced to represent himself at his state post-conviction hearing in Georgia because he could not afford a lawyer. There are dozens of people on death row in Alabama who do not have lawyers to represent them in post-conviction proceedings. And the statute of limitations is running out on them. Some of the lawyers provided in post-conviction proceedings are worse than no lawyer at all. Ricky Kerr was assigned a lawyer by the Texas Court of Criminal Appeals who had no capital experience and suffered serious health problems. Federal Judge Orlando Garcia said the appointment of the lawyer ''constituted a cynical and reprehensible attempt to expedite [the] execution at the expense of all semblance of fairness and integrity.'' Andrew Cantu was denied any post-conviction review because his lawyer failed to file within the six-month state statute of limitations and the one-year federal statute of limitations.(see footnote 11) Texas put him to death.
If Nelson, Martinez-Macias, Guerra, and others had been left without any post-conviction representation, as was Exzavious Gibson in Georgia, or been provided a lawyer like the one assigned by the Texas Court of Criminal Appeals to represent Ricky Kerr or Albert Cantu, they would be dead and their innocence would have gone to the grave with them. If the journalism class not become involved in Anthony Porter's case, he would have been executed and we would never know to this day of his innocence. Those who naively proclaim that no innocent person has ever been executed would continue to do so, secure in our ignorance.
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We should not count on luck to discover the innocent. We do not know how many Anthony Porters have been put to death and we never will. We can be confident that innocent people will be convicted and sentenced to death so long as those accused receive inadequate representation at trial and equally inadequate representation—or no representation at all—during post-conviction review.
Some say that the many exonerations show that the system is working. But sending someone to death row for 10 to 16 years for a crime he or she did not commit is not an example of our legal system working. A system which depends upon journalism students and lawyers to volunteer to examine cases and devote their own resources to discovering innocence is not working. And it is not a system of justice. It is a cruel lottery.
The states have received enormous amounts of federal funds to improve their law enforcement and prosecution functions. But they have failed to develop and maintain a properly working adversary system in criminal cases involving poor defendants. Many states—those I have mentioned and many others—lack the key elements of an effective indigent defense system: a structure, independence from the judiciary and the prosecution, and adequate resources.
Many prosecutors oppose the establishment of independent public defender systems and adequate resources for the defense in many states in order to maintain a major tactical advantage in trying cases. It is much easier to convict a person and obtain the death penalty when the other side is represented by an lawyer who lacks the resources and assistance to mount a defense. The National Association of Attorneys General led the charge for elimination of funding for the post-conviction defender offices or resource centers, which provided competent representation to those facing death by specialists in capital post-conviction representation, leaving many without adequate representation and some without any representation at all. Here too, it is much easier to execute people who are not adequately represented. But there is a larger question that whether adequate indigent defense systems make it harder for prosecutors to obtain convictions and for attorneys general to carry out executions swiftly. There is the question of fairness.
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The American people are realizing that we have sacrificed fairness for finality and reliability for results. They want protection from crime, but they want fairness. The system is woefully out of balance and the many exonerations from DNA evidence as well as of those sentenced to death shows that the system is broken. A major component, the defense function, lacks the structure, independence and resources to contribute to a fair, reliable and just result. It is not unreasonable for the Congress to require the states to implement an adequate indigent defense system to protect the innocent at least in capital cases as a condition of receiving millions of federal dollars. New York Times, June 18, 2000
66013A.eps
66013B.eps
Mr. GEKAS. Mr. Van Meveren?
STATEMENT OF HON. STUART VAN MEVEREN, DISTRICT ATTORNEY, EIGHTH JUDICIAL DISTRICT, FORT COLLINS, CO
Mr. VAN MEVEREN. Thank you very much, Mr. Chairman and members of the committee. Thanks for inviting me. I appreciate the opportunity to represent the National District Attorneys Association, an organization of more than 8,000 State and local prosecutors throughout the country.
I want to break this down into two areas. First the DNA issue and, secondly, counsel competency, which we also are very concerned about. These are issues of vital importance to our system of criminal justice. Let me assure you that State and local prosecutors support reasonable legislation that ensures the integrity of the criminal justice system. This is very critical to all of us as citizens of this country.
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As you mentioned in your introduction, I have been the elected prosecutor for 28 years in my jurisdiction, a jurisdiction of only about a quarter of a million people. I have been involved in the prosecution of thousands of felony cases. I am not a DNA expert by any means, but we have used DNA extensively, not only to exonerate but to convict individuals.
I have compared, in my written text, fingerprinting with DNA evidence. We watch TV programs and what have you, and we think juries believe that fingerprints are available in most every case. In my 30 years of experience as a prosecutor, I have only seen fingerprints in five cases—fingerprints that have led to the determination of guilt or innocence. I think the same may be true of DNA evidence. Although DNA evidence is certainly expanding and improving, still it is involved in a very few cases at this point in time.
I would like to say a few words about the real world of prosecution and review a couple of cases that we have in our jurisdiction. One is a murder case that is pending. Ethics do not allow me to say much about the facts, other than what is public record, and I must state to begin with that this suspect who is charged with murder is presumed to be innocent at this point in time.
We had an incident where a complaint came in to the police department involving a domestic or what appeared to be a domestic disturbance. The police came out to the scene and settled the people down. Everything was okay. There were no injuries, but they found out that the man was wanted on an arrest warrant, and they succeeded to arrest him and place him in jail that evening. They left the woman housemate there. He was released from jail the next afternoon about 4:00, went home, and found his female housemate dead. He immediately called the police. The police came out and an investigation ensued.
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Subsequently, semen recovered. The semen matched the housemate under DNA testing; however, the county coroner determined that the murder had occurred 10 to 12 hours prior to his release from jail. Without him being in jail, we would have automatically assumed, well, this must be the culprit, the person that committed the murder. However, earlier that evening there had been another complaint about a Peeping Tom in the neighborhood. The police investigated and found a man hunched behind the steering wheel of his car in that particular neighborhood, and they described him as being ''drenched with sweat.'' But, figuring he was the Peeping Tom, and having no other evidence, they released him and let him go, although they did find his pocket full of condoms and found some physical evidence that was later determined to be from the scene of the crime. The DNA testing did not connect this suspect to the scene at all.
Later this man ironically was arrested. He was found in Guatemala, thanks to one of the TV programs, ''America's Most Wanted.'' A lady recognized this man and the police put it together, so it was really an ironic thing.
I mention that case because here DNA testing would have led us on a false trail but for the fact that the man was in jail at the time of the murder.
The other case I want to mention involves a sexual assault case in which a female was under the influence of not only alcohol but a rehebenol-type of drug, ecstasy type of drug, and did not remember much of that evening, but she does remember, vaguely, a man on top of her. That was the extent of what she could remember.
There were three men there, and she could not, of course, help in the investigation. Sheets were recovered, and through DNA testing, one of the men matched. He was subsequently tried and prosecuted, but there was no DNA match on the other two individuals.
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Our concern was—and we probably will never know—whether these other two individuals were involved in that crime. They may have been participants. They may have had a condom. They may have held her down. That we do not know. Again, I bring these to your attention because DNA is not magic, it is not absolute. It is not absolute in the sense that it definitely proves someone innocent or guilty.
I have been sitting here quite a while and I am running out of time, it looks like. I am sorry to ramble on. I hear the words ''innocence'' and ''exoneration,'' and we are interchanging these words with ''not guilty.'' There is a distinct difference between those words, and I think we have to be careful.
Most of the reversals are because of technical error, not because someone is innocent or supposedly exonerated.
Regarding competency of counsel, we are very concerned about that. District attorneys want competent counsel on the other side. We do not want to have to retry our cases again and again. That is not fair to the taxpayer, that is not fair to the system at all.
I am running out of time. I apologize for that. I would like to go on for a couple more hours, but I understand my time is limited.
Thank you very much.
Mr. GEKAS. We would like to hear more, but we are forced to conform to a chart.
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Mr. VAN MEVEREN. I am just getting warmed up. Okay.
Mr. GEKAS. We thank you, Mr. Van Meveren.
[The prepared statement of Mr. Van Meveren follows:]
PREPARED STATEMENT OF STUART VAN MEVEREN, DISTRICT ATTORNEY, EIGHTH JUDICIAL DISTRICT, FORT COLLINS, CO
My name is Stuart Van Meveren and I am the elected prosecutor in Fort Collins, Colorado. I want to thank you on behalf of the National District Attorneys Association, representing the local prosecutors of this Nation, for the opportunity to give you our concerns on DNA testing, counsel competency and the ''Innocence Protection Act.'' On behalf of our members I want to commend this Committee in pursing an interest of vital importance to the viability of our system of criminal justice.
I am also the President of the National District Attorneys Association and have served in various capacities within that organization since 1977. The views that I express today represent the views of that Association and the beliefs of local prosecutors across this Country. Let me assure you that local prosecutors will support reasonable legislation that insures the integrity of the justice system. We are, by the nature of our office, sworn to up hold justice- a charge we do not take lightly.
As you begin this debate let me try and frame our point of reference. There are some proponents of post conviction DNA testing and counsel competency standards who barely hide their bias against the death penalty. This ignores the majority—some 66% of the American people—who support capital punishment. If we are going to debate the wisdom of capital punishment then let's do it in the open and not hidden under the guise of DNA testing and counsel competency. To be clear on the record I am a prosecutor who supports the death penalty in appropriate cases but has never chosen to pursue a capital sentence in a murder cases.
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I have served the people of my judicial district as their chief prosecutor since I was first elected in 1972. I'm not an expert on DNA, but a working prosecutor who has been involved in the prosecution of literally thousands of felony cases. To perhaps place the use of DNA evidence in perspective let me refer to my experience involving the value of fingerprints as evidence. Despite a poplar belief that the outcome of countless criminal cases rests upon this type of evidence I can only think of five cases in my jurisdiction in which fingerprints played a determinative role. I strongly suspect that DNA evidence, while important, will not be a factor in a majority of cases. While fingerprints or DNA evidence may be available many cases its value will vary greatly depending on the totality of the evidence.
Let me paint a picture for you of DNA in a real world context. In fact one of these cases will be going to trial next few months in Fort Collins.
In early September 1998, shortly after midnight, the Fort Collins police were called to investigate a domestic disturbance complaint. Upon arriving at the scene the police determined that the man was the subject of an outstanding warrant and took him into custody (the woman was not arrested). Several hours later the police received a complaint that there was a peeping tom in the same neighborhood. Upon responding they found a man slumped down in a car and, in their words ''drenched in sweat.'' Conducting a pat down search, the police discovered several condoms and a gold chain. Unsatisfied with his story, but having no basis upon which to detain him, the police released him to go his own way.
The following afternoon the man who had been arrested for the outstanding warrant was released and returned to his home. There he found the female housemate, with whom he had engaged in the domestic argument, dead. Under normal circumstances he would have been a prime suspect. Forensic testing on sperm found in the victim revealed DNA matching her boyfriend and they'd had a domestic argument. But he'd been in jail at the time of her death, which the corner had placed at some 12 hours prior to the time her body was found. The arresting officers could attest to the victim's being alive at the time they took the man into custody.
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The man, however, noted that his girlfriend's gold necklace was missing; a fact the police were able to match with the peeing tom report earlier in the day. Arrested nine months later in Guatemala (based on a local woman seeing him on ''America Most Wanted'') the suspect is facing a first-degree murder trial based on the gold necklace and other evidence. No DNA evidence from the suspect was found at the crime scene. At this point, under our system of law, the defendant is, and must, be presumed innocent.
In this case DNA was available but, ultimately, had nothing to do with either clearing the boy friend or identifying the suspect. It was a false trail.
In another case a woman, who'd had too much to drink, and had taken an ecstasy-type drug, was at a party with three men. She vaguely remembered a man ''being on top of her'' in a bed but had no memory of anything else. The bed sheets were taken as evidence and tested for body fluid. DNA was found that matched one of the 3 men. He was later convicted of first-degree sexual assault. The other two men may have also been participants in the sexual assault ''by holding the victim for instance or by not leaving a recoverable DNA sample—but have not been charged because of the lack of sufficient evidence.
Here DNA evidence was more crucial, given the incapacitation of the victim at the time of the assault, to the conviction of one assailant but of no value to either prove or disprove the role of the other suspects.
These are the real-world problems we face in working with DNA, fingerprints or any other type of evidence. DNA is can be a marvelous forensic tool, but it is not magic. Remember too, while it can exclude it can also demonstrate guilt.
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The concepts advanced by the ''Innocence Protection Act, as before you today, are so broad and have so few standards, that it would create a consuming wave of useless and costly litigation. Remember the main thrust of the Act is ''old'' cases; in new ones DNA tests are becoming the norm. Under the terms of the Innocence Protection Act criminals could, and would, demand DNA testing whenever there was any ''possibility'' it would reveal evidence—without going to the value of the results in the totality of the case. The cost would not only be to the criminal justice system, and the taxpayer, in terms of actual costs of litigation and testing, but would also prevent those who truly need DNA testing from getting it in a timely and efficient manner. Even the ''Innocence Project'' at least requires that DNA testing be ''dispositive'' of actual guilt or actual innocence—a standard that bears further review by this committee. We live in a world of finite resources and cannot afford to squander them in frivolous appeals.
The idea of allowing modern technology to convict the guilty and free the innocent is already under widespread use, although existing DNA labs are already seriously backlogged. The Justice Department has estimated there are 350,000 DNA samples currently awaiting testing. The DNA resources in our nation are already taxed beyond their abilities. If these already limited facilities are overloaded then the people who need the tests most, the actually innocent, may find themselves at the end of a very long list. I would suggest that federal funding assistance to help catch up would do more to serve the innocent that years of expensive litigation.
As a prosecutor my worst nightmare is that I convict an innocent person of a crime that sends them to prison, to say nothing of death row. In this country we have an incredibly elaborate appellate system that recognizes that police, prosecutors, defense counsel, judges and juries are not infallible. More than 400,000 homicides cases have been charged since the Supreme Court, in 1976, allowed states to re-implement capital punishment. Somewhere between five and ten thousand of those cases, depending on the source and the way they are counted, have garnered the death penalty. In that same time, for those same numbers, death penalty opponents have cited 87 cases in which evidence later surfaced that showed the condemned to be actually innocent or raised sufficient doubts to remove them from death row.
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Only eight of these cases have involved DNA and we must be careful with the use of the terms describing these cases. Too many easily use the word ''exonerated'', ''freed'' or ''cleared'' to describe cases where the guilt or innocence of the individuals is still very much an open question. As I illustrated with my rape case, DNA did not provide evidence of the role played by the other two men present at the crime but it certainly did not ''exonerate'' them either. If I could prove they held her down or used a condom or did anyone of a number of other acts I wouldn't hesitate to prosecute for rape or another offense—bit I can't.
We can and must use technology to accomplish what Senator Smith; a co-sponsor of similar legislation in the Senate has called ''making a good system near perfect.'' The ''near perfect'' is the operative expression. Nothing involving humans is without risk or error. Our system of appeals in criminal cases, and in particular capital cases has the lowest error rate of any criminal sanction in the world. We must never forget the other, massively larger part of this risk-benefit analysis—the thousands of truly innocent victims who die at the hands of criminals that the legal system has failed to hold accountable.
A second major facet of the ''Innocence Protection Act'' goes to the competency of counsel. I want to make you aware of a little known fact—most experienced prosecutors want a competent defense counsel. It actually makes our job easier and ensures that justice is served. If I have a competent counsel, who I trust, opposing me and he or she tells me my case is faulty, I believe them; conversely, if they know that I deal professionally with them they go to the point of the case without wasting the court's time by trying to figure out what to do next.
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Additionally I believe that when I try a case I've, perhaps unfortunately, two roles. First to present evidence against the accused—what you expect a prosecutor to do—and secondly to ensure that nothing happens that would cause reversible error on appeal. To my mind there is nothing worse then retrying a case on the merits—memories have faded, evidence may be lost, and the victim must reawake scars that have hopefully been healed to some degree.
Both roles demand tactical choices on the part of the prosecutor. The second is the more difficult because you need to make sure the defense counsel doesn't accidentally create error that will lead to reversal. With competent defense counsel the second part of my job in the courtroom is made easier. With incompetent defense counsel my job becomes harder since I may have to reassess everything I might normally do to convince a jury of the culpability of the accused.
Having said this however, the nationalized standards advanced by the ''Innocence Protection Act'' are not the answer. The criminal justice systems of our 50 states are too disparate to have a federal organization try and establish and control a single system. Many of the state legislatures are even now reviewing the same issues now before this Committee and they are the proper forums for these debates as they impact the states criminal justice systems. I would encourage you to look at standards for federal cases but let the state legislative bodies serve their role in the debate.
In closing I would note that last week this House actually did something that hurt competency standards more then anything you could have hoped to improve through this legislation. Technical corrections were made to the Higher Education Act that purportedly added prosecutors and defense counsel to the loan forgiveness provisions of the Perkins student loan program. This was high lighted as an advance for the criminal justice system—unfortunately this was only partly true. The ''correction'' placed a cap of an adjusted income of $30,000 on the applicability of this loan forgiveness provision. To compound the problem, prior to this correction prosecutors could qualify for loan forgiveness without regard to adjusted gross income.
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An unspoken crisis we have at in the local criminal justice system is our inability to recruit and retain new attorneys as prosecutors and public defenders. The genesis of the problem rests with our assistants; those most likely to have recently graduated from law school and who are making choices regarding a career in public service. Facing debts amassed from both undergraduate studies and law school, they are hard pressed to choose relatively low paying work as prosecutors or defense counsel. In South Carolina, for instance, starting prosecutors make $32,000 a year, while in larger jurisdictions, such as Chicago or Los Angeles; the starting salary is between $35,000 and $46,000 thousand annually.
With school loans frequently in the range of $100,000, aspiring prosecutors and public defenders face a crippling debt burden that, for economic reasons, drives them to other career choices. I suspect that this financial burden hits minority students even harder and makes their choice to enter public service that much more difficult.
In contrast starting salaries for attorneys in the civil sector in most areas of the nation range significantly higher then we can pay our attorneys. I would note that in the Washington area even legal secretaries frequently make more then do many of our assistant prosecutors. A recent article in the Washington Post depicted the plight of the Federal Goverment, and even our armed forces, in attracting and retaining attorneys and I can assure you that the salaries in those sectors is appreciably higher then at the local government level. In fact many of our young attorneys are hired by the Department of Justice or other federal agencies at double their local salary. This constant loss of experienced attorneys seriously erodes the competency of the entire system if criminal law at the state level.
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It is crucial that we have the ability to attract, and retain, the best from our law schools—our citizens deserve nothing less. We cannot do this unless we offer some degree of financial equity with the private sector and forgiveness of school loans for those entering the public sector in a law enforcement position is a great boost towards this goal.
As I stated at the beginning the work of this Committee is necessary to insure that our criminal justice system remains the hallmark of our democracy. But in doing so you must not be diverted by hidden goals.
On behalf of America's prosecutors I, and the National District Attorneys Association look forward to working with you on reaffirming the vitality of our criminal justice system.
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Mr. GEKAS. Mr. Coleman?
STATEMENT OF JAMES E. COLEMAN, JR., ESQUIRE, PROFESSOR OF LAW, DUKE UNIVERSITY, DURHAM, NC
Mr. COLEMAN. Thank you, Mr. Chairman and members of the subcommittee. I am here today testifying on behalf of the American Bar Association, where I currently serve as Chair of the ABA Section of Individual Rights and Responsibilities.
The ABA is pleased to speak in favor of title two of H.R. 4167, the Innocence Protection Act of 2000, which would encourage and assist States to provide competent and qualified legal counsel at every stage of a capital prosecution.
The ABA currently does not have a policy on DNA testing, although the House of Delegates is expected to consider a recommendation that it adopt such a policy at the ABA's annual meeting next month in New York. As a result, however, the ABA is not able at this time to endorse title one of the bill, which would make DNA testing available to convicted offenders seeking to prove their innocence.
But DNA testing is only one means of reducing the intolerable risk that innocent Americans may be wrongfully convicted and executed. It is relevant only in cases where there is biological material to identify the guilty person on the other hand, title two of the bill, by helping to ensure that all capital defendants are represented by competent and qualified counsel, would help to reduce the risk of wrongful convictions and executions in all capital cases.
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Before I went to Duke University to teach, I was a partner in a law firm here in Washington, Wilmer, Cutler & Pickering, and it is a firm that some of you may know. It has a lot of competent lawyers. A lot of law firms in Washington have a lot of competent lawyers. But I think we talk too narrowly about what we mean when we talk about competent lawyers in capital cases. We are not talking—when we say that lawyers are incompetent, we are not talking simply that—we are not saying that they are unfit or that in all cases they are unfit. In some cases they may be fit to do other things; they simply are not qualified to handle capital cases. And I think that there are very few lawyers at the major law firms here in this city, who are very competent, but none of whom or few of whom would make the claim that they are qualified to represent a defendant in a capital case.
So I think that it is important to talk in terms of qualification and not simply incompetent. We are not talking only about drunk lawyers and sleeping lawyers; we are talking about lawyers who are not qualified to handle the complex and difficult cases that our capital trials are.
There has been discussion also about the report that Professor Jim Liebman did at Columbia which showed that, on average nationally, 68 percent of the cases resulted in serious error at trial, and the question is what does that mean. Does it mean that the system is working or that the system is not working?
I think it is clear that it means that the system is not working. No system that malfunctions so often can credibly be said to work. We are confusing the system's ability to detect errors and its ability fairly and accurately to determine guilt.
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The ABA believes that the focus of the death penalty litigation should return to State courts, where the trial once again should be what the Supreme Court called ''the main event.'' That is possible, however, only if the States begin to provide competent and qualified counsel at all stages of capital litigation.
The Innocence Protection Act recognizes that numerous critical improvements to the administration of the death penalty system are necessary to reduce the risk that innocent people will be executed, not just DNA testing, although that is important in appropriate cases. H.R. 4167 recognizes that improving legal representation at all stages is a critical step to reduce that risk in all cases.
We are pleased that elements of the system that this bill would set up for providing competent legal services track closely the American Bar Association guidelines for appointment and performance of counsel in death cases.
Although section 201 of the bill leaves to the director of the Administrative Office of the United States Courts to specify the elements of what is called an ''effective system,'' the bill would require such a system to include a centralized and independent authority for appointing attorneys, reasonable compensation of appointed counsel, payment of reasonable expenses of the attorney, and payment of the reasonable cost of support services necessary in a capital case, including investigators and experts.
The subject of today's hearing is critical to our criminal justice system and to Americans' lawyers. Rightly or wrongly, the public generally assesses our legal system and hence the legal profession by its perception of how well the criminal justice system is functioning. Capital cases are the most visible and charged of all criminal cases, and, frankly, our system is not doing a good job in handling them today.
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The ABA believes that title two of H.R. 4167 is critical to safeguard the two most important functions of the criminal justice system—to protect the innocent and punish the guilty.
Thank you, Mr. Chairman.
Mr. GEKAS. We thank the gentleman.
[The prepared statement of Mr. Coleman follows:]
PREPARED STATEMENT OF JAMES E. COLEMAN, JR., ESQUIRE, PROFESSOR OF LAW, DUKE UNIVERSITY, DURHAM, NC
Mr. Chairman and Members of the Subcommittee:
My name is James Coleman; I am a law professor at the Duke University School of Law. I am here today testifying on behalf of the American Bar Association (ABA, or the Association). I currently serve as Chair of the ABA Section of Individual Rights and Responsibilities (IR&R). As a partner in the Washington, DC, law firm of Wilmer, Cutler & Pickering, I was pro bono counsel for three capital defendants in post-conviction proceedings.
The Association is pleased to speak in favor of Title II of H.R. 4167, The Innocence Protection Act of 2000, which would encourage and assist states to provide competent legal services at every stage of a capital prosecution. The ABA currently does not have a policy on DNA testing, although the House of Delegates is expected to consider a recommendation that it adopt such a policy at the ABAs Annual meeting next month in New York. As a result, however, the Association is not able at this time to endorse Title I of the bill, which would make DNA testing available to convicted offenders seeking to prove their innocence. But DNA testing is only one means of reducing the intolerable risk that innocent Americans may be wrongfully convicted and executed; it is relevant only in cases where there is biological material to identify the guilty person. On the other hand, Title II of the bill, by helping to ensure that all capital defendants are represented by competent counsel, would help to reduce the risk of wrongful convictions and executions in all capital cases.
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Passage of Title II of H.R. 4167 is critically important to maintaining public confidence in our system of criminal justice, especially in capital cases. In the last few years, we have witnessed a parade of innocent people released from prison and from Death Row, after demonstrating that they had been convicted of terrible crimes that they did not commit. In Illinois, where as many innocent people have been released from Death Row as presumably guilty people have been executed since 1976, Governor George Ryan in late January announced a statewide moratorium on executions until a commission could determine what is wrong with the system, and make recommendations to fix it. When the criminal justice system wrongfully sends an innocent person to prison or Death Row, it threatens all of us. The unimaginable horror of the execution of an innocent person should give all of us the resolve to do what is necessary to fix what now clearly is a broken system. Title II of H.R. 4167 would represent an important step in that direction.
With the exception of its unequivocal opposition to the imposition of the death penalty on juveniles who committed their crimes when they were under the age of 18, or on the mentally retarded, the ABA has not taken a position on the constitutionality or appropriateness of the death penalty. However, in the two decades since the death penalty was reinstated, the Association has adopted numerous policies concerning the administration of capital punishment. Underlying all of these policies is a concern to protect the innocent.
Prompted by such concern, the ABA has made protection of the right to effective assistance of competent counsel in all capital cases a top priority. In furtherance of that, the ABA has promulgated standards and guidelines for the effective representation of criminal defendants, with particular emphasis upon representation in capital cases. In 1989, for example, the Association adopted the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. Among other things, those Guidelines set forth the ways in which counsel in capital cases should perform various defense functions, from plea negotiations, through jury selection, the trial and sentencing phases, and post-conviction proceedings.
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The Association also has undertaken to help provide volunteer legal representation for indigent death row inmates through its Death Penalty Representation Project. Over the years, the Project not only has commissioned studies on the availability and quality of counsel for individuals facing capital prosecution and execution, it currently is the leading national organization working to secure and provide volunteer legal assistance for indigent death row inmates throughout the nation.
But such policies and efforts, although important, have not been enough; the ABA decided that more was needed. In 1997, therefore, the House of Delegates of the Association voted overwhelmingly—on a resolution developed by the ABA Section of Individual Rights and Responsibilities—to call for a halt to executions until the 38 death penalty states and the Federal Goverment implement procedures to eliminate discrimination in capital sentencing and guarantee fundamental fairness and due process to those facing capital punishment. The Association also was prompted to take this important step because of Congresss passage of the Antiterrorism and Effective Death Penalty Reform Act of 1996 (AEDPA), which seriously limited the scope of federal habeas review of capital cases, and its earlier decision, in 1995, to terminate federal funding of the Post-Conviction Defender Organizations, which not only had represented death row prisoners, but also had advised and otherwise assisted appointed and pro bono lawyers who handled post-conviction capital cases in state and federal courts. In our view, those two steps significantly heightened the risk that an innocent person some day will be executed.
In the last two decades, the ABA has extensively reviewed the administration of the death penalty in this country. In that review, the Association has found a legal process stood on its head. Inadequate, indeed, often grossly inadequate, resources are devoted to state court trials, appeals, and post-conviction review of capital cases. In some rural counties in Texas, an appointed attorney receives no more than $800 to represent a capital defendant. Similar limits are in place in other states. In Virginia, the hourly rate for capital defense services works out to about $13. In an Alabama case, the lawyer appointed to represent a capital defendant in a widely publicized case was allowed a total of $500 to finance his work, including any investigations and expert services needed. Only one or two states provide full compensation. A number of states also cap reimbursable investigative expenses at levels that only contribute to the ineffectiveness of trial counsel. Finally, counsel handing state post-conviction petitions typically receive no remuneration; the consequence is that representation in proceedings that might free an innocent person from Death Row depends upon the charity of volunteer lawyers.
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Poor compensation almost inevitably means that virtually the only lawyers who are available to handle capital cases for indigent defendants are inexperienced, ill-prepared, and under-funded. Even when experienced and competent lawyers are available, they often are overworked, and financially unable to handle more than one capital case. In such a system, it is not surprising that the inexperienced and untrained lawyers who often handle capital cases in many states often conduct inadequate factual investigations, fail to keep abreast of the complex and constantly changing legal doctrines that apply in capital litigation, and often make procedural errors that later preclude review of meritorious claims. Indeed, legal scholars and other observers of and participants in the system have filled volumes of law reviews and other journals with articles that document the almost routine incompetent representation in capital cases——ignorance of death penalty law, overlooked objections, failure to present mitigating evidence, failure to file briefs on appeal, and similar deficiencies, all of an elementary nature.
The result of the failure of states to provide adequate representation in state trial, appellate, and post-conviction proceedings is predictable. Most important, it has led to serious and repeated errors that are undermining the publics confidence in the outcome in capital cases. It also has increased significantly the cost of prosecuting such cases, which often require retrial. And, it is one of the principal reasons for delay in capital cases. At the federal level, it has resulted in massive amounts of resources being poured into federal habeas corpus review pursued by lawyers compensated under the Anti-Drug Abuse of Act of 1988.
Within the last week, we have learned that incompetent trial and appellate counsel is one of the principal factors in the extraordinarily high number of serious errors committed in capital cases. According to Columbia University Law School Professor James S. Liebman, between 1976 and 1995, serious legal errors resulted in 68% of all death sentences being vacated and remanded for further proceedings. When the cases are retried, 82% of the convicted defendants are not re-sentenced to death, including 7% who were found to be actually innocent. The expensive and time-consuming proceedings necessary to uncover such an astonishing number of constitutional violations and to retry and re-review all of those cases without doubt are the single largest cause of delay in capital litigation.
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Some have suggested that Professor Liebmans report proves that the current system works. To the contrary, I think it proves, as the title of his report suggests, that the system clearly is broken. No system that malfunctions so often can credibly be said to work. We are confusing the systems ability to detect errors and its ability fairly and accurately to try cases.
The Association believes that the focus of death penalty litigation should return to the state courts, where the trial once again should be the main event. That is possible, however, only if the states begin to provide competent counsel at all stages of capital litigation.
In its review of the administration of the death penalty, the Association also has found that considerable time is spent litigating peripheral issues concerning the timing and manner of the defendants presentation of claims at trial and on appeal, issues that have nothing to do with the merits of the defendants claims. We found that litigating such peripheral procedural issues not only takes considerably more time than deciding the merits would take, but it also places capital defendants at the mercy of inadequate trial and appellate counsel who are responsible for the timing and manner of raising claims in state courts.
Finally, from its review of the administration of the death penalty, the Association believes that the system in most states is characterized by chaos. In those states that do not compensate post-conviction counsel, volunteer lawyers frequently are not available until an execution date is set. State and federal habeas corpus proceedings in such cases are rushed through, at the last minute, under the gun of a pending death warrant. Moreover, death warrants sometimes are signed unnecessarily and for political reasons, at points during the litigation when it is known by all involved that a stay of execution is legally required and assured. The Association believes that maintaining respect for the judiciary and assuring fairness requires that every death penalty conviction be reviewed in a deliberate, orderly, and professional process, during one meaningful round of state and federal habeas corpus review. The Association further believes that placing state and federal judges in the position of having constantly to issue stays of execution in the midst of that single round of review wastes resources and destroys public respect for the judiciary and for the criminal justice system.
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ABA Recommendations To Ensure Competent Legal Services in Capital Cases
To address the problems that I have described, the ABA has made several recommendations. First, and most important, the Association calls upon all states to provide competent, adequately compensated counsel at all stages of capital litigation. The Association calls for a system for appointing counsel based upon the ABA Guidelines for Appointment and performance of Counsel in Death Cases, adopted by the Association in February 1989. The Guidelines call for each state to establish an independent appointing authority to develop qualification and compensation standards appropriate for that state, to recruit and train lawyers to handle capital cases, to certify them as competent in this specialty area, and to make the actual appointments of counsel in all cases.
As long as state court judges continue to make capital case assignments from the regular list of attorneys for appointment in criminal cases and to compensate them at patently inadequate rates, the problems of incompetent counsel inevitably will continue. Unskilled attorneys will continue to make serious errors during trial; subsequently, because they are professionally obligated to do so, post-conviction counsel will leave no stone unturned in their efforts to discover those errors and to get death sentences reversed; state appellate courts and federal habeas corpus courts then will bear the brunt of correcting those errors. The only long-term answer is to conduct trials correctly in the first place; and in the Associations view, that requires independently appointed qualified, competent, and reasonably compensated counsel.
The Association believes that any effort to reform the review process in capital cases will fail unless it addresses the root problem of inadequate counsel.
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Some critics argue that Congress should leave the formulation of standards for independent appointment, qualification, competency, and compensation of appointed counsel to the state court of last resort or to the state legislature. For years, however, Congress did just that, but many states continue to neglect standards for the qualifications, competency, and compensation of appointed counsel. It now is clear that we no longer can wait for the states to act on their own. Congress should must act to ensure that certifiably competent counsel are appointed in the first place. This undoubtedly would substantially limit litigation of claims arising from the appointment of incompetent counsel.
Once appointed, the actual performance of a certified attorney would be subject to challenge only under the current, limited Strickland v. Washington standard. Moreover, because the accused would consistently have competent representation by qualified and reasonably compensated counsel, litigation of ineffective-assistance claims under the Strickland standard can be expected to decrease substantially, leaving state and federal reviewing courts to focus instead on the merits of any remaining constitutional issues.
Consistent with its duty to ensure that quality legal assistance is afforded to indigent capital defendants, the Guidelines also provide that the appointing authority should monitor the performance of assigned counsel, including defender offices, based upon publicized standards and procedures. Where there is compelling evidence that an attorney or defender office has inexcusably ignored basic responsibilities of an effective lawyer, whether or not the inadequate performance is constitutionally deficient, neither the attorney nor the defender office should be appointed in future capital cases.
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The Innocence Protection Act Counsel Provisions
The Innocence Protection Act recognizes that several improvements to the administration of the death penalty system are necessary to reduce the risk that innocent persons will be executed, not just DNA testing, important as that may be in appropriate cases. H.R. 4167 recognizes that improving legal representation at all stages capital is a critical step to reducing that risk in all cases.
H.R. 4167 would condition federal funding under the Byrne grant program on a certification that the state has established and maintains an effective system for providing competent legal services to indigent defendants at every stage of death penalty prosecution.
We are pleased that the elements of an effective system for providing competent legal services specified in H.R. 4167 track closely the ABA Guidelines. Although Section 201 of the bill leaves it to the Director of the Director of the Administrative Office of the United States Courts to specify the elements of an effective system, the bill would require such a system to include a centralized and independent authority for appointing attorneys, reasonable compensation of appointed counsel, payment of reasonable expenses of the attorney, and payment of the reasonable costs of support services necessary in the defense of a capital case, including investigators and experts.
Ban on Execution of Juveniles and Mentally Retarded
The ABA also applauds Section 406 of H. R 4167, which expresses the sense of the Congress that the death penalty should not be applied to juvenile offenders and the mentally retarded. The ABA has adopted policies against the execution of juvenile offenders under the age of 18 at the time of their offenses, and offenders who are mentally retarded, as mental retardation is defined by the American Association of Mental Retardation. In the view of the Association, the execution of children and the mentally retarded is unacceptable in a civilized society, without regard to their guilt or innocence. Our view on this matter is shared by organizations in this country and around the world. With the possible exception of one execution in 1997, no democracy other than the United States executes offenders who are mentally retarded. There also is a strong international consensus against the execution of juveniles who commit capital offenses when they are under the age of 18. We believe the United States should join the other democracies and ban both practices.
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Conclusion
John J. Curtin, Jr, former President of the American Bar Association told this committee in 1991, Whatever you think about the death penalty, a system that will take life must first give justice. The subject of todays hearing is critical to our criminal justice system and to Americas lawyers. Rightly or wrongly, the public generally assesses our legal system and hence our legal profession by its perception of how well the criminal justice system is functioning. Capital cases are the most visible and charged of all criminal cases. And frankly our legal system is not doing a good job handling them today. The Association believes that Title II of H.R. 4167 is critical to safeguard the two most important functions of the criminal justice system: protection of the innocent and punishment of the guilty.
On behalf of the American Bar Association, I appreciate this opportunity to appear before the Committee to participate in this important hearing. I will be glad to answer any questions the Committee may have concerning the Associations recommendations.
Mr. GEKAS. We turn to Mr. Kogan for a period of five minutes.
STATEMENT OF JUSTICE GERALD KOGAN, ALLIANCE FOR ETHICAL GOVERNMENT, UNIVERSITY OF MIAMI SCHOOL OF LAW, CORAL GABLES, FL
Mr. KOGAN. Mr. Chairman, thank you, members of the committee. I am the co-chair of the Constitution Project's National Committee to Prevent Wrongful Executions. Since the committee has not yet come down with any recommendations, I am here representing myself, but a member of the committee who has had 40 years of experience in the criminal justice system.
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I want to tell you where I started and where I came from in this business. I was the chief homicide prosecutor in Miami, Florida. I asked juries to return the death penalty in capital cases. I instructed prosecutors working under me in certain cases to ask juries to return death penalties, and those juries did.
I then went on and became a defense attorney, defending individuals charged with capital offenses. I went on the trial court, and on the trial court I was in the criminal division, the administrative judge, and I heard capital cases and tried capital cases as a judge.
And from 1987 through 1998, I sat on the Florida Supreme Court listening to every capital case in the State of Florida that came on appeal. So the observations that I have made have been over a 40-year period. I estimate that, as far as criminal cases are concerned, I probably have been involved, as an attorney or a judge, in over 10,000 criminal cases in the past 40 years.
You know there are times that, when you sit on that court and you are looking down and you are listening to a witness testifying at trial, you keep saying in your mind, ''I wish I knew whether or not this particular witness were telling the truth, and I wish there was some magic machine that I could hook up to the witness that would tell me that.'' But, of course, there was no magic machine that could do that.
I have seen identifications in court that have been astounding and startling. One that I remember was a husband and wife were attacked by a group of black youths out by the Miami International Airport at, like, 2 in the morning, and the husband was able to come to court, despite all the violence going on in the darkness, and was able to identify all nine of the defendants sitting in the courtroom.
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And I said to myself at that time, ''This is absolutely unbelievable,'' and I wish I had that machine at that time to hook him up to to see whether or not he was telling us the truth or whether he was just plain mistaken. It was obvious to me that he was just plain mistaken at that time. There's no way he could have identified all of those people, but yet the jury came back and returned a guilty verdict as to all nine defendants.
Now, DNA evidence has given us something like that machine that I wish we had, because what DNA evidence has shown thus far, that not only have we had 67 exonerations in the United States and Canada during the approximate last 10 years, but we have also had eight people released from death row when DNA evidence told us that they, in fact, were not guilty of the offense for which they were convicted and sentenced to death.
Right away, this starts me thinking. If we have eight people that we know in the last 10 years who have been exonerated because of DNA, how many people are still sitting on death row but are not having access to DNA evidence that could also truly be guilty? And what does that also tell us about what has happened in the years before DNA evidence came into vogue?
What happened to all these defendants that sat on death row with no chance to prove innocence because they did not have DNA? I submit to members of the committee it is obvious what happened. Those people wound up being executed.
This is something that we have to realize and say to ourselves, now we have an opportunity to at least, in some measure, try and correct that problem.
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Briefly, let me introduce the competency of counsel. Again, I have seen counsel over the years that should never have come into court, that judges should have stopped from handling particular cases. I saw one case where I was prosecuting many years ago when rape was still a death penalty crime and had not yet been set aside by the U.S. Supreme Court, and my trial partner and I kept saying to each other, ''My god, that jury is going to return a death sentence in this particular case,'' and it was the era before bifurcated trial, and that is you considered the guilt and the death penalty all at the same time.
We sat there, and sure enough, we did not even ask for the death penalty, but the jury came back, because the judge instructed them it was a death penalty case, with the death penalty.
For the first time, my colleague and I went, when the defendant filed a motion for new trial, went into court and agreed to the motion for a new trial, provided the defendant would go ahead and enter a guilty plea to a non-capital rape offense, because we knew that the attorney was so incompetent he shouldn't have been there. This is just one example that I can pick out that I very, very clearly remember.
So I think that if we go ahead and if Congress sees fit to pass this particular law, we are not going to solve all of the problems, but at least we are taking a giant step forward.
Thank you, sir.
Mr. GEKAS. Thank you very much.
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[The prepared statement of Mr. Kogan follows:]
PREPARED STATEMENT OF JUSTICE GERALD KOGAN, ALLIANCE FOR ETHICAL GOVERNMENT, UNIVERSITY OF MIAMI SCHOOL OF LAW, CORAL GABLES, FL
GOOD MORNING, MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE. MY NAME IS GERALD KOGAN. I AM A CO-CHAIR OF THE CONSTITUTION PROJECT'S NATIONAL COMMITTEE TO PREVENT WRONGFUL EXECUTIONS. BECAUSE THE NATIONAL COMMITTEE HAS NOT YET CRAFTED ITS RECOMMENDATIONS, I SPEAK NOT FOR THE COMMITTEE AS A WHOLE, BUT AS A MEMBER OF THE COMMITTEE WHO HAS 40 YEARS OF DIRECT EXPERIENCE WITH THE CRIMINAL JUSTICE SYSTEM.
I AM A FORMER CHIEF JUSTICE OF THE FLORIDA SUPREME COURT, AS WELL AS THE FORMER HEAD OF THE CAPITAL CRIMES PROSECUTION UNIT OF DADE COUNTY, FLORIDA. I HAVE ALSO SERVED AS A DEFENSE ATTORNEY AND A CRIMINAL COURT TRIAL JUDGE. I ESTIMATE THAT I HAVE PARTICIPATED IN MORE THAN 10,000 CRIMINAL CASES IN THAT 40-YEAR PERIOD.
DURING MY YEARS OF SERVICE, I CAME TO REALIZE WHAT THE RECENT STUDY BY PROFESSOR JAMES LIEBMAN OF COLUMBIA UNIVERSITY DEMONSTRATES—THAT OUR CAPITAL SENTENCING SYSTEM IS FULL OF ERRORS AT EVERY LEVEL. INNOCENT MEN AND WOMEN ARE SENTENCED TO DEATH FOR A PLETHORA OF REASONS, INCLUDING OVERZEALOUS PROSECUTORS AND POLICE OFFICERS, INCOMPETENT DEFENSE ATTORNEYS, AND WITNESSES WHO TESTIFY IN GOOD FAITH BUT ARE SIMPLY MISTAKEN OR, LIKE JAILHOUSE INFORMANTS, WHOSE TESTIMONY IS UNRELIABLE.
MOST OF THOSE INVOLVED IN CAPITAL TRIALS WANT TO SEE JUSTICE DONE. UNFORTUNATELY, THEY ARE OFTEN UNABLE TO ACHIEVE THIS GOAL. TOO OFTEN, THE SYSTEM FAILS TO PROVIDE ADEQUATE RESOURCES TO PAY FOR DEFENSE ATTORNEYS AND INVESTIGATIONS. HONEST MISTAKES CAN BE MADE—MISTAKES WHICH COULD BE PREVENTED IF THE SYSTEM PROVIDED MORE RESOURCES. SOMETIMES, AS WE HAVE UNFORTUNATELY SEEN, THE SYSTEM SUFFERS FROM COMPLACENCY AND AN URGE TO CONVICT SOMEONE—- ANYONE—- OF A HEINOUS CRIME WHERE THERE IS GREAT PUBLIC PRESSURE. AND SOMETIMES, LEGISLATURES MAKE THE COURTS UNAVAILABLE SO THAT THEY ARE UNABLE TO CORRECT MISTAKES WHEN THEY OCCUR.
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MANY OF THESE MISTAKES, MISTAKES WHICH WRONGLY SENTENCE PEOPLE TO DEATH, REQUIRE EXPENSIVE AND TIME-CONSUMING RE-TRIALS. THIS MEANS THAT THE VICTIMS' FAMILIES MUST RELIVE THE CRIME, THE WRONGLY CONDEMNED LANGUISH IN PRISON FOR YEARS, AND THE GUILTY REMAIN FREE TO VICTIMIZE MORE INNOCENT PEOPLE.
THAT IS WHY I AM SUCH A STRONG SUPPORTER OF THE INNOCENCE PROTECTION ACT, H.R. 4167. THERE ARE SEVERAL KEY ELEMENTS OF THE LEGISLATION ON WHICH I WILL FOCUS MY REMARKS.
FIRST, THE LEGISLATION MAKES DNA TESTING AVAILABLE IN CASES WHERE IT IS NOT PRESENTLY AVAILABLE, AND WHERE IT IS URGENTLY NEEDED. WE NEED LOOK NO FURTHER THAN TO MY COLLEAGUE ON THIS PANEL, KIRK BLOODSWORTH, TO UNDERSTAND THE IMPORTANCE OF MAKING THIS TECHNOLOGY FULLY AVAILABLE.
THIS MEANS THAT WHERE DNA TESTING IS AN ISSUE IN THE CASE, THE LAW MUST PERMIT ACCESS TO THE EVIDENCE. THIS IN TURN MEANS THAT THE EVIDENCE MUST BE PRESERVED, AND THAT THE DEFENDANT MUST HAVE THE ABILITY TO SUBJECT THAT EVIDENCE TO TESTING.
SECONDLY, THE COURTS MUST BE OPEN TO RECEIVE THIS EVIDENCE. THE DOORS OF OUR COURTS MUST ALWAYS BE OPEN TO CONSIDER CASES WHERE A PERSON WRONGLY DEPRIVED OF LIBERTY CAN PROVE IT.
UNFORTUNATELY, OUR NATION'S LAWS VARY FROM STATE TO STATE. FOR OUR SYSTEM TO BE FAIR AND CREDIBLE, IT MUST BE CONSISTENT. WE MUST SET NATIONAL MINIMUM STANDARDS FOR ACCESS TO, AND PRESERVATION OF, BIOLOGICAL EVIDENCE. STATES CAN, OF COURSE, SET HIGHER STANDARDS IF THEY WISH.
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WHILE DNA TESTING HAS BEEN GETTING THE BULK OF ATTENTION FROM THE PRESS AND LEGISLATORS, IT IS FAR FROM THE ONLY OR THE COMPLETE ANSWER TO THE PROBLEMS IN THE ADMINISTRATION OF CAPITAL PUNISHMENT. AS WE ALL KNOW BY NOW, SINCE THE DEATH PENALTY WAS REINSTATED, 87 INNOCENT PEOPLE HAVE BEEN RELEASED FROM DEATH ROW. ONLY 8 WERE EXONERATED BY DNA EVIDENCE. AND IN THOSE 8 CASES, DNA EVIDENCE PROVED NOT ONLY THAT THESE PEOPLE WERE INNOCENT, BUT ALSO THAT THE SYSTEM HAD FAILED AT EVERY LEVEL, BECAUSE THE MISTAKES THE SYSTEM MADE THAT RESULTED IN THEIR CONVICTIONS WERE NOT INITIALLY CAUGHT. THOSE EIGHT PEOPLE WERE ''LUCKY'' ENOUGH TO STILL BE ALIVE WHEN DNA TECHNOLOGY WAS DEVELOPED AND BECAME LEGALLY ACCEPTABLE.
FAR TOO OFTEN, THE ADVERSARY SYSTEM DOES NOT WORK. INSTEAD IT BREAKS DOWN BECAUSE THE DEFENSE ATTORNEY IS NOT EXPERIENCED, NOT COMPETENT, OR IN SOME CASES, NOT EVEN AWAKE OR SOBER. IN THESE CASES, THE VERDICTS ARE NOT RELIABLE AND WORK ONLY TO UNDERMINE AND DESTROY PUBLIC CONFIDENCE IN THE JUDICIAL SYSTEM.
THIS LEGISLATION WILL ENSURE THAT INDIGENT DEFENDANTS IN ALL 50 STATES HAVE COMPETENT COUNSEL. IT WILL ALSO GUARANTEE THAT THOSE WHO ARE CHARGED WITH A CAPITAL CRIME WILL BE EFFECTIVELY REPRESENTED BEFORE SOCIETY EXTRACTS THE ULTIMATE PUNISHMENT. THIS IS THE LEAST WE SHOULD DO, AND IT IS AN OBLIGATION THAT I BELIEVE THE AMERICAN PEOPLE STRONGLY SUPPORT AND THAT IS REQUIRED BY THE SIXTH AMENDMENT.
WE MUST ESTABLISH A NATIONAL STANDARD FOR COMPETENT REPRESENTATION, AND THIS LEGISLATION DOES SO. PRESENTLY, MANY STATES DO NOT HAVE STATEWIDE GUIDELINES FOR THE QUALIFICATIONS OF COUNSEL, AND SOME STATES LEAVE THE STANDARD TOTALLY UP TO THE JUDGE WHO APPOINTS THE DEFENSE COUNSEL.
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PROFESSOR LIEBMAN'S STUDY IS THE MOST COMPREHENSIVE EVER OF THE CAPITAL PUNISHMENT SYSTEM, AND IT TELLS US THAT THE SYSTEM IS BADLY BROKEN. THIS SERVES NO ONE'S INTEREST. THE REFORMS I URGE YOU TO ADOPT WILL BENEFIT VICTIMS AS WELL AS CRIMINAL DEFENDANTS. NO ONE—AND LEAST OF ALL VICTIMS—WANTS THE AGONY OF RETRIALS BECAUSE OF A SYSTEM THAT CONVICTS THE WRONG PERSON AND LETS THE RIGHT ONE WALK THE STREETS, FREE TO VICTIMIZE AGAIN.
IN CLOSING, LET ME SAY THAT I, INDIVIDUALLY AND NOT SPEAKING ON BEHALF OF THE NATIONAL COMMITTEE TO PREVENT WRONGFUL EXECUTIONS, SPEAK IN SUPPORT OF THE GOALS OF THIS LEGISLATION. I RECOGNIZE THAT THE LEGISLATIVE PROCESS IS ONE OF GIVE AND TAKE AND THAT THE FORM THE LEGISLATION MIGHT ULTIMATELY TAKE IS SUBJECT TO GREAT DEBATE. HOWEVER, I URGE THIS COMMITTEE TO SUPPORT LEGISLATION THAT WILL PROVIDE THE DEFENDANT WITH ACCESS TO RELEVANT GENETIC MATERIAL AND THAT WILL ENSURE THAT THERE IS AN AVENUE TO HAVE THAT EVIDENCE PRESENTED AND REVIEWED IN OUR COURTS.
FINALLY, I URGE THE COMMITTEE TO SUPPORT LEGISLATION THAT WILL FULFILL THE CONSTITUTIONAL GUARANTEE OF EFFECTIVE ASSISTANCE OF COUNSEL TO ALL DEFENDANTS, NOT JUST TO THOSE WHO ARE WEALTHY ENOUGH TO AFFORD IT. IN AMERICA, LIBERTY SHOULD NOT BE DETERMINED BY THE SIZE OF THE DEFENDANT'S WALLET.
I LOOK FORWARD TO ANSWERING ANY QUESTIONS THAT YOU MIGHT HAVE. THANK YOU.
Mr. GEKAS. General Spitzer?
STATEMENT OF ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK
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Mr. SPITZER. Thank you, sir, and members of the committee. I appreciate your having this hearing today, and, members on this panel, I want to say it has been very powerful testimony to hear and certainly very instructive, as well.
My written testimony, Mr. Chairman, does address the two critical issues that we are addressing today, competency of counsel and the significance and the critical power of DNA testing and how we should use it in post-conviction appeals.
I would merely state, with respect to each of those issues, that New York State, I believe, is somewhat ahead of the curve. New York State has adopted statutes that address each of these issues, and I think they are instructive in each case, both with respect to our creating a panel of death penalty certified defense attorneys to whom we turn in cases where there is a death penalty possibility, and I think we can learn from that experience and can extrapolate from it across the country and perhaps believe that there would be fewer miscarriages of justice if that model were followed elsewhere in this country, and I think it is something we should do and it is something that this bill would begin to replicate.
Likewise, with respect to DNA, I believe the New York State statute creates a mechanism, a process whereby individuals who believe that DNA testimony, DNA evidence would be instructive, would be probative on a post-conviction appeal can gain access to that testing and can use it to challenge a conviction, and I think again that we have seen, in the various bills that have been presented in Congress on both sides of the Congress, an effort to model some of the standards after what is in the New York bill. Those are both very useful analogs to use as we go forward.
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However, what I would like to do for the few minutes that I have here is address the word that I hear cropping up over and over again in the testimony of some, and certainly in Mr. Barr's questioning about this bill, and that is the word ''federalism.'' I think that it is an issue that is critical to this debate.
I know, when I was fortunate enough to win this office, when I became Attorney General of the State of New York, I had something of an epiphany about federalism. I suddenly thought that it was a wonderful thing to protect the sovereign rights of my State.
But let me tell you, sir, consistency is the hobgoblin of small minds. I know Mr. Barr, for one, has been very supportive of bills that would strip my courts of the capacity to hear class actions. And so, Mr. Barr, I would say, I challenge you. How is it that you can be so protective of States' rights—and that is what we are talking about. Let's not dress it up in any other language—how can you be so protective of States' rights in some cases and yet so quick to strip my courts of that power? I think this is an issue we have to deal with, because federalism is being used as a shield, but we have to use it as a sword, as well.
I would say, to those of you who would say, ''We have a letter from NAAG—and there are a few of my colleagues, AGs, who have said, 'No, we do not want the Federal Goverment telling us what standards to use in terms of competence of counsel,''' I would say that argument could have been used to avoid passing the civil rights laws. I would say that we have seen too often the invocation of States' rights to prevent the Federal Goverment from doing what is fundamental to our system of justice.
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I sit here as the Attorney General of a State and I say to you we need this Federal law. I have seen miscarriages of justice across this country. I have seen States where there is not the requisite due process, and I say that those who would hide behind federalism try to turn back the clock of this Nation.
We have seen this move toward federalism too often, and I think it is a shame. I think it is wrong, and I would say to those who would use it to try to say we cannot impose upon the States these minimum thresholds of due process. I would say that is the wrong direction for us to go, because I think we have been here and we have heard case by case the statistics. We have a witness here who spent years in prison. Should we say, because of federalism, he should not have his day in court? Should we say that he cannot get fair counsel? I think that is absolutely dead wrong.
And when I see my colleagues who are AGs from other States raising the specter of federalism, what they are really saying is, ''We disagree substantively with these rights.'' So let's not hide behind federalism. If there are those who disagree substantively with the notion that we have to impose obligations of fair counsel, stand up and say that is what you object to. But I say to you do not hide behind federalism. We have seen it too often.
Thank you.
Mr. GEKAS. The time of the gentleman has almost expired, has now expired.
[The prepared statement of Mr. Spitzer follows:]
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PREPARED STATEMENT OF ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK
Chairman McCollum and members of the House Judiciary Subcommittee on Crime, thank you for inviting me here today to address the Innocence Protection Act. While this legislation raises the specific issues of post-conviction DNA testing and competency of counsel in capital cases, it more generally challenges us to take steps to protect and defend the integrity of the American criminal justice system.
As a former prosecutor and now New York State's chief law enforcement officer, I have seen first hand the importance of the constitutional protections that are the underpinnings of our criminal justice system, and that are the envy of the world's citizenry. The fundamental premise of American justice is the presumption of innocence. Our basic legal principles are intended to ensure, to the extent possible, that fact: finding is performed fairly, efficiently and justly to exonerate the innocent, punish the guilty, and protect our citizens.
We as a society have made a profound commitment to avoid punishing the innocent. This is particularly important to those of us who support the death penalty in appropriate circumstances. We have determined that there are instances when the crimes are so egregious that society's ultimate punishment—the death penalty—may be appropriate. But the imposition of this punishment can be justified only if we make full use of all available tools to aid in the determination of guilt or innocence.
Today, we have an opportunity—and an obligation—to address two matters to ensure the integrity of our criminal justice system: the competency of counsel in capital cases, and DNA testing. With respect to each, I am proud that my state, New York, has taken significant steps to ensure that we offer the accused effective means to defend themselves so that justice properly is served.
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In 1995, when New York enacted legislation allowing for the imposition of capital punishment in certain cases, the State simultaneously enacted legislation addressing the need for competent counsel in these cases. New York Judiciary Law Section 35-b creates a Capital Defender Office with several responsibilities including: serving as counsel for defendants when appointed by the court; furnishing legal advice, investigative, expert and other services; and providing training to attorneys appointed to represent capital defendants.
New York Judiciary Law §35-b provides a framework for the appointment of counsel at trial, on appeal and post-conviction. Specifically, it provides that every indigent defendant charged with first degree murder, or where there is a reasonable likelihood of being so charged, is entitled to appointment of counsel and investigative and expert services. At the trial level, the court appoints the attorneys—a ''lead'' counsel and an ''associate'' counsel—selected from a roster of qualified attorneys designated by the Capital Defender Office, or the Capital Defenders Office itself is appointed. Alternatively, the court may appoint qualified attorneys from the state's Assigned Counsel Program. New York's statute also provides for appointment of lead counsel for the appeal of any death sentence, and for good cause, appointment of associate counsel. New York Judiciary Law Section 35-b(2). Finally, New York provides for appointment of lead counsel with respect to an initial postconviction motion and any appeal. therefrom. Id.
Section 35-b vests the New York State Court of Appeals—the highest court in our state with final authority to approve compensation rates for appointed counsel in capital cases. The statute also addresses standards for counsel in capital cases. The Capital Defender Office proposes minimum standards for lead and associate counsel in capital cases, interested parties may comment on the proposed standards, and ultimately the Court of Appeals must approve the standards.
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The Court of Appeals has approved standards for trial counsel as well as for appellate counsel and state post-conviction counsel in capital cases. They set forth minimum standards for prior criminal trial, appellate or post-conviction experience, require familiarity with the practice and procedures of the trial and appellate courts of New York, and ensure that appointed counsel previously had primary responsibility for the appeal of a sufficient number of felony convictions.
Ultimately, the integrity of our criminal justice system rests on the assurance that capital defendants have competent counsel. In New York, we have created a program to ensure this, and every state should adopt a program which addresses this critical need. While the specific contents of that program and the standards for competency should reflect the particular configuration of the state's criminal justice system and local circumstances, every state program should address certain critical features:
an independent appointment authority to recruit qualified attorneys to represent indigents in capital proceedings, and to provide specialized training for capital counsel;
a means to set qualifications and perfon-nance standards for attorneys who may be appointed as defense counsel in capital cases;
reasonable compensation fbr attorneys who represent capital counsel which reflects the qualifications and experience of the attorneys, and the local or regional compensation practices; and
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reimbursement for the reasonable costs of investigators, experts, scientific tests, paralegals and other support necessary in the representation of capital defendants.
These simple guidelines ensure that defendants in capital cases have adequate counsel, but I believe that the specifics need to be set by each individual state. Many states have programs with different details which also adequately ensure competent counsel Unfortunately, not all states have such programs. Any state which authorizes the imposition of the states's most serious sanction must give equally serious attention to the competency of defense counsel. Competent counsel, after all, is a key element in ensuring that the innocent go free, that the guilty are caught, and that the criminal justice system adheres to the highest standards of constitutional practice.
The second matter which gives us an opportunity to strengthen our criminal justice system is DNA testing. This represents an extraordinary enhancement in our ability to solve crimes. With DNA testing, we can determine whether a particular patch of blood, a hair, or a semen sample belongs to a specific individual. The potential significance of using DNA testing
in the criminal justice system is enormous and fundamental. This evidence can exonerate individuals or it can inculpate them; an innocent person can be freed; a guilty perpetrator found.
This is an extremely powerful tool, one that can bring greater guarantees of fairness to our judicial system. As a result, it is the responsibility of all involved—legislators, prosecutors, defense counsel, judges—to work together to determine the appropriate and just use of this investigative device. DNA testing will never replace the fact finding of ourjuries, the legal determinations of our judges, or the constitutional protections afforded our citizens. Yet, our commitment to the fundamental principles of justice and liberty will be reflected by the decisions we make about how we use this new scientific tool. DNA testing is not something to be feared, but rather to be accepted and incorporated into our criminal justice procedures and practices.
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Some opponents of post-conviction DNA testing have argued that it cannot conclusively prove guilt or innocence in many cases, and therefore we should not burden ourselves with stringent requirements to provide such testing. Yet, DNA testing can provide evidence which is probative of guilt or innocence in many cases, and therefore can deten-nine that individuals who have been incarcerated for years—or even are awaiting the death penalty—may be innocent of the cri'mes for which they were convicted. The United States always has demonstrated its basic commitment of fairness to the accused,, and therefore any marginal burdens are far outweighed by the ability to prevent the punishment of the innocent.
New York State is a leader in this area, having passed legislation granting a statutory night to post-conviction DNA testing almost six years ago. Our experience demonstrates that post-conviction DNA testing can bolster the integrity of our judicial system without unduly burdening our criminal justice resources.
In 1994, the New York State Legislature amended New York Criminal Procedure Law §440.30 to authorize trial courts to order post-conviction DNA testing in certain circumstances. This statute requires a court to grant a defendant's request for post-conviction forensic DNA testing where a court makes two determinations:
first, that the specified evidence containing DNA was secured in connection with the trial resulting in the judgment;
second, that if a DNA test had been conducted on such evidence and the results had been admitted in the trial resulting in the judgment, ''there exists a reasonable probability that the verdict would have been more favorable to the defendant.''
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As a preliminary matter, New York's law enforcement community has been quite supportive of the immense value of DNA testing. For example, New York City Police Commissioner Howard Safir has written, with reference to post-conviction DNA testing, that he has ''seen the immense value of DNA evidence as both an inculpatory and exculpatory tool for law enforcement,'' and that the ''existence of a statutory requirement makes a significant difference in the pursuit of justice.''(see footnote 12)
Although New York does not have a complete accounting of every instance in which a defendant has requested DNA testing and the outcome, our preliminary indications demonstrate that a statutory right to post-conviction DNA testing, coupled with an appropriate standard, can produce results both just and practical. In New York, the existence of DNA evidence has led to post-conviction exonerations in at least seven cases.(see footnote 13) Thus, seven innocent individuals have been released thanks to this science and to our statutory guidelines.
I want to reassure this Committee and my state colleagues that the existence of a statutory right to post-conviction DNA testing does not mean that there will be an avalanche of testing at great cost to a state. With an appropriate standard, not all requests will be granted. In New York, for example, a request for DNA testing can only be granted if a court determines that there exists a reasonable probability that had the results -—presumably favorable to defendant—been admitted at trial the verdict would have been more favorable to the defendant. For example, in one rape case, a court ordered testing where the victim had testified that she had not had sex with anyone but the rapist on the night of the crime. Matter of Washpon, 164 Misc.2d 991 (Kings County 1995).
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On the other hand, courts have rejected requests for testing where they have determined that there was not a reasonable probability that the verdict would have been more favorable to the defendant even with the results of a DNA test. For example, in 1996, a court rejected a testing request in a rape case, where the defendant had conceded at tnial that he had sex with the victim but claimed that it had been consensual. People v. Kellar, 218 A.D.2d 406 (3d Dept 1996).(see footnote 14) The results of DNA testing would not have altered the verdict in any way.
Thus, our experience in New York demonstrates that a statutory right to post-conviction DNA testing can result in innocent individuals being exonerated and released. And our experience in New York demonstrates that a statutory right to post-conviction DNA testing can be workable.
Although New York has been a leader in this area, and is one of only a few states which have created a statutory right to post-conviction testing, our statute still could be improved. For example, CPL §440.3 O(l -a) applies only to defendants convicted before January 1, 1996. This time limitation appears to represent a legislative judgment that before that date, DNA evidence could not always have been producedby a defendant at triial even with due diligence and thus DNA results presumptively constitute newly discovered evidence.
Although this may represent a rational judgment made by the legislature, the result is that for defendants convicted in New York after January 1, 1996, there is no statutory procedure authorizing post-conviction DNA testing. To the extent that those defendants may have had an opportunity to request such testing at trial but chose not to, there may be a lesser need for post-conviction testing. But some defendants may have been denied pretrial testing and should have an opportunity for post-conviction testing if their situation meets the statutory requirements. This problem could be solved either by establishing statutory standards for pretrial testing, or by extending the post-conviction DNA testing procedure set forth in CPL §440.30(1 -a) to all defendants, regardless of when they were convicted.
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Other steps also can be taken to improve post-conviction DNA testing in New York. We do not require the reporting of all requests for such testing and therefore cannot fully evaluate whether we are adequately addressing the concerns of prosecutors, judges, victims as well as those convicted of chimes. Also, more guidance can be provided on the practical aspects of postconviction DNA testing such as the collection, storage and retention of crime scene evidence and related training as well as the mechanics of the testing. If we study cases in which convictions have been vacated as a result of post-conviction analysis of DNA evidence, we may learn of additional ways to improve policies or practices relating to the operation of the criminal justice system. New York Governor George Pataki has proposed the creation of a DNA Review Subcommittee to address these issues, and I look forward to working with him in this endeavor.
Notwithstanding that there are areas warranting some improvement, the New York experience demonstrates the wisdom of a statutory right to post-conviction DNA testing. Such testing offers an invaluable tool to protect the integrity of—and ultimately the public's confidence in—our criminal justice system.
10
While I appreciate and respect the federalism concerns raised by my colleagues in state government, DNA testing is too important to allow some states to offer no remedy to those incarcerated who may be innocent of the crimes for which they were convicted. That is why I support a federal statute which requires states to adopt post-conviction DNA testing procedures. While any such federal statute should be flexible enough to allow states to craft provisions tailored to their particular criminal and appellate procedures, it nevertheless should require that all state provisions contain some fundamental principles:
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first, every state should be required to provide for post-conviction DNA testing in all cases in which such evidence would be probative of guilt or innocence;
second, before testing is done, defendants should be required to make a showing—similar to New York's—that the result of the DNA tests could provide favorable evidence related to the verdict (e.g., that if the results of the tests had been admitted at trial, there exists a ''reasonable probability that the verdict would have been more favorable to the defendant'');
third, states should make such testing available at state expense to indigent defendants;
fourth, states should have reasonable time limits for defendants to request testing;
fifth, states should set forth standards to assure the preservation of potentially testable evidence;
finally, states should make sure that the above rights are made meaningful, which means the availability of counsel, either through public defenders, appointed counsel programs, or funding for programs which represent indigent prisoners seeking post-conviction DNA testing.
Although ideally every state already would have established a night to post-conviction DNA testing, unfortunately that is not the case. Where, as here, fundamental human rights are at issue, an unjust punishment has been imposed, and sufficient time has passed without
comprehensive state action, it is certainly appropriate for the Congress to step in and establish minimum protections that all states must adopt. Our history is replete with instances of such necessary and appropriate federal action. Congress did so in the 1960s when it passed civil rights laws abolishing discriminatory practices throughout the country, and it should do so again here.
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Our criminal justice system mast strive toward ever greater degrees of exactitude. The public's confidence in our judicial system depends upon the fairness of the results it produces, and that fairness depends not just on the due process protections provided to defendants, but also on our willingness to correct any errors that occur despite those protections. By ensuring capital defendants have access to competent counsel and by expanding the use of the scientifically validated fact finding tools, we will boost the public's confidence in our courts and their respect for the law. As public officials, this is our responsibility and mandate.
Thank you once again for inviting me to appear here today, and I would be pleased to answer any questions that you have.
Mr. GEKAS. We turn to Mr. Campbell as our last witness.
STATEMENT OF WARD CAMPBELL, ESQUIRE, DEPUTY ATTORNEY GENERAL, SACRAMENTO, COUNSEL
Mr. CAMPBELL. Good afternoon.
I think, in answer to what the Attorney General of New York has just said, I think that the federalist process, in fact, is part of the Constitutional process, and we are not hiding behind a shield when we say we have questions and concerns about the bill that is before this subcommittee. In fact, my State is already debating this type of bill. New York has this kind of bill. Illinois has this kind of bill, or has this as law already. Oklahoma does, Arizona does. The States are pretty much responding to this new era of DNA technology and, in fact, are doing it in a way that the federalist system, as the U.S. Supreme Court just confirmed just this term, is the way they are supposed to, as the laboratories, if you will, of the country in finding the most innovative and creative ways of dealing with this challenge that DNA technology poses, and that is the basis of the concerns that the attorney generals raise who signed the letter expressing concerns about the counterpart to this bill that is pending in the U.S. Senate.
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I have heard a lot of anecdotes, and I will give one, myself, because it helps me to discuss this Liebman study that we have been hearing about today. It is becoming, I think, another—it is going to quickly become part of the mythology that we have this incredible, serious error rate in death penalty cases. Statistics can be very misleading. Being a Californian, when you are dealing with reversals in death penalty cases, that is a highly personal matter. Twenty years ago, when I started in this office at the Attorney General's office, I was asked to help out with a death penalty brief in the California Supreme Court. This had been in 1980.
I told my supervisor at that time, ''I just started working here. I am not really that familiar with death penalty jurisprudence.'' And he said, ''Do not worry about it. Given the current California Supreme Court, this case is going to get reversed. It really does not matter what we write in the brief.'' And, in fact, that is what happened to 60 out of the 64 cases that we had during the late 1970's and early 1980's in California when a different court was in power.
In fact, subsequently, although those are still reversals, most of those reversals—many of those reversals have been shown, in fact, to have been improper. It was not the defense that committed the error, it was the California Supreme Court that committed the error. And yet those types of statistics are part of the Liebman study, for instance, in indicating a high reversal rate in California.
I think that, therefore, it is interesting to me that one of the most important concepts of death penalty jurisprudence under the 8th amendment is that every defendant should get an individualized look or a chance to show how he is, as an individual, a chance to bring forth all mitigating evidence that might justify a verdict less than death, and that, when we examine the death penalty and otherwise look at how it has worked in other aspects, we seem to be content to rely on statistics without looking at individual cases and trying to analyze why those cases, those statistics, are the way they look, why there might be a high reversal rate in one State when it turns out that, in fact, the courts there early on were dealing with a new type of jurisprudence and got many unclear signals from the courts.
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I think this committee and the members of this committee should be very, very cautious about taking that type of study at face value without understanding further the actual data that was relied upon—data, by the way, which none of us have been provided yet. We do not even know what cases Mr. Liebman looked at in order, for instance, to determine what kind of reversal rate he had in California.
Another problem with the bill has to do with the national standards for counsel. I think it is ironic. There has been a lot of talk here about how much better it would be to have a national standard imposed by the Federal Goverment for appointment of counsel in capital cases. It is ironic. California, just in the last couple of years, in fact, adopted a series of standards for appointment of counsel on both appeal and habeas corpus, post-conviction representation in California. We had to make a special provision for counsel who had been appointed in the Federal courts to represent these defendants in Federal cases. They go to Federal court and frequently they come back to State court.
Because the standards are lower in the Federal court for appointment of counsel under 21 USC 848, we have to make special allowance to allow us to reappoint those attorneys to represent our defendants when they come back to State court. So, from California's standpoint, the imposition or use of a national standard is not necessarily a satisfactory experience.
This bill, as well, if you are a death penalty prosecutor, contains other things that are rather surprising, given that it is called an ''Innocence Protection Act.'' We have talked a lot about the counsel standards. We have talked about the DNA. I do not know any prosecutor, frankly, who is opposed to DNA technology for post-conviction testing in appropriate cases. I think my written testimony sums up our concerns about this particular bill.
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But I think it is important to know when you pass this bill you are also establishing a regime apparently of instructional rules for State courts. They are going to put many State courts, State judges, and State defendants in a bind as to the appropriate instructions that should be given on sentencing options. For no reason at all, you are going to take the State high courts out of the business of adjudicating U.S. Constitutional questions after the State of Illinois went to a lot of trouble upholding that in the U.S. Supreme Court just in the last 2 years. There seems to be no explanation for why this particular change has been made in the bill, as well.
All of those are aspects of the bills that have influenced the Attorney Generals, including my Attorney General, Bill Lockyer, who signed the letter expressing concern about the Senate Bill and also now its version which is before this committee.
Thank you, Mr. Chairman.
Mr. GEKAS. We thank the gentleman.
[The prepared statement of Mr. Campbell follows:]
PREPARED STATEMENT OF WARD CAMPBELL, ESQUIRE, DEPUTY ATTORNEY GENERAL, SACRAMENTO, CA
Mr. Chairman Representative McCollum, Ranking Minority Member Representative Scott, and Members of the Subcommittee on Crime of the Committee on the Judiciary of the House of Representatives:
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My name is Ward A. Campbell, Deputy Attorney General for the State of California, and it is my honor to be here today on behalf of Bill Lockyer, Attorney General of the State of California. As you may know, Mr. Lockyer himself could not attend today because he is attending a conference this week with his fellow state attorneys general. However, Mr. Lockyer was one of thirty state attorneys general who signed a letter urging caution in the adoption of the United Sates Senate's counterpart to the bill being addressed today, HR 4167. That letter was made part of the record of the Senate Judiciary Committee's hearings last week on Senate Bill 2073 (Leahy-Smith). I assume that this subcommittee is aware of that letter and its attachment and will make it part of the record for these proceedings as well. In addition, my colleague at the California Department of Justice Deputy Attorney General Enid Camps personally testified before the Senate Judiciary Committee last week. Attached to my prepared statement is a copy of the written testimony presented by Deputy Attorney General Camps last week and I request permission that her written statement be made part of the record in these proceedings as well. Rather than reiterate all of the points made by Deputy Attorney General Camps in her prepared statement, I will only emphasize a few key points about the DNA post conviction testing procedure in HR 4167.
I have been a Deputy Attorney General in California for over twenty years and have been involved in death penalty litigation throughout my entire career. Ordinarily, our office represents the State on all post trial matters including appeal and habeas corpus. Currently, I represent the State in five separate death penalty cases pending in federal court. However, I do have the unique or perhaps dubious distinction of having been involved in one death penalty case in its entirety since 1981, including the original filing of the felony complaint. I have also had supervisory responsibility over other capital cases since 1987. In 1990, I represented California as intervenor in the Canadian Supreme Court in the extradition case of convicted mass murderer Charles Ng. Since 1989, I have served on several advisory committees for the Ninth Circuit Court of Appeals. I also spent a number of years working on issues relating to federal habeas corpus reform, first with former California Attorney General John K. Van de Kamp and later as a member of a Federal Habeas Corpus Reform Task Force formed by former Attorney General Dan Lungren.
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As I have already indicated, Attorney General Lockyer and his staff have examined HR 4167 and Attorney General Lockyer joined twenty-nine fellow attorneys general by signing a letter expressing concern about its Senate counterpart. Let me say at the outset that I know of no prosecutor who opposes the concept of DNA post conviction testing. Indeed, such opposition would be contrary to the prosecutor's special role in the criminal justice system in searching for truth in criminal trials. Strickler v. Greene, 527 U.S. 263, 281 (1999). In fact, we generally applaud shifting the focus of post conviction review to questions of actual guilt and actual innocence.
Attorney General Lockyer is working for the enactment of appropriate DNA post conviction testing procedures in California. Other states, including New York, Illinois, Arizona, and Oklahoma have already adopted such procedures. As DNA moves from the laboratory to the courtroom, the States are serving their function as ''laboratories for testing solutions to the complex legal problems'' posed by the rapidly developing DNA technology. Smith v. Robbins, U.S., 120 S.Ct. 746 (2000).
Respectfully, HR 4167 preempts the States by imposing a single solution to the DNA issue ''from the top down''. The bill creates a new post conviction proceeding independent of the long-established procedures for motions for new trial and petitions for writs of habeas corpus. While its objective is commendable, the proposed procedure raises concerns that DNA testing will be unnecessarily utilized and financially onerous to the States. In particular, the proposal sets too low a threshold for testing and will force the creation of a burdensome infrastructure.
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A. DNA TESTING PROVISIONS: SECTIONS 102, 103, AND 104
HR 4167 establishes two different DNA post conviction testing procedures. The procedure in Section 102 is reserved for federal courts. However, under section 103, those procedures must be adopted by the states in order for the states to be eligible for significant federal funding. Section 104 simply imposes a requirement for DNA testing on the states pursuant to the fourteenth amendment.
As I indicated before, prosecutors have a special role in the criminal justice system. This role includes the unique duty in our adversarial system to disclose material, exculpatory evidence to the defense. ''Material'' evidence is evidence that would have a reasonable probability of changing the outcome of the trial. From a retrospective standpoint, it is evidence sufficient to undermine confidence in the verdict. Thus, it is not enough that the exculpatory evidence simply be ''relevant'' since relevant evidence is any evidence having ''any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'' FRE 401. The fact that evidence is ''relevant'' does not necessarily make that evidence admissible or material. ''For a jury's appraisal of a case 'might' be affected by an improper or trivial consideration as well as evidence giving rise to a legitimate doubt on the issue of guilt. . . . The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense.'' United States v. Agurs, 427 U.S. 97, 109, 110 (1976).
The New York, Illinois, Arizona, and Oklahoma DNA post conviction statutes all incorporate a showing of materiality for DNA testing. The most recent recommendation of the National Commission on the Future of DNA Evidence also recommends a ''materiality'' component. The separate provision of HR 4167 which impose a DNA post conviction testing requirement directly on the States pursuant to the fourteenth amendment permits the state to deny testing requests based on lack of materiality. State courts have specifically denied requests for DNA testing because the test results would not have provided ''material'' evidence. See, e.g. People v. Gholston, 697 N.E.2d 375 (Ill.App.1998); People v. Savory, 722 N.E.2d 220 (Ill.App.1999); State v. Halsey, 748 A.2d 634 (N.J.App.2000); People v. Tookes, 639 N.Y.S.2d 913 (N.Y. 1996). Similarly, in California, a new trial based on newly discovered evidence is not granted absent a showing of materiality nor is habeas corpus relief for newly discovered evidence granted unless the evidence undermines the entire prosecution case and points unerringly to innocence.
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Yet, a standard of ''materiality'' is missing from the DNA Post Conviction Testing procedure in HR 4167. The mere determination that a DNA test may produce noncumulative, exculpatory evidence relevant to a claim of wrongful conviction does not rise to the level of establishing that a DNA test might produce results that if favorable would actually undermine confidence in the verdict. The determination does not require the court to examine the record of the trial as a whole to determine if any issue was in dispute to which a DNA test would be relevant. It does not require the trial court to determine if the applicant for the testing is now advocating a defense inconsistent with the defense raised at trial. It does not take into account the possibility of multiple assailants or other innocent sources for the questioned biological material. We are aware of no reason for eschewing the traditional materiality standard for DNA post conviction testing.
Respectfully, we submit that there are other shortcomings with the DNA Post Conviction Testing Procedures in HR 4167 as well. We believe that there must be a showing of timeliness in seeking such testing and that it not be used as a last minute effort to delay the execution of a judgment. The government will be required to store and preserve all biological material in all cases during the period any person remains incarcerated in connection with those cases, without regard to whether that material is testable or potentially material. The provisions permitting the government to destroy preserved biological material with 90 days notice will still require the construction of an expensive infrastructure for the proper storage of that biological material. The 90 day default rule will certainly generate preemptive, pro forma motions for DNA testing.
Finally, we question the Congressional authority in proposed Section 104 to impose a DNA testing procedure under the fourteenth amendment to the United States Constitution. By enacting this procedure, Congress is creating a federal right to litigate a post-conviction claim of actual innocence even though there has been no showing of a violation of a Constitutional right. While Congress can enforce rights under the fourteenth amendment, it cannot create those rights. That power is reserved to the Judicial Branch. Kimel v. Florida Board of Regents, U.S., 120 S.Ct. 631 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997). The United States Supreme Court has yet actually to recognize a federal right to challenge a claim on grounds of actual innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995) citing Herrera v. Collins, 506 U.S. 390 (1993). Indeed, the United States Supreme Court has repeatedly held that the fourteenth amendment should be lightly construed so as not to intrude upon the administration of criminal justice in the States. California v. Medina, 505 U.S. 437 (1992).
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As we have already said, California agrees with the objective of DNA post conviction testing. California, along with its sister states, is experimenting with innovative ways of integrating DNA testing into its criminal justice system. However, the fourteenth amendment provisions of HR 4167 have implications about federal-state relations and Separation of Powers that go way beyond the immediate issues.
B. COUNSEL STANDARDS-SECTIONS 201, 202, AND 203
Four years ago, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). As part of its provisions, Congress offered the opportunity for expedited handling of habeas corpus proceedings in capital cases if the states established a system for the appointment of qualified and reasonably compensated post-conviction counsel. This enactment was prompted by the Ad Hoc Committee chaired by former Associate Justice Louis Powell which concluded that one of the chief reasons for delay in death penalty litigation was the lack of qualified post-conviction counsel in state courts.
HR 4167 now proposes to go beyond the AEDPA by mandating specific standards for the appointment, training, and compensation of state counsel at all stages of state capital proceedings. The bill uses the Spending Power by conditioning federal funding on adoption of these standards. However, it essentially requires adoption of these counsel standards by abrogating the rules of procedural default and the presumption of correctness for state court factual findings when prisoners apply to federal court for petitions for writs of habeas corpus. Thus, even though defendants waived claims by failing to follow state procedural rules, they will still be able to raise those claims in federal court without justifying their defaults in state court. Furthermore, even though state courts have properly conducted evidentiary hearings on specific claims, the federal courts will be able to completely disregard those factual findings when state prisoners renew those claims in state court.
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Ironically, ''materiality'' is again an important theme in analyzing HR 4167's provisions for the establishment of standards for competent counsel at all stages of capital proceedings. A defendant is entitled to the effective assistance of counsel at trial and on direct appeal. To prove a claim of ineffective assistance of counsel, a prisoner must demonstrate that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable the outcome would have been different, but for counsel's unprofessional error.. Strickland v. Washington, 466 U.S. 668 (1984). The ''reasonable probability'' standard, of course, is identical to the ''materiality'' standard discussed above in connection with DNA testing. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Ordinarily, it is presumed that counsel has performed competently and that no set of detailed rules for counsel's conduct can be established. Rather, counsel's conduct must be judged on the facts of the particular case. Roe v. Flores-Ortega, U.S., 120 S.Ct. 1029 (2000).
HR 4167's abrogation of the procedural default rules and the presumption of correctness for factual findings simply turns the standard for effective assistance of counsel on its head. Under current law, prisoners still have the opportunity to demonstrate that the procedural default or state court factual findings were the result of unreasonable, material error on the part of counsel. Under HR 4167, rather than inquiring into the reasonableness of counsel's actions in a particular case or the actual materiality of counsel's actions to the verdict, the federal court will simply presume that any state that has not adopted these standards provides incompetent counsel. By adopting this proposal, HR 4167 takes another step towards transforming the jury trial from the ''main event'' to a mere ''opening act'' in the criminal justice process.
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HR 4167 poses what should be unnecessary practical problems for California. Our state already provides counsel for all indigent capital defendants at trial, direct appeal, and state habeas corpus. Frequently, defendants have two counsel at all of these stages as well. Cal.Pen.Code §987(d). Capital defendants are also entitled to reasonably necessary funds for investigators, experts, and other ancillary services. Cal.Pen. Code §987.9. Trial counsel is not reappointed to represent the defendant on appeal or habeas corpus.
The California State Public Defender is authorized to represent prisoners on capital appeal and to also, when necessary, represent capital defendants at trial. Under legislation carried by then State Senator Bill Lockyer in 1997, the State Public Defender was authorized to hire 15 additional staff attorneys for this purpose..
Under legislation also sponsored by Attorney General Bill Lockyer when he was a member of the California State Senate, California created within its judicial branch a California Habeas Corpus Resource Center. The Center is managed by an executive director who is chosen by a five member board of directors and confirmed by the State Senate. The directors represent the various appellate projects in California that serve California's six appellate districts. The counsel employed by this center will be appointed to represent defendants sentenced to death and will also employ its own investigators. The defendants will be separately represented by the State Public Defender or other appointed counsel on appeal. The Habeas Resource Center also works with the California Supreme Court to recruit attorneys to accept habeas appointments, maintain a roster of qualified habeas attorneys and ancillary service providers, assist counsel, develop a brief bank, recommend attorneys for appointment, monitor case progress, and review billings. The Habeas Resource Center is accountable on an annual basis to all three branches of the California state government. (Cal. Gov't Code §68660-68665.)
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A California rule of court sets standards of competency for California appellate and habeas counsel. Cal.Rules of Court, rules 76.5, 76.6. These standards establish a system of lead appellate counsel, associate appellate counsel, supervised counsel, assisting counsel or assisting entity, lead habeas corpus counsel, and associate habeas corpus counsel. Lead or associate counsels must have actively practiced in California for four years, been counsel of record in seven felony appeals including a murder or counsel of record in five felony appeals and supervised counsel in two death penalty appeals. Furthermore, such counsel must have familiarity with California Supreme Court rules and practices, including death penalty procedures. Moreover, within three years prior to appointment, a lead or associate counsel must complete nine hours of approved training, including six hours of death penalty training. Finally, lead or appointed counsel must demonstrate proficiency in issue identification, research, writing, and advocacy.
Habeas counsel in California must also have practiced law for four years and have completed five felony appeals, including one murder appeal. In addition, because of the different litigation posture of habeas, the appointed counsel must also have been counsel of record in three jury trials or three habeas proceedings involving ''serious felonies''. Alternatively, habeas counsel must have completed five appeals or writ proceeding and been a supervised counsel in two death penalty habeas proceedings. These counsel are also subject to the same requirements of familiarity with Supreme Court practice, training, and legal proficiency as appellate counsel. If a habeas counsel lacks trial experience, the counsel must associate a counsel with such experience if an evidentiary hearing is ordered.
The California Supreme Court rules also provide alternative qualifications for attorneys who do not meet the technical requirements detailed above, but have other extensive equivalent experience. Attorneys appointed under this scheme must have ongoing consultation and completed 18 hours of specific training.
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There are three designated ''entities'' which may also serve as appointed counsel in California capital cases: the State Public Defender, the newly created California Habeas Resource Center, and the California Appellate Project. However, attorneys who are assigned cases by these entities must meet the same qualifications for appointed counsel.
Finally, the California Supreme Court will also appoint attorneys to represent prisoners in state habeas proceedings if those attorneys have been appointed to represent the prisoners in federal court. However, since federal courts only require that appointed counsel have practiced for five years and spent three years handling either felony trials or felony appeals, the California Supreme Court will make the appointment if it also finds that the federally appointed counsel has ''the commitment, proficiency, and knowledge necessary to represent the defendant competently in state proceedings.'' 21 U.S.C. sec. 848(q).
The California Supreme Court compensates appellate and post-conviction counsel at a rate of at least $125 per allowable hour and permits up to $25,000 for investigative costs without prior authorization. The California Supreme Court has policies for so-called ''flat fee representation'' and also has detailed guidelines for allowable hours for billings.
If H.R. 4167 is adopted into law, California may have to dismantle this entire system. To begin with, the system is not necessarily a centralized and independent appointing authority. It is part of the judicial branch of the State of California and it is accountable to all three branches. The California Supreme Court currently remains the appointing authority. It is likely the current compensation scheme will be inconsistent with HR 4167's provisions. Finally, the continuance of California's system for appellate and habeas counsel will depend on the content of the regulations actually issued by the Administrative Office of the Courts.
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C. ADDITIONAL COMMENTS ON OTHER PROVISIONS OF HR 4167-SECTIONS 302, 403, 404, AND 405
Section 302
There are other features of HR 4167 which are also problematic and which prompted the letter signed by thirty state attorneys general, including Attorney General Lockyer opposing this bill's Senate counterpart. For instance, the bill requires assurances that a state will have a procedure for compensation for unjust convictions in which there is ''substantial proof'' that the person did not commit the acts was charged. It is unclear what the quantum of proof is for ''substantial proof'' .It is unclear if a person could collect if the evidence showed guilt of a lesser offense. Apparently, a person could collect even if there was no government misconduct involved in the unjust conviction..
Section 403
Another feature of HR 4167 is a provision requiring assurances that a trial court in a capital case give an instruction informing the jury of all statutorily authorized sentencing options in a particular case, including applicable parole eligibility rules and terms. This requirement goes way beyond the current requirement set forth in Simmons v. South Carolina, 512 U.S. 154 (1994) that a court advise a jury of a defendant's parole ineligibility if he is sentenced to life imprisonment if the prosecution has raised the defendant's future dangerousness as an issue. The states have been otherwise permitted to determine the extent of a jury's information about sentencing options. The requirement in section 403 arguably requires a trial court to fully explain to the jury the executive clemency power to commute a death sentence or life sentence to a lesser sentence in which a defendant could be parole eligible. It would then be incumbent upon the trial court to then explain frequently complex parole eligibility rules for these potential, speculative lesser sentences. It is unclear whether the explanation could include instructions on how a defendant's possible incompetency to be executed could affect a sentence. In California, this requirement could put a state court at odds with California's own state constitutional restrictions on sentencing instructions. While the requirement is conditioned on the ''defendant's request'', that will put the trial court in the position of disobeying a federal mandate or carrying out an instruction that may later become a source of contention on appeal or habeas attacking the validity of the defendant's sentence. The United States Supreme Court's decision just last week in Ramdass v. Angelone only highlights the potential for confusion once state courts are required to go beyond the ''bright-line'' Simmons requirements.
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Section 404
In addition, HR 4167 will also require a biannual report from the Attorney General about the administration of capital punishment in the United States. In particular, the Attorney General will report on the percentage of ''death eligible cases'' in which a death sentence is sought and imposed including information on the races of the defendant(s) and victim(s), an ''analysis'' of the impact on juries of the process by which jurors are excluded because of their biases for and against the death penalty, an analysis of the effect of defense and prosecution peremptory challenges on juries in capital cases, the percentage of cases in which life without parole is imposed, the percentage of appointed counsel, a comparative analysis of counsel appointment systems in the United States, analysis of compensation, and the percentage of reversed death sentences with the reasons for the reversals. The report is to be distributed to the media and made available on the Department of Justice website.
The collection and analysis of such information will no doubt be useful to both Congress and the States. However, this report would benefit from the participation of state actors, both prosecution and the defense, in its compilation and in its final review before nationwide dissemination.
Section 405
Finally, HR 4167 changes long settled United States Supreme Court precedent by no longer requiring that appellants seek discretionary review of their cases in the state's highest court in order to exhaust their state remedies. In the recent opinion of O'Sullivan v. Boerckel, U.S., 119 S.Ct. 1728 (1999) the United States Supreme Court held that a defendant must seek such review before proceeding to federal court unless the state law provided otherwise. State courts, including the highest state courts, remain co-equal partners in the enforcement of the federal constitution. When Congress adopted the AEDPA, its revision of the standard of review for state court adjudications further underscored the importance of the state courts in that system. This proposal will make the state's highest courts virtual non-players in interpreting the Federal Constitution on matters of criminal procedure and hamper those courts' abilities to reconcile conflicts about those issues among its own lower appellate courts. It may also mislead a defendant into skipping seeking review from the state's highest court in the mistaken belief that he will receive a better result in federal court when in actuality the federal court's review of the state appellate court decision will be limited by the AEDPA.
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PREPARED STATEMENT OF ENID CAMPS, DEPUTY ATTORNEY GENERAL, STATE OF CALIFORNIA
Mr. Chairman, Senator Hatch, Ranking Minority Member Leahy, and Members of the Committee, my name is Enid Camps, and I am a Deputy Attorney General for the State of California. It is my honor to be here today on behalf of Bill Lockyer, the Attorney General of our State.
I am an office coordinator on DNA issues, and I am the assigned legal advisor to the California Department of Justice DNA Laboratory. I primarily handle DNA cases at the appellate level. My cases have helped define the development of law on DNA admissibility in our State. On behalf of the Attorney General's office I drafted, in conjunction with the State's DOJ DNA Lab, the ''DNA and Forensic identification Data Base and Data Bank Act of 1998,'' a comprehensive chapter of laws defining and governing the operation of our State's DNA Data Bank program.
DNA Data Banks are the most significant crime-fighting tool since fingerprints because they enable us to solve otherwise suspectless crime by comparing the DNA from biological evidence left at crime scenes with blood collected from an enumerated class of convicted felony sex and violent offenders.
California law enforcement has long-recognized the importance of DNA evidence in solving the most serious sex and violent crimes, where the victims are disproportionately woman and children.
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In 1984, we first began data-banking blood samples from convicted sex offenders to help solve recidivist crime. We were in the vanguard of states using DNA evidence in criminal investigations and trials in 1989, with prosecutors relying on the work of private labs. Our own State DNA Laboratory began accepting cases in 1992.
Clearly, post-conviction DNA testing is an important forensic tool, as well. To date, attention has been focused on the concept of post-conviction DNA testing and the need for it. But as you know, this is only part of the equation. We believe the national dialogue now should move on to include the specifics of cost, of implementation, and a practical assessment of how this can best be accomplished. Fair and reasonable access to postconviction DNA testing must be established in a manner that does not compromise the integrity of the criminal justice system, or undermine it financially.
We thank you for the opportunity to further the national discussion on this complex Matter. California law enforcement is vitally interested in the post-conviction DNA testing bills now before you.
We have just cause for concern. The impact of any new post-convicfion remedy (independent of new trial motions and habeas corpus) for inmates falls disproportionately upon our State. There are several reasons for this.
First, with an adult inmate population of 164,523, we have the largest number of prisoners in the U.S. (See U.S. DOJ, Bureau of Justice Statistics, April 2000 Bulletin: ''Prison and Jail Inmates at Midyear 1999'' at www.ojp.usdoj.gov/bjs/.) Other than Texas, no state has even half of California's prison totals. Most states have far fewer. (Id.) Clearly, California's potential number of convicted offender DNA testing requests is second to none, when looking at statistics, alone.
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In addition, our State DNA laboratory already faces a significant, if not staggering workload, in part due to our long-standing collection of convicted offender Data Bank samples, the lack of attendant funding for sample analysis, and our commitment to fully using DNA evidence in criminal cases. California's current backlog for DNA Data Bank samples is about 115,000. The FBI's 1999 annual survey for DNA Data Banks lists only one state with a larger backlog.
Our State's DNA Lab also has a current backlog of 150 pending cases, where our criminalists are analyzing evidence submitted by law enforcement agencies from nearly every Califomia county. In addition, the State's backlog of older unsolved and suspectless case evidence is substantial. For example, there are about 18,000 rape kits waiting to be analyzed by DNA techniques and eventually compared with our convicted offender DNA DataBase. Unfortunately, we are understaffed to handle even our present and foreseeable workload. Though we have funding for many additional analysts, we have not yet been able to hire them. State salaries for DNA analysts have not proved competitive enough for us to hire the personnel we need.
Accordingly, what may be merely difficult elsewhere impacts us on an entirely different scale in California.
The Attorney General of the State of California, Bill Lockyer, and his staff have reviewed Senator Leahy's bill, and look forward to studying Senator Hatch's bill. We appreciate that both bills seek to enhance the accuracy and confidence in the administration of our laws. However, we believe the remedy proposed by the Leahy bill will erect such formidable practical, financial and legal obstacles that it will threaten the entire effort to use DNA effectively for criminal justice. Our difficulty with the Leahy bill is its open-ended mandate to essentially preserve and retest virtually all available case evidence.
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Rather than relying upon well-developed legal principles for assessing new evidence, the Leahy bill provides no meaningful filter for distinguishing baseless from potentially meritorious claims.
Senator Leahy's bill with its low threshold requirement that the DNA testing ''may produce'' relevant evidence reads more like a discovery statute for a case that has never been to trial, than a special post-conviction remedy for a fully litigated criminal cause. (See generally, Fed. R. Evid. 401 [definition of ''relevant evidence'' does not require that it relate to a disputed fact]; see also State of New Jersey v. Halsey (N.J.Super.2000) 748 A.2d 634 [''However, every defendant cannot forever seek to have post-judgment tests conducted in the hopes that something beneficial may result, even assuming that the evidence to be tested remains available.''].)
Most conspicuously absent from Senator Leahy's bill is any plain language requiring an evidentiary nexus between actual innocence and the DNA test requested. There is no requirement the DNA evidence would be dispositive of a material question of identity, which in the context of the entire case and facts, would generate a reasonable doubt of guilt or culpability that did not otherwise exist. (Cf. U.S. v. Bagley (1985) 473 U.S.667, 682; People v. Savory (III.App.1999) 722 N.E.2d 220 [appeal pending]; see also draft Model Statute of NIJ's National Commission on the Future of DNA Evidence.) Without such meaningful parameters, the bill invites large-scale and costly fishing expeditions for evidence that our state criminal justice system cannot, and should not, be forced to assume.
Indeed, rather than requiring a trial court to evaluate a-request in its developed factual context, the bill rests on the opposite, but erroneous premise that: ''Uniquely, DNA evidence showing innocence, produced decades afer a conviction provides a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial.'' (Leahy bill, Finding 4; emphasis added.) Obviously, this ignores the reliability of such evidence as fingerprints, and properly taken confessions. It also ignores case-specific matters such as whether the issue in a rape case is consent rather than identity, and whether there are multiple assailants, which undercuts the materiality of any DNA testing result. (See e.g. People v. Gholston (III.App. 1998) 697 N.E.2d 375.)
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A less conspicuous, but equally problematic component of the Leahy bill is a broad provision that allows a trial court to resentence a defendant in any manner it sees fit, based simply upon ''favorable'' results.
While this might seem noncontroversial, those of us who have litigated DNA cases at trial or on appeal know, in reality, what can and does happen in these cases. Defense experts often testify that there has been an error in the DNA test result implicating the defendant. Similarly, defense counsel typically argue that an ''inconclusive'' result is significant or ifavorable'' to the case. Under the Leahy bill, we foresee a rush, therefore, not to prove actual innocence, but to establish the ''inconclusive result'' which is arguably enough to open the door to a trial court's discretionary reevaluation of the defendant's entire cause. This will lead to extensive hearings on the meaning of test results, but without regard to the evidentiary impact, if any, of the test results on the case as a whole.
In addition, the Leahy bill is ambiguous in several respects. There is certain to be litigation over whether the DNA testing request is based upon a ''new'' technique, or simply an old technique that has been improved in the regular course of scientific development. Defense attorneys routinely claim that changes in protocol, changes in amounts of chemicals added to processes, changes to enzymes, changes to make a procedure more efficient, whether a system adds markers, or tests them in combination or individually, or whether a system utilizes different visualization methodologies all constitute changes in the fundamental technology sufficient to establish it as a new DNA technique. We disagree that basic improvements to existing methodologies constitute new techniques, but this has been a very time consuming, difficult, and sometimes fi-uitless exercise to prove to judges who often have limited scientific background.
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Other issues which the Leahy bill raises include: (1) Must the defense prove a sufficient chain of custody before the evidence is tested? (2) What will happen if the evidence to be tested will consume the sample; does law enforcement have to relinquish its right to the evidence? (3) What happens if evidence which should have been preserved, is not properly preserved or handled by the law enforcement? (4) Which lab should test the sample and whether the testing must be observed by both defense and prosecution experts when there is limited sample? (5) What is the impact, if any, of the defendant's own failure to test the available DNA evidence split prior to trial, or reveal the results of his own 11confirmatory'' testing by various techniques? (6) Should a defendant be permitted to retest with each different technology even if that test does not have a significantly better power of discrimination? We also note, because the Leahy bill has no timeliness requirements, and no stated prohibition on multiple DNA testing requests, it would permit a defendant to wait to the eve of execution, and then sequentially apply for DNA post-conviction tests, i.e., first polymarker, then STRs, etc., even though all are available now.
Moreover, I cannot imagine having to explain to the many victims of serial crime in my cases that their assailants will have yet another day in court, and that a law passed by our Congress is so open-ended it arguably allows a court the discretion to fashion just about any remedy it sees fit, as long as there may be an ''inconclusive'' DNA result.
People v. Barney (1992) 8 Cal.AppAth 798, was a court trial and DNA RFLP case which involved the 198 8 kidnapping, robbery, and attempted rape of a woman by a defendant who had seven prior convictions, many related to sexual assault. The trial court specifically found: ''in the final analysis, the same verdicts would have been reached without any DNA evidence. '' Indeed, the non-DNA evidence against Barney was overwhelming. Among other things, Barney left his wallet containing his California identification and social security cards in the victim's automobile, and the victim gave the police an accurate description of Barney and identified him. Cellmark Diagnostics which analyzed the semen stains on the victim's pantyhose, estimated that the probability of a random match between the samples was one in 7.8 million. On appeal, the Court ruled the DNA RFLP evidence inadmissible, but harmless error. In 1999, the California Supreme Court in People v. Soto (1999) 21 CalAth 512 ruled generally accepted and admissible the same product rule calculations used in Barney, but found to be a source of error in that case.
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In People v. Britton (June 27,1994) A058925 [nonpub.opn.] , the defendant, known as ''The Creeper'' for his ''trademark'' of wearing socks but no shoes, was charged with 30 felony counts for a series of rape and sodomy offenses involving six victims for crimes committed from December 15, 1990, to April 4. 199 1. Though the defendant was convicted of several of the charged offenses where there was DNA RFLP evidence, the jury specifically declined to convict him of the counts against the victim where DNA was essentially the only evidence, despite the random, match probability estimate of 1 in 48 million. The Court of Appeal found: ''We must resist respondent's energetic effort to induce us to question the merits of the opinion in Barney [finding DNA RFLP evidence inadmissible]. The DNA evidence is so obviously marginal to the convictions returned in this case that any error in receiving it would clearly be harmless. For us to reach out to decide such a peripheral issue would therefore violate the salutary principles constraining judicial review.'' Though the defendant also maintained that the remaining counts which did not involve DNA evidence, were nonetheless tainted by its ''prejudicial spillover effect,'' the Court of Appeal disagreed, stating it was''convinced there was no prejudice,'' finding: '' The evidence on the Jessica S. counts shows that appellant was found by the police in the victim's house minutes after the attack; that appellant had his pants down around his thighs, and claimed to have urinated in a bathroom that in fact had no functioning toilet; that appellant claimed he had entered the home to check on another intruder, who was not seen by the victim's mother or the police; and that appellant's car was left some distance from the house with the keys in the ignition, as if to allow a quick getaway.''
In People v. Wallace (1993) 14 Cal.AppAth 651, 661 the defendant, known as the ''flex-fie'' rapist for the way in which he bound his victims, was convicted of 48 felony counts with 76 enhancements for a series of rape and kidnapping crimes committed against 11 victims from July 1988 through April 1989. DNA RFLP testing performed in 1990 linked the defendant to some of these crimes, which the appellate court found were undeniably perpetrated by the same person given their distinctive m.o. In addition, among other evidence, several victims unequivocally identified the defendant; he was found in possession of the same brand of flex-fies as recovered from the victims, as well as duct tape and lubricant used in his crimes; and he confessed. With respect to the DNA RFLP evidence, the well-credentialed prosecution expert—a member of both the NRC I and II committees(see footnote 15)—found a match between the crime scene samples and defendant's sample, even though the FBI lab which analyzed the evidence testified to an ''inconclusive'' result. The prosecution expert explained that the FBI has a very broad ''inconclusive'' category, and the extra bands on the case autorads were ''technical artifacts'' which were ''extraneous to the genetic typing result.'' The prosecution expert then estimated the random probability of match between the defendant's samples and the crime scene samples as I in 26 million, but the jury heard only the artificially low figure of 1 in one million Caucasians, because of the expert's ''personal philosophy'' about statistical evidence. The district attorney argued the DNA evidence played only a limited role in the case; and the Court of Appeal specifically found ''[e]ven excluding the DNA analysis,'' the evidence of defendant's guilt was ''overwhelming.'' (Id.)
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In People v. Quintanilla (Aug. 11, 1994) A054959 [non pub.opn.], the defendant who had a substantial criminal record was convicted of 15 felonies with enhancements in connection with the abduction and sexual assault of the victim. DNA PCR evidence was introduced to support the verdicts. The Court would not reach the merits of the admissibility of DNA PCR evidence because it found ''any error in connection with this evidence was harmless.'' The Court stated: ''The key evidence of guilt, aside from the victims' very positive in-court identifications, was the fingerprint on the car. The odds of that happening at random were at least as remote as any odds that have been claimed for RFLP fingerprinting. With an actual fingerprint no 'DNA fingerprint' was needed, much less the more generalized results of DQ-alpha genotyping. As noted in the parties'briefs, since PCR testing 'merely narrowed the group from which other suspects might be drawn rather than definitively identiffied] appellant as [the victim's] assailant,' 'the DNA evidence was more important in the investigatory stages of the case than it was at trial.' '' In addition to the fingerprint, the defendant was found in possession of the victim's jewelry. DNA evidence also excluded a different suspect in the case.
In each case it is likely under Senator Leahy's bill that the defendant persuasively could argue he can obtain post-conviction testing by ''new'' DNA techniques. Each points out why it is imperative for a trial court decision to rest not merely on the availability of testable evidence, or a new DNA technique, but upon the facts of each case, which can show why further DNA testing would not undermine confidence in the case's outcome.
In addition, you should know the laboratories that perform DNA tests in California routinely make DNA evidence available for defense testing. The results of any such DNA testing, however, are not divulged to the prosecution. Oddly, such results do not have to be factored into the calculus of whether the defendant can obtain post-conviction DNA testing.
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We also respectfully find the Leahy bill cost estimates to be vastly understated. The Leahy bill sets forth that the cost of testing samples is about $2,000 -$5,000 per case. In reality, the cost of the bill will be much greater, and essentially compels the creation of a new infrastructure to meet its requirements. In addition to the cost estimate for testing an unknown number of samples, possibly reaching into the thousands each year in California, alone, some additional costs or matters which must be considered including the following:
(1) State DNA Lab personnel to provide a first or second opinion in evaluating the quality of evidence and whether evidence has been properly handled.
(2) The cost of taking DNA reference samples from the defendant and others associated with the case.
(3) State DNA Lab personnel necessary to monitor and/or confirm testing if done by another laboratory, particularly if the testing points to an exclusion of the defendant or is inconclusive due to degradation of sample, etc.
(4) The impact on State Lab program as a whole of court orders to produce results within a certain time frame.
(5) State personnel time to tesfify in the many hearings involving post-conviction DNA testing, particularly hearings regarding the meaning of tests result, which also require paying defense attorneys and expert. witnesses; DNA defense experts typically may be paid from $175 to $250 an hour.(see footnote 16)
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(6) Investigator, district attorney and attorney general resource time to litigate cases.
(7) Trial and appellate court resources.
(8) Leasing additional storage space for case evidence that cannot be destroyed
In this regard, we note that the Leahy bill's directive to preserve ''all biological evidence secured in connection with a criminal case'' throughout a person's entire period of incarceration is very broadly stated and may ignore the privacy rights of innocent persons. Victims, family members, witnesses, innocent suspects, and boyfriends may feel quite differently about whether their samples should be stored indefinitely by law enforcement pursuant to the Leahy bill.
In addition, though it is difficult to make cost projections, we estimate the price tag of building and maintaining freezer space to ''preserve'' evidence that is presently retained would be substantial. For 100,000 cases we conservatively estimate a cost of $7.2 million to build new facilities, with yearly energy costs of about $1.2 million to sustain the facilities plus the cost of leasing space.
In our opinion, the huge resource allocation that the Leahy bill would require at the post-conviction phase is the wrong way to go. A fair and reasonable post-conviction DNA testing program will permit our emphasis where it should be: getting convictions right in the first place by using DNA evidence to properly identify suspects; so innocent suspects are spared searching investigations ... or even convictions, and suspects who are investigated are burdened on a greater factual basis. For this reason, expanding the national Data Bank program, and funding to eliminate the DNA Data Bank backlog is critical and we appreciate the Hatch Bill's attention to these matters.
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Finally, we emphasize that an elastic standard for post-conviction DNA testing ultimately does not serve the interests ofjustice for other reasons, as well.
Any further delay in our pending criminal casework caused by large-scale, courtordered post-conviction DNA testing, ultimately could mean the difference between cases that can be prosecuted and ones that cannot—as investigative leads must be pursued, and witnesses located while memories are still fresh. Solving crime, of course, is important not only to law enforcement, but to victims and their families, who need closure for their cases.
Likewise, delays in our pending case work and investigations imperil the rights of persons wrongly accused of crime, like Mr. Raul Zamudio, who had his house burned down by community members who thought he was responsible for a series of sexual assaults and murders in their small town, and who spent over 75 days injail until DNA evidence revealed his innocence and identified Gustavo Marlow, Jr. as the perpetrator. (See e.g. People v. Marlow (April 25, 1995) HO 10375 [previously published at 34 Cal.AppAth 460].)
Similarly, because a substantial increase in workload due to post-conviction DNA testing would impede our ability to solve old cases through Databank matching, it also delays the exoneration of innocent individuals through the data bank procedure. This is because the DNA Data Bank not only helps law enforcement identify and prosecute the persons responsible for otherwise suspectless crimes, it also helps identify wrongly convicted individuals such as Kevin Green, imprisoned nearly 17 years—until the DNA data bank evidence helped expose the truth. (See California A.B. I 10 [adding Section 17156 to Rev.& Tax Code, relating to miscarriage ofjustice, and ''appropriating $620,000 from the General Fund to the Department of Justice for payment to Kevin Lee Green'' related to his unlawful incarceration for crimes committed by Gerald Parker].)
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Moreover, it is our opinion the broad access to post-conviction DNA testing provided for in the Leahy bill does not best serve the rights of the wrongly convicted persons the bill ostensibly is designed to protect. If the Leahy bill passes, the truly innocent will find their claims further frustrated and delayed as they face courts clogged with meritless claims.
Curiously, the Leahy bill states ''the number of cases in which post-conviction DNA testing is appropriate is relatively small and will decrease as pretrial testing becomes more common and accessible.'' (See Leahy bill, Finding 11.) If this is the case, why isn't the bill reasonably tailored to permit testing only in those small number of cases where identity is at issue,, and actual innocence can be ascertained by specific DNA tests. Why not put reasonable parameters on access to post-conviction DNA testing, so it is both effective and affordable.
In our opinion, the best approach would provide fair access to testing for the wrongly convicted, while respecting the finality of convictions, and the basic tenets of our criminal justice system.
Thank you.
Mr. GEKAS. As the Chair predicted, we did finish by 4:15 with respect to the first offerings of the members of the panel. Now the Chair is going to make a decision. Those members of the panel who believe that they cannot remain here to answer questions from the Members are going to be excused with the thanks of the Chair, with the admonition that we will reserve the right to submit written questions to you after you return to your own desks. That is one.
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Number two, I beg of you, those of you who can remain, to stay where you are until the members of the panel repair to the floor, vote the two votes that are now called, and then return for examinations.
I am going to poll the panel. I am going to poll the jury here. How many of you can stay?
[Show of hands.]
Mr. GEKAS. That is excellent. Those who must leave are excused.
This committee stands in recess, pending the completion of the two votes now called in the chamber.
[Recess.]
Mr. GEKAS. The time of the recess having expired, the committee will come to order.
As the Members begin to gather again for the remainder of this hearing, the Chair will indulge in a few preliminary questions.
When the Governor was testifying, I asked whether he knew whether the people that he had gathered for the Commission that he had authorized were going to determine standards for—at least I thought I was asking. I tried to ask him this—standards for what would be competent counsel. I think we have been struggling with that as lawyers and as law-makers and as people in law enforcement for a long time.
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Mr. Coleman, did you not say in your testimony that, in representing the Bar, that we were talking about qualified counsel? To me, it is possible that one who graduates from law school and is given a shingle and hangs that shingle, 24 hours later he is qualified—maybe earlier than that—but competent counsel, which I thought was the real criterion for it, is totally different.
I remember I was a prosecutor, and I handled half a dozen murder cases, homicide cases, I think, during my incumbency. When I became a defense attorney, one of the first cases I had was a defense of a homicide. I was qualified, I was competent—in my own mind I was competent and qualified. Nobody would ever question that. Why? Because I had tried criminal cases on the other side of the courtroom, as it were.
Yet, I think that was my first defense case. Was I qualified? Was I competent? I will never know.
I won the case, by the way, so I guess I was competent. No, I did not win the case. What happened was he was indicted for first degree murder, and the jury found him guilty of voluntary manslaughter, so it was a big victory, even though he was convicted.
Question: was I qualified? Was I competent, having never tried a defense case before? Speak to the competency portion. What should we do about standards? Does the Bar Association that you represent, Mr. Coleman, have a prescribed set of standards for qualified counsel?
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Mr. COLEMAN. The American Bar Association has published a set of guidelines for the appointment and performance of counsel in death cases which establishes minimum qualifications for appointed counsel to handle capital cases. What the standards seek to do is to identify the minimum qualifications that a lawyer should have in order to assume responsibility in——
Mr. GEKAS. You mean like number of trials in which they have participated, how many years they have been at the bar, their age, what school they came from, etc.?
Mr. COLEMAN. No, not that—no. What we are talking about is qualification to handle a capital case—familiarity with the substantive law, familiarity with the procedural rules, experience actually trying capital cases, experience dealing with juries.
Mr. GEKAS. How do you get that first capital case defense? How do you get that tried if you had never had them before?
Mr. COLEMAN. By being co-counsel, second seat.
Mr. GEKAS. Second chair?
Mr. COLEMAN. That is correct. The guidelines that the ABA has published would require the appointment of two counsel, two lawyers, one lawyer the lead counsel who would be required to have the type of experience that I talked about in handling of capital cases, the second lawyer would not need as extensive experience handling capital cases, and in that manner would develop the experience and competence.
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Mr. GEKAS. And do you think that these should be set in the law that we are about to consider here in the statute in the bill, that we ought to have standards of competency when we are concerned about competency? Isn't this back to the federalism question? Isn't that best left to the States to determine the competency of counsel for defense of any kind of case, even capital cases?
Mr. COLEMAN. The bill does not do that. I mean, all that the bill does is to require the director of the Administrative Office of the United States to establish minimum criteria for the appointment of counsel.
Mr. GEKAS. That is what I am saying.
Mr. COLEMAN. But the important aspect of the bill, in my view, is that it requires an independent body to do that—to monitor the performance of counsel in these cases, to recruit qualified lawyers to be certified to handle these cases, and to provide for the compensation of the counsel.
Mr. GEKAS. Where do we come in? Does anybody have any commentary on that, this question with respect to States doing it or the Federal Goverment imposing the preliminary conditions?
Mr. BRIGHT. If I could, Mr. Gekas, add one thing to what I think the formula is, you have got to have structure, just like you had when you became a young district attorney, a young prosecutor. You were brought into the office. You were trained. You were given some of the less-important cases. You were supervised. And as you gained seniority, you then were assigned the more serious cases, the homicides and so forth.
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In very many States we do not have public defender offices. There are no offices to train lawyers, to put them in misdemeanors, bring them up to felony cases, train them, supervise them, and make sure that the people who finally end up trying capital cases have had that wealth of experience.
You were qualified because you had had it on the prosecution side, but a lot of people do not, and, unfortunately, the second thing is resources. If you are not paying but $20 an hour, which is what a lot of jurisdictions are paying, you just do not get very good legal help. You call a firm in Houston and ask them to do a will for $20 an hour and see what they say. I mean, you just do not get a very good lawyer for $20 an hour, and so you end up with a lot of people practicing out of their home, people that do not have investigators, people that do not have the capability to handle cases of this magnitude. That is Mr. Graham's case that was alluded to here earlier. He was represented by a lawyer who literally practiced out of a bar and who, by his own admission, has more people sentenced to death than any other lawyer in the country. That kind of lawyer shouldn't be assigned to cases.
And the third thing, as Mr. Coleman said, is independence. A survey recently in Texas showed that half the judges in Texas, in responding to a survey, said they appointed lawyers based on how quickly they moved the cases through the system. That is not the criteria for appointing a lawyer. You are supposed to appoint a lawyer to give a zealous defense to the defendant.
The other thing that happens, we have elected judges in almost all the States that have the death penalty, and elected judges often appoint lawyers who contribute to their campaigns. Again, that is not the criteria for appointing a lawyer to handle a case, the fact that the lawyer gave to the judge's campaign, but, again, the survey in Texas shows that that is a major consideration with whether or not all over the State, and that is true in other States, as well.
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Mr. GEKAS. I think that is a rather heavy indictment to place at the hands of the judges who are elected.
Mr. BRIGHT. The judges indicted themselves. They answered the survey.
Mr. GEKAS. I wish you could temper that. It's a kind of a wide-ranging accusation. But, in any event, the time of the Chair has expired. The gentleman from Virginia is recognized for five minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Neufeld, of those who came to you proclaiming innocence for which DNA evidence turned out to be available, how many of those—what portion of those were, in fact, innocent?
Mr. NEUFELD. To date, Congressman Scott, we have had approximately 62 people where we have actually gotten the cases to the laboratory and done DNA testing, and of those cases approximately 40 were cleared by the DNA testing, and to date I think 22, maybe 23, the DNA testing confirmed guilt. So we are running at about two-thirds of those people who we have gone and done DNA testing on post-conviction proved that they were innocent.
Mr. SCOTT. And of those who got to the same point and you found out there was no material to test, how many people are in that category?
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Mr. NEUFELD. To date, Congressman Scott, approximately 75 percent of all of our cases where people were otherwise eligible for DNA testing because they met our rigorous criteria, we could not go forward with it because the evidence had been lost or destroyed.
Mr. SCOTT. And so what happened them?
Mr. NEUFELD. Those people are either executed or those people are continuing to languish in prison.
Mr. SCOTT. Is there any reason to believe that two-thirds of them, too, would not be?
Mr. NEUFELD. There is no reason to believe that there is any difference in the frequency of exoneration of people where the evidence was found versus people where the evidence was not found.
Mr. SCOTT. Thank you.
Mr. Chairman, I would yield the balance of my time to the gentleman from Massachusetts.
Mr. GEKAS. The gentleman from Massachusetts is recognized.
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Mr. DELAHUNT. Thank you, Mr. Chairman.
Mr. Neufeld, you have read the bill?
Mr. NEUFELD. I have read the bill.
Mr. DELAHUNT. Parts of it. Right. And you earlier heard an observation or a comment by my friend from Georgia, Mr. Barr, regarding the compensation issue of those who are wrongly convicted?
Mr. NEUFELD. Yes.
Mr. DELAHUNT. Would you agree with me that Mr. Barr might be somewhat confused, given the fact that he—it's my memory, and I think that the transcript of the hearing would corroborate this, but he made the statement that there was a burden imposed upon the States that an individual who was unjustly convicted in a capital case would be entitled to $100,000 per year. Now, does your reading of the statute agree with that statement, or——
Mr. NEUFELD. I guess it depends on what you mean by the word ''reading,'' but clearly I think, in all fairness to Mr. Barr, I think he is simply confused and perhaps misread the bill. There is no requirement that the State provide compensation. It only applies to Federal criminals.
Mr. DELAHUNT. Let me be very clear, and I do not mean to play with it, but I think that statement has to be responded to because that $100,000 per year compensation to an individual who has spent time on death row involved the Federal system.
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Mr. NEUFELD. That is correct.
Mr. DELAHUNT. There is nothing in this bill whatsoever that would impose that burden on the State.
Mr. NEUFELD. I might also add, Congressman Delahunt, that he also said that the burden of proof was simply whatever you mean by unjustly convicted, whereas, in fact, the statute is quite clear on what that burden is. The burden is on the person whose conviction was vacated to prove that he is, in fact, innocent of all the charges that got him there. That is a very, very specific burden.
Mr. DELAHUNT. I thank you for picking up on that.
In terms of—I think it has also been raised or concern has been expressed about the DNA testing leading to interminable delay. Well, again, a close—not even a close, but a simple perusal of the legislation as paroled indicates that that can be dealt with by notice by the Government to counsel for the defendant or the defendant, if he or she happens to be pro se, and if there is no application after 90 days that evidence can be destroyed. Is that a fair statement of the reading of the bill?
Mr. NEUFELD. Yes. In each and every instance the State can trigger the requirement of the motion being filed by giving the 90-day notice.
Mr. DELAHUNT. So it is really in the control of the State in the real world; would you agree with that?
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Mr. NEUFELD. It is certainly within the control of the State within the real world, and certainly the bill does nothing more than give the State an opportunity to bring the issue forward.
Mr. DELAHUNT. Right, because I presume that if there were any questions or, in fact, it might become a pro forma motion by the State to simply notice the defendant or the counsel that he or she has 90 days, and how that leads to interminable delay I just simply can't understand.
One final question to Mr. Bright. I think you have answered this, but I think it was raised by Mr. Campbell where he indicated that in California the standards set for competency of counsel or competent legal services is higher than what is in the bill, but I think, in my conversations what I hear from you, is that the statute, the bill as put forth now, would present minimal standards that not every State in the Union ascribes to; is that correct?
Mr. BRIGHT. Absolutely. And I think the history on this is quite clear, and I want to say one thing about the federalism concern with this. The history is quite clear that many States have never set up indigent defense programs. Gideon v. Wainright was decided almost 40 years ago, and we still have States that have no public defender, that pay token amounts of money.
One thing that I would point out is one of the problems that we have in this area is the Federal Goverment gives a huge amount of money to the States for crime control, a huge amount of money goes to law enforcement, a huge amount of money goes to the prosecution, and the States have not spent that money responsibly. They have not maintained an adversary system. They have put all the money into police and prosecution and you have got a system that was totally overwhelmed, a non-existent indigent defense system that was totally overwhelmed 10 years ago, and now there are far more cases being put in that same system.
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That is why it seems to me, if the Federal Goverment is going to make money available to the States, at the very least they can say that part of the condition of that is that you actually have a functioning adversary system so that you are convicting the right people in your courts. That does not seem to be asking too much.
And part of having a functioning adversary system is having the defense function. That is the function that is missing in a lot of States, missing completely.
Mr. GEKAS. The time of the gentleman has expired.
The Chair turns his attention to the gentleman from Florida, Mr. Canady, for five minutes.
Mr. CANADY. Thank you, Mr. Chairman.
I wanted to thank all of the members of this panel for their testimony. It has been very instructive. All of you bring an important perspective to this. But I have to especially thank Mr. Bloodsworth for his very compelling testimony. I do not think there is anyone who has the least bit of humanity who could listen to the story that Mr. Bloodsworth has told without feeling moved and very concerned, so I want to thank you for taking the time to be here.
The problem of unreliable eyewitness identification is a serious issue. Justice Kogan also touched on that and related one of his experiences related to that. Sometimes that is an issue that can be addressed with DNA testing. In Mr. Bloodsworth's case, thankfully, that was the solution. There are other cases, however, where DNA testing just is not applicable. That is not a route to solve the issue.
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What do we do about unreliable eyewitness identification, not just in the capital context, where admittedly it is a more serious matter if someone's life is going to be taken, but in any context? How can we do a better job of addressing that? What safeguards can we put? Do juries need to be instructed differently concerning eyewitness identification? I am interested in suggestions or thoughts that any members of the panel might have, starting with Justice Kogan.
Mr. KOGAN. If I can say this, Mr. Canady, I think, first of all, that when we have eyewitness identification that is shaky or not reliable, the competency of counsel, of course, plays a great deal in how that case is going to be tried.
Mr. CANADY. I want to give you time to finish this, but I do not know about Mr. Bloodsworth's case, but assume there had been no DNA available there. It very well could have been that he had competent counsel, or certainly one could imagine a case like that where counsel was very competent, but you have multiple eyewitnesses who identify someone and then it is still a problem.
Please proceed.
Mr. KOGAN. Okay. I have often thought about that particular problem, because I am well aware of the fact you can have the best attorney in the world and still get convicted on eyewitness testimony that is wrong. Whether it is deliberately wrong or whether it is mistakenly wrong, it is still wrong.
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I have long believed—and this issue has come up to the Florida Supreme Court, and we have never really sat down on it and decided on what a policy ought to be, but I think when you have got eyewitness testimony that the courts ought to allow one side or the other—in this case, the defense—to call experts in eyewitness identification. There are people out there who can explain the dynamics of what takes place when somebody identifies someone that they have never seen before, which is generally what happens in most of these cases, and then for the judge to have a jury instruction which goes to that when the judge is instructing the jury at the close of the case as to what you need to look for in eyewitness identification.
Now, that may very well help. I think it would. But, you know, we are talking now about an imperfect system run by human beings that are attempting to come out with a perfect result. We are never going to be able to do that, and that is where the problem lies.
Mr. NEUFELD. Mr. Canady, if I can add to that, because actually we deal with that issue prospectively on a system-wide basis, and it is simply this: you know, what we are talking about when we talk about these problems such as eyewitness identification or false confessions or bad lawyers, the beauty of these DNA cases is we know these people were, in fact, innocent, so we can go back and see how the procedures were conducted in those cases and then make structural reform, the same way we do when an airplane falls from the sky, the National Transportation Safety Board intervenes, the same way I do it at the hospital when there is an unexpected death and we have a Peer Review Committee look at what happened.
We did it with these cases of these people who were exonerated and what we found is that you could actually make some major reforms, very simple reforms that republicans and democrats, prosecutors and defense attorneys could all see as appropriate.
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For instance, with eyewitnesses, do not have the police officer who is actually conducting the investigation conduct the eyewitness procedure. He may have the best of intentions, but he or she may inadvertently say something to influence the witness. We have seen it happen too many times.
Do not have a police officer show a photo spread at one time. Instead, have the police officer show one photograph at a time. There is a wealth of social science data which we can look at, and we can start approaching this whole issue of criminal justice scientifically, which is what we are trying to do with DNA in the first place, and the social scientific data says that when you show somebody a spread of six or seven people at one time, if the true perpetrator isn't there, there is an inclination on the part of the witness to think to herself or himself, ''Who most looks like the real perpetrator that I saw amongst this group?''
But if you do not do that, and instead you say, ''I am going to show you one photograph at a time, and if you see the person who did this I will stop, and if you do not I will keep going,'' all the studies indicate there is much less likelihood that a person will pick the wrong person; yet, all the studies indicate that when you do it that way you do not reduce the likelihood that if the real perpetrator is present that he will be picked.
So if we start bringing about these kinds of scientific reforms and start talking scientifically about criminal justice, we will make the major reforms that you are talking about.
Mr. CAMPBELL. Can I make one comment?
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Mr. CANADY. Mr. Campbell, please do.
Mr. CAMPBELL. Thank you very much.
I think part of the problem, of course, is that frequently, no matter what protocols you may have set up, given what is going on in an investigation, what the time sequence is, what is going on, it is not always possible to observe real nice protocols about getting identifications done, especially if you have a suspect on the loose or you are trying to make an arrest.
But I will say in California, following up on your suggestion, I mean, we have, in fact, gotten into the experience of having eyewitness experts testify. We have had courts give instructions at times on the possibility and the possible vagaries of eyewitness identifications, and so far that is a system that has worked well in this State.
Mr. CANADY. Thank you.
Let me focus on a point that Mr. Coleman made in his testimony on behalf of the ABA.
In your testimony, Mr. Coleman, you said that ''The Association believes that the focus of death penalty litigation should return to the State courts where the trial once again should be the main event.'' I think that is probably a statement that just about everybody involved in this whole discussion would agree with. I do not think you will find many people who would dissent from that. Now, exactly how you implement that and what the implications of that are is a different story.
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But let me ask you this, Mr. Coleman and others, if you wish to join in: what States, based on recent experience, do you believe are doing the best job of ensuring that capital cases are tried in a way that is fair to the defendant?
Mr. BRIGHT. The answer to that I think pretty clearly would be New York, Colorado, New Jersey. Those are States that have state-wide public defender offices, they are states that have units that specialize in capital cases. Capital cases are a subspecialty of the criminal law.
The idea that just some local lawyer in town who does wills, divorces, and title searches can do a capital case is preposterous, but that is the system we have in a number of States.
But I think, if you look at those States and look at what they have done, they have got a structure in place, they have got the resources there, they have got the training, they have got independence so that, for example, in New York, with the capital defender office there, the minute a case might be even considered a capital case, people who specialize in capital representation become involved in that case, as long as that is the case.
The difference between that and these States where anybody with a bar card who is breathing can be appointed is the difference between night and day.
The models are there, but they cost some money, and the problem is that there have been a lot of jurisdictions that just have not been willing to pay the price of having either an indigent defense system, generally, or those particular offices in particular.
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Mr. CANADY. I see that my time has expired and appreciate the chairman's indulgence, and I want to thank all the members of the panel.
Mr. GEKAS. We thank the gentleman.
We turn to the lady from Texas for a period of five minutes.
Ms. JACKSON LEE. I thank the chairman. I, too, am going to add my appreciation to the chairman for his indulgence, because this is important testimony, as well as, I hope, our questions are important, and I hope that I will have the same opportunity in case some of my questions are in the midst of being answered.
Let me thank you gentlemen for staying, as well, on this panel. I certainly want to again acknowledge the value of this legislative initiative.
But I want to again acknowledge the comments of both the ranking member of this committee, though I did not hear them. I guess I am going to read his mind—but the ranking member of the full committee and the subcommittee. I hope that we will have an opportunity to have more expanded hearings on this issue of the death penalty, and I say that because the elements of the legislation that we are reviewing today or having a hearing on has several elements that I think are very valid—that is, pre-and post-conviction DNA, the issue of dealing with compensation for a gentleman like Mr. Bloodsworth, and, as well, the issue of effective counsel.
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However, I believe there are much larger and more global issues that we have to confront, and to the nexus question, the Federal nexus question, since I am a beneficiary of the utilization of the 14th amendment and due process in many instances as an African American, and its utilization has been used on global needs of this Nation when something is globally broken, such as the treatment of African Americans over the last century and others, and the passage of the Voter Rights Act of 1965 and the 1964 Civil Rights Act, I am troubled by a letter from the Attorney Generals predicting that we are going down the wrong path before allowing us—I appreciate their input on this legislative initiative, but I am somewhat disturbed that they would post a negative perspective, including my Attorney General, when it is well known that the Federal Goverment intrudes or steps in when something is broken.
I, frankly, think this is broken. I think Governor Ryan has made a very valuable point about rewriting his penal code.
And so I would like to raise some questions, Mr. Neufeld, with you on this whole concept of a National Innocence Commission. You are doing it in New York, but I do not know what is going on in Texas. And when I say I do not know what's going on, documented preciseness on Texas, although I know we have had studies by the ''Chicago Tribune,'' or maybe Georgia or maybe my neighbors further to the north, Maine. I do not want to call out any States for fear that I have some inside knowledge.
But how would we value a National Innocence Commission to sort of look at this as either a spreading national problem or an existing national problem?
Mr. NEUFELD. Well, there are two kinds of national innocence—there is a National Innocence Network that is currently being formed right now. In fact, Mr. Coleman who is here is part of that. There are students at Duke University of North Carolina, Northwestern University of Washington, Nova University in Florida. There are about 15 different law schools and some journalism schools that are now part of this National Innocence Network to reinvestigate claims of actual innocence.
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In addition to that, though, you are raising the more important issue, which is a National Commission on Innocence. Of course, Governor Ryan——
Ms. JACKSON LEE. Right, because I am not talking about the private sector format as much as I am talking about Federally supported.
Mr. NEUFELD. Okay. Well, Governor Ryan obviously is doing just that, because what he is saying is, ''Look, there were these innocent people who were convicted and sentenced to death and had those sentences and those convictions affirmed on appeal. What went wrong?''
Governor Pataki recently introduced legislation in New York that would do exactly the same thing—would call on our Forensic Science Commission that I sit on by appointment by Governor Pataki to investigate the DNA exonerations and find out what went wrong in the criminal justice system and make suggestions for reform. There is no question that as a Nation we need to do exactly that.
I mentioned a moment ago that we do that when there is a catastrophe such as a plane crashing from the sky or a train derailing. We do that in medical centers with unexpected fatalities. We do that in every single institution in this country where matters of life and liberty are at stake except one, the criminal justice system. It makes no sense.
The beauty of DNA is it has given us the first opportunity to use it as a window to find out what went wrong and then fix it. We are not talking about overwhelming problems that are irreparable. We are talking about simple problems such as eyewitness identification which can be fixed.
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Ms. JACKSON LEE. So you would support or you would see the value or the importance of a Commission appointed by the Department of Justice and/or the chief executive officer as augmented by legislation, a commission that was Federally augmented or supported, to look at it on a national level and advise those who deal with the Federal laws as they impact our States?
Mr. NEUFELD. Well, certainly. In fact, there is a national commission like that in Great Britain that looks at all convictions to see whether they were unjust and then tries to make systemic change.
There was one that was used in Ontario after a very high-profile case. The Provincial Commission in Ontario met for 2 years and formulated very serious recommendations which were then implemented, and thus reducing the likelihood of miscarriages of justice happening in the future.
We do it in every other institution. We should do it in criminal justice.
Ms. JACKSON LEE. I thank you very much.
Let me go to Mr. Coleman to raise a question that I raised with Governor Ryan. I appreciate his asking if he understood the question, because really I was pointedly directing him to some local facts with Mr. Graham, and that is, of course, that there was a single witness, of which we certainly welcome witnesses coming forward, but at the trial level noted witnesses that were in the police report were not admitted.
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My question—and let me ask the chairman if I might submit to the record an article by Edward Lazarus, The Limits of DNA Justice, Washington Post, June 16, 2000? Testing is no substitute for a fair trial. I would just ask if I can submit that into the record.
Mr. GEKAS. Without objection.
[The information referred to follows:]
THE LIMITS OF DNA JUSTICE; TESTING IS NO SUBSTITUTE FOR A FAIR TRAIL.
Now that George W. Bush has embraced DNA testing in certain criminal cases by delaying the execution of one of Texas's 460 death-row inmates, the question arises whether Bush's new enthusiasm reflects a genuine concern for rooting out mistakes in the death-penalty process.
With Gary Graham—a Texas inmate with a strong but not DNA-verifiable claim of innocence—scheduled for execution on June 21, the public soon will know the answer.
The bipartisan DNA-testing bandwagon Bush has jumped onto compounds a popular misunderstanding about DNA evidence. Those on the bandwagon have focused on the results of DNA testing in individual cases—the techno-trick whereby innocence can be conclusively established. Yet Bush and other late-coming champions of DNA's probative value are suspiciously silent about the deeper implication of DNA testing: that, in aggregate, DNA tests have exposed serious problems in the way capital crimes are investigated and prosecuted, even where the testing itself cannot identify the wrongly convicted.
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It's hard to argue against using DNA testing where it might establish guilt or innocence. But 'the universe of cases where DNA testing can provide such magic-bullet results is very small: 'basically, only rape or rape-murder cases, in which the exchange of genetic material necessarily occurs.
The broader value of DNA testing is its ability to pinpoint systemic flaws in how all crimes are solved and prosecuted. Thanks to DNA, we now have a set of cases where we know to a scientific certainty that the state accused and juries convicted the wrong person. This control group allows us to ask the question, ''What went wrong?''
Analysis of this control group reveals an unsurprising group of systemic weak points. Innocent people get convicted because: Eyewitnesses, especially when coaxed by police, make mistakes; occasionally police officers fabricate evidence; jailhouse snitches lie; overzealous prosecutors hide exculpatory evidence; and defense lawyers sleepwalk through cases.
Although these flaws have been exposed by working backward from DNA-generated exonerations, the same factors are potentially present in every criminal case. Thus, the Most troubling revelation of DNA testing is the certainty that our prisons contain wrongly convicted defendants in cases where DNA testing cannot be employed to establish innocence.
These non-DNA cases pose the true test for politicians such as Bush who express new concern about executing the innocent. Take Gary Graham's case, which currently awaits the governor's action.
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In 1981, having been accused of a robbery-shooting, Graham was convicted and sentenced to death on the basis of a single eyewitness identification. As is fairly common in Texas, which has no system for providing experienced counsel to indigent defendants in capital cases, trial counsel conducted no investigation. The crucial eyewitness, Bernadine Skillern, presents a textbook case of how innocent people may be targeted as criminals. After interviewing Skillern and learning that the killer had no facial hair and a close-cropped Afro, the police showed her 10 photos of suspects. Only one, Graham's, contained an image with the two identifying features.
Even when enticed with this clearly suggestive photo lineup, Skillern balked, telling police that the assailant was darker complected and thinner-faced than Graham, and that she could not say the person in the photo committed the crime. Meanwhile, none of the eight other witnesses identified Graham, and the six witnesses still living all described Graham as much taller than the killer. Also significant: The police firearms examiner found that Graham's gun could not have fired the fatal bullet.
The jury that convicted Graham never heard any of this. More remarkably, despite nearly two decades of appeals, and even though his case contains several of the problems that (through DNA testing) we now know may lead to wrongful conviction, Graham has never received a judicial hearing to present the evidence of his innocence.
For death-penalty defense lawyers, this is an all-too-familiar scenario. The death-penalty appeals track contains a long series of trapdoors, some well hidden, down which a defendant's claims, even claims of innocence, may irretrievably fall.
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Consequently, on death row, cases abound where the danger signs identified through DNA point toward the possibility of innocence, but where bad lawyering or judging has deprived the condemned inmate of a meaningful evidentiary review. In most of these cases, DNA testing is useless.
The question for Bush is whether he is willing to accept not only DNA testing but also its broader teachings. Providing DNA testing, where appropriate, is relatively cheap and easy. Tackling the problems that create the risk of executing the innocent will be difficult and expensive. But it would be a tragic irony if DNA testing, having shown that innocent people do get convicted, becomes a ploy by which politicians feign concern while ignoring the vast majority of persons with evidence of innocence—those for whom DNA testing''is no help at all.
Ms. JACKSON LEE. And I will finish up with my questions.
The question to Mr. Coleman is, with this either National Innocence Commission or the erratic or distinctive ways the death penalty is handled in the 50 States, such as an administrative board that has sole power versus another structure, do you believe that at the Federal level, with either an Innocence Commission or designing standards by which, on those level cases, all 50 States would adhere to, is a valid response to what we are seeing now, such that cases that wind up like Mr. Graham's case that had a lot of elements—ineffective counsel, etc.—can be brought to a singular pool and be responded to?
Mr. COLEMAN. I will respond on behalf of myself, because, as I said, the American Bar Association does not yet have policy on these issues, but——
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Ms. JACKSON LEE. I appreciate that. Thank you.
Mr. COLEMAN. But I agree with what Mr. Neufeld said, that it would be helpful. I think that anything that we can do at any level of government that helps to identify what causes cases to go wrong and to fix it is a good thing, and I do not—I mean, I find it difficult to think that anybody would disagree with that.
I think, though, that nothing substitutes for States also actively pursuing this issue. I do not think that there ought to be a competition between the Federal Goverment and State governments. I think State governments ought to do this, too.
This is true also for ensuring competent counsel. They have not, and I think that is why it is important that title two be enacted, because someone has to do something about this. I think there is a crisis.
Mr. GEKAS. The time of the lady has expired.
The Chair now allots five minutes to the gentleman from Georgia, Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Coleman, one of the terms that you used during your testimony was an ''intolerable risk.'' Would you define a tolerable risk for me, please?
Mr. COLEMAN. Well, I think any risk in a capital case that an innocent person is executed is intolerable. I think that a——
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Mr. BARR. Can you ever reach that state? That is really my concern. What you are saying is not just that any risk is intolerable, particularly given the direction in which this legislation would take me. Now, granted, I understand you have not taken a position on the title one provisions of the bill, which are those that have their own problems, basically saying—and we have already heard testimony, even from the proponents of this legislation, that the state of the art is such that the technology is advancing so rapidly that, if we assume today is day one, we have a certain level of DNA testing that will tell us a certain thing, either false negative or positive. Six months from now, it may be entirely different. We may have moved that much in just six months.
Well, under this legislation it would be a forever elusive goal. You would never, ever get to the point, most likely, that you would have a test for which somebody could not come in and claim, well, the technology has advanced since the time of the last test, so I think that there is some reasonable grounds that this test could be even marginally different, yield different results.
Given that, and given what you said about risk, basically is not what you are saying that we can never have a death penalty if there is ever a question about physical evidence that could be subject to some sort of testing?
Mr. COLEMAN. I recognize that we cannot in every case eliminate a risk that something terribly wrong happens, but I think that what we can do is to correct obvious errors that are obvious to us, that we see repeated in case after case. That is where we are now. We are not at the point now where——
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Mr. BARR. But certainly the criteria that somebody would use under this statute is not, well, if it is not a repetitive problem it is okay, we can go ahead and execute it.
Mr. COLEMAN. No. I am not talking about—the problem does not have to be repetitive. The question is: did something go wrong that we could have prevented by having a better system? I think we are at a point now where we can create a system that is better than what we have, and the system that we have, as a lot of people have said, is broken. It results in too many errors, and some of those errors have resulted in——
Mr. BARR. How many errors is too many errors?
Mr. COLEMAN. Well, when you have 13 people——
Mr. BARR. Is it one?
Mr. COLEMAN. When you have 13 people——
Mr. BARR. Would one error be too many?
Mr. COLEMAN. When you have 13 people in Illinois who are released from death row because they were innocent——
Mr. BARR. Okay. So 13 would be——
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Mr. COLEMAN. [continuing.] That is too many.
Mr. BARR. Would 12?
Mr. COLEMAN. Twelve might be, yes.
Mr. BARR. Eleven?
Mr. COLEMAN. Depending, yes.
Mr. BARR. I mean, what I am saying is, if you get down to it, is one too many? And if that is the criteria, then I go back to my original question. What you are really saying is we should not have a death penalty.
Mr. COLEMAN. No. I think one is too many if the person is convicted and sentenced to death row because he had an incompetent lawyer and because there was something available, some scientific method available that could have exonerated him that was not used. I think one would be too many in that circumstance.
Mr. BARR. Okay. But you will look at this bill, because I think the provisions, the earlier provisions of this bill, those that come up before the title two, have some problems that you might want to look at.
Mr. COLEMAN. When the ABA adopts policy on DNA, then we will look more carefully at title one.
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Mr. NEUFELD. Mr. Barr, can I just follow up, with your permission? I think there is some confusion.
Mr. BARR. Hold on just a second.
Mr. NEUFELD. Sure.
Mr. BARR. I just want to make sure we get another—I just had one thing I wanted to ask Mr. Campbell.
The fellow that was sitting next to you and has now left very sarcastically sort of swept aside issues of federalism. I do not think that you are quite so cavalier about that. Are there any particular problems with federalism that you see with this particular legislation that has been introduced in both the House and the Senate? And, if you could, also let me know if you have read the National Association of Attorneys General letter of June 8, 2000, which is signed by, I believe, about 30 Attorneys General, both republican and democrat, which do raise specific problems of federalism.
Mr. CAMPBELL. I have read the letter and we think probably there is a specific issue about federalism involved in that part of the statute which is going to actually require the States, pursuant to the 14th amendment, to have a DNA procedure. There simply is no—we think there will be some questions raised about whether or not that, in fact, is a proper exercise of Congress' power under the 14th amendment.
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But, beyond that, the parts of the bill that, for instance, will suspend procedural default rules and the exhaustion doctrine if we do not adopt the counsel standards go directly to the heart of doctrines that the courts have long observed that have preserved the relationship between the Federal courts and the State courts, primarily the role of the State courts in the States as the primary adjudicators of guilt or innocence, as, in fact, being the forum for the main event of a criminal trial, which is still the trial in front of the jury that goes on in the State courts.
There will no doubt be serious questions, I think, raised, as well, about the fact that this bill simply is going to remove the States' highest courts apparently from their role as co-equal partners in interpreting the Federal Constitution, because inmates are not going to be required to seek discretionary review from those courts before they go to Federal court for purposes of a habeas corpus petition in that court.
Those are examples, I think, of the ways this bill disrupts what has been the Federal/State relationship.
I think also this idea of an National Innocence Commission which has been raised—I was kind of thinking about it. In fact, we have had this going on for a number of years. We have already revised the death penalty statutes the courts have already during the periods of 1972 and 1976 because the concern was that the old death penalty was too arbitrary and irrational. We were told we had to reconstruct our statutes. We did so. Now we are being told once again that the system is not working sufficiently. We have had problems with eyewitness testimony. The courts, using the 6th amendment power, have changed the rules for purposes of counsel being present, for line-ups, for how eyewitness or line-up testimony is used.
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This is part. We have had an evolving doctrine involving a look between the Federal and the States of problems with trials as they have occurred and as they have developed over the years, and that is what we are doing once again at the State level with DNA technology, which is once again something that the States I think can handle adequately without being given a one-size-fits-all approach, which is exactly what this bill is intended to do.
Mr. BARR. I would ask unanimous consent, Mr. Chairman. I just wanted to yield just for a moment to Mr. Delahunt.
Mr. GEKAS. Without objection.
Mr. BARR. And then to give Mr. Neufeld a chance to respond.
Mr. GEKAS. Without objection.
Mr. BARR. I yield to the gentleman from Massachusetts.
Mr. GEKAS. He may proceed.
Mr. DELAHUNT. I thank my friend from Georgia for yielding.
I just wanted to put out, pursuant to the observation by Congresswoman Jackson Lee, that the bill, itself, in section 404 requires a report which I think embraces her concerns and suggestion that a thorough examination of the implementation and the administration of capital punishment be conducted. In fact, it reads, ''No later than 2 years after the date of enactment of this act, and annually thereafter, the Attorney General shall prepare and transmit to Congress a report concerning the administration of capital punishment laws by the Federal Goverment and the States.'' I think that is a provision that I would hope would win unanimous support by this committee if we should ever get to that point.
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Mr. BARR. Thank you.
And if Mr. Neufeld could respond, he had a comment on my question to Mr. Coleman. Would that be okay, Mr. Chairman?
Mr. GEKAS. You may proceed.
Mr. NEUFELD. Thank you.
Congressman Barr, when you were questioning Mr. Coleman, you were asking a question which was couched in the assumption that somehow this bill allows people to keep coming back to court and asking for new DNA testing as the technology evolves, no matter what the result was the previous time. And I think there is some confusion, because the bill does not allow that at all. In fact——
Mr. BARR. I read it that way.
Mr. NEUFELD. Well, let me just read to you why that is not what it says. Okay? And that is because, if you look at the section, for instance, which says—let me give you the example. The best example is that a person was convicted in 1994 and the prosecution relied on a first generation RFLP test and it found that the semen recovered in a rape/murder matches the defendant and the possibility that it came from someone other than the defendant is one in five million or one in twenty million or one in twenty billion.
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Now there is a new kind of technology called ''PCR'' technology, and so a defendant wants to come back into court and ask for that new kind of technology. This statute will not allow him to do that, will definitely not allow him to do that once the DNA testing has already determined that there is a match and there is an inclusion.
Specifically, if you look at the language on page seven, which is subsection three of chapter 156——
Mr. BARR. That is one of the specific provisions that I read the way I——
Mr. NEUFELD. Let me read it to you, if I may. Subsection three says that, ''The evidence was not previously subjected to DNA testing or can be subjected to retesting with new techniques that provide a reasonable likelihood of more accurate or probative results.''
I would submit to you there is not a judge in America who would find that, if a person was convicted on the basis of RFLP testing which determined that there was a match and then went back into court and asked for new testing in 1999 or the year 2000 with another technology, no judge would find that there is a reasonable likelihood of more accurate or probative results.
Mr. BARR. And I would——
Mr. NEUFELD. Moreover——
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Mr. BARR.—submit you can never say ''never'' about judges.
Mr. NEUFELD. I am sorry?
Mr. BARR. I would submit that you can never say ''never'' about judges. I mean, these are very amorphous terms.
Mr. NEUFELD. I do not think they are, and I can only tell you that the judges who we deal with in Illinois and New York where these statutes exist have never had a problem seeing any ambiguity in those kind of terms.
Also, if you look at the next section, where it says the order, ''A judge will grant the order upon a determination that testing may produce non-cumulative exculpatory evidence.''
What I am telling you is that once there has been a DNA match with one in ten million in 1993, no judge is going to find that a new test may produce exculpatory evidence.
Mr. BARR. The certainty of the judicial system——
Mr. NEUFELD. I have never seen it happen anywhere in America.
Mr. BARR. The certainty of the judicial system that you indicate is not something, in my experience, has been there.
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Mr. GEKAS. I agree with the gentleman from Georgia, as I shut him down. But I do agree, Mr. Barr, that Mr. Neufeld speaks with such positiveness that a judge could not change his or her mind based on the new DNA evidence that could be produced I think is extreme on the part of Mr. Neufeld.
Mr. NEUFELD. That is my opinion.
Mr. GEKAS. We will now——
Mr. DELAHUNT. Mr. Chairman, can I ask unanimous consent, because I know that Judge Kogan wishes to make a comment and an observation, just for another additional minute.
Mr. GEKAS. All right. Without objection.
Mr. KOGAN. Mr. Chairman, this is to Ms. Lee in regards to her National Commission that she has been speaking about. We do have a National Committee to Prevent Wrongful Executions, which is sponsored by the Constitution Project of Georgetown University Law Center. On that particular committee, of which I am the co-chair, we have democrats and republicans, we have pro-death-penalty and anti-death-penalty, prosecutors and defense attorneys, trial judges and appellate judges, victims advocate groups that are represented, and we are working on that now on a national level, and we are available for any consultation that you would like to have with us and give you whatever input that we possibly can.
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Ms. JACKSON LEE. Since you have directed that to me, let me applaud the work of that Commission. It is not Federally-initiated or-sponsored. It is in the private sector——
Mr. KOGAN. Yes.
Ms. JACKSON LEE.—which I appreciate, though. You have a very vast and representative membership. I look forward to working with you on that. I do believe there is a distinction with the Federal Commission somewhat similar to responding to the concerns that were answered by the ultimate vote on civil rights legislation. We have a problem that is broken. It is a due process issue and it should be done at the Federal level.
I thank you.
Mr. GEKAS. The time of the gentleman has expired.
All time has expired.
The Chair and the committee thank the members of the panel for an extraordinary hearing, one which will serve us well as we produce more hearings and other debates that touch upon this subject.
We wish you well and we ask you to keep in touch in one way or another.
Before we adjourn, we want to ask unanimous consent that the written testimony of George W. Clark, deputy district attorney for the county of San Diego, and that of Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, testimony that would have been presented by them had they been able to appear, be made a part of the record.
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We thank the panel. We thank the Members. This hearing is adjourned.
[Whereupon, at 5:26 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF KENT S. SCHEIDEGGER, LEGAL DIRECTOR, CRIMINAL JUSTICE LEGAL FOUNDATION
Mr. Chairman:
I appreciate the committee's invitation to testify at the hearing today and deeply regret that circumstances prevent my appearing in person. I hope these written remarks are of assistance to the committee.
Thirty years ago, one of America's most distinguished and respected jurists, Judge Henry Friendly, asked the rhetorical question, ''Is innocence irrelevant?''(see footnote 17) He asked this question in the context of proposing that the extraordinary remedy of collateral attack on criminal convictions be reserved for prisoners who had at least a colorable claim of actual innocence. The response to his suggestion from the criminal defense side was, in essence, yes, innocence is irrelevant. Repeated collateral attacks on convictions where there is no doubt of guilt, based on claims completely irrelevant to the reliability of the guilt determination, continue to this day.
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Based on the statements announcing the bill before the committee and its companion measure in the Senate, it would appear that advocates of the defense side have come around to the conclusion that Judge Friendly was right after all. Innocence is relevant. I hope that as Congress considers the questions before it, then, it will take measures to focus our limited judicial resources on cases and claims where innocence or the reliability of determination of guilt is genuinely in issue. Achieving that focus will require careful consideration, and the process ought not be stampeded by a false sense of crisis whipped up by a misleading publicity campaign.
On June 12, 1 was surprised to see that it was suddenly headline news that a large percentage of capital sentences are vacated on appeal or habeas corpus, and only a small portion of the sentences imposed have been carried out. On the dog-bites-man theory of journalism, that should not have been news at all. We have known it, and complained loudly about it, for many years. The crux of the dispute is why there are so many reversals. The study by James Liebman, et al., released last week does little to answer the question.
The central claim of the study is that their count of what they call ''serious error'' is proof that the system of trying capital cases is broken. However, we see in endnote 34(see footnote 18) that they define 16 serious error'' as every case in which a reviewing court granted relief from the sentence. The study completely ignores the reality that sentences are often vacated for reasons other than malfunction of the trial process, and the study's definition of reversible error is a patently false statement of the law.
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To illustrate the complexity of interpreting ihese numbers, let me sketch briefly the stages the death penalty in California has gone through. In 197 1, the U.S. Supreme Court reviewed our completely discretionary sentencing system, similar to those in effect in most states, and concluded that it was ''quite impossible to say'' that this system ''was offensive to anything in the Constitution.''(see footnote 19) One year later the high court did a complete reversal, and threw out nationwide the very discretionary systems it had just approved.(see footnote 20) In 1973, the California Legislature enacted a mandatory sentencing system in the belief that this was what the Furman decision required. Congress and many states had reached the same conclusion. This is where the study period begins.
Four years after Furman, the Supreme Court reversed itself yet again, and held that the mandatory sentencing it had implied was required was actually forbidden, even while admitting that there was no precedent that made individualized sentencing a ''constitutional imperative.''(see footnote 21)
All sentences rendered in all the jurisdictions that had enacted mandatory sentencing laws had to be reversed at this point. They would count as ''serious error'' by the Liebman study's definition. Yet the problem here has nothing whatever to do with the reliability of the trial process. The problem is the turmoil in the law that existed in the 1970s, continued into the 1980s,(see footnote 22) and exists to some extent to this day. This is not error in the trial process; it is error in the law-making process.
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California enacted a new law in 1977, and a new phase began. There followed a 10-year period of unrelenting hostility to enforcement of the new law by a state supreme court with a large majority of justices personally opposed to capital punishment and determined to block it. This court reversed the vast majority of cases it reviewed, often based on legal theories we now know to be false. For example, 18 cases were reversed for supposed ''effor'' in a single jury instruction on intent to kill, an instruction which we now know was correct the whole time.(see footnote 23) The Liebman study would count these reversals as proof of ''serious error'' at trial, but in reality they are proof of seriously erroneous reversals on appeal.
From 1987 to the present, the affirmance rate on direct appeal has been high. It has been reported in the press as over 90%. Yet there are few executions, because most cases go into the federal habeas pipeline and never emerge at the other end. The study's 80% figure for ''error'' detected by federal courts is misleading for two reasons. First, when hundreds of cases go into the pipeline and five come out, there is no reason to assume the five are a representative sample.
Second, and more importantly, when the state court finds the trial court did not err and the federal court finds it did, the study simply assumes the federal court is right. The study goes so far as to postulate that high grant rates in California federal courts is compensation ''for low state court effor-detection.'' The study appears oblivious to the possibility that the federal court might be ''finding'' error where there is none.
False findings of ''error'' is more than a possibility, though. It is common. In a study in 1995, 1 reviewed 13 capital cases issues on which the Ninth Circuit disagreed with state supreme courts within the circuit, and which were subsequently resolved by the Supreme Court. The Ninth Circuit was wrong and the state courts right on 12 of the 13(see footnote 24)
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On both appeal and habeas, then, the study completely fails to distinguish reversals due to trial error from reversals due to error in the system of review. Since these are quite different problems with quite different solutions, the study tells us little of value for the formulation of policy.
The most glaring error of all, though, is in the study's definition of ''serious error'' in endnote 34(see footnote 25). After defining ''serious error'' as reversible error, the study states, ''to be reversible, error must be prejudicial, either because the defendant has actually shown that it probably affected the outcome of his case or because it is the kind of error that almost always has that effect.'' This is a patently false statement of the law. On appeal, federal constitutional error is reversible unless the prosecution carries the burden of proving it harmless beyond a reasonable doubt.(see footnote 26) This was also the standard on habeas review for nearly all of the study period.(see footnote 27) There are a couple of rules with prejudice requirements built into the rule (i.e., no prejudice, not a constitutional error), but even then Supreme Court expressly considered and rejected the morelikely-than-not standard stated in this study and set a substantially lower standard.(see footnote 28) A reversible error, then, can be any deviation from any of the intricate rules created by the Supreme Court, even if the rule was created after the trial,(see footnote 29) even if it has nothing to do with the accurate determination of guilt, and even if it was highly unlikely to have affected the result, so long as there was reasonable doubt it might have. This is a far cry from the study's description of the 44serious errors'' it claims to show.
This obvious error on a well-known point of law central to interpretation of the study's numbers leaves the study with little, if any, credibility. If the study is clearly wrong about this simple yet central point, and it is, what else is it wrong about?(see footnote 30) None of its assertions or conclusions should be the basis of any action by Congress until thoroughly checked by independent research.
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As I said at the beginning of this statement, Congress should not be stampeded, especially by studies which give off more heat than light. Instead, it should proceed deliberately to move the system toward a focus on the reliability of the determination of guilt.
The questions are largely questions of allocation of resources. There is nothing wrong with postconviction testing of DNA, and it should certainly be done in any case where there are genuine questions of guilt which the test could resolve. However, inmates should not be able to get tests for the asking when those conditions are not met and when the resources are needed to test crime scene evidence that might catch a killer still on the loose, thus saving innocent lives.
States that presently do not provide adequate resources for defense should certainly be encouraged to do so. However, the prescription of one-size-fits-all standards from Washington is a drastic measure requiring the most careful consideration. If Congress is going to do that, it should shoulder the responsibility itself and not delegate it to an unelected and unaccountable body.
In the Antiterrorism and Effective Death Penalty Act, Congress encouraged states to adopt mechanisms and standards for appointment of postconviction counsel. Experience with that act has lessons for the enactment of trial standards. Congress should repeat what it did right last time and avoid what it did wrong.
The most serious error in AEDPA was leaving the decision as to whether a state qualified to the federal courts. This portion of the act has met with great hostility there. Many states have given up trying to qualify, because they are convinced that the courts will continue to issue strained and hypertechnical interpretations to avoid qualification. It would be preferable to have qualification quickly certified by the Attorney General, with review, if at all, only in the Supreme Court.
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AEDPA was correct, however, in offering a positive incentive rather than the negattive, punitive approach in H.R. 4167. In keeping with the theme of focusing on guilt or innocence, states meeting standards should be given the benefit of extending the rule of Stone v. Powell(see footnote 31) to claims which relate solely to the penalty phase of capital cases. The rules governing the penalty phase, by definition, have nothing whatever to do with the accuracy of the guilt determination. They are not in the Constitution as originally understood, having been created entirely by the Supreme Court since 1972. Litigation over the penalty phase makes up the bulk of the delay in capital cases. The rules have been thoroughly integrated into state procedures. Minor variations from them do not amount to a denial of fundamental fairness. Review on state appeal is sufficient.
I hope these comments are useful to the committee, and I would be glad to answer any questions or provide any other assistance.
PREPARED STATEMENT OF GEORGE W. CLARKE
My name is George ''Woody'' Clarke. I am a Deputy District Attorney for the County of San Diego and have served in that role since 1982. As a young prosecutor in 1984 1 was assigned to act as co-counsel in the prosecution of the first known serial-murderer in San Diego history: a man who brutally murdered four adult women and two 3-year-old children, and nearly killed a seventh victim.
That prosecution included important bloodstain evidence, which was analyzed in the middle 1980's using traditional blood typing techniques predating the forensic use of DNA evidence. That experience has been a cornerstone to the remainder of my career. During the prosecution of that defendant, an objection to the admissibility of the results of our testing was made. Despite prior common use of the same technology in casework, the hearing based on that objection lasted one year and included the testimony of over 15 expert witnesses. Two of those experts testified in excess of 20 days each.
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That experience provided an important preview for the admissibility of DNA evidence beginning in 1989. The five-year prosecution of our killer—resulting ultimately in his conviction—led to my specialization in the use and introduction in court of DNA typing results.
Since that time I have given more than 250 lectures and presentations to groups ranging from scientists, judges, prosecutors, defense attorneys and law enforcement officials, to legislators, ministers and supreme court justices of foreign countries.
I currently serve as a commissioner on the United States Department of Justice's National Commission on the Future of DNA Evidence. Since 1998 our comn-iission has studied numerous issues impacting the forensic uses of DNA evidence in this country, including post-conviction review of cases involving inmates convicted and committed to state and federal prisons prior to the availability of DNA testing.
In fact, our commission has recommended a model statute for consideration by state and federal jurisdictions on the same subject matter before this committee today. Many of you are familiar with the important study undertaken by the National Institute of Justice and described in the 1996 report, ''Convicted by Juries: Exonerated by Science.'' The publication chronicles the cases of 26 prison inmates convicted of crimes prior to the availability of DNA typing, but cleared of those charges years later.
One of those cases took place in San Diego. Frederick Rene Daye was convicted of the 1984 kidnapping and sexual assault of a female victim. Daye was found guilty by a jury based on his identification at trial by the victim and an independent eyewitness to the victim's kidnapping.
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Fred Daye consistently protested his innocence and was eventually exonerated by DNA testing undertaken at the request of his appellate counsel and my office. His innocence of those charges was unequivocally demonstrated by that DNA typing.
Perhaps most significantly, my office has recently instituted a program designed to review our own cases to determine the propriety of post-conviction DNA typing. I am not aware of any such program in this country. With the assistance of our California Department of Corrections, we have identified 560 inmates committed to state prison from San Diego County prior to 1992 and still serving those sentences.
We have begun an in-house review of those cases and will proactively identify individual cases in which inmates have consistently maintained both their innocence and their misidentification, whether by eyewitness or circumstantial evidence. In the appropriate case, in which biological evidence has been preserved, we will offer DNA typing to those inmates to resolve the issue of factual guilt or innocence.
I have closely examined the proposed statutes contained in both H.R. 4167 and legislation which I anticipate will shortly be introduced in the Senate, introduced by Sen. Hatch. The intent behind each bill is to be applauded. However, H.R. 4167 provides a standard for the procuring of DNA testing that casts too wide a net.
Resources currently available for DNA typing provide only a small fraction of the needs of law enforcement, the criminal justice system and our communities. Unlike the United Kingdom, for example, evidence in tens of thousands of serious and violent crime cases is denied the power of DNA testing. Nearly I mfllion samples already retrieved from convicted offenders await testing for both database inclusion and the identification of likely thousands of heretofore unidentified sexual and other violent offenders.
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The most important point for your consideration is this: H.R. 4167 requires the granting of DNA typing in prior cases as long as an inmate can demonstrate that testing might produce exclusionary results which would be relevant to whether the inmate was wongly convicted.
In contrast to that standard, the Hatch legislation prescribes that an applicant for testing provide a threshold showing that his or her identity was at issue in the prior proceedings and that results of DNA typing of identified evidence, if exculpatory, would establish the inmate's actual innocence. In other words, the Hatch bill contains a fair and commonsense requirement that post-conviction testing have the potential to show innocence, similar to the statutes in New York, Illinois and Arizona.
The decision of this committee and this Congress on the appropriate standard is critical. Interpretation of the significance of DNA results is frequently problematic. Our national commission identified examples of cases in different categories with regard to the significance of DNA results in the decision about innocence.
Only in those types of cases in which exclusionary results actually demonstrate an inmate did not commit the crime or crimes of which he or she was convicted is innocence established. In many other types of cases, exclusionary results may provide relevant
C) information, but fail to relieve the inmate of criminal responsibility for any of the crimes leading to imprisonment.
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For over 100 years forensic science has provided everyday examples. Traditional fingerprints recovered from crime scenes have proven material in some cases and irrelevant in most. Latent fingerprints found on doorknobs, guns, and a wide variety of evidence items commonly reveal exclusionary results when compared to charged defendants. Most importantly, those exclusions normally do not establish innocence.
Examples in biological evidence cases are common. The commission of sexual assault crimes may involve no biological evidence left by the attacker. DNA typing of evidence may reveal biological evidence deposited by a husband, boyfriend, or other consensual partner preceding the attack. Particularly with respect to older cases, known samples from such individuals may be impossible to obtain.
Multiple assailant crimes may reveal DNA evidence left by one, but not another accomplice. Bloodstains retrieved from crime scene evidence may be unrelated to a violent crime, yet produce exclusionary results. Sexual assault evidence recovered from the bed of a victim or another person may yield results excluding an inmate, yet have been deposited in a consensual encounter weeks earlier.
The standard which we will utilize in our own office program will mirror that described in the Hatch legislation. The criteria set forth in that bill strike a necessary balance between the interests of the innocent inmate and those of society. The decision to offer DNA testing to one or more defendants in our 560 cases will rest on the determination whether results, if exclusionary, will truly demonstrate the innocence of that inmate.
Importantly, the standard set forth in the Hatch legislation would require testing in a case such as that of Fred Daye if he had not already been exonerated. The evidence tested in that case was directly related to the crimes of which Fred Daye was convicted. Daye continuously protested his innocence, claiming mis-identification by both the victim and other eyewitness. If post-conviction DNA testing could show that a prisoner was innocent, that prisoner could obtain testing under the Hatch bill.
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The standard in H.R. 4167 would both overwhelm the DNA testing resources at our disposal and would invite spurious exonerations based on evidence lacking materiality to the decision of innocence. The frequent existence of seized biological evidence in violent crimes which does not provide probative and material information about innocence militates against any other standard for post-conviction review testing.
In addition, any wider standard will invite both abuse and unnecessary delay in the administration of justice. Repeated experiences to date demonstrate abuse of both the appellate and habeas corpus processes by overreaching claims of the need for DNA typing of evidence seized in the course of the original crime investigation.
Finally, I want to take this opportunity to applaud the Hatch legislation for providing
funding for post-conviction review, casework testing and convicted offender DNA profiling. I have served on the Laboratory Funding Working Group of our national commission for the past two years and have had the opportunity to observe first-hand the drastic need for allocation of resources to each of these endeavors. In particular, these provisions of the Hatch legislation will dramatically assist in the identification of society's most violent criminals.
Conclusion
No one should question the benefit post-conviction DNA testing can provide to wrongly imprisoned inmates, the criminal justice system, and the public. The integrity of that same justice system, however, demands that decisions of guilt or innocence be based on material evidence demonstrating actual innocence. The American public should be entitled to nothing less.
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(Footnote 1 return)
Stephen B. Bright, ''Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer,'' 103 Yale Law Journal 1835, 1855–1857 (1994), available at http://www.schr.org.
(Footnote 2 return)
Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, J., concurring).
(Footnote 3 return)
John Makeig, ''Asleep on the Job; Slay Trial Boring, Lawyer Said,'' Houston Chronicle., Aug. 14, 1992, at A35.
(Footnote 4 return)
Burdine v. Johnson, 66 F. Supp. 2d 845 (S.D. Tex. 1999).
(Footnote 5 return)
See David R. Dow, ''The State, the Death Penalty, and Carl Johnson,'' 37 Boston College Law Review 691, 694–95 (1996)
(Footnote 6 return)
Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000)
(Footnote 7 return)
Ken Armstrong & Steve Mills, ''Inept defense cloud verdicts,'' Chicago Tribune, November 15, 1999.
(Footnote 8 return)
Steve Mills & Ken Armstrong, ''Flawed trials lead to death chamber,'' Chicago Tribune, June 11, 2000.
(Footnote 9 return)
Michael K. Moore, Executive Summary; The Status of Indigent Defense in Texas: The Judiciary's Perspective (prepared for State Bar of Texas Committee on Services to the Poor in Criminal Matters) May 26, 1999. Judges in the survey were specifically asked to discount their experiences in capital cases, but there is no reason to believe that their motivations for appointment decisions would vary depending on the type of case.
(Footnote 10 return)
Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).
(Footnote 11 return)
Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998) (holding that because petition was time-barred, district court was not required to appoint counsel pursuant to 21 U.S.C. §848(q)(4)(B)).
(Footnote 12 return)
Letter from Police Commissioner Howard Safir to Congressman Henry J. Hyde, January 14, 2000.
(Footnote 13 return)
Id.
(Footnote 14 return)
See also People v. DeOliveira, 223 A.D.2d 766 (3d Dep't 1996) (denial of application for testing in murder case where evidence that victim had sexual intercourse with another man prior to her death would not have proved that defendant was not the murderer); People v. Smith, 245 A.D.2d 79 (1 st Dep't 1997) (fact that defendant was not the source of semen recovered from victim's body was consistent with the victim's testimony).
(Footnote 15 return)
National Research Council, DNA Technology in Forensic Science (1992) (''NRC I Report''); National Research Council, The Evaluation ofForensic DNA Evidence (1996) (''NRC H Report'')
(Footnote 16 return)
In State of Washington v. Copeland (Wash. 1996) 922922 P.2d 1318, fn.5) the Washington Supreme Court noted that one expert made about $100,000 testifying as a defense expert in 1990–1991, even though he had not received a research grant in about eight years. (See also Fiocoma, D. Unravelling the DNA Controversy: People v. Wesley, A Step in the Right Direction (1995) Journal of Law and Policy, fn. 105 [making similar observations, and noting ''Even other scientist are amazed to discover the amount of money that can be made from testifying for the defense at Frye hearings, despite the fact that it often means altering the truth about DNA reliability.''].)
(Footnote 17 return)
Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Convictions, 38 U. Chi. L. Rev. 142 (1970).
(Footnote 18 return)
There are two endnotes 34, but no endnote 33, in the on-line version of the study. The one I refer to here is the first one, which probably should be 33.
(Footnote 19 return)
McGautha v. California, 402 U.S. 183, 207 (197 1).
(Footnote 20 return)
Furman v. Georgia, 408 U.S. 238 (1972).
(Footnote 21 return)
See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (lead opinion).
(Footnote 22 return)
See generally, Scheidegger, Capital Punishment in 1987: The Puzzle Nears Completion, 15 West. St. L. Rev. 95 (1987).
(Footnote 23 return)
See People v. Anderson, 43 Cal. 3d 1104, 1147, 742 P. 2d 1306 (1987), overruling Carlos v. Superior Court, 35 Cal. 3d 131, 672 P. 2d 862 (1987).
(Footnote 24 return)
K. Scheidegger, Overdue Process: A Study of Federal Habeas Corpus in Capital Cases and a Proposal for Reform, A–10 (1995).
(Footnote 25 return)
See note 2, above.
(Footnote 26 return)
Chapman v. California, 3 86 U.S. 18, 24 (1967).
(Footnote 27 return)
A different standard for federal habeas was not established until 1993. See Brecht v. Abrahamson, 507 U.S. 619, 631–632 (1993).
(Footnote 28 return)
Strickland v. Washington, 466 U.S. 668, 694 (1986).
(Footnote 29 return)
All new rules created by the Supreme Court are fully retroactive to all cases pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 328 (1986). Since 1989, federal courts have not been supposed to create or apply new rules on habeas corpus, Teague v. Lane, 489 U.S. 288, 310 (1989), but this limitation is routinely evaded. See, e.g., Rupe v. Wood, 93 F. 3d 1434 (CA9 1996) (creating and applying rule requiring state to admit polygraph evidence).
(Footnote 30 return)
For one, the study's capsule descriptions of cases with ''serious error'' are, if not wrong, in some cases so grossly one-sided as to be seriously misleading. Compare the study's description of counsel's performance in the Wade case with the U.S. District Judge's description in Wade v. Vasquez, 752 F. Supp. 931, 934 (CD Cal 1990).
(Footnote 31 return)
428 U.S. 465 (1976).