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H.R. 3035

NOVEMBER 10, 2005

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Serial No. 109–82

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


24–506 PDF






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H.R. 3035

NOVEMBER 10, 2005

Serial No. 109–82

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
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BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California

JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
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WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Crime, Terrorism, and Homeland Security

HOWARD COBLE, North Carolina, Chairman

MARK GREEN, Wisconsin

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MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts

MICHAEL VOLKOV, Acting Chief Counsel
ELIZABETH SOKUL, Special Counsel for Intelligence
and Homeland Security
JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel


NOVEMBER 10, 2005

    The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

    The Honorable William D. Delahunt, a Representative in Congress from the State of Massachusetts, and Member, Subcommittee on Crime, Terrorism, and Homeland Security
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    The Honorable Daniel E. Lungren, a Representative in Congress from the State of California, and Member, Subcommittee on Crime, Terrorism, and Homeland Security


Mr. Tom Dolgenos, Chief, Federal Litigation Unit, Philadelphia District Attorney's Office, Philadelphia, PA
Oral Testimony
Prepared Statement

Mr. Kent Cattani, Chief Counsel, Capital Litigation Section, Arizona Attorney General's Office, Phoenix, AZ
Oral Testimony
Prepared Statement

Mrs. Mary Ann Hughes, Chino Hills, CA
Oral Testimony
Prepared Statement

Ms. Ruth Friedman, Solo Practitioner, Washington, DC
Oral Testimony
Prepared Statement

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Material Submitted for the Hearing Record

    The Honorable Robert C. ''Bobby'' Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security

Inserted into the record by Mr. Scott (as requested during the hearing):

    Kristen Gelineau, ''Old DNA clears two more men, including one in Norfolk case,'' Associated Press, (December 14, 2005)

    Letter submitted by Leonidas Mecham, Secretary, Judicial Conference of the United States, to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary (July 22, 2005)

    Letter submitted by Leonidas Mecham, Secretary, Judicial Conference of the United States, to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary (September 26, 2005)

    Letter submitted by Ronald M. George, Chief Justice of California, Supreme Court of California to Chief Judge Mary M. Schroeder

    Joint Resolution 16 of the Conference of Chief Justices and Conference of the State Court Administrators

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    Joint Resolution 18 of the Conference of Chief Justices and Conference of the State Court Administrators

    ''Sample List of Innocent People on Death Row Granted Relief in Federal Court Who Would Have Been Executed had the Streamlined Procedures Act of 2005 Been in Effect,'' excerpted from the testimony of Barry Scheck, Co-Founder of the Innocence Project at Cardozo Law School in New York to the Senate Judiciary Committee

    Letter submitted by Thomas W. Hillier, II, Federal Public Defender, Western District of Washington to the Subcommittee

    List of organizations and individuals opposing the Streamlined Procedures Act

    Letter submitted by former Federal and State prosecutors and law enforcement officers to the Honorable Arlen Specter, Chairman, Senate Judiciary Committee

    Letter from the Honorable Timothy K. Lewis, former Judge, U.S. Court of Appeals for the 3rd Circuit to the Honorable Arlen Specter, Chairman, Senate Judiciary Committee and the Honorable Patrick J. Leahy, Ranking Minority Member, Senate Judiciary Committee

    Letter submitted by Bob Barr, former Member of Congress, the American Conservative Union

    Various Editorials submitted in opposition to H.R. 3035, the ''Streamlined Procedures Act''
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    Letter submitted by the Most Reverend Nicholas DiMarzio, Chairman, Domestic Policy Committee, U.S. Conference of Catholic Bishops (USCCB)

    Statement of Seth P. Waxman, ''Hearing on S. 1088 before the Committee on Judiciary,'' United States Senate, July 13, 2005

    Letter submitted by Robert D. Evans, Governmental Affairs Office, the American Bar Association (ABA) to the Senate Judiciary Committee

    Letter submitted by Paul A. Renne, former Assistant U.S. Attorney to the Subcommittee (October 31, 2005)

    Letter submitted by Paul A. Renne, former Assistant U.S. Attorney to the Subcommittee (July 20, 2005)

    ''Judicial Conference Action Regarding the 'Streamlined Procedures Act of 2005''' submitted by Karen Kremer, Office of Legislative Affairs, Administrative Office of the U.S. Courts to the Subcommittee

    ''Rebuttal to Claims From the Office of the District Attorney of Philadelphia County, Pennsylvania''


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House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:10 a.m., in Room 2141, Rayburn House Office Building, the Honorable Howard Coble (Chair of the Subcommittee) presiding.

    Mr. COBLE. Good morning, ladies and gentlemen. I want to welcome you all to the important legislative hearing on habeas corpus procedures for review of State death penalty convictions. This is the second hearing on this legislation. And for the benefit of all involved, I need to let you know we need to vacate this room on or before 12. We are having our PATRIOT Act conference in this room. So we have to set up for that. So keep that in mind. We need to hit the road at 12.

    I have stated on numerous occasions that I support the death penalty for the most heinous crime. But I've also made clear that the death penalty must be clear, fair and must be accurate with appropriate balance between victims and analyst litigation and appropriate consideration of crimes of error and legitimate claims of actual innocence.

    I am a strong supporter of the Justice For All Act, a far-reaching measure which provides additional safeguards in our death penalty system for post-conviction DNA testing of evidence and improvements in our capital counsel system.
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    Today, we are reexamining representative Lungren's proposal, H.R. 3035, the ''Streamlined Procedures Act of 2005,'' which reforms Federal habeas corpus review of State court convictions.

    Mr. COBLE. The Subcommittee in the judicial security hearing and in examining child crimes and even last Congress during consideration of the Justice For All Act has gathered a substantial amount of evidence showing that the Federal Court, that the Federal Court habeas review, particularly in the death penalty area, has suffered from extraordinary delays, some as long as 15 years for pending habeas petition to be resolved by a single Federal judge and misguided application of precedent to frustrate the ends of justice.

    State provides significant habeas review. And applicants are now using the Federal review in some instances to frustrate justice which at once calls for reform aimed at ensuring that justice delayed does not turn into justice denied.

    Currently, many Federal habeas corpus cases require 10, 15, even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They are also deeply unfair to victims of serious violent crimes. A parent whose child has been murdered or someone who has been a victim of a violent assault cannot be expected to move on with their lives without knowing how the case against the attacker has been resolved.

    Endless litigation and the uncertainty that it brings is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas corpus reforms, ''It should not take 8 or 9 years and three trips to the Supreme Court to finalize when a person, in fact, was properly convicted or not.'' For the sake of all parties, we should minimize these delays.
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    The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are significant gaps in the habeas corpus statutes which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.

    In a recent letter sent by the Judicial Conference, they provided data which demonstrates that delay is increasing and that some steps are needed to address the problem.

    The median time for disposing of habeas petitions for State capital convictions has nearly doubled from 1998 to 2004, from 13 months to 25.3 months.

    The number of habeas petitions pending for over 3 years doubled from 1998 to 2004, from 20 percent to 46 percent.

    Similarly, the percent of habeas petitions pending in the Federal Court of Appeals increased sevenfold from 1998 to 2004, from 5 percent to 36 percent.

    I want to commend representative Lungren for his work in this area and look forward to working with him on this important issue.

    I am now pleased to recognize the distinguish gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.

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    Mr. SCOTT. Thank you, Mr. Chairman, for holding this hearing on H.R. 3035, the ''Streamlined Procedures Act of 2005.'' And Mr. Chairman, I want to thank you for your excellent representation of the Sixth District of North Carolina, the State of North Carolina and the Nation. You're one of the most respected leaders of the House. It is an honor to serve on this Committee with you. And I think the entire House could benefit from the kind of leadership that you provide.

    We have a lot of disagreement on issues, but you're one that can disagree without being disagreeable. And we would have a much better House if we had more Members like you. So thank you for your service and leadership.

    Mr. COBLE. If the gentleman will suspend, I will give the gentleman from Virginia all the time he wants.

    I thank you for that, Bobby. I appreciate that.

    Mr. SCOTT. Well, the next thing I was going to say is because of your admonition that time was of the essence—but the title of the bill, Mr. Chairman, suggests that it would streamline the processing of habeas cases. In fact, it would actually strip the courts of jurisdiction to determine many Federal issues and undercut the Supreme Court's efforts to clean up uncertainties regarding reforms that Congress enacted in 1996 with the Anti-terrorism and Effective Death Penalty Act.

    The bill would virtually eliminate the ability of Federal courts to determine Federal constitutional issues in cases involving prisoners either facing the death sentence or serving prison terms. In short, the bill would greatly increase the prospects of an innocent person being put to death or languishing in prison with no help of correcting an unconstitutional conviction.
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    In general, the bill will overturn a series of Supreme Court decisions adopted since 1996, increase the number of habeas corpus petitions filed, complicate and delay litigation in this area, disregard traditional principles of federalism and invite constitutional challenge on the theory that it impairs the independence of Federal courts.

    Ironically, many of the supporters of this bill are the same people who in the Terry Schiavo case advocated for the elimination for that case of the very kinds of hurdles that this bill promotes.

    Federal habeas corpus is a modern day reflection of the great writ which was the foundation for much of our criminal law principles. A right without a remedy is no right at all. What good is it to have a constitutional right that cannot be enforced? This bill would eliminate the Federal court's role as courts of last resort for citizens of this country. It would restrict citizens to State courts where prosecutors seeking to protect their convictions—it would restrict them to courts where prosecutors are seeking to protect their convictions when the State prosecutors were the cause of the problem to begin with.

    Those prosecutors are the only ones who have anything to gain from having innocent people languish in prison or even put to death because they were unable to get the proper relief from the courts.

    Crime victims and their families will face even greater delays and frustration as courts struggle to resolve constitutional challenges to a new law, and they nor the society in general will benefit from having people locked up or put to death while the true perpetrators remain free to prey on others. And there are other examples of innocent people being released in recent years who could not have been released if this bill had been law.
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    I would like to offer for the record, Mr. Chairman, two of these cases, one involving release from death row, the other will be identified. And we are going to add other cases as well as an article, recent article in my hometown newspaper which indicates that several people were released from prison after they had served a substantial portion of their time for crimes that they did not commit.

    Mr. COBLE. Without objection, it will be received.

    [The information referred to follows in the Appendix]

    Mr. SCOTT. Thank you, Mr. Chairman. A host of organizations and individuals, including prosecutors and judges, liberals and conservatives, have expressed concerns about the bill becoming law; 49 of 50 chief justices have asked Congress to carefully study the need for and impact of this legislation before any new law is passed. And I would like to offer their resolutions at this point for the record.

    Mr. COBLE. Without objection.

    [The information referred to follows in the Appendix]

    Mr. SCOTT. I also have read letters of letters and resolutions from the Federal Judicial Conference, Federal public prosecutors, Federal public defenders, a prosecutor in California expressing concern about the legislation, and I would like to offer these for the record as well.
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    Mr. COBLE. Without objection, they will be received.

    [The information referred to follows in the Appendix]

    Mr. SCOTT. In this latter submission is a memo developed by a former prosecutor and a letter from a current chief justice of the California Supreme Court which explains why most of the time period necessary to complete habeas petitions occurs at the State level, not at the Federal level.

    So, Mr. Chairman, in some way, while there are not—where there are, no doubt, instances in which non meritorious prisoner claims get more attention than they deserve, it is not a heavy price to pay to ensure that we don't execute an innocent person or have innocent people languishing in prison with no hope. We already have streamlined the habeas process in 1996. Now, only those who have, quote, clear and convincing evidence of actual innocence even get a hearing under the traditional habeas process.

    Those who can establish that they are only probably innocent, that is, 51 percent chance that they are innocent but more probably innocent than not, they don't even get a hearing under the present restrictions.

    Apparently, Mr. Chairman, under the Anti-terrorism and Effective Death Penalty Act, having the courts clogged up with all these people who are probably innocent is contrary to the goals of an effective death penalty.

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    So, Mr. Chairman, in the context of where it is clear that innocent people have been released in recent years who could not have been released under the provisions of the bill, we should not further jeopardize the prospects of cases like that by proceeding with this bill.

    Again, it benefits no one, that Congress should assist in having innocent people languishing in prison or executed while real perpetrators roam free. A single case of that happening is a tragedy, and we shouldn't create a situation where more of that might occur. Thank you.

    Mr. COBLE. Thank you, I thank the gentleman from Virginia. Normally we restrict opening statements to the Chairman and the Ranking Member, but the distinguished gentleman from Massachusetts asked to be heard.

    Mr. DELAHUNT. Yes, thank you, Mr. Chairman, let me echo the kudos of the Ranking Member for you and your leadership.

    Mr. COBLE. I thank you for that, sir.

    Mr. DELAHUNT. I think you have heard me say that before. It is sincere, and it is an honest sentiment. And we are definitely fortunate to have you.

    Mr. COBLE. I appreciate very much the generous comments from Mr. Scott and you. I hope you are not lulling me into a sense of false security this morning.

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    Mr. DELAHUNT. Let me proceed. And I probably will have to leave the hearing for another hearing. So that will eliminate some of the questions I would ask. But I think it is—I wanted to be here because I was one of the authors of the Justice For All Act.

    You know, the core of our justice system is a search for the truth. That is the purpose of the criminal justice system in this country. And in that system, we should take every opportunity to maximize our capacity in our efforts to secure the truth because often it is illusive. Often it is not available to those accused of crimes. It is a system that is fallible and fragile and susceptible to error.

    I served as the chief prosecutor—the elected prosecutor—in the Metropolitan Boston area for almost 22 years. I know mistakes. I have been there. I have made them. One of my constant concerns was making a mistake that resulted in the conviction of someone that was innocent. I almost did that twice.

    This bill is about maximizing the power of the State to limit our search for the truth.

    There have been many cases where information was developed decades after the conviction that clearly exonerated innocent individuals that served on death row. The Ranking Member has referenced some of them. I could stay here and recite two or three cases where individuals were convicted and the truth did not surface for 30 years.

    I want to recognize someone who is in the hearing room today. Her name is Gloria Killian, she won't be testifying, obviously, but I think her case is reflective of what I just said. She was a former law student who had no criminal record. She is sitting in the front row. She has the gray hair.
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    She had no criminal record when she was convicted in 1986 of being the mastermind of a 1981 burglary, robbery and murder of an elderly couple in California. She was sentenced to 32 years in prison. Her conviction was based on the testimony of one of the actual killers who had been convicted for the crime and sentenced to life without parole. And any prosecutor knows that informant testimony, testimony that is subject to a deal, really needs to be scrutinized.

    Despite the fact that his codefendant testified at his own trial that he had never met Ms. Killian, shortly after his conviction, Gary Masse wrote to the Sheriff's Department offering to lie for the Government in exchange for a sentence reduction.

    Mr. Masse testified at Killion's trial that he made no deal with the prosecution. Shortly after Killion's trial, Masse further wrote to the prosecutor again admitting that he had lied. The prosecution failed to disclose this letter and two others, both of which made clear that Masse was offered and expected benefits in return for his testimony.

    Gloria Killion's appeal was denied. And her State petition was rejected without an evidentiary hearing. If I could have just 2 additional minutes, Mr. Chairman.

    Mr. COBLE. Without objection.

    Mr. DELAHUNT. She petitioned for habeas corpus relief in Federal Court. A hearing was held in which evidence of Masse's perjury finally came to light in part because his codefendant's attorneys—his codefendant's attorneys—discovered the letters Masse had written and brought the information to Killian. The Federal district Court nonetheless denied her petition.
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    On appeal, however, the Ninth Circuit found clear error in the District Court's decision and vacated the conviction. The Circuit Court concluded that there is a reasonable probability that, without all the perjury, the result of the proceeding would have been different.

    It also held the cumulative effect of Masse's perjury, the prosecution's failure to disclose impeachment evidence and prosecutorial conduct at trial were sufficient to justify relief, even if each claim individually was not.

    She was released in 2002 after spending 16 years in prison. She founded and became executive director of the Action Committee for Women in Prison.

    The bottom line is that had this proposal been in effect, Gloria Killian would never have had the opportunity to prove her innocence. And she sits here today.

    This proposal, with all due respect to my good friend and another individual for whom I have great respect, Mr. Lungren, this proposal erodes the integrity of that effort to search for the truth that is incorporated in our jurisprudence. Thank you, Mr. Chairman.

    Mr. COBLE. I thank the gentleman. We have been joined by the distinguished gentlemen from California, Ohio and Arizona; Mr. Lungren, Mr. Chabot and Mr. Flake.

    Mr. Lungren, did you want to be heard? This is your bill and very briefly for an opening statement and then——
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    Mr. LUNGREN. Thank you, Mr. Chairman. Mr. Chairman, I am sorry I was late. I had one of my periodic flare-ups with my back so it was a little while getting here.

    I appreciate the opportunity once again and consider the proper role of the Federal collateral review in the context of the larger criminal justice system, along with the hearings which have taken place in the other body and time for opportunity for additional input we are better able to craft legislation to address abuses of the habeas corpus process in light of the Federal courts.

    I welcome all the witnesses here this morning. We have heard from many who have criticized our original proposal. We have made changes in the proposal that we are now considering. We will consider others.

    I would just like to mention, however, the gentleman referred to the pursuit of truth. That is what the jury system is supposed to be all about.

    As the late Chief Justice Rehnquist said at a time when he was on the bench but not chief justice, our system is predicated on the assumption that the main event is that jury trial. And the habeas corpus collateral review is the most distant from the jury trial. And one should not mistake the two.

    On habeas corpus, you don't have the opportunity to eyeball the witnesses. You don't have a chance to see their demeanor. You do not have a chance to judge what juries have to judge.
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    And while there certainly is a place for habeas corpus—remember, we are not talking about the great writ, despite what some editorialists have said. We are talking about a statutory writ which the Congress has every right to expand or contract or eliminate altogether. Although I wouldn't suggest that we eliminate it altogether in any event. But let's just remember what it is we are talking about.

    The pursuit of truth is not just given to those who happen to be Federal judges looking at it long after the events have taken place. The pursuit of truth begins with the jury trial.

    I would like to acknowledge the participation of Mary Ann Hughes. It was because of the comments made to me by crime victims and their families that I agreed to introduce this bill in the first instance.

    I noted in the prepared statements of one of the witnesses the suggestion was that even those for whom this was intended to benefit, the State judges do not support this bill.

    I never introduced this for the purpose of helping the State judges. I did this in response to victims' family members who came to me and said, how can you justify, 25 years after a crime is committed, the Federal Court is still trying to question what the truth is? A case in my home State of California where a convicted murderer sitting at Folsom State Prison under a sentence of life without possibility of parole, directs murders against two of the witnesses who had testified in his original trial. The Supreme Court finally turned down the latest collateral appeal on that case 25 years after the second set of murders. The fellow sitting on death row is 75 years of age. All his victims never had a chance to reach anywhere close to that time.
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    So the responsibility of Congress to monitor the operation of the statutory habeas procedures, a fundamental access of this responsibility is to ensure that those who have been victimized by crime are not then again victimized by the criminal justice system itself.

    It is for that reason and that reason alone I introduced this legislation. And I will work to refine it and to see that it is ultimately passed and signed into law. I thank you again and look forward to hearing from our distinguished panel.

    Mr. COBLE. I thank the gentleman from California. For the benefit of those who came in late, I want to reiterate, we must vacate this room by 12 because the PATRIOT Act conference will be conducted in this room subsequently.

    For the benefit of the panelists, it is the practice of the Subcommittee to swear in all witnesses appearing before it. So if you all would please stand and raise your right hands.

    [Witnesses sworn.]

    Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. You may be seated.

    We have a distinguished panel before us today, I say to the Members of the Subcommittee. Our first witness is Mr. Tom—Tom, help me with that surname—Dolgenos, chief of the Federal Litigation Unit at the Philadelphia District Attorney's Office. Mr. Dolgenos previously worked as an associate in the Deckert firm in Philadelphia. Following law school, he clerked for the Honorable Rya Zobel of the U.S. District Court of the District of Massachusetts and the Honorable Walter Stapleton of the U.S. Court of Appeals for the Third Circuit. Mr. Dolgenos was awarded his undergraduate degree from Brown University and his law degree from the Yale School of Law.
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    Our second witness today is Mr. Ken Cattani—is that right, Ken—chief counsel of the Capital Litigation Section in the Arizona Attorney General's Office. Mr. Cattani currently serves on the Attorney General's DNA Task Force, the Attorney General Citizen Advisory Committee and is a member of the National Association of Government Attorneys in Capital Litigation Board of Directors. Mr. Cattani received his JD degree from the University of California at Berkeley.

    Our third witness today is Mrs. Mary Ann Hughes who was previously recognized by Mr. Lungren. In 1983, Mrs. Hughes' 11-year-old son, Christopher, was brutally murdered at the hands of an escaped convict. The escaped convict not only bludgeoned Christopher to death but brutally murdered three others and severely wounded a fourth. Although extensive evidence, including DNA, pointed to Kevin Cooper as an assailant, he has eluded justice after committing those heinous crimes nearly 23 years. We look forward to hearing Mrs. Hughes' compelling testimony as well.

    Our final witness is Mrs. Ruth Friedman, a solo practitioner under contract with the Office of Defender Services of the Administrative Office of the United States Courts. She has devoted her entire career to representing poor people sentenced to death and has more than 17 years of litigation in State and Federal courts. Previously, Mrs. Friedman was senior counsel at the Equal Justice Initiative in Montgomery, Alabama, where she worked at all levels of civil litigation. Mrs. Friedman is a graduate of Harvard University and received her law degree from the Yale School of Law.

    We are indeed pleased to have you all with us today.
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    Now folks, we operate under the 5-minute rule. Your written testimony has been examined and will be re-examined. But when you see the red light on the panel before you, that is your warning that the ice upon which you are skating has became very thin.

    We, Mr. Scott and I, will not haul you into custody at that point, but we would ask you to wrap up on or before that red light illuminates.

    Mr. Dolgenos, we will start with you sir.


    Mr. DOLGENOS. Thank you, Mr. Chairman, and Members of the Committee. I am an assistant district attorney in Philadelphia. It is my job and the job of the other lawyers in my unit to respond to hundreds of habeas corpus petitions each year. We are on the front lines. And I believe there are some real problems in the habeas system that have recently grown worse, not merely in death penalty cases—and I want to emphasis this—but across the board in all types of habeas cases, despite the enactment of habeas reforms in 1996.

    I also believe, however, that the proposed Streamlined Procedures Act contains some commonsense solutions to some of the worst abuses that we face. Now, it is important to emphasize that the stakes here are very high, not merely for those convicted of the crimes but for the stability and reliability of the criminal justice system itself.
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    Every time a convicted prisoner files a habeas petition, he invites the Federal court to overturn a State court judgment. Most of the time, that means throwing out a unanimous jury verdict. It means subjecting victims and their families to more pain. It means reversing the considered judgment of State court appellate judges despite their good faith attempts to apply the very same Constitution that the Federal judges apply. And it also means that State and local governments, if they want to keep this person in jail, must allocate the resources to do it all over again.

    Now, in most legal contexts, this kind of Federal interference with State government would be unthinkable. But criminal cases are different. And we all agree that they are so important that we have got to do everything we can to avoid mistakes.

    That is why it is so important to ensure that every criminal defendant has adequate representation up front and the funds to present the best possible defense at trial.

    But at some point, more review by yet another different set of judges no longer makes the process more fair or trustworthy. And the SPA aims to strike an appropriate balance.

    Perhaps the most familiar problem in habeas litigation is that it robs the system of finality. This is no abstract issue for the victims who are dragged along in an endless process or for local governments that must pay for prosecutions that never really end. To take a small example, in the past 5 years, the number of attorneys in my office who are assigned as full-time habeas attorneys has increased by 400 percent.
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    I want to emphasize one other point. The truth itself is a casualty of delay. As years pass, memories fade. Evidence is lost. Witnesses who were once sure can't remember everything. Other witnesses disappear.

    Some witnesses who never wanted to get involved in the first place are extremely reluctant to testify again years later. In fact, the longer the process goes on, the more opportunities exist for witness tampering and intimidation. After all, police and judges can't protect witnesses forever. And too often, a recantation or other new evidence is simply the product of coercion or foul play.

    One recent example from our office makes the point. The prisoner had repeatedly molested and raped a girl when she was only 5 and 6 years old. About 15 years later, he presented to Federal court with the victim's alleged recantation, but it was ambiguously worded. When we investigated, the victim, now a young woman, told us the defense investigator had misled her. The investigator had not clearly identified herself as a member of the defense team. She had urged the victim to sign the statement while assuring her that the assailant would remain in prison, and the statement, which was written by the defense, had been worded just ambiguously enough to make it sound as if her attacker had not committed rape when, in fact, he had.

    Now the victim was mortified when we told her that she had signed a defense-prepared affidavit that was designed to get this man out of prison. The prisoner's strategy had been to make evidence to convince the Federal court that he was innocent. That way he believed he could sweep away all of the bars and the rules that should prevent him from raising new claims many years later. As of now, this matter is still ongoing.
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    The point is, the passage of time, repetitive hearings and relitigation of guilt do not increase reliability. They can discourage witnesses from coming forward in the first place. And they can punish those who do. And because Federal habeas courts are so far removed in space and in time from the crime, from the subtleties and the rules of State proceedings and from the victims, it is all too easy to create claims as the years pass.

    The only way to restore balance is by Federal statute, a statute that makes deadlines meaningful and prevents the litigation of new claims except in extraordinary situations. And that is why I support the reforms contained in this Streamlined Procedures Act. Thank you, Mr. Chairman.

    [The prepared statement of Mr. Dolgenos follows:]


[Note: Image(s) not available in this format. See PDF version of this file.]

    Mr. COBLE. Thank you, sir.

    Mr. Cattani, you are recognized for 5 minutes.

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    Mr. CATTANI. Thank you.

    Thank you, Mr. Chairman, Members of the Committee.

    The AEDPA has not solved the problem of excessive delay in Federal habeas proceedings, particularly in capital cases in Arizona. We have had 9 years under the AEDPA. Delay in capital cases has increased rather than decreased. The chart that is attached to my written statement shows how long Arizona's capital cases have been pending in Federal Court; 63 Arizona capital cases have been filed and remain pending since the effective date of the AEDPA. Of those cases, only one has advanced to the Ninth Circuit where it has remained pending for the past 9.5 years. The case that moved on to the Ninth Circuit was filed in 1996. Ten cases were filed in 1997. They were all awaiting rulings in District Court. 16 more were filed in 1998, and all of them have yet to be resolved.

    Some of our pre-AEDPA cases have remained pending for over 19 years in Federal Court. We have one case that is still pending in the Ninth Circuit in which the defendant, Robert Comer requested over 5 years ago that his Federal appeal be withdrawn. Comer, who committed murder and rape in 1987, has acknowledged responsibility for his crimes and has repeatedly indicated a desire to waive his Ninth Circuit appeal.

    The Ninth Circuit ordered an evidentiary hearing at which Comer's habeas attorneys argued, over Comer's objection, that he was incompetent. Additional counsel, a highly respected defense attorney in Phoenix, was appointed to represent Comer's interests. After an evidentiary hearing in District Court, Comer was found to be competent. The appeal of the District Court ruling that Comer is competent nevertheless remains pending in the Ninth Circuit. Again, it has been more than 5 years since Comer's initial request that he be permitted to withdraw his appeal.
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    The delay that we encounter in Arizona capital cases is particularly frustrating given the system that we have set up in Arizona to protect the rights of criminal defendants. We have no interest in executing or even incarcerating an innocent person. We take very seriously our role as prosecutors, and we have created a system that provides multiple opportunities to establish claims of innocence.

    In capital cases, since 1993, we appoint two highly qualified attorneys to represent the defendant at the trial stage. We appoint yet another highly qualified attorney to represent the defendant on appeal. We appoint another qualified attorney to represent the defendant at the post-conviction stage. The State appellate process includes an automatic appeal to the Arizona Supreme Court with the option to appeal that ruling to the United States Supreme Court. The post-conviction relief process similarly provides an opportunity to appeal to the Arizona supreme court as well as the United States Supreme Court.

    Additionally, a defendant can pursue successive post-conviction proceedings to raise claims that the law has changed or that there is newly discovered evidence that would have affected his trial or sentence. State funds are made available for DNA testing whenever it is warranted, including for retesting when DNA technology improves.

    We even have a free-standing actual innocence provision in our post-conviction rules. That is rule 32.1(h) of the Arizona rules of criminal procedure which authorizes a successive post-conviction proceeding to raise claims of actual innocence even if the claim could have been raised earlier if the defendant had been diligent.

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    The fact that there is a free-standing actual innocence provision for Arizona defendants in State courts is particularly significant in my view because its availability shows that the Federal habeas process involving Arizona cases is about something other than guilt or innocence. Federal habeas review may serve a purpose, but that purpose is not to provide a forum for asserting claims of actual innocence for Arizona defendants.

    One of the key provisions of the AEDPA is what is known as the opt-in provision. That provision was designed to accelerate Federal habeas review in capital cases on the condition that a State establish a mechanism to provide for the appointment of competent counsel at the post-conviction stage. We anticipated that if those provisions were applied in Arizona, the Federal process would be shortened to approximately 3 years. The theory underlying the opt-in provisions was that if you ensure competent representation in State courts, there is less of a need for lengthy Federal habeas proceedings.

    Arizona responded to the AEDPA by enacting new standards for the appointment of counsel in post-conviction proceedings. Attorneys have to meet specific criteria to be eligible to be on a list of qualified counsel that is maintained by the Arizona Supreme Court. In 21 cases in which counsel have been appointed from the list maintained by the Arizona Supreme Court, the State has thus far expended over $1 million to represent these defendants in capital post-conviction proceedings. In some cases, the State has paid in excess of $100,000 in attorney's fees and costs for these post-conviction proceedings.

    Nevertheless, we have not been able to opt-in. And there are no States who have opted in under the AEDPA. Why haven't we opted in? We attempted to do that in the Anthony Spears case several years ago. The Ninth Circuit ruled that the standards that we have adopted for the qualification levels for attorneys who handle post-conviction proceedings are satisfactory. The court refused to allow us to opt-in however because there had been a 20-month delay in appointing counsel to represent Spears in the post-conviction proceeding. The delay was caused primarily because defense lawyers initially boycotted the process.
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    We argued in Federal Court that the 20-month delay did not prejudice Mr. Spears, and in fact, in the State proceeding, Mr. Spears' counsel never asserted that the delay had created any kind of impediment to raising claims in that proceeding. In our view, Spears received the benefit of the opt-in provisions, but the State was denied the corresponding benefit.

    We do not claim to have a perfect system in Arizona. I see my time is up. I just have maybe 1 minute. We do not claim to have a perfect system in Arizona. We have, in fact, had two DNA exonerations in Arizona. Significantly, however, those exonerations were a result of State court proceedings. Neither of the defendants who were exonerated had ever set foot in Federal Court. Our frustration with the Federal habeas process is that it does not recognize the improvements that have been made to the criminal justice system.

    The people in Arizona and particularly the victims of violent murders deserve a better Federal review process. The current review process is not working. I urge your careful consideration of the proposed amendments to the habeas statute. Thank you.

    [The prepared statement of Mr. Cattani follows:]


    In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (''AEDPA''), which was intended to restrict the scope of federal habeas review and limit delay in federal habeas proceedings. After 9 years under the AEDPA, it is clear that the Act did not reduce the problem of delay. As evidenced by Attachment A, a chart of Arizona capital cases currently pending in federal court, 63 Arizona capital cases have been filed and remain pending since the effective date of the AEDPA. Of those cases, only one has advanced to the Ninth Circuit, where it has remained pending for the past 5 1/2 years. Thirteen pre-AEDPA cases remain pending in federal court; five of those cases have been in federal court longer than 15 years; the others range in time from 9.33 years to 14.08 years.
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    The AEDPA contained provisions intended to restrict federal court consideration of claims not properly raised in state court. Additionally, the AEDPA included a provision—specific to capital cases—designed to accelerate the federal habeas process on the condition that states opt-in by enacting procedures to ensure effective representation of indigent defendants in state post-conviction relief (PCR) proceedings. Under the opt-in provision, the federal habeas process would be reduced to approximately three years by virtue of accelerated briefing schedules and a requirement that the federal courts rule on the claims raised within specified periods of time. The rationale underlying the opt-in provisions is that when more experienced attorneys represent death row inmates throughout the state court process, there is less need for a lengthy federal review.

    After the AEDPA was enacted, the Arizona Legislature and the Arizona Supreme Court amended Arizona's system for appointing and compensating PCR counsel to meet the opt-in requirements. Arizona previously provided PCR counsel to all indigent capital defendants, and under the amended system, that provision remains and requires the appointment of an attorney who did not represent the defendant at trial or sentencing. Arizona enacted mandatory competency standards for attorneys who apply to be placed on a list of available counsel for capital PCR proceedings. There is an objective measure relating to bar status, continuing legal education, and years of experience as a lawyer and in practicing in the area of criminal appeals or post-conviction proceedings. There is also a subjective requirement that the attorney have ''demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital cases.''

    In addition to provisions to ensure qualified counsel for PCR proceedings, Arizona already had in place a system to try to ensure qualified counsel at the trial stage. Since 1993, Arizona has required the appointment of two highly qualified attorneys in every case in which the State notices its intent to seek the death penalty. The requirements for lead trial counsel include practice in the area of state criminal litigation for 5 years immediately preceding the appointment, having been lead counsel in at least 9 felony jury trials tried to completion; and having been lead counsel or co-counsel in at least one capital-murder jury trial. There are additional legal education requirements and the same subjective requirement mandated for PCR counsel—that counsel shall have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital case. Additionally, Arizona provides extensive funding for mitigation specialists and expert witnesses at both the trial and post-conviction stages. Multiple expert witnesses and intensive mitigation investigation are routinely utilized in capital cases throughout the state.
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    Since 2002, Arizona has spent more than 1 million dollars for PCR representation in 21 cases. Many of those cases are in the early stages of the post-conviction process, and will result in significantly higher expenditures by the state and local government. Of the cases that have completed the post-conviction process, the expenditures have ranged between $25,000 and $138,000 for each case, with the median figure of approximately $64,000.

    Prior to the clarification regarding compensation, there were only 6 attorneys on the list of qualified PCR counsel and a backlog formed of about 15 capital defendants who were ready to pursue PCR proceedings and were awaiting appointment of qualified counsel. In those cases, it took between one to two years to appoint counsel. More attorneys eventually applied for the list, and there are currently 4 Arizona cases pending at the PCR stage where the attorney was appointed without delay.

    The first case that went through the state post-conviction process with an attorney appointed under the opt-in provision requirements was that of Anthony Spears, who was sentenced to death in 1992. In Spears v. Stewart, the district court denied Arizona's request that the case be treated as an opt-in case, and certified the opt-in issue to the Ninth Circuit for an interlocutory appeal. The Ninth Circuit held that Arizona's mechanism for appointment of counsel for indigent capital defendants in post-conviction proceedings meets the requirements of the AEDPA and qualifies for opt-in status. 283 F.3d 992 (9th Cir. 2002). However, the court held that the opt-in procedures could not be invoked in Spears because there had been a 20-month delay before counsel had been appointed in the state post-conviction proceeding. Id.

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    The ruling that the opt-in mechanism will not be applied in the Spears case or in any other case in which there has been a delay in appointing post-conviction counsel is frustrating. The delay in appointing counsel did not prejudice Spears. His post-conviction counsel never argued that the 20-month delay in appointment affected his ability to pursue the claims Spears raised in his post-conviction proceeding. Although Spears was given every advantage contemplated under the AEDPA opt-in provisions, the State has been denied the corresponding benefits to which it is entitled.

    The holding in Spears places undue emphasis on what is essentially an arbitrary date. There is no set time line for any criminal case. Sometimes there is a delay between the date of the crime and the date of the arrest. Sometimes there is delay prior to trial, or delay during the trial or state appellate process. If, for example, there had been a delay in preparing transcripts for the appeal, or if the Arizona Supreme Court had taken additional time to resolve Spears' direct appeal, the PCR proceeding might have commenced on or about the same date even without delay in appointing counsel. Again, there was no suggestion that the delay in appointment of counsel prejudiced Spears' case. In my view, Arizona should have been deemed to have opted in to the accelerated provisions for capital cases.

    That fact that Arizona has attempted to opt-in to the accelerated provisions of the AEDPA for capital cases does not signify an intent to foreclose a defendant's efforts to establish innocence. We have no interest in executing or even incarcerating an innocent person. We believe, however, that our state court system provides the necessary means to address claims of innocence, and that the federal habeas process does not measurably increase the likelihood that innocent persons will be vindicated.

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    The Arizona Rules of Criminal Procedure place no limitation on a defendant's ability to raise claims relating to newly discovered evidence or retroactive application of new substantive rules, and we permit DNA testing and retesting (as technology improves) at state expense any time there is evidence that may establish innocence. We have a specific rule of criminal procedure that exempts from the rules of preclusion any evidence that would establish that the defendant did not commit the crime or should not have been subjected to the death penalty. Thus, it is hard to fathom a claim of innocence for which an Arizona defendant would not be granted relief in state court, but which would entitle the defendant to federal habeas relief.

    The best way to improve our criminal justice system is to ensure that quality representation and adequate resources are made available for the main event—the trial and sentencing proceedings. We are trying to do that in Arizona, and we have a system that provides defendants in capital cases with two highly qualified attorneys at trial, another highly qualified attorney to handle a direct appeal, and yet another highly qualified attorney to handle state post-conviction proceedings. The direct appeal process includes review by the Arizona Supreme Court (whose members are appointed through a merit selection process) and the United States Supreme Court, and the post-conviction process permits review not only by the original trial court, but again by the Arizona Supreme Court and the United States Supreme Court. That same type of review is also available for successive post-conviction relief proceedings, where a defendant seeks to raise claims of newly-discovered evidence, change in the law, or freestanding claims of innocence.

    Providing this level of review at the state court level should decrease the number of meritorious claims that are presented in federal court (since federal habeas review permits only claims that have first been presented in state court). Nevertheless, during the past 10 years, we have seen an increase in the number of claims that are being raised in federal court and an increase in delay in federal court. That delay has prejudiced the state's and crime victims' interest in fairness and the finality of state court judgments, and has decreased public confidence in the criminal justice system.
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    An Arizona capital case, Smith v. Stewart, 241 F.3d 1191 (2001), provides an example of why habeas reform is needed. In Smith, the state courts rejected a claim of ineffective assistance of sentencing counsel (raised in Smith's third post-conviction proceeding) on the basis of a state procedural bar. The federal district court rejected the claim on the basis of procedural default, but the Ninth Circuit reversed, holding that the state procedural default ruling was intertwined with a merits ruling. The Ninth Circuit reasoned that, because a Comment to Arizona's procedural rules noted that for some issues of significant constitutional magnitude, the state must show a knowing, voluntary, and intelligent waiver by the defendant, Arizona's procedural default rule necessarily required a merits ruling on every defaulted claim. Arizona argued that the comment suggested only the need for an on-the-record waiver of certain types of claims, including the right to counsel or the right to a jury trial. The Ninth Circuit rejected the State's argument, as well as its request that the court certify a question to the Arizona Supreme Court to clarify whether a procedural default ruling necessarily encompassed a merits ruling. Arizona filed a certiorari petition in the United States Supreme Court, which reversed the Ninth Circuit's ruling.

    Although the State ultimately prevailed in the United States Supreme Court, the victory simply returned the parties to where they were two years earlier. In the meantime, every other case involving a procedural bar imposed by an Arizona court was similarly delayed pending resolution of Smith in the United States Supreme Court.

    Smith's federal habeas proceeding has been pending since 1994. The district court denied relief in 1996, and the case has been in the Ninth Circuit since then. Most recently, the Ninth Circuit ordered a stay to allow Smith to pursue a jury trial in state court on the issue of mental retardation, even though Smith had never raised a claim of mental retardation in state court or in the federal district court. Arizona filed a certiorari petition in the United States Supreme Court challenging that ruling. In October of this year, the United States Supreme Court again reversed the Ninth Circuit. In the meantime, proceedings had been initiated in state court to assess whether Smith is mentally retarded, and a court-appointed psychologist administered an IQ test on which Smith scored in the average range, which precludes a finding of mental retardation. The case, involving a 1982 conviction of first-degree murder, kidnapping, and sexual assault, remains pending in the Ninth Circuit.
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    In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005) (a non-capital case), the federal courts recently added another impediment to resolution of procedurally defaulted claims. Cassett never raised the claim at issue in state court (an alleged due process violation unrelated to guilt or innocence), and the district court found the claim to be precluded in a federal habeas proceeding. The Ninth Circuit reversed, however, ruling that because there has not been a ruling of preclusion by a state court, the case should not be dismissed and Cassett should be given an opportunity to return to state court to raise the claim. If the rule in Cassett is applied in capital cases, an already delayed process will be delayed even further to allow defendants to return to state court to try to litigate procedurally defaulted claims never raised in state court. As with the Smith case, Arizona is seeking further review of Cassett by the United States Supreme Court.

    In addition to Smith, there are several other examples of capital cases that demonstrate extensive delay in the federal habeas process:

Joseph Lambright

    Lambright was Smith's co-defendant, and was similarly convicted and sentenced to death in state court in 1982. In 2004, the Ninth Circuit ordered an evidentiary hearing on a procedurally defaulted claim that Lambright's counsel had failed to investigate as possible mitigation the possibility that Lambright suffered from post-traumatic stress disorder based on his combat experiences in Viet Nam.

    At the evidentiary hearing held last year in federal district court, the State established that Lambright was never in combat in Viet Nam; he was a mechanic who was never involved in a combat situation. The friend who Lambright claimed to have held in his arms after the friend was sawed in half by enemy fire, is in fact alive and well in Florida. The case remains pending in the Ninth Circuit; the only issue now before it is the propriety of the district court's ruling that Lambright did not establish that his counsel was ineffective for failing to assert post-traumatic stress disorder as a mitigating circumstance.
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Michael Corrrell

    Correll was convicted in 1984 of first degree murder in a triple homicide case. The trial court sentenced Correll to death after finding four aggravating factors beyond a reasonable doubt: that Correll committed the offense in expectation of pecuniary gain, that the murders were committed in an especially cruel, heinous or depraved manner and multiple homicides. Correll's federal habeas proceeding has been pending since 1987. The district court denied habeas relief in 1995. However, the Ninth Circuit ordered an evidentiary hearing regarding whether counsel was ineffective at sentencing.

    At the evidentiary hearing held in 2003, Correll called fourteen witnesses during the hearing including the original trial attorney, a mitigation specialist, a neuropsychologist, a psychiatrist and addictionologist, a toxicologist, and several of Correll's family members and friends. The State responded that if Correll had provided this alleged mitigation evidence to the trial court, it would have opened the door for the State to present powerful rebuttal evidence, including evidence of Correll's rape of a female psychiatric patient while he was undergoing treatment for his antisocial personality disorder, Correll's repeated sexual assaults against his sister while living at home, Correll's numerous escape attempts from mental health facilities, and Correll's participation in a number of armed robberies with this thirteen year old brother and fifteen year old girlfriend.

    In March 2003, the district court denied Correll his requested relief, finding that Correll did not suffer any prejudice as a result of his counsel's deficient performance. The district court held that, ''after all of the evidence that [trial counsel] could have obtained and presented has been reviewed, it is clear that the rebuttal and non-mitigating aspects of such evidence overwhelms any slight mitigation evidence.''
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    Correll immediately appealed that ruling to the Ninth Circuit, and the case has remained pending in that court since then. Thus, the case has been pending in federal court for 18 years.

Jasper McMurtrey

    The federal district court ordered an evidentiary hearing regarding whether the state trial court should have conducted a competency evaluation of capital defendant McMurtrey. The state court held an evidentiary hearing in 1994, after which the trial judge, who had presided over McMurtrey's trial, found that McMurtrey had been competent during trial. The district court nevertheless granted federal habeas relief, finding that there was not enough evidence from which the trial judge could reach the conclusion that McMurtrey was competent during trial, even though the evidence included the trial judge's own recollection of what happened. Arizona is seeking further review of that ruling.

    The common thread in these cases is not only excessive delay in federal court, but an absence of any allegation of factual innocence. The federal habeas process is not accomplishing its intended purpose in these and many other cases and is in fact undermining public respect for the criminal justice system.


[Note: Image(s) not available in this format. See PDF version of this file.]

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    Mr. COBLE. I thank you, Mr. Cattani.

    Ms. Killian, even though you are not a witness, the Subcommittee is pleased to welcome you at this hearing. It is good to have you here.

    Ms. Hughes you are recognized for 5 minutes.


    Ms. HUGHES. Thank you, Mr. Chairman and Members of the Subcommittee.

    I have come here today to talk to you about the tragedy that my family has gone through for the last 22 years. The last time that I saw my son Christopher, he had asked permission to spend the night at a friend's house, and he and Josh Ryen were on their bikes riding up the road turning around waving, laughing. I'll forever blame myself for sending my son to that house. The next time I saw him was an autopsy picture at a 16-week preliminary hearing.

    The next day, when Chris didn't come home in time for church, I sent my husband out to the horror that he has to live with the rest of his life, the nightmares that he has to have. He found Doug and Peg Ryen dead in their bedroom, 10-year-old Jessica dead in the hallway with multiple stabs and hack marks. The killer had actually pulled up her nightgown and carved on her chest after she was dead. He found 8-year-old Josh in his parents' bedroom, his throat slit from ear to ear, his fingers at his throat to keep himself from bleeding to death, and he had laid there for over 12 hours staring at the naked dead body of his mother.
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    Last of all, he found our son Christopher only 11 years old, our oldest child, dead on the floor in the master bedroom by a door, obviously trying to get out, away from the killer. He had more than 25 wounds made by a hatchet and a knife. Many of them were defensive wounds to his hands. He had tried to fight off his killer but to no avail.

    The person arrested for these crimes was a man who had escaped from the Chino prison under the name of David Trautman. It was found afterwards that they had mishandled the outstanding warrants and who they actually had there was someone wanted back east by the name of Kevin Cooper for a robbery and for a rape.

    He raped a young girl who happened to interrupt him when he was robbing a house, someone who was at the wrong place at the wrong time. He raped her with a screw driver to her throat. He was caught in the Channel Islands near off Santa Barbara raping a woman on a boat. Two years later, we had a guilty verdict, and we had a death penalty.

    We waited for the system of justice to work for us, our son and for the Ryen family. Mostly, we were silent as almost every year it came up in the papers, on the TV, on the radio, that it always seemed that these would coincide with special dates, Christmas, my son's birthday in December, Father's Day, Mother's Day.

    Finally, in 2004, we were told that an execution date had been set, February 10, ironically another date, my birthday.

    We were naive to think at that time that the system was finally going to work for us and for our son and for the Ryens.
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    It didn't really matter that Kevin Cooper was guilty. The defense saw fit to weave another fantasy. We were now going to blame the police and the district attorneys. They planted all the evidence. Kevin Cooper wasn't guilty. He was just framed.

    He became the poster child for a group of celebrities, religious leaders, political—politicians. The object was to stop the death penalty in California. Where was someone speaking out for our son and for the Ryens? We had no celebrity, no politician, no religious leader. No one was there for us, and we quickly realized that if Christopher was going to have a voice, it was going to have to be us.

    We proceeded to talk to any newspaper, radio, television program, anyone who would hear us cry out for justice for our son. This, evidently, was unusual. Evidently, victims don't fight. Evidently, we are quiet. We are beat down, and we don't speak up for ourselves. We went up to San Quentin on the day before the execution was supposed to take place. A three-judge panel from the Ninth Circuit Court that was totally familiar with the case had sent the case forward for execution. However, this wasn't good enough for them. Instead, they called an 11-judge en banc panel who had no knowledge of the case, who, to my knowledge, had never even read the transcript of the case. The defense weaved their fairytale fantasy, and the court bought into it. Four hours from the execution, they stopped it.

    The Ninth Circuit said a few simple, definitive tests needed to be done to prove that Kevin Cooper was really guilty. Well, almost 2 years later, we had been through the courts in San Diego once again. Kevin Cooper is still guilty. There has been no new evidence presented whatsoever. And now we are appealing again.
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    Recently, the defense has put forward to the Ninth Circuit Court an appeal that I am told is 6,000 pages long, 6,000 pages after 22 years.

    My family's story is probably just one of many in this country whose victims need help from you people.

    My son's death affected a lot of people. Maybe they weren't the politicians or the celebrities or the religious leaders. Maybe they weren't the people in the news. But we had hundreds of thousands of calls from the everyday people, the type of people that put you in the positions that you are in now, the voters in this country who were appalled by what the justice system was doing and the time that it was taking.

    We had calls from classmates of Christopher, calls from mothers who, at night, go in and look at their children, who are afraid to let them spend the night, other people who have nightmares.

    You have a chance to help fix a system that is broken. I have listened to your statements in spite of what you have—frankly, if you haven't been there, you don't have a clue what it is like to be a victim and to have a child, of all people, murdered. They say no parent should have to bury a child. You are right. No child should have to die in the type of horror that my son knew.

    The Federal system is totally being abused and mishandled. And you have got a chance with this Streamlined Procedures Act to do something positive to make this system work for other parents and to finally let us have justice for our son and for the Ryen family and maybe bring peace to Josh Ryen, the young boy that was only 8 years old when his throat was slit and who is now 30 years old and lives in horror. I urge you to seriously pass this bill. Thank you very much.
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    [The prepared statement of Ms. Hughes follows:]


    My husband and I are the parents of Christopher Hughes. Chris was senselessly and brutally murdered at the age of 11 by Kevin Cooper, an escaped convict with a lengthy criminal record. The legal proceedings against Cooper have now taken twice as long as the time our young son was alive. Before I talk about how the Streamline Procedures Act would have affected this case, I want to share with you who our son was and how he died at the hands of Cooper. I want you to be able to understand what the delays in this case have meant to us. It is our hope that our story will serve to bring about changes so that other families will not have to endure what we have been through.

    Christopher was a beautiful little boy. He had just completed the fifth grade at a local Catholic school. His classmates later planted a tree in his memory at the school. Chris swam on the swim team and dreamed of swimming for the University of Southern California and being in the Olympics. He loved his younger brother, and in typical brotherly fashion would tease him one minute and be his best friend the next. Chris' younger brother is now 28 years-old. He has missed Chris every day since he was murdered. Our younger son was not yet born when Chris was murdered. I was pregnant during part of Cooper's trial with our third son. When he was born we gave him the middle name Christopher after the brother he never knew. Both boys have only in the last few years been able to face what happened to their brother. As the years have passed, we are reminded that Chris never got to finish grammar school, go to a prom, marry, have children of his own, or pursue his dreams.
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    On Saturday, June 4, 1983, Chris asked me for permission to spend the night at the home of his friend, Josh Ryen. We lived in what was then a very rural neighborhood. Josh was the only boy nearby who was really close to Chris' age and so they formed a bond. We were good friends with Josh's parents, Doug and Peggy Ryen. The Ryens lived just up the road from our home with their 10-year-old daughter Jessica and eight-year-old Josh. The last time I saw Chris alive he and Josh were riding off on their bicycles toward Josh's house. They were excitedly waving because they were so happy I had given Chris permission to spend that night with Josh. The only thing Chris had to remember was to be home Sunday in time for church. The next time I saw Chris was in a photograph on an autopsy table during Cooper's preliminary hearing.

    Unbeknownst to anyone, Cooper had been hiding in a house in Chino Hills just 126 yards from the Ryen's home. He had escaped two days earlier from a minimum security facility at a nearby prison. When Cooper was arrested for burglary in Los Angeles he used a false identity. His identity and criminal past should have caught up with him before he was wrongly assigned to the minimum security portion of the prison. The prison, however, mishandled the processing of an outstanding warrant for Cooper for escape from custody in Pennsylvania. He was being held pending trial for the kidnap and rape of a teenage girl who interrupted him while he was burglarizing a home. While staying at the hide-out house near the Ryens, Cooper had been calling former girlfriends, trying to get them to help him get out of the area. A manhunt was under way for Cooper, but the rural community surrounding the prison was never notified of the escape.

    The failure of the California prison-system to protect the surrounding community from a dangerous felon marked the beginning of our family and community's being let down by our government. Within a few hours of Cooper's escape, prison officials realized who Cooper was and how dangerous he was. Nevertheless, they still failed to alert the community that he was at large. Our frustration and disappointment with our government's failings has only grown since that time as Cooper's case continues to wind its way down a seemingly endless path through our judicial system.
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    The morning following the murders, I remember being mad at Chris because he had not arrived home on time as promised so we could attend church. Then my anger turned to worry. I sent my husband Bill up to the Ryen home. He saw that the horses had not been fed, and that the Ryen station wagon was gone. Uncharacteristically, the kitchen door was locked, so my husband walked around the house. He looked inside the sliding glass door of the Ryen's master bedroom. He saw blood everywhere. Peggy and Chris were lying on the ground and Josh was lying next to them, showing signs of life but unable to move. My husband could not open the sliding glass door, so he ran and kicked open the kitchen door. As he went into the master bedroom, he found 10-year-old Jessica lying on the floor in fetal position in the doorway, dead. He saw Doug and Peggy nude, bloodied, and lifeless. When he went to our son Chris, he was cold to the touch. Bill then knew that Christopher was dead.

    My husband then forced himself to have enough presence of mind to get help for Josh, who miraculously survived despite having his throat slit from ear to ear. Josh, only eight years-old, lay next to his dead, naked mother throughout the night, knowing from the silence and from the smell of blood that everyone else was dead. He placed his fingers into his throat, which kept him from bleeding to death during the 12 hours before my husband rescued him.

    Everyone inside the home had been repeatedly struck by a hatchet and attacked with a knife. Christopher had 25 identifiable wounds made by a hatchet and a knife. Many of them were on his hands, which he must have put against his head to protect himself from Kevin Cooper's blows. Some were made after he was already dead. No one should know this kind of horror. That it happened to a child makes it even worse.

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    The killer had lifted Jessica's nightgown and carved on her chest after she died. The killer also helped himself to a beer from the Ryen's refrigerator. We wondered what kind of monster would attack a father, mother, and three children with a hatchet, and then go have a beer. That question has long since been answered, but 22 years later we are still waiting for justice.

    One way that things could have been different in our case under the Streamlined Procedures Act is that victims would have the same rights in federal habeas proceedings as victims have in criminal cases in the federal courts. In other words, victims or their surviving family members would be heard from by the federal courts. There was no indication that the en banc Ninth Circuit majority ever gave even a moment's consideration to the impact upon the victims and their families when they granted yet another stay in the case in 2004. In this way, the bill would have made a difference. It would have prevented federal courts from making decisions in federal habeas litigation that affect people without ever knowing or thinking about them. Judge Huff recently afforded us an opportunity to address her at the end of 14 months of proceedings in her courtroom. My husband and I spoke to the court, as did Josh, who is now 30 years old.

    While I know that Cooper is the one who murdered my son, I will always bear the guilt of having given Chris permission to spend the night at the Ryen's house. I will always feel responsible for sending my husband to find the bodies of our son and the Ryen family. It is a guilt similar to the guilt that Josh feels to this day because he had begged me to let Chris spend the night. He thinks that Chris would still be alive if he had not spent the night. Of course, Cooper is responsible for all the pain and suffering that he inflicted that night and the continued pain that has followed, but it does not help stop the pain and guilt. Kevin Cooper is still here over 22 years later—still proclaiming his innocence and complaining about our judicial system.
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    As Josh explained when he finally got a chance to speak to the Judge about how he has been affected by Cooper's crimes: Cooper never shuts up. We continually get to hear more bogus claims and more comments from Cooper and his attorneys. Over the years I have learned to know when something has happened in Cooper's never-ending legal case: the calls from the media start up again, or, at times, the media trucks just park in front of our house. We have no opportunity to put this behind us—to heal or to try to find peace—because everything is about Cooper. Our system is so grotesquely skewed to Cooper's benefit and seemingly incapable of letting California carry out its judgment against him.

    It is important to understand how obvious it has been for over two decades that Cooper committed these horrible, senseless, and brutal crimes. This has never been a ''who done it'' case by any stretch of the imagination, despite all the publicity and antics by Cooper and his attorneys. The California Supreme Court understandably characterized the volume and consistency of evidence proving Cooper guilty as ''overwhelming.''

    The Ryen family and Chris returned to the Ryen home from a neighbor's barbecue about 9:30 that Saturday night. None except for Josh were ever seen alive again. Cooper could observe the Ryen home from the hideout house next door. He knew it was a home and a family lived there because he had been watching the Ryen home for the two days since his escape. Cooper also had a motive for the crimes. The phone records from the hideout house, combined with statements Cooper's former girlfriends gave to police, showed Cooper was trying to get help to get out of the area. Cooper found out just before the Ryens and Chris returned to the Ryen home that night that no money and no help was coming his way, despite his numerous phone calls to former girlfriends. Forensic evidence established Cooper's presence in the hideout house (footprints, fingerprints, and semen). The murder weapons came from the hideout house, and other evidence showed that the killer returned to the hideout house after the murders to wash up.
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    Cooper told the jury that he simply walked out of the hideout house the same night as the murders. He said he never went inside the Ryen home, a mere 126 yards away. He claimed he was never inside the Ryen station wagon that was stolen the night of the murders. Not surprisingly, the jury did not believe him. Cooper was asking the jury to believe that some hypothetical killer entered Cooper's hideout house within a short period of time of his vacating it, selected a hatchet and other weapons, went and attacked an innocent family 126 yards away, returned to the hideout house to wash up, and then stole the Ryen family car and drove it in the same direction that Cooper admittedly traveled to Mexico.

    A single drop of blood inconsistent with the victims' blood was found inside the Ryen home on the hallway wall immediately adjacent to the entrance to the master bedroom. Cooper's own expert excluded anyone other than an African-American as the source of the drop of blood. (The Ryens were white.) A serology analysis showed that the drop of blood was a rare type and Cooper had that same rare blood type. The distinctive prison-issued tobacco that Cooper admitted having when he escaped from prison was found in the hideout house and in the Ryen station wagon. A butt from a hand-rolled cigarette found in the station wagon with the distinctive prison-issued tobacco had saliva from a non-secretor. Only 20 percent of the population, including Cooper, are non-secretors. Another cigarette butt found in the car was a manufactured cigarette matching the brand of cigarettes taken from the hideout house; it also had saliva from a non-secretor. A pubic hair consistent with Cooper's hair was found in the Ryen station wagon. Plant burrs found in the station wagon were from vegetation that grew between the hideout house and the Ryen home. The burrs were also found in the hideout house and underneath Jessica's Ryen's nightgown. Jessica's killer had pulled up her nightgown to carve on her chest after she died and then lowered her nightgown. A button similar to those on the prison-issued jacket Cooper was wearing when he escaped was found with blood on it on the floor of the hideout house. A shoe print made by a particular make and model of shoe that was issued by the prison to Cooper, and that he admitted at trial to wearing at the time of his escape, made a partial print in blood on a sheet on the floor of the Ryen master bedroom, and another print on the cover to the spa outside the sliding glass door leading into the Ryen master bedroom, and a third shoe print inside the hideout house.
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    In other words, Cooper's defense has always asked that we believe the utterly ridiculous scenario that a hypothetical killer coincidently entered the same house where an escaped convict had just been hiding shortly after the convict departed, selected a hatchet and other weapons, committed a brutal murder of a family, returned to clean up before stealing their car, and that the hypothetical killer was African-American and had Cooper's rare blood type, wore a prison-issued jacket and the same make and model of prison-issued shoes that Cooper wore, had the same shoe size as Cooper, had hair like Cooper's, and was a smoker and a non-secretor like Cooper, used distinctive prison-issued tobacco, and fled in the Ryen station wagon in the same direction that Cooper traveled.

    In 2001, after years of Cooper contending that he was innocent and his highly publicized demand for DNA testing, the State agreed to post-conviction testing. The evidence to be tested was identified by Cooper's own nationally recognized expert as the most significant pieces of evidence in the case in terms of determining guilt or innocence. The results confirmed Cooper's guilt. The single drop of blood that had been identified through serology analysis at the time of trial as belonging to a person of African-American ancestry with the same rare blood type as Cooper was consistent with Cooper's DNA profile; the probability of a random match with the population was a staggering one in 310 billion. The saliva on the cigarette butts in the Ryen station wagon also matched Cooper's DNA; the odds of a random match with the general population was one in 19 billion for the hand rolled cigarette and one in 110 million for the manufactured cigarette butt. At trial, Cooper claimed that a t-shirt that had been recovered from along side the road nearby the Canyon Corral Bar belonged to the ''real killer.'' The post-conviction DNA testing confirmed that the T-shirt had smears of blood belonging to the victims as well as Cooper's blood. The probability of a match in the general population to Cooper's DNA profile on the t-shirt is one in 110 million, and the random occurrence within the general population of a match to the victim's blood would be one in 1.3 trillion. The t-shirt, which was never used against Cooper at trial, was new damning evidence of his guilt: his blood was present on the same item of clothing as the victims' blood.
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    The fact that the overwhelming evidence of Cooper's guilt presented at trial was now bolstered by undeniable scientific evidence evoked a predictably absurd response from Cooper. Cooper now claimed that his blood had been planted on the shirt by police and the drop of blood found at the crime scene had been tampered with. Of course, Cooper could not explain how or why police would plant a minute amount of blood on the t-shirt only to never use it as evidence against him at trial. Moreover, this evidence had been in police custody since 1984. Apparently, these supposed rogue police officers also anticipated the development of the Nobel Prize-winning science that would enable Cooper to have the blood tested for DNA. Cooper also could not explain how the police could have planted his blood at the crime scene within a few hours of discovering the bodies, while he was still at large.

    The fact that Cooper's claims were patently absurd, however, did not prevent him from receiving yet another round of appeals from the federal courts. In February 2004, the Ninth Circuit authorized Cooper file another full round of habeas corpus appeals on the ground that he showed ''clear and convincing'' evidence that he could be ''actually innocent.'' I simply do not see how the judges could have reached such a conclusion.

    Our story is one of a judicial system so out of balance in favor of the convicted that it literally enables them to victimize their victims and their families all over again through the federal judicial system. We understood the rights of an accused and that Cooper's rights took precedence over ours as he stood trial. His trial was moved to another County because of the publicity surrounding the horrendous crimes. I had to drive a long distance to another County to watch the trial as it could not take place in our County. Cooper's defense attorney spent an entire year preparing to defend Cooper at trial. Everything was about Cooper's rights and none of our sensibilities or concerns could be dignified because Cooper had to have a fair trial. We understood and we waited for justice. In California, Cooper's appeal was automatic because he had received the death penalty for his crimes. The appeal took six years to conclude. We understood the need for a thorough appeal and we waited for justice.
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    By 1991, Cooper had received a fair trial and his appeal had been concluded. The California Supreme Court aptly observed that the evidence against Cooper, both in volume and consistency, was ''overwhelming''. Since then, we have waited and watched as the United States Supreme Court has denied Cooper's eight petitions for writ of certiorari and two petitions for writ of habeas corpus, and the California Supreme Court has denied Cooper's seven habeas corpus petitions and three motions to reopen Cooper's appeal. The Ninth Circuit affirmed the denial of Cooper's first federal habeas petition, and denied him permission to file a successive petition in 2001, and again in 2003. But then, on Friday night, February 6, 2004, Cooper's attorneys filed an application with the Ninth Circuit requesting permission to file a successive habeas petition.

    A three-judge panel of the Ninth Circuit denied Cooper's application to file a successive petition on Sunday February 8, 2004. Cooper was scheduled to be executed at one minute after midnight on Tuesday February 10, 2004. On Monday February 9, 2004, my husband and I made the trip to Northern California from our home in Southern California. Relatives of the extended Ryen family flew in from all over the Country. Josh Ryen, now 30, left for dead at the age of eight, his entire immediate family murdered, drove hundreds of miles to reach the prison to witness the execution of Cooper. We all expected that finally, this case would be brought to a close.

    Since the murder of Chris, holidays and special days are never totally joyful. They serve as a painful reminder that Chris is not with us, and of how he was taken from us. Otherwise happy occasions with our surviving children often are overshadowed by what Chris should have been able to experience in his life but for Cooper's choices and actions. When I learned from the prosecutor that Cooper's execution was going to be set for February 10, 2004, I asked to have it changed because February 10th is my birthday. The prosecutor explained that it was not possible to accommodate my request because the date had been chosen in order to coordinate the staffing of the hundreds of people who must be on duty when an execution is scheduled to be carried out, i.e. the personnel at the prison, at the appropriate state and federal courts, and at the California Attorney General's Office. With that explanation, I at least hoped the date would be one that would be remembered for justice being served at long last. Sadly, that date is now identified with yet another example of a judicial system gone wrong.
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    If the Streamlined Procedures Act had been law in February 2004, Cooper would have been executed as scheduled. My birthday would not forever be a reminder of how it felt to believe that this case would finally end—only to have it begin again, 21 years after it first began. Today, my family and Josh Ryen are left to wonder if there will ever be justice for my son and the Ryens.

    The reason that Cooper would have been executed as scheduled under the SPA was because a three-judge panel that was familiar with his crimes and the lengthy procedural history of his case already had rejected Cooper's request to pursue yet another habeas petition in the federal District Court. Unfortunately, since the Streamline Procedures Act was not the law, the Ninth Circuit was left free to decide that Congress' prior habeas reforms, which provided that a three-judge panel has the final word on whether a successive federal habeas petition will be allowed, did not really mean what they said. While Congress specified that there would be no petitioning for rehearing of the three-judge panel's decision, the Ninth Circuit decided that what Congress really meant was that a rehearing would be just fine if it was the appellate court's idea to have a rehearing as opposed to one of the parties.

    Of course, the problem with the Ninth Circuit's logic is that it resulted in judges who had absolutely no familiarity with Kevin Cooper's crimes or the history of his case making a last-minute decision about it. Only hours before Cooper's scheduled execution, these judges would decide whether he would get yet another round of federal habeas review. Not surprisingly, having the decision made by the en banc panel that did not include a single judge with any familiarity with Cooper's case did not improve the quality of justice. Cooper's application for a successive petition and supporting exhibits was deliberately presented late in the process and was over 1,000 pages long. It contained nothing meritorious or worthy of review. The outcome was a gross miscarriage of justice.
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    The Ninth Circuit's authorization for the filing of a successive habeas petition resulted in

    further proceedings in the federal District Court which served to reveal exactly how wrong it was to give Cooper yet another round of federal review. After 14 months of proceedings in the District Court, we now know that the entire premise of the Ninth Circuit's decision to grant Cooper the opportunity to file yet another federal habeas petition was predicated on false assumptions and mistaken impressions. The en banc majority of the Ninth Circuit decided in a matter of a few hours that two ''quick and definitive scientific'' tests could be conducted with respect to Cooper's continuing claim of actual innocence. The subsequent proceedings in the District Court showed the tests were anything but quick. After considerable time and expense, both tests were conducted and neither supported Cooper's claim of innocence. So here we are, 17 months after this case should have been put behind us, and law enforcement, prosecution and judicial resources continue to be wasted on a guilty man whose crimes were committed over 22 years ago. The same judge who decided Cooper's first federal habeas petition just issued a 160 page decision explaining in detail why he is not innocent and why he is not entitled to relief on any of the claims that the Ninth Circuit allowed him to file. Cooper is now asking for his numerous baseless federal habeas claims to be certified for appeal to the Ninth Circuit. His attorneys apparently envision many more years of appeals.

    The claim that the majority of the en banc panel identified as satisfying the ''actual innocence'' test enacted by Congress in 1996 that enabled Cooper to return for yet another round of federal habeas review was his claim that the prosecution withheld exculpatory evidence relating to the shoe prints in the Ryen house. Cooper left a partial print in blood on the Ryen's bedsheet, a print in dust on the spa cover outside the sliding glass door leading into the Ryen masterbedroom, and another shoe print in the hideout house. The shoe that Cooper wore when he left the damning shoe print evidence was a make and model that was issued to him by the prison. He also admitted at trial that he was wearing these shoes at the time of his escape from the prison, just days before he murdered our son and the Ryens. The fact that Cooper admitted to wearing the particular make and model of shoe did not prevent the en banc majority of the Ninth Circuit from deciding that ''information'' from the former Warden, if believed by the jury, would mean the jury ''would have known that Cooper was almost certainly not wearing'' the same brand and model of shoe responsible for the distinctive shoe prints inculpating him in the brutal murders. Of course, nothing in Cooper's papers supported that conclusion. Not even Cooper's attorneys argued that the former Warden's ''information'' would have meant the shoes could not have been issued by the prison, yet this is the conclusion that caused the en banc majority of the Ninth Circuit to let Cooper file yet another habeas petition in the District Court.
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    Cooper's attorneys' contention was, of course, completely false but, the Ninth Circuit en banc panel, unfamiliar with the details of the case, managed to buy into the version of events conjured up by Cooper's counsel. The Ninth Circuit could not have gotten everything so wrong had they not undertaken to decide such an important matter over a span of just a few hours, rather than leaving matters to the three-judge panel that was actually familiar with Cooper's case.

    What Cooper's attorneys actually argued in their eleventh hour filing was that the murder shoes had been purchased by the prison at Sears and were readily available to the public in retail stores. They based this allegation on the former Warden's ''personal inquiry,'' which she supposedly had conducted and conveyed to the San Bernardino County Sheriff's Department before trial. Of course, as the former Warden testified later in front of Judge Huff, she did not conduct a ''personal inquiry.'' Instead, she just asked someone and they told her information that was inaccurate. The corporate records and prison purchase records introduced at trial clearly showed the prison bought the shoes directly from the manufacturer, and the sales records of the corporation showed sales only to state and federal institutions such as the military, forestry service, and prisons such as that from which Cooper had escaped before the murders.

    A greater familiarity with the evidence in the case would have enabled the judges on the en banc panel to understand that Cooper admitted to having been issued the make and model of shoe that left the incriminating foot prints, and he admitted to wearing the shoes when he escaped only days before the murders. Those facts, combined with the fact that the prints were consistent with Cooper's shoe size, along with all the other evidence incriminating him, is what made the shoe prints damning—not whether the prison bought the shoes at Sears or whether anyone else could buy the shoes at Sears. As if missing this point were not infuriating enough, it also turns out that everything the former Warden said to Cooper's attorneys is absolutely wrong, and that the defense as well as the trial jury knew all along where the prison had purchased the shoes and who else had purchased those kinds of shoes. Imagine this scenario: everything is stopped just hours before an execution, after two decades of litigation, because of inaccurate hearsay offered by the same warden who put a violent offender in the minimum security portion of the prison, allowing Cooper to escape and commit the murders in the first place.
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    Not only was the entire claim misunderstood and false, the Ninth Circuit also was misled as to how long the defense knew about the ''facts'' supporting the claim. The time frame in which the defense learns something is a critical fact to be considered when something is asserted at the last minute after years of litigation. The importance of when something is discovered in the context of an application to file a successive petition is evident from the decision of the en banc majority, which expressly states when it believed Cooper's defense learned of the ''new'' information. The decision expressly noted that a sworn declaration by Cooper's counsel showed that the Cooper defense did not become aware of former Warden Carroll's ''information'' until the date on her declaration, which was January 30, 2004. If we were not already completely disgusted with our judicial system, we certainly were when we sat in Judge Huff's courtroom while a Cooper defense investigator testified that he had discovered Warden Carroll's ''information'' years earlier, and that Cooper's attorneys had had that information for years and knew that it was worthless because, as everyone had known since trial, the shoes had not been purchased from Sears and were not readily available in retail stores. In other words, the whole appeal was based on a lie. It was based on worthless evidence that Cooper's lawyers held back until the last minute, so that they trick the en banc Ninth Circuit into grant a second-appeal application that it never should have been considering in the first place.

    The decision of the en banc majority also shows a lack of understanding of the evidence against Cooper in other ways as well. The hastily crafted opinion noted: ''[t]here was, of course, evidence pointing to Cooper's guilt at trial.'' The opinion then references a spot of blood on the hallway wall of the Ryen house, the bloody T-shirt, and hand-rolled cigarettes from the Ryen car.'' But the so-called bloody T-shirt was never used as evidence against Cooper at trial. Instead, it was Cooper's defense attorney who had waived it around and argued that it belonged to the ''real killer'' as he tried unsuccessfully to cast suspicion on three unknown patrons who visited a local bar on the night of the murders. Remarkably, the en banc panel that decided to grant Cooper more appeals thought the T-shirt was used as evidence against him at trial. Hours before Cooper's execution, the Ninth Circuit en banc panel majority wanted a ''quick and definitive scientific'' test conducted to determine whether Cooper's blood was planted on evidence that was never used against him at trial. This error was magnified when the test turned out to be neither quick, definitive, or even scientific—or helpful to the defense.
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    The other scientific test that the en banc Ninth Circuit panel ordered for Cooper was mitochondrial DNA testing of hair that Jessica supposedly was ''clutching'' in her hand at the time she died. Cooper argued it could identify the real killer. It came as no surprise, after spending $2,500 per hair, that the victims could not be eliminated as the donors of the hairs selected by Cooper's own expert. Common sense suggests that when a person is attacked with a hatchet and multiple blows are struck to the head, clumps of cut hair will adhere to the victims' bloodied hands. Cooper's expert from trial and post-conviction testing himself explained that the theory that young Jessica clutched her killer's hair in her hands was absurd because a dead person cannot clutch anything. Also, how would a little girl, attacked in the dark by a hatchet-wielding assailant, ever manage to pluck hairs from her assailant's head? The whole argument that Jessica was ''clutching'' her killer's hair is absurd. The only thing that it accomplishes is to force her family and my family to once again focus on the horrific manner in which the Ryens and my son died.

    The Streamlined Procedures Act also would have changed the course of Cooper's case by limiting the amendments that he filed to his first federal habeas petition. Cooper first asked the federal court for a stay of execution in March of 1992. In August of 1994, he finally filed his first habeas petition. He was allowed to amend his petition in April of 1996. Then Cooper was again allowed to amend his petition in June of 1997. The Streamlined Procedures Act would allow one amendment as a matter of right before the answer is filed, and any amendment after that would have to present meaningful evidence that the petitioner did not commit the crime. Obviously, under these standards, Cooper would not have been allowed to amend his petition twice over a three year period. Years of delay could have been avoided.

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    The Streamlined Procedures Act also would not have permitted Cooper's appeal from the denial of his first federal habeas petition to take as long as it did. Cooper's appeal of the 1997 denial of his first federal habeas petition was not completed until 2001—over three and a half years. The SPA would have required that the matter be resolved within 300 days of the completion of briefing by the parties, and would require a rehearing decision to be made within 90 days, a rehearing by a three-judge panel to be completed within 120 days, and a rehearing en banc to be completed within 180 days. Years of delay in Cooper' appeal in the federal court could have been avoided.

    Every state and federal court has repeatedly and consistently upheld the judgment against Kevin Cooper, yet 22 years later he still has not answered for his horrific crimes. My husband and I urge you to reform the federal habeas system so the profound abuses and manipulations that have allowed the murderer of our son to evade justice for over 22 years will finally be brought to an end.

    Mr. CHABOT. Thank you Mrs. Hughes.

    Ms. Friedman.


    Ms. FRIEDMAN. First of all, I would like to thank you, Mr. Chairman, for holding this hearing.

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    Punishment of crime, particularly in death penalty cases, is a highly charged subject. Confronting the minutia of the laws and actual practice can be very challenging. Some people tell me sometimes boring.

    Habeas corpus is a very, very complicated subject and has become even more so over the last decade with the procedural rules and technical requirements often referred to as Byzantine. But we should make no mistake about it. This is a very radical bill. It proposes to gut years of Supreme Court case law, most of it by the Rehnquist court. In many places, it would amount to a virtual repeal of the writ of habeas corpus.

    Hearings like this one, a careful examination of the actual effects of this bill across the country, are critical. My understanding, Mr. Chairman, is that some of the most drastic provisions of this bill are being attached piecemeal to other legislation without the debate undertaken today and without even the consideration by the Subcommittee.

    I hope these issues are not resolved in that way.

    Hearings such as this one, where there can be open and public debate on the merits of the legislation, are essential. I thank you for the privilege of submitting my remarks and appearing before you today.

    I say that this bill is radical not only because it would fundamentally change the time-honored American remedy of habeas corpus in an unprecedented fashion, it would also destroy the last and often the only chance of fairness for thousands of State prisoners. For many, particularly those on death row, Federal Court is the first place one has access to a paid and competent lawyer, any resources to prove the case and an unbiased decision maker not facing re-election pressure in the community where a terrible crime occurred.
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    Where I practice in Alabama, almost three-quarters of the current death row population was represented at trial by an attorney who got paid $1,000 for all the work he or she did, out of court, preparing the case.

    There is no public defender system in Alabama, no institution comparable to district attorneys or attorneys general who gain expertise in handling capital litigation. There is no right of access to forensics or DNA labs or even investigators who could prove the accused's defense or even his innocence, trials where first guilt and then life is at stake. That is two trials, and sometimes jury selection as well have been known to last less than 3 days in Alabama. The situation of State post-conviction, which if this bill were to become law would be the last place to look for justice, is worse.

    Alabama death row inmates are not entitled to an attorney at all until after they file their petition for relief. This is after their Federal statute of limitations may even have run out. The State of Alabama does nothing to provide these inmates with counsel at this juncture, though this is when the prisoner must file a pleading that will withstand all of the procedural defenses that the State lawyer immediately and always asserts. Indeed, the Alabama Attorney General has watched the statute of limitations clock run out on an unrepresented death row inmate and then contacted them to let them know they would be seeking an execution date because the deadline was missed. If a prisoner does manage to get a lawyer, that attorney will lose money doing the case. He or she will be paid a total of $1,000 for however long it takes to prepare, research, litigate, defend and present the case.

    The State typically will oppose every attempt made for discovery, for experts or even for investigative help. The case will usually be decided by the same elected judge who imposed the death sentence originally. Even often over the express wishes of the jury, even though that jury was comprised of people in favor of the death penalty, even when they determined that the defendant's life should be spared, Alabama law permits judicial override. And about a quarter of the people currently on the row got there even after jury verdicts of life without parole.
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    As it stands now, the habeas law is completely unforgiving of any mistakes that post-conviction lawyers, unpaid, coming in late, without help, without access to discovery, any mistakes that he or she made or any claim he or she neglected to raise. There is no constitutional right to post-conviction attorneys, much less to competent or paid lawyers. Thus when lawyers miss their clients' deadlines, under the habeas law as it stands today, those clients will die without Federal habeas review. This has already happened a number of times. Under the AEDPA, it is likely to happen more times more.

    As I noted more extensively in my written remarks, it is important to recognize and consider just how strict habeas law has already become. All habeas petitioners are now subject to a statute of limitations. There is no right anymore to a Federal evidentiary hearing. Claims subject to legitimate State procedural defaults are barred forever from Federal review. There is only one shot at a habeas petition. Federal judges must generally defer to all State court fact findings, and relief cannot be granted, even if a State court decision maker got it wrong, unless he or she also got it unreasonably wrong. To put it mildly, it is not easy for a petitioner to get past the hurdles erected by the AEDPA. But it is still possible.

    For example, the prosecution at Bo Cochran's Alabama trial intentionally removed nearly every qualified black juror from that case. The State courts found the claim defaulted. The Federal Court said the State courts didn't apply it fairly. Bo Cochran was acquitted at his retrial.

    I see my time is up. I will end quickly. At the Delma Banks' Texas trial, the State lied throughout about what it did to its witnesses. It paid them. It coached them. It lied throughout. When the case was taken by the U.S. Supreme Court, the main defense by the State was that defense didn't catch the lie soon enough. The Supreme Court overturned the case.
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    Had this bill been law, Delma Banks would have been executed. As I mentioned in my remarks, Arkansas' death row inmate Ledell Lee was represented by a drunk lawyer. In post-conviction, the State judge, the State lawyer knew that, but the State courts approved it anyway. Under this law, he would have gotten no relief.

    I could go on and on. I will not. Let me just add, the Senate has looked at this bill several times. It has held hearings. It has met and conferred. I have spoken with staff members on both sides of the aisle. It has changed that bill twice, offered two new substitutes. It has eliminated section 6 altogether, gotten rid of the appeal effects of section 9, changed the tolling revisions and done other things. I urge this Committee to please do the same.

    [The prepared statement of Ms. Friedman follows:]


[Note: Image(s) not available in this format. See PDF version of this file.]

    Mr. COBLE. Thank you Ms. Friedman. We impose the 5-minute rule against ourselves as well so we will commence the examination now.

    Mr.—pronounce your surname for me again, please.

    Mr. DOLGENOS. Dolgenos, Mr. Chairman.
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    Mr. COBLE. Mr. Dolgenos, one issue which surrounds this subject matter is the cost of relitigating. Comment on that, for me, if you will.

    Mr. DOLGENOS. Well, Mr. Chairman, as I said in my remarks earlier, in my little office in Philadelphia—it is not that little, but it is small compared to some of the agencies we see around this city. We have had to increase the number of lawyers who work full time on habeas by 400 percent. And the reason that is, as far as I can see, is that when a prisoner files a habeas petition, it doesn't, despite the existence of a statute of limitations, despite the existence of various default provisions, it does not go away easily, even if it is patently frivolous.

    The fact is, we have far more evidentiary hearings now than we ever did before, evidentiary hearings about whether the time bar should be applied in a particular case, evidentiary hearings about whether the State court proceedings were fair, far more evidentiary hearings than we used to have before the passage of AEDPA. In fact, last year, I think we had something like 20 Third Circuit appeals in my unit. Before AEDPA was passed, before the last 5 years, we had hardly any. And I think it is not because AEDPA is so complicated. I think it is because there are so many judicial exceptions, judicially carved exceptions to each and every bar in AEDPA, that litigation snowballs every time habeas petition is filed.

    And that means that those of us in State and local governments have to take money away from the investigation of crime, away from the prosecution of crime, and put it into the habeas unit where, frankly, I think it's better spent elsewhere.

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    Mr. COBLE. Thank you, sir.

    Mr. Cattani, in the 1996 act, Congress created a special expedited habeas corpus procedure into which States can opt-in by creating a mechanism for providing high-quality counsel to defendant's own State post-conviction matters.

    Tell us what your State has done to that end.

    Mr. CATTANI. After the AEDPA was enacted, we enacted heightened standards for attorneys who would represent defendants in post-conviction proceedings. The standards require extensive experience to be qualified to act as lead counsel in a post-conviction proceeding.

    We've ensured that there is adequate funding for defense attorneys to handle these post-conviction proceedings, as I indicated. In some cases, more than $100,000 has been spent for post-conviction proceedings; and in those post-conviction proceedings, what we generally see—the post-conviction proceeding is the primary opportunity to raise claims such as ineffective assistance of counsel. And the claim that we routinely see is counsel should have developed additional mitigation.

    So notwithstanding the fact that the initial—our trial attorneys are well-funded and conduct a mitigation investigation at trial, we repeat the mitigation investigation during the post-conviction proceedings. Notwithstanding the fact that we've then had that type of a hearing in post-conviction proceedings, we move to Federal court, and we still get claims of ineffective assistance of counsel for not developing additional mitigation.
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    But the point—going to the question that you raise, we have implemented a system that provides highly qualified attorneys to represent defendants in post-conviction proceedings, but we haven't been able to take advantage of the opt-in requirements.

    Mr. COBLE. Ms. Hughes, you've mentioned in your testimony that you're not—you're not alone in this situation. Do you know other families that have experienced similar difficulties in finalizing the problems that plague them?

    Ms. HUGHES. All I can say to answer that is, I live in a State where the death penalty is seldom ever carried out. If you're the family of a victim and the murderer of your family member is on death row and he's been there for a long time, they're in the same boat that I am.

    We've seen recently in California—and it was tragic that the parents, Doug and Peg, were killed, but I'm coming here as a mother, I'm talking about someone who kills a child.

    We've had a lot of very high-profile child murders in California. We've got cases that have been tried, are waiting to be tried; and I know that these parents—and I see some of them when they've had the verdict and they go, ''Thank God it's all over,'' and I go, ''You'd better pray because you're just—you're just beginning to see what the system is like and how it's not going to work for you.'' Twenty-two years is too long.

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    Mr. COBLE. Well, I see my red light has appeared.

    My aunt, Ms. Hughes, recently lost a child, natural death, but she said to me, as you have told us, that the saddest day in a parent's life is burying a child because it's supposed to be the reverse.

    The gentleman from Virginia.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Dolgenos, I assume it's your position that most of these petitions are without merit; is that true?

    Mr. DOLGENOS. I would say so, yes.

    Mr. SCOTT. And some have merit?

    Mr. DOLGENOS. That's correct.

    Mr. SCOTT. Is it important to have finality if you're dealing with someone that happens to be innocent?

    Mr. DOLGENOS. I think it's legally untenable to imprison or execute someone who's innocent; it's important not to punish the innocent.

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    Mr. SCOTT. Okay. Well, exactly what happens now if you have someone who's probably innocent?

    Mr. DOLGENOS. Well, what we have, sir, are claims of innocence that reasonable people can disagree about; and the question is whether or not we need to channel that to a jury or——

    Mr. SCOTT. The jury has found them guilty. Now you've got evidence that shows they're probably innocent.

    Mr. DOLGENOS. If I believed, sir, that someone——

    Mr. SCOTT. What is their right, not what you believe. They can convince you—because you've already prosecuted them. Do they have an independent shot at a judge to show they're probably innocent?

    Mr. DOLGENOS. Yes, they do. It depends——

    Mr. SCOTT. Well, now you have to show clear and convincing evidence that they're guilty. That's a higher standard than probability; is that not right?

    Mr. DOLGENOS. That's correct, sir.

    Mr. SCOTT. Ms. Friedman, what happens if you've got somebody that's probably innocent?
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    Ms. FRIEDMAN. Through this bill?

    Mr. SCOTT. Yes.

    Ms. FRIEDMAN. They would not be able to make it through under this bill. These innocence provisions are not fail-safes for the innocent by any measure for many reasons. One of them is that there is no provision here for even presenting any evidence. The court wouldn't even have jurisdiction under this bill; it's a jurisdiction-stripping bill.

    Mr. SCOTT. Well, suppose a lawyer prematurely files an unexhausted claim on page 3, lines 1 through 3 of the bill. If you file an unexhausted claim that is, for procedural reasons, thrown out, what does ''dismissed with prejudice'' mean?

    Ms. FRIEDMAN. That claim is gone forever, you can never litigate that.

    Mr. SCOTT. So if it's prematurely filed and you get yourself together and you have a valid claim, but you messed up and prematurely filed it, it's dismissed with prejudice so that when you get it together it can't be brought back?

    Ms. FRIEDMAN. That's absolutely right, unless you can prove not only innocence to a clear and convincing—there's many things wrong with that standard. It's got to be tied to the claim. It's innocence-plus. It's not even enough if you're innocent.

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    Mr. SCOTT. Clear and convincing is a higher standard than probability, so if all you've got to show is that you're probably innocent, the court doesn't have jurisdiction to hear the case?

    Ms. FRIEDMAN. That's correct. And it's even beyond that. You have to show that that evidence wasn't available before, so that if you had a bad lawyer, who never put it on, you're out of luck as well.

    Mr. SCOTT. On page 7, line 10, it shows that, unless determination that the error is not structural is contrary to clearly established Federal law.

    Mr. Cattani, what's the difference between clearly established Federal law and Federal law?

    Mr. CATTANI. Clearly established Federal law is law as determined by the United States Supreme Court. There has to be a decision from the United States Supreme Court.

    Mr. SCOTT. What do the words ''clearly established'' do? I mean, if it's contrary to Federal law, what does ''clearly established'' do to that sentence?

    Mr. CATTANI. It suggests that there's no reasonable dispute among jurists.

    Mr. SCOTT. So if the court decides that it's contrary to Federal law, it's not clearly established, then you can't be heard; is that the deal?
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    Mr. CATTANI. I'm not familiar with the specific provision that you're looking at.

    Mr. SCOTT. Page 7, line 10.

    Mr. CATTANI. I guess—the important point, I guess, for me is that——

    Mr. SCOTT. Those words aren't in there by accident. What do they mean?

    Mr. CATTANI. This is collateral review, and as Representative Lungren pointed out, if, for example, you commit a Federal crime, you have a trial, an appeal, a post-conviction proceeding.

    We have those same provisions in State court, and then this is another layer of review on top of that. And I think it's appropriate to have a higher standard—greater requirements to pursue your appeal in that setting in a Federal collateral review——

    Mr. SCOTT. So if a State court has decided, then the Federal court doesn't second-guess the State court; is that the deal?

    Mr. CATTANI. That is correct.
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    Mr. SCOTT. Okay. Is a guilty person entitled to a fair trial?

    Mr. CATTANI. Yes.

    Mr. SCOTT. Suppose everybody agrees you didn't have a fair trial, but you're not claiming innocence?

    Mr. CATTANI. I guess I have more confidence in our State court system——

    Mr. SCOTT. So a guilty person is not entitled to a fair trial. If everybody up there agrees that the trial was not fair, but the person was guilty, is a guilty person entitled to a fair trial?

    Mr. CATTANI. Certainly a guilty person is entitled to a fair trial.

    Mr. SCOTT. And what is his remedy if it's no fair trial?

    Mr. CATTANI. If it's not a fair trial, he certainly has all of these avenues of appeal that I've outlined.

    Mr. SCOTT. How do you get in if you're not claiming innocence?

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    Mr. CATTANI. Well, you get in by raising your Federal constitutional claims in State court, and then you get to raise those claims again in Federal court.

    Mr. SCOTT. Without a claim of innocence?

    Mr. CATTANI. Even without a claim of innocence, yes.

    Mr. SCOTT. Ms. Friedman, can you get into Federal court under these without a claim of innocence?

    Ms. FRIEDMAN. Not for any claim that has been in any way defaulted, unexhausted, unamended. So if you didn't have proper counsel or if the State withheld evidence—and that's one of the problems with this bill, it does nothing if the State lies, it withholds evidence and denies access to discovery, it's going to be too late when you get to Federal court to raise that claim.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. COBLE. I thank the gentleman.

    The gentleman from California, Mr. Lungren.

    Mr. LUNGREN. Thank you very much, Mr. Chairman.

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    Ms. Friedman, in your testimony on page 2 you talk about the Federal forum being available for habeas petitions for centuries, and that after the 1970's the implementation of the habeas remedy generally focused on whether the petitioner had been deprived of a fair trial. Yet the Supreme Court, in Felker v. Turpin doesn't seem to agree with you.

    The Supreme Court said that, in these words, the first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under State authority. Again, the Supreme Court said it was not until 1867 that Congress made the writ generally available in all cases where any person may be restrained of his or her liberty in violation of Federal law.

    The Supreme Court goes on to say, and it was not until well into this century—that is, the 1900's—that this court interpreted that provision to allow a final judgment of conviction to be collaterally attacked on habeas.

    I view that as suggesting there's a great distinction between the great writ and the statutory writ that we are talking about here today.

    Do you still stand by your statement that the right to litigate in a Federal forum a habeas petition has existed for centuries?

    Ms. FRIEDMAN. Yes, Congressman Lungren.

    Mr. LUNGREN. Okay, that's fine. You can disagree with the Supreme Court here. Many of us do, as well.
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    Talking about the ''actual innocence'' test, people have to understand under this bill, procedural default, if the claim goes to the innocence, the Federal court can still consider, under the ''safe harbor,'' the claim even if not exhausted. If it doesn't relate to innocence, then the claim would be dismissed.

    Again, that goes to Mr. Cattani's suggestion that there ought to be a higher standard in this subsequent, subsequent, subsequent review by the Federal courts.

    Ms. Friedman, you state in your testimony on page 18 that we should not be misled into believing that the bill's exceptions to sections 2, 3, 4 and 9 will identify the innocent. The exception that these sections illustrate is that codified in 28 U.S.C. 2254E2, which requires that the evidence of innocence be new or previously undiscoverable, and that the evidence clearly shows innocence.

    This standard was enacted in 1996, the same standard to limit the right of habeas petitioners to file a second or successive habeas petition, as was also enacted in 1996. Both of these standards have now been around for 9 years and have been used to bar hundreds if not thousands of claims from going forward.

    Can you give me one actual case, not a hypothetical case or a case that you think would have been affected had this section applied—can you name one actual case where either 2254E2 or 2244E2 was applied to the actual case out of the many cases where the sections have been applied and where this test has denied relief to a prisoner who reasonable people would agree was actually innocent?
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    Ms. FRIEDMAN. I'm glad you brought up those sections.

    Those sections were a part of a bill, and they apply in the AEDPA in two places. One is to limit repetitive filings, and the other is to limit evidentiary hearings when the petitioner is not at fault. So those are both standards that are very different from what's in this bill. This bill would limit—would use those same standards to limit any ability to get into Federal court at all. So it's a very, very different situation.

    Mr. LUNGREN. The standard is the same, but it's applied in a different manner?

    Ms. FRIEDMAN. It's applied in a wholly different manner. These are applied in the ability ever to get Federal habeas review of a claim. Those were used to limit repetitive filings, and have halted repetitive filings of habeas petitions for all intents and purposes; or to limit Federal evidentiary hearings when the petitioner himself was at fault for not presenting the evidence. Those are not what this is about here.

    Mr. LUNGREN. Let me ask you this: Do you think there is any need to reform habeas petitions at all, given, in fact, that we have these instances, such as Mrs. Hughes' case, of what appear to be interminable delays?

    Ms. FRIEDMAN. My heart, of course, goes out to Mrs. Hughes——

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    Mr. LUNGREN. That's not the question I asked.

    Ms. FRIEDMAN. But I would like to say that, thank you.

    Yes. If cases are going on and on, that is a problem. And there are lots of problems that I think should be looked at in this bill and not just those. But it seems to me, that is about timing and the length of time something takes in Federal court, not the ability to go to Federal court at all, which is what this bill says.

    Mr. LUNGREN. Okay. Well, let me ask you that, then.

    In one specific part of the bill we allow expeditious review if a State—if a State follows the outline that we've established actually in the 1996 bill, which would improve the kind of representation that those defendants would get. Would you support that?

    Ms. FRIEDMAN. I think having incentives for States to improve their counsel is a terrific idea.

    What happened in 1996 is that it was put into the bill and very few States attempted to meet it. Some did, without changing their systems at all, and then gave up; some said they didn't need it at all.

    Mr. LUNGREN. Which States have been approved by the Federal courts thus far?

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    Ms. FRIEDMAN. Arizona will meet it. It did not meet it——

    Mr. LUNGREN. No, no. I asked which have thus far, since 1996?

    Ms. FRIEDMAN. None have.

    Mr. LUNGREN. By the action of the Federal courts?

    Ms. FRIEDMAN. No, by their own actions, they have not improved their systems, and this bill rewards them for not improving their systems.

    Mr. LUNGREN. Well, since my office wrote the 1996 law, and we wrote it to pattern after the practice in California, it seems rather strange that the very law that we wrote that was patterned after what we had done to improve the situation in California has not been deigned by the Ninth Circuit to meet those standards.

    And what I would ask you is, why can't we have some authority that has no interest in this whatsoever; that is, the Attorney General of the United States—these are State cases—he has no real interest in it; there's no conflict there in the Circuit for the District of Columbia to do that rather than have what we have now, which—where there is a conflict? Because what you're asking the courts to do is to say, Okay, you'll have expedited procedure, we'll have less chance to look at this, as we have imposed upon you in the past. So really there's no incentive for us to actually say that your State qualifies.

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    Ms. FRIEDMAN. Three quick answers to that. One is that the Attorney General——

    Mr. COBLE. Ms. Friedman, if you will answer tersely because——

    Ms. FRIEDMAN. Okay. The Attorney General is not——

    Mr. COBLE. But it is Mr. Lungren's bill, so we'll be generous with him. Go ahead.

    Ms. FRIEDMAN. Thank you.

    The Attorney General of the United States comes in on the side of States in habeas cases against petitioners often; it has never, to my knowledge, come in on the side of a petitioner.

    I think what this bill also does is, it doesn't just speed up the process, which is what the original AEDPA contemplated; it repeals jurisdiction entirely for any State that meets the opt-in, and I think that is an enormous problem.

    Mr. LUNGREN. I will just mention, the Attorney General does at times sue States in the Union, prosecutes officials of States when they find that they violate civil rights acts—civil rights laws, for instance, so they're not always on the side of the States.
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    Ms. FRIEDMAN. I don't believe they have ever come in on the side of a habeas petitioner.

    Mr. COBLE. I thank the gentleman.

    The distinguished gentleman from Massachusetts, Mr. Delahunt.

    Mr. DELAHUNT. I thought we had a very informative exchange between my friend from California and Ms. Friedman. If Mr. Lungren—and I can see he's in discomfort with his back, but if he would wish to continue the dialogue that you're having with Ms. Friedman——

    Mr. LUNGREN. Well, I thank the gentleman for yielding. I appreciate it.

    Mr. DELAHUNT. I yield whatever time you might have. I find this very informative.

    Mr. COBLE. Mr. Delahunt controls the time and Mr. Lungren is recognized.

    Mr. LUNGREN. This is the confusing thing that I find in the whole process, the way it works now, and we have it in California with the Ninth Circuit. We have a situation where the procedural default exceptions that the State courts impose on themselves to serve the interest of justice, where they find that if they actually impose their procedural default rule in a particular case, they find that it would be inappropriate, that there is a case of innocence there that ought to be looked at.
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    So the courts impose this on themselves; the California State court would do that in, as what we call it, the interest of justice. And then, subsequently, the Federal courts don't recognize our procedural default rules because they say they're inconsistently applied.

    Now, that seems strange to me. You have procedural default rules that you believe make good sense. In a very, very few cases you make an exception in the interest of justice at the State level. Then that very exception that you utilize is used against your whole State system by the Ninth Circuit that says, because you don't apply it in every single case, we won't apply these rules now.

    Does that make sense?

    Ms. FRIEDMAN. I think it's a very different situation when you have a couple of times where the court may say, we're going beyond our rule for some reason.

    Mr. LUNGREN. That's what I'm saying.

    Ms. FRIEDMAN. What this bill does is, it goes way beyond that, it gets rid of any defense whatsoever to a default. So it would encourage and it would allow any State that makes up a default after the fact, as in Ford v. Georgia, about objecting to striking black people from juries——

    Mr. LUNGREN. You don't recognize any safe harbor that we have in here for actual innocence?
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    Ms. FRIEDMAN. The actual innocence exceptions to this bill are impossible to meet.

    Mr. LUNGREN. Impossible to meet?

    Ms. FRIEDMAN. I think they are. But in terms of procedural default, it not only deals with inconsistent application, but with defaults that don't serve legitimate purpose, that are announced after any time for applying the default has already passed, that are based on a State's withholding of evidence, like in Delma Banks' case.

    Mr. LUNGREN. Well, all I know is that the standard that we use in our bill, as you suggest, is used in other circumstances right now for successive petitions; and unfortunately, I would have to advise Ms. Hughes that that standard was used by the Ninth Circuit to allow successive petition to the convicted murderer in the case involving her child.

    So to suggest that that would never happen, when we had it in, I think, outrageous circumstances, at least undercuts your argument that it could never happen and that we provide no safe harbor whatsoever.

    Ms. FRIEDMAN. You know, I think one very big problem with this bill is, most of it has been based on anecdote and not on data. And I think it would be very important to know what, exactly, the data is around the country, and not just in one or two jurisdictions in the country, about how the AEDPA is being applied.

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    Mr. LUNGREN. Well, you can call it anecdotal, I spent 8 years with the Ninth Circuit. My office wrote the law that was adopted by the Congress in 1996, expecting to see some change, and we actually see even greater delay.

    And the argument we hear from some of the judges now is—and you suggest in your final comments of your written statement that, even the presumed beneficiaries of this, the State courts, oppose it. And again, I would just say to you, my presumed beneficiaries were not the State courts, but they were people like Mrs. Hughes.

    But if you read what they have said, they are worried that if we put new law in there, the Federal courts will once again take so much time to interpret it, we will have uncertainty, which is sort of like a war of attrition. If the Ninth Circuit is obstinate in its effort to try and avoid the direction it was given by the Congress, by statute, we therefore can't go back and try and change that statutorily because we're told it will give us more uncertainty, because they will just do the same thing, times X, in the future.

    And you say it's anecdotal. I spent 8 years dealing with it, dealt with people like Mrs. Hughes and many others who have seen that.

    If you examine the case involving Mr. Cooper, you will see that they have raised claims based on DNA. You will see that Mr. Cooper stated that if the forensic experts would conduct new DNA tests, he would drop his appeals. So they had the DNA tests, the DNA of Doug and Peggy Ryen, on a T-shirt, never presented at trial.

    The DNA tests firmly placed Cooper in the Ryen home, where he said he had never been; in the Ryen car, which he said he had never driven. But rather than drop appeal, they concocted another story that he was framed. And now his lawyers demanded a new test for a preservative on the T-shirt, never presented at trial, that would show that Cooper's blood was planted, as well as hairs that police already knew were not Cooper's, so the question of Cooper's innocence could be answered once and for all.
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    So they did the new test and found no extra preservative on the T-shirt blood. The district court judge ruled the tested hairs presented no proof of another assailant. And now they're off on another journey to see if they can do it again.

    That may be anecdotal, but it's actually what was presented to the court. And it's that kind of thing that I think is indefensible.

    Ms. FRIEDMAN. I think——

    Mr. COBLE. The gentleman's time again has expired.

    Folks, I think we will probably have time for another round. I appreciate your yielding, Mr. Delahunt.

    The gentleman from Arizona.

    Mr. FLAKE. I thank the Chairman, and I appreciate this hearing. And I appreciate the gentleman from California for bringing up this bill.

    I would like to thank Mr. Cattani, in particular, for coming in from Arizona. This is an issue that obviously Arizona has been involved with for a long time, trying to get at a place where we can actually take advantage of law passed by the Federal Government in 1996.

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    Mr. Cattani, is it true there are over 100 prisoners in Arizona on death row that have exhausted all State habeas claims?

    Mr. CATTANI. There are 106; I think some of them—those have not all exhausted. The chart that I have attached to my written statement details all of the defendants who are in Federal court.

    And the evidence regarding delay in Arizona is not anecdotal. You can look at the chart and it's there, and it's there notwithstanding the fact that the provisions that we have in Arizona for establishing innocence are more generous than anything that has been proposed in the Federal process. And again, what I want to reiterate, that suggests to me that what's happening in Federal court in Arizona cases is not about innocence.

    And we have this delay—and you can look at the chart—there have been cases that have been there for 19.58 years; we've had 61 cases since the enactment of the AEDPA that are still pending, none of them have moved on past—we've only had one that's even made it to the Ninth Circuit.

    Mr. FLAKE. I believe you mentioned in your written testimony you spend an average of $64,000 per case in order to comply with the provisions of the '96 law?

    Mr. CATTANI. I'm not sure of the exact average, but certainly funds are made available, and we haven't had any examples where defendants have said, I don't have enough money to pursue my claims and post-conviction relief. Funds are made available, funds are made available for defense counsel, for highly qualified defense counsel; funds are made available for investigators, for mitigation specialists and for expert witnesses. And notwithstanding that, we still haven't been able to opt-in.
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    Mr. FLAKE. The assumption with this legislation that—as proffered by Mr. Lungren, is that the Ninth Circuit has conflict of interest here, since they're the ones that will be hearing these appeals and they're involved in the process.

    Is that your feeling as well? Do we need a third party, a U.S. Attorney General or something else to look at it?

    Mr. CATTANI. I'm not sure it's necessarily a conflict. All I know is that it seems to me we have made a good-faith effort to opt-in, and we haven't been able to opt-in, and it seems to me the mechanism should be changed.

    Mr. FLAKE. And, Ms. Friedman, your contention is that Arizona has not made a good-faith effort or hasn't fully completed it. Where has Arizona gone wrong here?

    Ms. FRIEDMAN. That's actually not my contention. My understanding is, it was just in the case that was before it, they didn't appoint—didn't follow their own rules is my understanding in appointing Mr. Spears a lawyer in a timely fashion.

    My understanding is that Arizona will be deemed to be opted in when they have done that in the next case in front of them.

    I also think it's an example of the problem of doing something that's so sweeping in the nature of a bill to cover the entire country, when the circumstances are so different in different places. I think some of these are regional issues we're talking about, and a lot of the anecdotes, et cetera, are about the Ninth Circuit. My practice is very, very different.
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    Mr. FLAKE. Mr. Dolgenos, what is your feeling with regard to the need for an outside party or group to certify?

    Mr. DOLGENOS. I think that particular problem is uniform across the country because every circuit—the decision that every circuit has to make is whether to limit their own power, and I think that is inherently a conflict. And I think it's best placed in a third party, with meaningful review by the 3rd Circuit.

    Mr. FLAKE. Thank you.

    I thank the Chairman.

    Mr. COBLE. I thank the gentleman.

    The distinguished lady from Texas. The gentlelady is recognized for 5 minutes.

    Ms. JACKSON LEE. I thank the distinguished gentleman for yielding, and for the Ranking Member.

    I think, Mr. Chairman, I'm going to do something that is sort of the talent of the early ages of our origins, when we were just 13 colonies, and a few Representatives were able to pontificate and stand in the well or to be able to talk at length about this, if you will, emerging country and what its principles should be and not be.
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    Isn't it interesting that the habeas corpus was grounded in some of the early thoughts of the Founding Fathers? I don't pretend to document all of the citations, but I'm reminded that Georgia was founded by released prisoners, as our history will tell us. And there was a great sensitivity, I believe, in the Founding Fathers; and might I just suggest that I obviously was not a whole person at that time, obviously being represented by my slave ancestors, but there was a great sensitivity to being detained or incarcerated with no relief because, as we know, the early courts or the court systems in our European neighbors were the kind of systems to a certain extent that would have those penalties for the impoverished or the debtor, if you will, the debtor prisons. So we were without the relief that this habeas corpus procedure was to allow.

    So the idea of a concept of streamlining and habeas, to me, is incongruous and just completely against the grain, because what they suggest—and I know the underpinnings of this—the underpinnings, of course, is to be tough on criminals and to be empathetic to victims, and none of us want to be victims and none of us want to take advantage of victims. But frankly, I think that when you begin to tamper with a system that allows a great deal of democracy or justice to be rendered, then you are trampling on the very values of the Founding Fathers and their dedicated commitment to the Bill of Rights, the fifth amendment, the due process concept.

    And as a trained lawyer and someone who has encountered a number of more conspicuous death penalty cases in the State of Texas, that has the highest number of death penalty cases and death row cases, knowing that I have seen where courts without a habeas corpus would have simply, if you will, moved against a prisoner; and then in the backdrop of the last decade, the '90's and the early 21st century, we have found a number of innocents out of the Innocence Project, and a number of other cases, a number of other efforts, to suggest that how many were sitting on death row and were ultimately found, because of the new DNA, that did not exist in 1990 or 1989 to be used as it has been used, and they are innocent.
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    So we know that victims have, in many instances, been stressed and strained. And it may be quite conflicted to suggest that you are someone who is very sensitive to victims' rights. I have supported a number of victim-support legislation and believe that victims should have their day in court, believe that victim's testimony is particularly important in the sentencing process.

    But, Ms. Friedman, let me ask you this: What good comes out of streamlining habeas corpus? And of course the backdrop to your answer should be, people are there 8, 9 years before they are, if you will, ultimately finalized in the judgment and then sentenced, if you will, or they're sentenced and therefore it is finalized. What good does this kind of legislation bring to a system, a criminal justice—a judicial system that is so far exceeding the importance of a habeas that was defined and designed by our early Founding Fathers?

    Ms. FRIEDMAN. I don't think this bill, as written, brings any good. I think it is a very, very radical proposal.

    It's really not about streamlining, it's not about moving cases forward to resolution; it's about cutting out the jurisdiction of the Federal court to ensure that fundamental rights are ensured. So there are some people who—there are many people, I think, who, had this law been in effect, would never have seen—been exonerated, they would never have had that opportunity because they would have lost out under one or another of these provisions. And I think it is a very dangerous bill in its effect.

    Some of the effect I think was even unintended. There were provisions that may have been drafted somewhat hastily, such as the tolling provision. It's also not about the comity that is supposed to exist between State and Federal courts.
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    For example, just quickly, the tolling provision, as it's written in here, doesn't allow for the Federal clock to stop in between parts of the State post-conviction process——

    Mr. COBLE. The gentlelady's time has expired. I think we're going to have time for another round.

    Sheila, we have to be out of here by 12 o'clock for the conference.

    Ms. JACKSON LEE. You will finish later. Thank you, Mr. Chairman.

    Mr. COBLE. You're welcome.

    I want to put one question to Mr. Dolgenos or Mr. Cattani, and then I want to yield the balance of my time to Mr. Delahunt, so if you all could give me a terse response, gentlemen——

    One way the Congress sought to limit endless delays of habeas litigation under the 1996 act was by limiting so-called ''successive petitions.'' The '96 Act sets a limit standard—a limited standard for filing successive petitions and requires a petitioner to first apply to a three-judge panel and persuade the panel that he meets the standard. If the panel rejects the application to file a successive petition, the '96 Act bars the petitioner from seeking rehearing in the court of appeals.
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    Have the courts of appeal undermined this bar; and if so, what would this bill do to address that problem?

    Mr. DOLGENOS. I think this has been sort of a Ninth Circuit problem.

    Mr. CATTANI. The problem in Arizona has not been so much successive petitions, but rather consideration of procedurally defaulted claims. And I think—there really isn't very much of a difference between a procedurally defaulted claim and a successive petition.

    Generally, a procedurally defaulted claim means it was not raised in State court, and if it's not raised in State court, you're not supposed to be able to raise it in Federal court; and that's the same thing that would happen if you decide you want to file a successive petition. And we've been unsuccessful in enforcing procedural bars in the initial petition where a claim was not raised, was not presented in State court, yet the Federal courts allow evidentiary hearings on that issue. And I think that's what would happen in a successive petition.

    Again, we're not seeing that many successive petitions, but they make an end run around having to file a successive petition by simply filing procedurally defaulted claims with the first petition.

    Mr. COBLE. Thank you, sir.
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    I have 3 minutes remaining, and I will yield to Mr. Delahunt.

    Mr. DELAHUNT. I thank my friend. And this has, I think, been a very good panel.

    I think it was Thomas Paine who made that quote about, you know, ''It's the patriot that protects the citizen from the Government.''

    Now, you're both prosecutors. How many cases have you run across where you never—have you both tried cases? I mean, I know your duty now obviously is at the appellate level, but you, I presume, have had extensive trial experience?

    Mr. CATTANI. Mine is primarily appellate.

    Mr. DOLGENOS. Mine, as well, sir.

    Mr. DELAHUNT. Okay. Well, I've got to tell you, all right, there are a lot of mistakes being made every day in the criminal justice system. It's replete. Any prosecutor who's in the trenches, who's trying cases, hopefully will catch a significant proportion of them. Informant testimony, newly discovered evidence, evidence that is withheld. You know, as I listen to this, we keep coming back to the Ninth Circuit. Maybe we should have a bill just for the Ninth Circuit.

    You know, I have to concur with Ms. Friedman. I mean, I would like to see some data, I would like to see a questionnaire that was done that was a survey of really the magnitude of the problem.
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    Now, we have legislation and bills before this Committee dealing with the Ninth Circuit all the time. I'm not that familiar myself with the Ninth Circuit; but it seems maybe to have a particular bent, at least it's perceived that way by some. But we constantly come back here and deal with issues that are provoked by some action of the Ninth Circuit. I mean, we can't have just those kind of policies.

    Ms. Friedman, let me give you what's left of my time to liberate yourself of some concerns or observations you want to make.

    Ms. FRIEDMAN. I just want to make a point about—there is a concern here about the Ninth Circuit's inconsistent application of rules, somehow not being fair to the Ninth Circuit. I just wanted to read a short quote:

    ''If inconsistently applied procedural rules suffice adequate grounds of decisions, they could provide a convenient pretext for State courts to scuttle Federal claims without Federal review. The requirement of regular application ensures that review is foreclosed by what may honestly be called 'rules,' directions of general operability rather than by prejudice against a claim or claimant.'' That was written by Judge Leo on the 3rd circuit.

    These are serious rules that have be taken seriously.

    I disagree entirely that a successive petition is the same thing as a procedurally defaulted rule. Claims come into Federal court. They don't come—people aren't able to bring these claims into Federal court most often because they had inadequate counsel or because the State withheld the basis for the claim. And again, I point you——
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    Mr. DELAHUNT. Mr. Cattani, I think you mentioned, Arizona changed its system in what, 2003?

    Mr. CATTANI. I think it was '90—I believe it was 1993.

    Mr. DELAHUNT. I mean, I would like to think that, you know——

    Mr. CATTANI. It wasn't a drastic change, though; it was simply to make certain that the attorneys handling the post-conviction proceedings——

    Mr. DELAHUNT. Would you agree with me that it's a system that has an abundance of imperfections to it, and it, in essence, is to secure the truth?

    We're talking about people who are incarcerated by the way; you know, they're not out wreaking havoc and violence in the community.

    Mr. CATTANI. I would agree with that. But when you consider the fact that when we have this actual innocence exception that is more generous than anything that's ever been proposed as part of Federal legislation, and yet we still have no finality with these cases, I think there is a frustration that is justified.

    I think the resources should be put in up front at the trial and at the post-conviction stage. And having done that, there should be some finality in Federal court.
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    Mr. DELAHUNT. I applaud that idea of investing in—and I'm impressed with what you're saying about the qualifications and two attorneys in capital cases, plus investigative resources; that's all good.

    Mr. COBLE. I will reclaim my time.

    Folks, keep in mind we have got to vacate this ship at 12 o'clock.

    The gentlelady from California is recognized for 5 minutes.

    Ms. WATERS. Thank you very much, Mr. Chairman.

    I don't know if this question has been raised or this discussion has been had here, but you know, I am very much concerned about the death penalty. And I, too, believe that we must make sure that people who are imprisoned and who have been sentenced to death have the opportunity to go before the court with emerging evidence.

    It is noted that recently—in at least eight recent cases, the Federal courts have ordered new trials, after which defendants have been exonerated; and in each case, the exonerated defendant would have been executed if the bills before us now had—if this bill had been law.

    I would like to know if there is anyone who would disagree with the statement, or this observation or this assessment: Does this bill trivialize a person's right to life and liberty?
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    Mr. DOLGENOS. If I may, ma'am, I don't think it does. I think the key to remember is that by the time someone gets to the Federal courts, if the system is working right and if defense counsel are funded, they've had a jury look at their claims, they've had a State court look at their legal claims, they've had time and they've had resources.

    That is not to say that Federal review is unnecessary; it's a good thing. But the question is, if we are 15, 20 years after the crime relitigating guilt again, I believe that doesn't lead to reliability; I believe that leads away from reliability. And I think it asks too much of habeas corpus and ultimately undermines the system of justice when assessments of guilt and innocence are made regularly so long after the crime.

    Ms. WATERS. Anyone else feel differently?

    Mr. CATTANI. I would just like to point out—I'm not certain of the specifics.

    I believe—I have seen the list of eight cases, I think, that was proffered in the Senate; and the fundamental premise is wrong in some of those cases. The premise is that if this had been an opt-in case, these defendants would not have been entitled to relief in Federal court.

    Well, the point of this was, those were not opt-in cases; the States did not provide that level of post-conviction review. So it really doesn't make sense to say that these defendants would not have obtained relief in Federal court. Well, presumably, if we had established a good system to address these claims in State court at the post-conviction stage, there wouldn't be a need for Federal relief.
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    So I don't think it's fair to say that if these cases had been opt-in cases we wouldn't get relief, because it's based on an incorrect premise—if it's a situation where a State does not provide an attorney or only pays $1,000 for an attorney to handle the trial or the post-conviction process, then it's not an opt-in case.

    Ms. WATERS. Any other opinions?

    Ms. FRIEDMAN. I thought the whole purpose of the bill in trying to move it to the Attorney General was to ensure that some States would get the opt-in status much more easily. And so I think—yeah, there's a problem looking back at a case, but people are going to be in exactly the same situation.

    I think beyond opt-in, you've got people who have procedurally barred claims, procedurally barred claims that are barred because of a State committed misconduct. Nowhere in this bill is there a safe harbor for people in that situation. And I think this bill encourages that; it encourages States to withhold evidence, it encourages States to make harmlessness findings to avoid Federal review, it encourages default findings. And there is no way around that the way this bill is written.

    Ms. WATERS. Thank you very much. I will yield back the balance of my time.

    Mr. COBLE. I thank the gentlelady.

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    The distinguished gentleman from California.

    Mr. LUNGREN. How could you discover it using due diligence if the State were hiding it?

    Ms. FRIEDMAN. I think that's right in terms of getting past the due diligence part of it. There is a problem, of course, for people who come with their claims already—the claims of innocence, for example.

    I assume you're talking about the innocence provision, Congressman.

    Mr. LUNGREN. Right.

    Because you keep talking about the fact that the State would hide this evidence. If they had the evidence, obviously you couldn't have found it by due diligence. And it goes to innocence——

    Ms. FRIEDMAN. That's only one part of the innocence provision. The innocence provision also requires that the evidence of innocence be tied to the claim itself and that a person doesn't seek relief on a different claim, which has happened many times and innocence is proved. It requires that there be absolutely no connection to the offense whatsoever.

    It requires due diligence such that in cases where there are examples—it happened in the State of Texas where people put their evidence on in front of the State court. So you can't say in Federal court that they couldn't have found it by the exercise of due diligence and the State court rejected it. Under this bill, I don't know how you would——
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    Mr. LUNGREN. But if it's hidden by the State, if they intentionally hide it, you think a Federal court is going to have difficulty making a finding that due diligence wouldn't have revealed it?

    Ms. FRIEDMAN. There is no way—absolutely, there is no way in this bill that people who have defaulted claims, who come in and want to say, I need to even find out if I can get evidence of innocence in front of this court, there is no way they're going to be get past this. A case like Banks is a very good example of that.

    They are not raised in State court because the State withholds the evidence in State court. What happened in Banks is that basically the State got up and said—and it may have been Justice O'Connor——

    Mr. LUNGREN. If they successfully hide it in State court, you're not going to be successful in hiding it in Federal court? I mean, I appreciate your work, and I understand your sincerity, but I have not found all wisdom and objectivity in the Federal courts as opposed to the State courts.

    We had a situation in which we had a district court judge, Federal district court judge in California who was named to be the chief justice of the California Supreme Court, so he took off the Federal robe and put on the State robe. Now is the assumption that he is less dedicated to the Constitution because he's the chief justice of the California Supreme Court than he was when he was the district court judge on the Federal bench?

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    I just—I find difficulty with that.

    Let me ask, Ms. Hughes—you've been very good to be sitting there and listening to this, but I can't let a comment go by without asking your response to it. And I wish Mr. Delahunt was still here. But almost as an aside to one of the questions he asked of the two prosecutors there, he said, ''Remember, these people are in custody,'' and I'm sure you've heard that before.

    Why should you be so concerned about the fact that the murderer of your son is having a few more years to go through the courts because he's not going to get out, he's still being punished? It's like life without possibility of parole. Why would you be concerned?

    Ms. HUGHES. I almost jumped out of my seat when that statement was made.

    Mr. LUNGREN. We need to hear that.

    Ms. HUGHES. This is a constant emotional upheaval for my family.

    And you say he's not going to get out. Last week a death penalty inmate walked out in Texas. Granted, he wasn't on death row at that time, but what's to stop Kevin Cooper from having some kind of medical problem, be transferred to some hospital and escape? He's an escape artist.

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    The truth of the fact is, all right, so he's incarcerated, he's still living and breathing. He has a TV, he has a radio, he has his own Web site, he has his own little bit of groupees.

    My child was 11 years old, 11 years old in the fifth grade. He never got to go to high school, to go to a prom, to graduate, to fall in love, to have a family of his own. He would be 33 years old today, and Kevin Cooper robbed him of all this. And I am horrified that Kevin Cooper still exists on the face of this Earth.

    The California Supreme Court said the evidence against Kevin Cooper was overwhelming, that was in 1991; this is 2005 and we are still at it. And I don't know when the end is going to ever take place. Are we going to still be alive when the person who murdered my son is finally put to death?

    That's how I feel.

    Mr. COBLE. The gentleman's time has expired.

    We have time for one more questioning, and the gentleman from Virginia will do the honors.

    Mr. SCOTT. Thank you, Mr. Chairman.

    You know, the problem with these kinds of cases is that the guilty and innocent are being stuck with the same process. If we know the person is guilty, then there is no problem with the streamlined stuff. If we knew the person was innocent, then we could have a more complicated process; but unfortunately, we don't know. And so we have the same process; whatever we do for the guilty we've got to do for the innocent.
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    Now the gentleman from California went to great lengths to show how a person who got evidence, who was able to subpoena evidence, in fact, wasted the court's time because he was guilty. What if the evidence had come back that he was, in fact, innocent? The question, I guess, is, should he have had the right to get the evidence?

    Ms. Friedman, if you present evidence of clear and convincing evidence of innocence, do you have a right to discovery, to subpoena?

    Ms. FRIEDMAN. There is nothing in this bill that suggests that one does. And I have actually seen this in a case recently in Alabama where somebody missed the statute of limitations and attempted to make an innocence argument, a compelling innocence argument, the person who had seen the person leaving the scene of the crime had described somebody looking very different from the person on death row. And he tried to meet the same kind of standard, and the district court said, no, you don't get any discovery to do that. So there is no provision here.

    Mr. SCOTT. So you have to have your clear and convincing evidence all lined up going in. You cannot make—under this bill, you can't even make the case where if I can get the evidence, I can show that by clear and convincing evidence, DNA—you don't have a right to the DNA test, is that right, unless you're coming in with clear and convincing evidence already?

    Ms. FRIEDMAN. You don't have a right to anything. This is a jurisdiction-stripping bill. You don't have a right to get into court.
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    Mr. SCOTT. So unless you have evidence already lined up, you can't even get into court?

    Ms. FRIEDMAN. I think that's right.

    Mr. SCOTT. Okay. Now——

    Mr. LUNGREN. Would the gentleman yield?

    Mr. SCOTT. So if your allegation is that if I can get the DNA evidence, I can prove my innocence by clear and convincing evidence, and first Ms. Friedman is saying I can't even get to court to subpoena the evidence. I will yield.

    Mr. LUNGREN. Is the gentleman suggesting that there ought to be a broad scale allowance of any individual post-conviction, that they could make any claim whatsoever without any evidence, because they have an opportunity at a fourth bite at the apple?

    Mr. SCOTT. Well, that's a hard question. I would say to the gentleman, that's a hard question. Suppose somebody is innocent, and if I can just subpoena the evidence, I can show I'm innocent. What do you say to that?

    Mr. LUNGREN. We have an actual innocence exception in this.

    Mr. SCOTT. Wait a minute. I don't have any evidence, I need to get the evidence. I'm alleging I'm innocent, and if I can get the evidence, I can show it.
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    Mr. LUNGREN. In other words, I know I'm innocent, but I have nothing other than my statement that I'm innocent after being found guilty by a jury of my peers and after going through an appeal to my State Supreme Court, a collateral appeal to my State court——

    Mr. SCOTT. But if you give me subpoena power——

    Mr. LUNGREN.—and directly to the U.S. Supreme Court.

    Mr. SCOTT. If you give me subpoena power, I can show that I'm actually innocent.

    Do I have subpoena power to show it?

    Mr. LUNGREN. I don't believe you do under this or any other procedure.

    Mr. SCOTT. Well, that's a problem. And see—you know, unfortunately the innocent and the guilty are stuck with the same process. And so somebody saying they're innocent that's actually guilty, well, they shouldn't have it; but if they are innocent, well——

    Mr. LUNGREN. We don't change that part of the law the way it is already.
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    Mr. SCOTT. How do you—you can't get into court to get a subpoena unless you've already got the evidence lined up, which—suppose you have seen—you've got a catch-22. If I can get the DNA evidence, I can show I'm innocent. I don't have subpoena power until I get in court.

    And you show up in court, Your Honor, well, I don't have any evidence now, but so what? You get thrown out and you never get an opportunity to show.

    Let me ask another question, Mr. Dolgenos. Tell me what happens if you—considering everything that's before you, you conclude that somebody's probably innocent?

    Mr. DOLGENOS. Well, sir, first of all, presumably the prosecutors who have gone before me have had the same choice, and it often happens in State court that we take steps. If it comes to me and if I have evidence in front of me that I believe someone is probably innocent——

    Mr. SCOTT. Are you talking about as a judge or as a prosecutor?

    Mr. DOLGENOS. As a prosecutor. Is that the question you're asking me? If I believe someone is probably innocent——

    Mr. SCOTT. Actually, I'm asking what right does a defendant have in an adversary process? After all is said and done, you look at the case, and an independent trier of fact would conclude—not what the advocates say, but an independent trier of fact would conclude that the defendant is probably innocent.
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    Mr. DOLGENOS. Well, if he's in court, in State court or Federal court, the judge can find——

    Mr. SCOTT. How do you get into Federal court without clear and convincing? Just kind of probable——

    Mr. DOLGENOS. If you've exhausted your claims in State court, you're in court in Federal court under this bill. It's only when you haven't brought our State claims——

    Mr. SCOTT. After all is said and done, you've got all these defaulted claims and everything, and you're trying to get in, and it requires clear and convincing evidence of innocence, you don't have it, all you have is probably innocent, should the person be put to death or not under those circumstances?

    Mr. DOLGENOS. And there is all default, they haven't done anything in State court?

    Mr. SCOTT. No, no. They've gone through and they've had a fair trial; they've had all their endless—their eternal appeals and all of what people are complaining about——

    Mr. DOLGENOS. And the judges have disagreed about the innocence claim?
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    Mr. SCOTT. And you are now in a situation where, after you have discovered evidence and the totality of the circumstances, the conclusion that an objective trier of fact is that the person is probably innocent, should they be put to death or not?

    Mr. DOLGENOS. I think what this bill says is that the hunch of one judge as opposed to a system of State court judges is not enough.

    Mr. SCOTT. So if the person in the totality of circumstances can show that they're probably innocent, the effectiveness of the death penalty is in jeopardy? We've got to put him to death?

    Mr. DOLGENOS. If everyone agrees that he's probably innocent, that would lead to a different result.

    But I think——

    Mr. SCOTT. You can't get into court.

    Mr. DOLGENOS. Well, if it was in court in State court——

    Mr. SCOTT. This is after all the discovered evidence and everything else he can show that he's probably innocent.

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    Mr. DOLGENOS. And he didn't show that to anyone else?

    Mr. SCOTT. That's right, that's right. He finally put his little case together after this thing had been thrown out procedurally with prejudice on page 3, line 3——

    Mr. DOLGENOS. After 15 years, he put it together and he didn't do anything in State court, he never put this evidence together before?

    Mr. SCOTT. That's right.

    Mr. DOLGENOS. Well, I think that's going to be a case that won't ever happen. I can't imagine why someone wouldn't put together his evidence.

    Mr. SCOTT. Could Ms. Friedman——

    Mr. COBLE. Ms. Friedman, the noon hour is upon us. Ms. Sheila Jackson Lee wants 2 minutes, but Ms. Friedman, can you wrap it up in a minute or less?

    Ms. FRIEDMAN. In less. It can absolutely happen. There is no right to counsel in post-conviction. You might not get counsel in time. There is no right to expert services; there is no right to investigation. And it may be that the State was withholding that evidence for a long time.

    Mr. COBLE. The gentleman's time is up.
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    The gentlelady from Texas is recognized for 2 minutes.

    Ms. JACKSON LEE. I thank you very much, Mr. Chairman.

    And I want to say to the victim's mother, coming from Texas, there was absolutely no excuse for that ridiculous incident that occurred in Harris County. All of the local officials need to be held accountable. And it's those kinds of episodes, unfortunately, that do further harm to those that have been victimized.

    And I want to build on what Congressman Scott did, that unfortunately there is a mix between the innocent and the guilty and, of course, the taking advantage—when you're talking about 10 and 20 years on death row, and the procedures are used frivolously. And, of course, we have to make that determination.

    But, Ms. Friedman, you were finishing, but let me get to this point and see how we can fix this problem. ''Streamline,'' to me, does not equal justice, but it does seem that we need to find a way to move the so-called ''delaying'' in Federal review of death penalty cases, habeas cases, in a much more responsible way.

    What would be your suggestion, as you sit alongside of Ms. Hughes, as to how we balance that so that there is, in fact, the real justice that we want to have.

    Ms. FRIEDMAN. I think in talking about California, which is very different from where I practice, I think you can talk about moving things under time lines in the Federal courts. That's what moving things quickly is about, timing, it's not about repealing one's ability ever to get a case heard.
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    I think for other States outside of California, I think it would be very good to have real incentives for people to have decent, adequate counsel and adequate access to resources so that the State process really is a process that can be supported and would allow things to move more quickly in Federal court.

    Ms. JACKSON LEE. Mr. Chairman, I think Ms. Friedman, in her brief answer to my brief question, has given us the real type of fix. Because if we take a problem in California and make it the general product of the Nation, we're doing great disservice to those early musings of the Founding Fathers about what justice, what the habeas means, what due process means. And I don't think that is worthy of our Committee, and I yield back.

    Mr. COBLE. I thank the gentlelady,

    Folks, this has been a very good hearing. I appreciate that.

    And Ms. Hughes, in particular, your courageous effort here is very much appreciated, as is the case with the others. We thank you for your testimony, and this Subcommittee is very much appreciative to you.

    In order to ensure a full record and adequate consideration of this very important issue, the record will remain open for additional submissions for 7 days. Any written questions that a Member wants to submit should be submitted within that same 7-day period.

    Mr. COBLE. This concludes the legislative hearing of H.R. 3035, the ''Streamlined Procedures Act of 2005.'' Thank you for your cooperation, and the Subcommittee stands adjourned.
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    [Whereupon, at 12:07 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    Thank you, Mr. Chairman, for holding this hearing on H.R. 3035, the ''Streamline Procedures Act of 2005''. The title of this bill suggests that it would streamline the processing of habeas corpus cases. In fact, it would strip federal courts of jurisdiction to determine many federal issues and undercut the Supreme Court's efforts to clear up uncertainties regarding the reforms Congress enacted in 1996 (Antiterrorism and Effective Death Penalty Act, AEDPA).

    The bill would virtually eliminate the ability of federal courts to determine federal constitutional issues in cases involving prisoners either facing death sentences or serving prison terms. In short, this bill would greatly increase the prospects of an innocent person being put to death, or languishing in prison with no hope of correcting an unconstitutional conviction. In general, the bill would overturn a whole series of Supreme Court decisions adopted since AEDPA, increase the number of habeas corpus petitions filed, complicate and delay litigation in this area, disregard traditional principles of federalism, and invite constitutional challenge on the theory that it impairs the independence of the federal courts. Ironically, supporters of this bill are some of the same folks who, in the Teri Schiavo case, advocated for elimination, for that case, of the very kinds of hurdles this bill promotes.
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    Federal Habeas Corpus is the modern day reflection of the ''Great Writ'' which was the foundation for much of our criminal law principals. A right without a remedy is not a meaningful right, and is worse than no right at all. What good is it to have constitutional rights that cannot be enforced?

    Ths bill will eliminate the federal courts role as a courts of last resort for the citizens of this country, and relegate citizens to ''Jim Crow-like'' state's rights where prosecutors seeking to protect their wins wield all the power. They are the only people who have anything to gain from having innocent people languish in prison, or even be put to death, because they are unable to seek meaningful relief from unconstitutional convictions. Crime victims and their families will face even greater delays and frustration as the courts struggle to resolve constitutional challenges to a new law, and they, nor society in general, will not benefit from having innocent people locked up or put to death as the true perpetrators remain free to prey on others. And there are a number examples of innocent people being released in recent years who could not have been released if this bill had been law. I would like to offer these 2 for the record, Mr. Chairman, one involving a release from death row, and more will be identified and added before the record closes.

    A host of organizations and individuals, including prosecutors and judges, liberals and conservatives, have expressed concerns about this bill becoming law. Forty nine of the 50 Chief justices have asked the Congress to carefully study the need for, and impact of, this legislation, and I would like to offer their resolutions on the point for the record. I also have letters and a resolution from the federal Judicial Conference, the federal public defenders, and a former prosecutor in the California system expressing their concern about the legislation, and I would like to offer these for the record, as well. In this later submission is a memo developed by the former prosecutor, and letter from the current Chief Justice of the California Supreme Court, which explains why most of the time period necessary to complete habeas petitions occurs at the state court level.
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    In summary, Mr. Chairman, while there are, not doubt, instances in which non meritorious prisoner claims get more attention than they deserve, that is not a heavy price to pay to ensure that we don't execute an innocent person, or have innocent people languishing in prison with no hope. We already greatly streamlined habeas claims in AEDPA. Now, only those who have ''clear and convincing evidence of actual innocence even get a hearing under traditional habeas processes. Those who can establish that they are innocent only by a preponderance of the evidence, that is by 51% or more, or that they are only probably innocent, that is that it is more likely than not that they are innocent—they don't even get a hearing under current habeas procedures pursuant to AEDPA restrictions. So, Mr. Chairman, in a context where it is clear that innocent people who have been released in recent years could not be released under the provisions of this bill, we should not proceed with further jeopardizing the prospects for like cases. Again, it benefits no one that Congress should assist to have an innocent person languishing in prison or executed while the real perpetrators roam free. A single case of that happening is a tragedy worth all we are doing now, and more, to avoid. Thank you.



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