[Senate Hearing 107-485]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-485
 
 PROTECTING THE INNOCENT: ENSURING COMPETENT COUNSEL IN DEATH PENALTY 
                                 CASES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION
                               __________

                             JUNE 27, 2001
                               __________

                          Serial No. J-107-29
                               __________

         Printed for the use of the Committee on the Judiciary




                     U.S. GOVERNMENT PRINTING OFFICE
79-994                       WASHINGTON : 2002
________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001





                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
                                     MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director












                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................   106
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    67
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    12
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     6

                               WITNESSES

Brackett, Kevin S., Deputy Solicitor, 16th Judicial District, 
  York, South Carolina...........................................    54
Bright, Stephen B., Director, Southern Center for Human Rights, 
  Atlanta, Georgia...............................................    31
Collins, Hon. Susan, a U.S. Senator from the State of Maine......     4
Delahunt, Hon. William D., a Representative in Congress from the 
  State of Massachusetts.........................................     2
Eisenberg, Ronald, Deputy District Attorney, Philadelphia, 
  Pennsylvania...................................................    43
Ellis, Hon. Rodney, Texas State Senator, Austin, Texas...........    27
Graham, Michael R., Roanoke, Virginia............................    40
LaHood, Hon. Ray, a Representative in Congress from the State of 
  Illinois.......................................................     1
Pryor, Hon. William H., Jr., Attorney General, State of Alabama, 
  Montgomery, Alabama............................................    18
Wilkinson, Beth, Co-Chair, Constitution Project's Death Penalty 
  Initiative, Washington, D.C....................................    50

                       SUBMISSIONS FOR THE RECORD

Administrative Office of the United States Courts, Washington, 
  DC:
    Executive Summary............................................    76
    Leonidas Ralph Mecham, Director, July 5, 2001, letter........    86
    Leonidas Ralph Mecham, Director, July 16, 2001, letter.......    88
American Bar Association, Governmental Affairs Office, Norman 
  Lefstein, Washington, DC, statement............................    88
Benjamin, Steven D., Benjamin & DesPortes, P.C., Richmond, VA, 
  statement......................................................    93
Brackett, Kevin S., Deputy Solicitor, State of South Carolina, 
  York, SC, July 2, 2001, letter.................................    95
Bruck, David I., Attorney, Columbia, SC:
    statement....................................................    96
    letter, July 2, 2001.........................................   100
Constitution Project's Death Penalty Initiative, Washington, DC, 
  summary of recommendations and attachment......................   101
Equal Justice Initiative, Bryan A. Stevenson, Executive Director, 
  Montgomery, AL, statement......................................   107
Former prosecutors, law enforcement officers, and Justice 
  Department officials, endorsement..............................   112
Liebman, James S., Simon H. Rifkind Professor of Law, Columbia 
  Law School, New York, NY, July 2, 2001, letter.................   113
Lloyd, Charles J., Lindquist & Vennum, P.L.L.P., Minneapolis, MN, 
  June 26, 2001, letter..........................................   116
Louisiana Crisis Assistance Center, Clive Stafford Smith, 
  Director, New Orleans, LA, statement...........................   117
Mississippi Post-Conviction Counsel Project, Charles J. Press, 
  Director, Jackson, MS, statement...............................   121
Pescetta, Michael, Assistant Federal Public Defender, Office of 
  the Federal Public Defender for the District of Nevada, Las 
  Vegas, NV, statement...........................................   123
Rowley, Maureen Kearney, Chief Federal Defender, Eastern District 
  of Pennsylvania, Philadelphia, PA, July 5, 2001, letter........   125
Smith, Hon. Gordon H., a U.S. Senator from the State of Oregon, 
  statement......................................................   126
Texas Defender Service, Maurie Levin, Managing Attorney, Austin, 
  TX, statement..................................................   127
Young, Denise, Attorney, Tempe, AZ, statement....................   130











 PROTECTING THE INNOCENT: ENSURING COMPETENT COUNSEL IN DEATH PENALTY 
                                 CASES

                              ----------                              


                        WEDNESDAY, JUNE 27, 2001

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:04 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Feingold, Hatch, 
Specter, and Sessions.
    Chairman. Leahy. Good morning. I am going to withhold my 
opening statement for a few minutes to accommodate two of the 
most distinguished members of the House who have a vote in a 
short while.
    I would just note that the Members are Congressman Ray 
LaHood, of Illinois, and Congressman William Delahunt, of 
Massachusetts. Both Mr. LaHood and Mr. Delahunt are close 
personal friends, one a Republican, one a Democrat. They are 
the main sponsors of this legislation in the other body, and 
with the permission of Senator Collins, I thought we would go 
first with their statements. I appreciate very much their 
taking the time to be here. I also applaud the enormous amount 
of work done in a totally bipartisan fashion in the other body.
    Congressman LaHood?

STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF ILLINOIS

    Representative LaHood. Thank you, Mr. Chairman. Thank you 
very much for accommodating our schedule and the fact that we 
have a vote. I am going to be very brief. I assume our 
statements will be made a part of the record.
    Chairman Leahy. They will.
    Representative LaHood. Let me just say, as a Republican, as 
much as I dislike the idea of all of you folks taking over the 
Senate, I think this really enhances our opportunity to pass 
this bill, your bill, and thank you for your leadership in this 
and getting us all involved in the House. You really have shown 
extraordinary leadership on this issue.
    Just very briefly, Mr. Chairman, I have been a proponent of 
the death penalty and still am a proponent of the death 
penalty, but I do believe that when the death penalty is meted 
out and administered, we have to have 100-percent certainty 
that it is done correctly.
    I think the Innocence Protection Act, which Mr. Delahunt 
and I and others--now we have 203 cosponsors in the House, 
which is far in excess of what we had a year ago, and I think 
it shows, again, leadership on the part of many organizations.
    I have sort of taken the lead from my own Governor, 
Governor George Ryan, whom you know and is a good friend of 
yours. I know you have had many discussions with him and he has 
been to Washington and testified before the House Judiciary 
Committee subcommittee a year ago. I have taken my lead from 
him because he did place a moratorium on the death penalty 
because he wanted to be sure there was certainty when the death 
penalty is administered.
    So I think our bill is a good bill. It requires and calls 
for DNA testing, it requires competent counsel. I think it is a 
well-worded bill. I have talked to Chairman Sensenbrenner, the 
chairman of the House Judiciary Committee, about this issue, 
and I believe he has a great deal of interest in it.
    So again, Mr. Chairman, thank you very much for the 
opportunity to speak here ahead of everyone else, and thank you 
again for your leadership. We look forward to working with you 
and hopefully passing this bill and having it signed into law.
    Chairman Leahy. Well, after all the enormous amount of work 
you and Congressman Delahunt have done over there in obtaining 
over 200 co-sponsors, we should move along with it. I hope to 
sit down with Chairman Sensenbrenner after the 4th of July 
break and, among other things, talk about that with him. I also 
want to see how our committees can work well together.
    So thank you very much. Give my best to the Governor. He 
has not wavered on this issue at all, and I appreciate that.
    Representative LaHood. Thank you.
    Chairman Leahy. Congressman Delahunt. I should note for the 
record that the Congressman and I helped keep New England safe 
for years in our roles as prosecutors, he in Massachusetts, I 
in Vermont.
    Go ahead.

  STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF MASSACHUSETTS

    Mr. Delahunt. Well, thank you, Mr. Chairman, and I would 
just associate myself with the kudos that were put forth about 
you from my friend and colleague, Ray LaHood. I would also add 
that it warms the cockles of my heart to address you as ``Mr. 
Chairman.''
    In any event, thank you for inviting us to come here and to 
testify on behalf of 200 of our House colleagues who have 
cosponsored the Innocence Protection Act. We introduced this 
Act because the reality is our Nation's system for trying 
capital cases is failing, and this has been demonstrated by a 
series of studies such as the one conducted last year by 
researchers at Columbia University.
    I want to acknowledge the Ranking Member.
    Senator Hatch. Good to see you.
    Mr. Delahunt. Senator, good to see you.
    The study at Columbia examined over 4,000 capital cases in 
28 States over a 23-year period, and the study concluded that 7 
out of every 10 death penalty cases contained serious 
reversible error--7 out of 10. A failure of that magnitude 
calls into question the fairness and integrity of the American 
justice system itself.
    Some suggest that the high rate of reversals showed that 
the system is working. Let me suggest that is absurd. We cannot 
know whether the appeals process is catching all the errors or 
not, but what we do know definitively is that errors are not 
being caught at trial. We do know that innocent people are 
serving lengthy sentences for crimes that they did not commit.
    What is heartening and encouraging is that the public 
understands this. Polls reveal growing misgivings about the 
administration of the death penalty and overwhelming support 
for reforms that would provide some degree of reassurance that 
it is being properly and fairly implemented.
    Now, the catalyst for this sea change can be summed up in 
one word, or actually three words--DNA. Science has given us a 
new forensic tool which can conclusively establish guilt or 
innocence, and this tool has been used to exonerate nearly 100 
people who spent years on death row for crimes they did not 
commit, some of whom came within days of being put to death. 
Fortunately, their lives were spared, but the system failed 
them, and it failed society as well by leaving the real 
perpetrators out walking the streets.
    DNA is the spotlight that has enabled us to focus on this 
problem with our criminal justice system, and our bill would 
help ensure that defendants have access to testing in every 
appropriate case. But we should be under no illusion that by 
granting access to DNA testing we are solving the problem. DNA 
is not a panacea for the frailties of the justice system. To 
suggest otherwise would be tantamount to fraud, particularly 
when, in the vast majority of cases, biological evidence that 
can be tested does not even exist.
    What DNA has revealed is that the lack of adequate legal 
services is the crux of the problem. The adversary process is 
the heart and soul of our system of justice, a chance to put 
evidence on trial and confront the witnesses in open court.
    As you indicated, I was a prosecutor for over 20 years, and 
I know that the process, the system can work only when lawyers 
on both sides are up to the job. Those kinds of lawyers aren't 
as easy to find as some may think. We have a lot of lawyers in 
this country, but very few of them are engaged in trial 
practice, and fewer still have ever tried a criminal case from 
beginning to end. And it is a tiny percentage of that 
percentage who are equipped to shoulder the immense 
responsibility of trying a case in which a human being is on 
trial for his or her life.
    These are complex matters which cannot be handled by 
lawyers who lack the training, experience and resources to 
prepare a proper defense, let alone by lawyers who are 
incompetent, unprepared, or impaired by substance abuse. We 
cannot tolerate a system that relies on reporters and 
journalism students to develop new evidence that was never 
presented at trial, a system in which luck or chance plays such 
a profound role in determining whether a defendant lives or 
dies.
    The Innocence Protection Act encourages States to develop 
minimum standards for capital representation, as some States 
have already done, and it would provide the States with 
resources to ensure that indigent defendants have access to a 
lawyer who can meet those standards.
    If we are successful, the impact of these measures will be 
felt far beyond simply death penalty cases. By raising 
standards, we can help restore public confidence not just in 
the fairness and reliability of capital trials, but in the 
integrity of the American justice system itself.
    The American people have a right to expect that the truth 
will be relentlessly pursued, that every needed resource and 
every possible safeguard will be brought to bear. Yet, if that 
does not happen in death penalty cases, how can they have 
confidence that the justice system is any less fraught with 
error in non-capital cases? Without that confidence and 
respect, our system of justice, so essential in a democracy, is 
at grave risk.
    I thank the Chair.
    Chairman Leahy. Well, I thank both you and Congressman 
LaHood.
    I would note for the record that the good-looking group of 
people who have joined us here are all relatives of Senator 
Hatch. You might not have known that if I hadn't pointed it 
out, because they are all better looking than he is.
    Senator Hatch. That is not saying much.
    Chairman Leahy. We are delighted to have them here.
    I don't know if you wanted to make a comment.
    Senator Hatch. Well, thank you. I am very happy to have 
them here to listen to the three of you. I am also very 
interested in what you have to say.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Congressman Delahunt and Congressman LaHood, I understand 
you do have a vote. If you wanted to leave at any point, just 
feel free to do so.
    Representative LaHood. Thank you.
    Mr. Delahunt. Thank you, Mr. Chairman.
    Chairman Leahy. Senator Collins, I appreciate your courtesy 
in letting our two colleagues from the other body go forward at 
this point.
    I thank you both. We obviously will be talking about this a 
lot more during the summer. Thank you both.
    Senator Collins, we appreciate you being here. As I have 
noted before, we have withheld the opening statements myself 
and by Senator Hatch to allow the witnesses to testify. Senator 
Collins, as will the rest of us, will also have a vote very 
shortly.
    Go ahead.

STATEMENT OF HON. SUSAN COLLINS, A U.S. SENATOR FROM THE STATE 
                            OF MAINE

    Senator Collins. Thank you, Mr. Chairman. Mr. Chairman, 
Senator Hatch, members of the committee, thank you for inviting 
me to testify before you this morning.
    I feel compelled to say a few words to Senator Hatch's 
relatives to tell you what an outstanding Senator he is. He has 
been such a help to me as a first-term Senator, and I take 
great pleasure in working very closely with him.
    Senator Hatch. You can see why I love this woman, that's 
all I can say.
    Senator Collins. Mr. Chairman, I also want to commend the 
efforts of our two House leaders on this important issue. It is 
extraordinary that they have been able to sign up more than 200 
cosponsors, and I believe that bodes well for enactment of this 
important legislation.
    To appreciate the importance of the issue of procedural 
safeguards in death penalty cases, consider what price our 
society would be willing to pay to prevent the execution of 
just one innocent individual. The price, of course, cannot be 
measured, and yet the threat of such a wrongful execution is 
all too real.
    Since the reinstatement of capital punishment in 1976, 720 
people have been executed nationwide, including 37 this year 
alone. In this same time period, nearly 100 individuals who 
were sentenced to die had their convictions overturned and were 
released from death row. Each of these individuals has lived 
the Kafkaesque nightmare of condemnation and imprisonment for 
crimes that they did not commit. 3,700 prisoners now sit on 
death row. It is impossible to know for certain how many of 
them are innocent of the crimes for which they have been 
sentenced to die. But if history is any guide, some of them 
undoubtedly are innocent.
    My home State of Maine ushered in the first era of death 
penalty reform in 1835 with what came to be known as the Maine 
Law. The Maine Law held that all felons sentenced to death had 
to remain in prison at hard labor and could not be executed 
until 1 year had elapsed, and then only on the Governor's 
order. No Governor ordered an execution under Maine law for 27 
years, and Maine finally abolished the death penalty in 1887 
after a botched hanging.
    But Maine is one of only 12 States to abolish the death 
penalty, and so under the great majority of State court systems 
and under the Federal system, executions can and do occur. It 
is our responsibility to make sure that this frightening power 
to take another's life is wielded judiciously, with the 
greatest care.
    I am proud to join many in this room in cosponsoring the 
Innocence Protection Act, and I commend the chairman, Senator 
Gordon Smith and Senator Feingold for their tireless efforts to 
see this bill through to passage. I believe that over time, as 
more and more capital convictions are overturned, more and more 
Americans will come to embrace the principles of this important 
bill.
    Take Title II of the bill, for example, which is designed 
to ensure competent legal counsel in death penalty cases. 
Instead of attempting to impose Federal requirements created 
out of whole cloth, the bill establishes a commission of 
prosecutors, defense attorneys and judges tasked with 
developing standards for providing adequate legal 
representation for those facing the death sentence. It then 
provides grants to help States implement the commission's 
standards, as well as disincentives for States that choose to 
ignore them.
    I also strongly support the DNA testing provisions of this 
bill. Convicted offenders ought to have access to DNA testing 
in cases where it has the potential to help prove an inmate's 
innocence. The Innocence Protection Act sets procedures 
governing DNA testing in the Federal courts and encourages 
States to adopt their own procedures to ensure that testing is 
available and that biological material is preserved. In 
recognition that the States are higher in death penalty cases, 
our bill would prohibit States from denying applications for 
DNA testing by death row inmates if the testing could produce 
new exculpatory evidence.
    Mr. Chairman and Senator Hatch, thank you again for 
inviting me to testify today on an issue of such profound 
significance. I am hopeful that this Congress we will reach 
across the aisle to enact meaningful safeguards to protect the 
innocent from paying the ultimate price and society from making 
the ultimate mistake. This is an issue that should unite all of 
us, whether we are opponents or proponents of the death 
penalty. Surely, we can come together to ensure that important 
procedural safeguards and protections are provided in these 
cases.
    Thank you, Mr. Chairman, Senator Hatch, members of the 
committee.
    Chairman Leahy. Well, thank you, Senator Collins. I 
appreciate your support of this.
    I will also place in the record a statement by Senator 
Gordon Smith, who is a proponent of the death penalty but a 
cosponsor of this legislation. That will be part of the record.
    I appreciate you being here.
    Senator Collins. Thank you.
    Senator Hatch. Thank you.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I know that we will having a vote soon. I 
am going to give my opening statement and then yield to the 
distinguished senior Senator from Utah for his.
    Obviously, we are pleased to have all of you who have taken 
the time to come here. Certainly Senator Collins' testimony and 
Senator Smith's testimony is very welcome, as were the 
statements of the lead House cosponsors, Congressmen Bill 
Delahunt and Ray LaHood. We have already heard their testimony, 
one a proponent of the death penalty, one an opponent of the 
death penalty, and one a former prosecutor. They make it very 
clear that they are united on the question of competent counsel 
in capital cases and, of course, on the availability of 
whatever evidence may be there.
    We now have 200-or-so cosponsors in the House and 19 in the 
Senate, including three members of this committee--Senators 
Feingold, Kennedy and Cantwell. I am grateful to each of them 
for their help, and also for the interest that Senator Hatch 
and Senator Feinstein have shown on this issue.
    I am really very pleased because we have had liberals, 
conservatives, supporters of the death penalty, opponents of 
the death penalty, Republicans and Democrats, on this. That is 
the way it should be. This should not be a partisan issue. It 
is an issue of conscience, but also an issue of confidence in 
our criminal justice system. A criminal justice system only 
works if people have confidence in it, and it totally falls 
apart--especially in a democracy--if people lose confidence in 
it.
    I may disagree with some of my friends on this committee on 
some issues, but none of us disagrees with the principle that 
somebody who is on trial for his life deserves a fair trial and 
deserves a competent defense attorney. We are talking about the 
ultimate penalty that can be imposed. I appreciated Senator 
Specter's comment on Sunday that competent counsel is 
fundamental.
    Let's look at what has happened while the Innocence 
Protection Act has been pending in the Congress. In the last 6 
months, more than a dozen people have been cleared of the 
crimes that sent them to prison. In 6 cases they were convicted 
and sent to death row, and then we find we made a mistake.
    Let's go with this: Jerry Frank Townsend was sentenced to 
seven concurrent life sentences in Florida, in 1980--seven 
concurrent death sentences. And then we found, ``Sorry, we made 
a mistake.'' You are free to go.
    Joaquin Martinez, sentenced to death in Florida, in 1997--
sentenced to death. Fortunately, they found out they had the 
wrong person before he was actually executed.
    Gary Wayne Drinkard was sentenced to death in Alabama, in 
1995. I understand Mr. Drinkard is here today with his 
attorney. The headline in the Associated Press says it all: 
``He Fought Fear of Death Everyday.'' He was on death row, 
knowing he was innocent, wondering what it would be like to be 
executed as an innocent man.
    Of course, in every one of these cases, while they had the 
wrong person on death row, that meant whoever committed the 
crime was out free and able to commit the same crime again.
    Jeff Pierce was sentenced to 65 years in Oklahoma, in 1986. 
I would ask anybody at this hearing, what would you think if 
you heard the cell door close and knew you had been sentenced 
for 65 years for something you didn't do. Then they find out, 
well, a chemist made a mistake and they had the wrong person.
    Danny Brown was sentenced to life in Ohio, in 1982. 
Nineteen years you can never give back to somebody in their 
life; 19 years behind bars, and they had the wrong person.
    Richard Danziger was sentenced to 99 years in Texas, in 
1990. Now, he was finally cleared, but he has an uncertain 
future, as it says here. Why does he have an uncertain future? 
He was beaten so badly while in prison that he now has brain 
damage. He was in prison for a crime he did not commit.
    Kenneth Waters was sentenced to life in Massachusetts. I 
think the headline says it all from the Boston Globe: ``'After 
18 years in prison, it is great to be free,' ex-inmate says.'' 
I can well imagine.
    In 1984, Earl Washington was sentenced to death in 
Virginia. He came within days of execution, and then they did a 
DNA test and they found they had the wrong person. Mr. 
Washington is here with us today and I appreciate him coming 
here to join us.
    David Pope was sentenced to 45 years Texas, in 1986. He 
served 15 years and then they did a DNA test, and again, sorry, 
wrong person. Again, I would point out not only the injustice 
of serving that time behind bars, but it also means that the 
guilty person is free to commit more crimes.
    Peter Limone was sentenced to death in Massachusetts, in 
1968. He spent 33 years in prison after his conviction, and 
they say again, wrong person, we will let you go. His wife had 
eked out a living by sewing so the family could visit him every 
week in prison, convinced of his innocence.
    Christopher Ochoa was sentenced to life in Texas. It turns 
out he was falsely accused and he was freed from a life term.
    Michael Graham and Albert Burrell were sentenced to death 
in Louisiana, in 1987. Mr. Graham is here as a witness today; 
death row inmates exonerated, having served time facing death, 
expecting to be executed. Wrong person, and they were finally 
let out.
    Gerald Harris was sentenced to 9 to 18 years in New York, 
in 1992. Guess what? The headline says it all in Newsday: ``He 
Was the Wrong Man.'' He served the time, but the wrong man; the 
right man was out free.
    Frank Lee Smith was sentenced to death in Florida, in 1986. 
It turns out the DNA tests cleared him.
    Now, we didn't go back through a long, long history to get 
these. These people were all released in the last 6 months. 
What should we learn from these cases? Well, some have argued 
these cases in which innocent people were cleared after years 
and sometimes decades in prison show that the system is 
working. Working? Something is tragically flawed with the 
system if they can serve all that time.
    I have only one thing to say. Listen to Michael Graham 
testify today about 14 years on death row, knowing that they 
had the wrong person. Listen to what he has to say. Put 
yourself in the place of sitting there, waiting to be executed 
for a crime that you didn't commit. Then ask yourself whether 
finally being released is a triumph of the judicial system or 
whether there was a failure that put you there in the first 
place.
    The Innocence Protection Act proposed some basic, common-
sense reforms to our criminal justice system to reduce the risk 
of mistaken execution. We have listened to a lot of good 
advice. We have made refinements to the bill since the last 
Congress. Again and again, experts in the field have told us 
that ensuring competent counsel is the single most important 
thing we can do to get to the truth and protect innocent 
people. I will tell you what we have done.
    The bill would establish a national commission which would 
consist of distinguished American legal experts who have 
experienced the criminal justice system firsthand--prosecutors, 
defense lawyers and judges. They would formulate reasonable 
minimum standards for ensuring competent counsel at each stage 
of a capital case, something that the Conference of Chief 
Justices has been calling for for years.
    The IPA uses a ``carrot and stick'' approach to ensure that 
counsel standards are met. The carrot is more than $50 million 
in grants to help put the new standards in effect. The stick is 
that States that fail to meet the standards would have their 
death sentences given less deference and subjected to more 
rigorous Federal court review. This is because we would not 
have the confidence that comes from knowing that competent 
counsel represented the defendant. These states would forfeit 
some of their prison grant funding over time.
    Now, I want to stress the importance of these enforcement 
mechanisms. Without them, standards developed under the IPA 
would merely gather dust on a shelf, like a lot of the other 
voluntary counsel standards that we have seen over the years.
    Critics of the bill raise two arguments against its mandate 
for competent counsel in death penalty cases. Let me briefly 
discuss them.
    The first argument I have heard is that there is no real 
problem because the States are already providing decent defense 
counsel in capital cases. The facts show otherwise. The problem 
is real, it is urgent and it is well-documented. It has been 
more than a decade since the U.S. Judicial Conference and the 
ABA issued reports on the widespread problem of incompetent and 
underfunded capital defense counsel. It has been 8 years since 
this committee held a hearing on innocence and the death 
penalty, in which witness after witness spoke to the same 
issue.
    In March of 2000, the Justice Department released a report 
on indigent defense services across the country and concluded 
that ``Indigent defense in the United States today is in a 
chronic state of crisis, resulting in legal representation of 
such low quality to amount to no representation at all, delays, 
overturned convictions, and convictions of the innocent.''
    In June of 2000, Professor Jim Liebman and his colleagues 
at the Columbia Law School released the most comprehensive 
statistical study ever undertaken of modern American capital 
appeals. They found that serious errors were made in two-thirds 
of all capital cases. The most common problem was grossly 
incompetent defense lawyers.
    Today, in Alabama, there are 42 prisoners on death row who 
have no lawyer to pursue appeals. Today, in Texas, one out of 
every four death row inmates was defended by a lawyer who has 
been disciplined, suspended or disbarred. This is not competent 
counsel, and it is certainly not the counsel that any Senator 
on this panel would expect to have if they were accused of a 
capital crime. Today in America, there are people awaiting 
execution whose lawyers slept through part of their trials. 
That is unjust, it is shocking, and it ought to be unacceptable 
in this country.
    The other argument I have heard against our bill goes 
something like this: maybe some States could do a better job 
providing counsel for indigent defendants. Maybe some States do 
skimp on funding. Maybe this has resulted in a few innocent 
people being sentenced to death here and there. But that is no 
reason for Congress to get involved.
    In fact, it is a reason for Congress to get involved. There 
should be zero tolerance for mistakes in death penalty cases. 
We have a duty to get involved to try to contain the crisis 
before innocent people are put to death. Congress has the duty 
to get involved because the crisis is national scope.
    Since 1973, 96 people who were sentenced to death and were 
heading to death row have been exonerated--one for every seven 
or eight who have been executed. These 96 exonerations span 22 
different States, which is a substantial majority of the States 
that have a death penalty.
    In Illinois, the Governor, a conservative Republican, 
imposed a moratorium on executions because of the State's 
dismal record of sending innocent people to death row. But this 
isn't an Illinois problem or a Texas problem; it is a national 
problem. It calls into question the legitimacy of criminal 
convictions, but it also undermines public confidence in the 
integrity of the criminal justice system as a whole.
    If mistakes occur when a life is at stake, what happens 
when the crimes and penalties are less severe? Witnesses and 
juries and judges become more skeptical about how well the 
police and prosecutors are doing their jobs. If they do not 
trust the jobs that are being done, what does that mean for our 
prosecutors and police? It means that it is going to be far 
more difficult to get convictions when they have the right 
person if they show sloppiness when they have the wrong person.
    And let us not forget that when an innocent person is put 
in prison, that doesn't protect us. The person who committed 
the crime is out there, free to do the same thing. If you 
convict the wrong person, leaving the actual murderer free, 
what does that do?
    In 1985, Rolando Cruz and Alejandro Hernandez were wrongly 
convicted and sentenced to death for the murder of a 10-year-
old girl. DNA tests ultimately linked another man to the little 
girl's death, clearing them. In the meantime, because the wrong 
men were convicted and the right person was still out there, 
the actual criminal committed another murder. This is a 
national problem. It is not a question whether Congress should 
act, but when.
    Last year, we passed the Paul Coverdell National Forensic 
Sciences Improvement Act. I was proud to cosponsor this 
bipartisan legislation which will improve the quality and 
credibility of our Nation's crime labs. We are still working to 
fund it. When the Senate took up the Paul Coverdell bill, I 
proposed a sense of the Congress amendment which the Senate 
adopted. In it, we resolved to work with the States to improve 
the quality of legal representation in capital cases through 
the establishment of counsel standards. Congress has already 
gone on record in recognizing what has to be done; now is the 
time to do it.
    [The prepared statement of Senator Leahy follows:]

 Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of 
                                Vermont

    I want to welcome all of the witnesses and thank you for coming 
today. I am particularly pleased to welcome Senator Smith and Senator 
Collins, as well as our lead House cosponsors, Congressman Bill 
Delahunt and Congressman Ray LaHood. I thank them for their commitment 
to our legislation, the Innocence Protection Act of 2001.
    We now have 19 cosponsors in the Senate. That includes three 
members of this committee: Senator Feingold, Senator Kennedy, and 
Senator Cantwell. I am grateful to each of them for their support. I 
also want to thank Senator Feinstein and Senator Hatch for the interest 
that they have shown in this issue.
    I could not be more delighted with the progress that the IPA has 
been making in the House. There are now more than 200 House cosponsors, 
including Republicans and Democrats from all parts of the country, 
conservatives and liberals, supporters and opponents of the death 
penalty.
    That is how it should be, because this is not a partisan issue; it 
is an issue of conscience and confidence in our criminal justice 
system. I may disagree with some of my friends on this committee on 
some issues, but none of us disagrees with the principle that someone 
on trial for his life deserves a fair trial and a competent defense 
lawyer. I appreciated Senator Specter's comment on Sunday that 
competent counsel is ``fundamental.''
    Let's look at what has happened while the Innocence Protection Act 
has been pending in the Congress. In the last six months, more than a 
dozen people have been cleared of the crimes that sent them to prison 
or, in six cases, to death row.

         Jerry Frank Townsend, sentenced to 7 concurrent life 
        sentences in Florida in 1980
         Joaquin Martinez, sentenced to death in Florida in 
        1997;
         Gary Drinkard, sentenced to death in Alabama in 1995;
         Jeff Pierce, sentenced to 65 years in Oklahoma in 
        1986;
         Danny Brown, sentenced to life in Ohio in 1982;
         Richard Danziger, sentenced to 99 years in Texas in 
        1990;
         Kenneth Waters, sentenced to life in Massachusetts in 
        1983;
         Earl Washington, sentenced to death in Virginia in 
        1984;
         David Pope, sentenced to 45 years in Texas in 1986;
         Peter Limone, sentenced to death in Massachusetts in 
        1968;
         Christopher Ochoa, sentenced to life in Texas in 1988;
         Michael Graham and Albert Burrell, sentenced to death 
        in Louisiana in 1987;
         Gerald Harris, sentenced to 9-18 years in New York in 
        1992;
         Frank Lee Smith, sentenced to death in Florida in 
        1986.

    What should we learn from these cases:' Some have argued that these 
cases, in which innocent people were cleared after years and sometimes 
decades in prison, show that the system is ``working.'' To them, I have 
only one thing to say: Listen to :Michael Graham testify today about 
his 14 years on death row. Then ask yourself whether his case 
represents a triumph of our judicial system. We must do better.
    The Innocence Protection Act proposes some basic, common-sense 
reforms to our criminal justice system. The goal of our bill is simple, 
but profoundly important: To reduce the risk of mistaken executions.
    We have listened to a lot of good advice and made refinements to 
the bill since the last Congress. Again and again, the experts in the 
field have told us that ensuring competent counsel is the single most 
important thing we can do to get at the truth and protect innocent 
lives. So let me briefly describe our proposals regarding counsel.
    The bill would establish a national commission, which would consist 
of distinguished American legal experts who have experienced the 
criminal justice system first hand-prosecutors, defense lawyers, and 
judges. The commission would formulate reasonable minimum standards for 
ensuring competent counsel at each stage of a capital case--something 
that the Conference of Chief.Justices has been calling for many years.
    The IPA uses a ``carrot and stick'' approach to ensure that counsel 
standards are met. The ``carrot'' is more than S50 million in grants to 
help put the new standards into effect.
    As for the ``stick'': States that fail to meet the standards would 
have their death sentences given less deference and subjected to more 
rigorous federal court review, because we will not have the confidence 
that comes from knowing that competent counsel represented the 
defendant. These States would also forfeit some federal prison grant 
funding over time.
    I want to stress the importance of these enforcement mechanisms. 
Without them, standards developed under the IPA would merely gather 
dust on a shelf like the many other voluntary counsel standards 
developed over the last decade.
    Critics of the bill have raised two arguments against its mandate 
for competent counsel in death penalty cases. I will address these 
arguments briefly.
    The first argument I have heard is that there is no real problem 
because the states are already providing decent defense counsel in 
capital cases. The facts show otherwise. The problem is real, it is 
urgent, and it is well-documented.
    It has been more than a decade since the U.S. Judicial Conference 
and the ABA issued reports on the widespread problem of incompetent and 
underfunded capital defense counsel.
    It has been eight years since this committee held a hearing on 
``Innocence and the Death Penalty,'' where witness alter witness 
described the same problem.
    In March 2000, the Justice Department released a report on indigent 
defense services across the country. The report concludes that 
``indigent defense in the United States today is in a chronic state of 
crisis,'' resulting in ``legal representation of such low quality to 
amount to no representation at all, delays, overturned convictions, and 
convictions of the innocent.''
    In June 2000, Professor Jim Liebman and his colleagues at the 
Columbia Law School released the most comprehensive statistical study 
ever undertaken of modern American capital appeals. They found that 
serious errors were made in two-thirds of all capital cases. The most 
common problem: Grossly incompetent defense lawyering.
    Today in Alabama, there are 42 prisoners on death row who have no 
lawyer to pursue appeals. Today in Texas, one out of every four death 
row inmates was defended by a lawyer who has been disciplined, 
suspended, or disbarred. Today in America, there are people awaiting 
execution whose lawyers slept through parts of their trials. This is 
unjust, shocking and unacceptable.
    The other argument I have heard against our bill goes something 
like this. ``Maybe some states could do a better job providing counsel 
for indigent defendants. Maybe some states do skimp on funding. Maybe 
this has resulted in a few innocent people being sentenced to death 
here and there. But that is no reason for the Congress to get 
involved.''
    In fact, it is a reason for Congress to get involved. I would go 
farther than that. I think that we have a duty to get involved--to try 
to contain the crisis--before an innocent person is put to death.
    Congress has a duty to get involved because the crisis is national 
in scope. Since 1973, 96 people who were sentenced to death have been 
exonerated--one for every seven or eight who have been executed. These 
96 exonerations span 22 different states, which is a substantial 
majority of the states that have the death penalty.
    In Illinois, the Republican governor imposed a moratorium on 
executions because of the state's dismal record of sending innocent 
people to death row. But this is not just an ``Illinois problem'' or a 
``Texas problem.'' This is a national problem.
    It is a problem that calls into question the legitimacy of criminal 
convictions and undermines public confidence in the integrity of the 
criminal justice system as a whole. If mistakes occur when a life is at 
stake, what happens when the crimes and penalties are less severe? 
Witnesses, juries and judges become more skeptical about how well the 
police and prosecutors are doing their jobs. That skepticism makes 
their jobs harder.
    We must also remember that when all innocent person is put in 
prison, then the person who committed the crime stays free. In 1955. 
Rolando Cruz and Alejandro Hernandez were wrongly convicted and 
sentenced to death for the murder of a 10-year-old girl. DNA tests 
ultimately linked another man to the little girl's death, but only 
after he had committed another murder.
    This is a national problem, and as a nation, we need to step up to 
the plate and deal with it.
    The question is not whether Congress should act, but when. Last 
year, we passed the Paul Coverdell National Forensic Sciences 
Improvement Act. I was proud to cosponsor this bipartisan legislation, 
which aims to improve the quality and credibility of our nation's crime 
labs. Many of us are still working to fully fund this new law.
    When the Senate took up the Paul Coverdell bill, I proposed a Sense 
of Congress amendment, which the Senate adopted. In it, we resolved to 
work with the states to improve the quality of legal representation in 
capital cases through the establishment of counsel standards.
    Congress has already gone on record in recognizing what has to be 
done. Now it is time to do it.

    Chairman Leahy. Senator Hatch, would you like to speak now 
or break for the vote? It is your call.
    Senator Hatch. Why don't I see if I can get through what I 
would like to get through and then we will go vote?
    Chairman Leahy. Fine.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Thank you, Mr. Chairman. Good morning to 
everybody who is here. Before I begin, I would just like to say 
how much I appreciate the chairman's leadership on this 
important issue. He has worked tirelessly both in the Senate 
and in the media to raise public awareness on this important 
topic and I want to commend him for his hard work.
    The death penalty is an issue that engenders great passion 
both among its supporters and among its opponents. There are 
those among us who sincerely believe that the power of the 
state simply should never, under any circumstances, be used to 
put someone to death. There are others who believe that some 
crimes are simply so heinous, so evil, that there is no 
punishment short of death that will adequately express the 
outrage of society at the perpetrator of such a crime.
    Each of us must make our own decision on this issue. It is 
a matter of personal conscience. There can be no question, 
however, that the imposition of the death penalty is an awesome 
power. And with that awesome power comes a solemn 
responsibility, a responsibility to ensure that the death 
penalty is imposed only on those criminals who are truly guilty 
of these horrible crimes, and only on those criminals who have 
the benefit of all the procedural protections provided by our 
centuries-old system of justice.
    In this vein, I believe it is important to acknowledge the 
study that was recently completed by the United States 
Department of Justice, which revealed no racial bias in the 
administration of the death penalty by the Federal Government.
    That important study, which found that a minority defendant 
was actually slightly less likely to be subject to the death 
penalty when facing a capital charge, has helped to alleviate 
the concern that the death penalty is being implemented in a 
racially biased fashion. The study reaffirmed the preliminary 
conclusion reached late last year by Janet Reno's Justice 
Department.
    The concern that is the subject of today's hearing is 
equally important: whether capital defendants are being 
systematically deprived of their right to competent counsel. 
Obviously, we can only have confidence in our criminal justice 
system if every defendant, whether they are charged with a 
capital crime or even a simple misdemeanor, has the benefit of 
representation by an able attorney.
    Today's hearing is not about whether defendants charged 
with capital crimes are entitled to competent counsel. The 
right to a competent attorney is already guaranteed by the 
Sixth Amendment to the United States Constitution and by 
innumerable decisions of our own U.S. Supreme Court.
    A defendant who does not feel that he has received adequate 
legal representation has numerous avenues of relief. The 
defendant may raise his concern to the trial judge prior to or 
after the trial. If convicted, the defendant may raise on 
appeal a claim of ineffective assistance of counsel. If his 
appeal is denied, the defendant may challenge his conviction in 
Federal court on a writ of habeas corpus. If the writ is 
denied, the defendant may appeal that decision, and if that 
appeal is denied, the defendant may bring his case all the way 
to the U.S. Supreme Court.
    Thus, at an absolute minimum, a defendant has an 
opportunity to persuade five different courts that he has 
received ineffective assistance of counsel. Five different 
courts have an obligation of ensuring that the defendant's 
attorney has provided competent representation.
    Is the system working? Some would say that it is not. Such 
people point to several highly publicized instances in which a 
capital defendant has not received the effective assistance of 
counsel. We have all heard the horror stories of the attorney 
who fell asleep during his client's trial and the attorney who 
showed up for trial intoxicated.
    Some opponents of the death penalty seek to portray these 
stories as par for the course. This view ignores the hundreds, 
if not thousands, of capital cases in which no flaw was found 
in the quality of the legal representation. It also ignores the 
hundreds of capital cases in which defendants were either 
acquitted or sentenced to a penalty less than death due at 
least in part to the vigorous efforts of their able attorneys.
    Far more often than not, a capital defendant is represented 
by multiple outstanding attorneys. Some of this Nation's finest 
legal talent is attracted to the challenging, high-stakes arena 
of capital case defense. As several of today's witnesses will 
testify, the prosecution team in a capital case often finds 
itself overwhelmed by defense teams funded by a combination of 
public and private sources.
    More importantly, what opponents of the death penalty would 
have us ignore is that those defendants represented by sleeping 
or intoxicated attorneys, or attorneys who fall below the level 
of acceptable lawyering for whatever reason, routinely have 
their convictions overturned either on appeal or on habeas 
corpus review.
    Make no mistake, it is completely unacceptable for any 
criminal defendant to be represented by a sleeping or 
intoxicated or incompetent attorney. But as unfortunate as 
these rare cases are, they do demonstrate unequivocally that 
the appellate system and our system for habeas review remain 
robust and entirely capable of identifying and rectifying 
instances of deficient legal representation. The examples that 
the distinguished Senator from Vermont has shown are all 
examples of horrible situations. There is no question about 
that, and they should not have occurred.
    Currently, each of the States that chooses to implement the 
death penalty has different qualifications for attorneys 
assigned to represent defendants in capital cases. This makes 
sense, given the different number of criminal lawyers in 
various jurisdictions, the different frequency that the death 
penalty is sought from State to State, and the differing 
systems that the States have established for assigning lawyers 
to indigent defendants.
    Obviously, a rural jurisdiction with few lawyers in a State 
that requests the death penalty relatively infrequently will 
have different requirements for capital case attorneys than 
those of an urban jurisdiction with many criminal lawyers in a 
State that seeks the death penalty more often.
    The legislation that is the subject of this hearing would 
seek to paper over the differences between the States and 
create a one-size-fits-all national standard for capital case 
attorneys. If I believed this was a good idea, and I do not, I 
cannot see how it would address the supposed problems in 
capital case representation that are trumpeted by the opponents 
of the death penalty.
    No legislative scheme we enact will be able to predict 
prior to trial whether a particular lawyer will asleep during 
trial or whether he or she will develop a problem with 
alcoholism. That is why our current system is designed the way 
it is, to evaluate after the trial whether a lawyer has 
provided competent representation to his or her client.
    Capital representation standards already exist in nearly 
every State that has implemented the death penalty. There has 
been a recent movement in many States to make such standards 
more exacting, and I agree with that. Yet, incompetent 
attorneys still slip through the cracks, and regardless of 
their good intentions, capital representation standards simply 
cannot ensure that every defendant will receive competent 
representation. That assurance will continue to be provided, as 
it is now, by the appellate process and by the system for 
habeas corpus review.
    My concern is that the only group likely to benefit from 
the legislation we are discussing today are those individuals 
intent on eliminating the death penalty altogether. Capital 
representation standards could easily be written so that many 
isolated jurisdictions would have no attorneys judged capable 
of handling death penalty cases. A system already renowned for 
its glacial pace would experience further massive delays as the 
few death-penalty-eligible attorneys are rationed out among 
competing jurisdictions.
    Mr. Chairman, I share your concern that the innocent must 
be protected. It is intolerable for even one innocent person to 
reside on death row, much less that we ever allow an innocent 
person to be actually executed.
    We have reached substantial agreement on some important 
reforms that would go a long way toward protecting the 
innocent. We agree that potentially exculpatory DNA testing 
must be provided to inmates on death row who did not have 
access to such testing at the time of their trial. We agree 
that the Nation's forensic laboratories must receive increased 
funding to enable them to process evidence more expeditiously, 
leading to exoneration for some defendants and in some cases to 
the arrest of the actual perpetrator.
    We agree that increased funds must be provided for the 
treatment and prevention of drug abuse to break the cycle of 
addiction which underlies many of these violent crimes. And 
with respect to capital representation standards, I have no 
problem with the Federal Government providing the States with 
financial assistance available on a voluntary basis to ensure 
competent counsel at trial.
    With all due respect, Mr. Chairman, I basically cannot 
support the provisions that are the subject of today's hearing, 
but I want to work with you and I want to acknowledge your 
outstanding leadership on this issue. We are in complete 
agreement as to the goal for which we must be striving that our 
criminal justice system operate fairly and efficiently and that 
no innocent person be wrongfully convicted.
    While I disagree with the approach that is being debated 
today, I hope that we will be able to continue to work together 
on this important issue. So I want to thank you, Mr. Chairman.
    I ask unanimous consent to submit my full written statement 
for the record. I want to thank you for your efforts in this 
regard. I fully respect them. I respect your experience in 
these types of cases and in prosecutions in general, and I 
intend to work with you to make sure that we resolve these 
problems in ways that bring American together and not keep us 
apart, and hopefully in ways that will prevent any innocent 
person from ever being convicted, let alone being sentenced to 
death going to death under our current laws or laws in the 
future.
    So I will work with you and will see what we can do to 
resolve these problems. I just think we can do better a job and 
I am going to do everything in my power to see that we do.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Hatch follows:]

Opening Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State 
                                of Utah

    Before I begin, I would just like to say how much I appreciate the 
Chairman's leadership on this important issue. He has worked 
tirelessly, both in the Senate and in the media, to raise public 
awareness on this important topic, and I want to commend him for his 
hard work.
    The death penalty is an issue that engenders great passion, both 
among its supporters and among in its opponents. There are those among 
us who sincerely believe that the power of the state simply should 
never, under any circumstances, be used to put someone to death. There 
are others who believe that some crimes are simply so heinous, so evil, 
that there is no punishment, short of death, that will adequately 
express the outrage of our society at the perpetrator of such a crime.
    Each of us must make our own decision on this issue as a matter of 
personal conscience.
    There can be no question, however, that the imposition of the death 
penalty is an awesome power. And with that awesome power comes a solemn 
responsibility--a responsibility to ensure that the death penalty is 
imposed only on those criminals who are truly guilty of these horrible 
crimes, and only on those criminals who have had the benefit of all the 
procedural protections provided by our centuries-old system of justice.
    It is incumbent on us in the federal government, as well as in the 
states themselves, to remain eternally vigilant to ensure that our 
system of administering the death penalty is completely fair and 
respectful of the rights of the accused.
    In this vein, I believe it is important to acknowledge the study 
that was recently completed by the United States Department of Justice, 
which revealed no racial bias in the administration of the death 
penalty by the federal government. That important study, which found 
that a minority defendant was actually slightly less likely to be 
subject to the death penalty when facing a capital charge, has helped 
to alleviate the concern that death penalty is being implemented in a 
racially biased fashion. The study reaffirmed the preliminary 
conclusion reached late last year by Janet Reno's Justice Department.
    The concern that is the subject of today's hearing is equally 
important--whether capital defendants are being systematically deprived 
of their right to competent counsel.
    Obviously, we can only have confidence in our criminal justice 
system if every defendant, whether they are charged with a capital 
crime, or even a simple misdemeanor, has the benefit of representation 
by an able attorney.
    Today's hearing is not about whether defendants charged with 
capital crimes are entitled to competent counsel. The right to a 
competent attorney is already guaranteed by the Sixth Amendment of the 
United States Constitution, and by innumerable decisions of the United 
States Supreme Court.
    A defendant who does not feel that he has received adequate legal 
representation has numerous avenues of relief. The defendant may raise 
his concern to the trial judge prior to, or after, the trial. If 
convicted, the defendant may raise on appeal a claim of ineffective 
assistance of counsel. If his appeal is denied, the defendant may 
challenge his conviction in federal court on a writ of habeas corpus. 
If the writ is denied, the defendant may appeal that decision, and if 
that appeal is denied, the defendant may bring his case all the way to 
the United States Supreme Court.
    Thus, at an absolute minimum, a defendant has an opportunity to 
persuade five different courts that he has received ineffective 
assistance of counsel. Five different courts have an obligation of 
ensuring that the defendant's attorney has provided competent 
representation.
    Is the system working? Some would say that it is not. Such people 
point to several highly publicized instances in which a capital 
defendant has not received the effective assistance of counsel. We have 
all heard the horror stories of the attorney who fell asleep during his 
client's trial, and the attorney who showed up for trial intoxicated.
    Some opponents of the death penalty seek to portray these stories 
as ``par for the course.'' This view ignores the hundreds of capital 
cases in which no flaw was found in the quality of the legal 
representation. It also ignores the hundreds of capital cases in which 
defendants were either acquitted, or sentenced to a penalty less than 
death, due, at least in part, to the vigorous efforts of their able 
attorneys.
    Far more often than not, a capital defendant is represented by 
multiple outstanding lawyers. Some of this nation's finest legal talent 
is attracted to the challenging, high stakes arena of capital case 
defense. As several of today's witnesses will testify, the prosecution 
team in a capital case often finds itself overwhelmed by defense teams 
funded by a combination of public and private sources.
    More importantly, what opponents of the death penalty would have us 
ignore is that those defendants represented by sleeping or intoxicated 
attorneys--or attorneys who fall below the level of acceptable 
lawyering for whatever reason--routinely have their convictions 
overturned, either on appeal, or on habeas corpus review. Make no 
mistake--it is completely unacceptable for any criminal defendant to be 
represented by a sleeping or intoxicated attorney. But as unfortunate 
as these rare cases are, they do demonstrate unequivocally that the 
appellate system, and our system for habeas review, remain robust and 
entirely capable of identifying and rectifying instances of deficient 
legal representation.
    Currently, each of the states that chooses to implement the death 
penalty has different qualifications for attorneys assigned to 
represent defendants in capital cases. This makes sense, given the 
differing number of criminal lawyers in various jurisdictions, the 
differing frequency that the death penalty is sought from state to 
state, and the differing systems that the states have established for 
assigning lawyers to indigent defendants.
    Obviously, a rural jurisdiction, with few lawyers, in a state that 
requests the death penalty relatively infrequently, will have different 
requirements for capital case attorneys than those of an urban 
jurisdiction, with many criminal lawyers, in a state that seeks the 
death penalty more often.
    Whatever method a state uses to appoint capital case attorneys, the 
standard for their performance is exactly the same from state to state. 
An attorney must provide effective assistance of counsel as defined by 
the United States Supreme Court.
    The legislation that is the subject of this hearing would seek to 
paper over the differences between the states and to create a one-size-
fits-all national standard for capital case attorneys. Even if I 
believed this was a good idea, and I do not, I cannot see how it would 
address the supposed problems in capital case representation that are 
trumpeted by the opponents of the death penalty.
    No legislative scheme we enact will be able to predict, prior to 
trial, whether a particular lawyer will fall asleep during trial, or 
whether he will develop a problem with alcoholism. That is why our 
current system is designed the way that it is--to evaluate after the 
trial whether a lawyer has provided competent representation to his or 
her client.
    Capital representation standards already exist in nearly every 
state that has implemented the death penalty. There has been a recent 
movement in many states to make such standards more exacting. Yet 
incompetent attorneys still slip through the cracks. Regardless of 
their good intentions, capital representation standards simply cannot 
ensure that every defendant will receive competent representation. That 
assurance will continue to be provided, as it is now, by the appellate 
process, and by the system for habeas corpus review.
    My concern is that the only group likely to benefit from the 
legislation we are discussing today are those individuals intent on 
eliminating the death penalty altogether. Capital representation 
standards could easily be written so that many isolated jurisdictions 
would have no attorneys judged capable of handling death penalty cases.
    A system already renowned for its glacial pace would experience 
further massive delays as the few death-penalty-eligible attorneys are 
rationed out among competing jurisdictions.
    As I said at the beginning of this statement, the death penalty is 
a subject that engenders great passion. Although a substantial majority 
of the American public remains solidly in favor of the death penalty, 
there is a vocal minority that is passionately opposed to the 
imposition of the death penalty under any circumstances.
    I fear that the adoption of national capital representation 
standards, although undoubtedly well-intentioned, would provide a 
mechanism for those who would thwart the will of the majority of 
American citizens, and achieve what the minority failed to achieve at 
the ballot box--the complete evisceration of the death penalty.
    While it is true that a small proportion of capital defendants do 
not currently receive effective assistance of counsel, it is also true 
that in these rare cases, the convictions do not withstand appellate 
and collateral review. If national capital representation standards are 
established, the situation will not be changed--there will still be a 
small proportion of capital defendants who do not receive effective 
assistance of counsel. What will be changed, is that opponents of the 
death penalty will be handed yet another procedural tool with which to 
manufacture delay.
    Mr. Chairman, I share your concern that the innocent must be 
protected. It is intolerable for even one innocent person to reside on 
death row, much less, God forbid, that an innocent person ever be 
executed.
    We have reached substantial agreement on some important reforms 
that would go a long way towards protecting the innocent. We agree that 
potentially exculpatory DNA testing must be provided to inmates on 
death row who did not have access to such testing at the time of their 
trial. We agree that the nation's forensic laboratories must receive 
increased funding to enable them to process evidence more 
expeditiously, leading to exoneration for some defendants and, in some 
cases, to the arrest of the actual perpetrator. We agree that increased 
funds must be provided for the treatment and prevention of drug abuse, 
to break the cycle of addiction which underlies many of these violent 
crimes. And with respect to capital representation standards, I have no 
problem with the federal government providing the states with financial 
assistance, available on a voluntary basis, to ensure competent counsel 
at trial.
    With all due respect, Mr. Chairman, I cannot support the provisions 
that are the subject of today's hearing. The provisions are harmful to 
the efficient administration of justice; they are harmful to the rights 
of the states to order their own affairs; and above all, they are 
harmful to the victims, and their families, who are entitled to a fair 
and speedy justice being meted out to the perpetrators of these heinous 
crimes.
    Mr. Chairman, I want again to acknowledge your outstanding 
leadership on this issue. We are in complete agreement as to the goal 
for which we must be striving: that our criminal justice system operate 
fairly and efficiently, and that no innocent person be wrongfully 
convicted. I hope that we will be able to continue to work together on 
this important issue.

    Chairman Leahy. Well, I thank the Senator from Utah. He and 
I have worked closely together for over 20 years on many 
different issues and I am sure we will continue to work 
together on this one. I also thank him for bringing members of 
his family here today.
    We are going to recess for about 10 minutes while Senator 
Hatch and I go to vote, and then we will be back and resume the 
hearing.
    [The committee stood in recess from 10:49 a.m. to 11:15 
a.m.]
    Chairman Leahy. Senator Hatch is on his way back. I just 
checked, and we will start. I see Senator Sessions, of Alabama, 
is here, and we will begin with the Attorney General of 
Alabama, William Pryor.
    We will give 5 minutes to each of the witnesses. They will 
be able to put their full statements in the record. When 
Senators get the record back, they understand that you will be 
able to expand it. You will all have a chance to see your 
transcript. If you find that there is something you want to add 
or detract from your statement, feel free.
    Attorney General Pryor?

  STATEMENT OF HON. WILLIAM H. PRYOR, JR., ATTORNEY GENERAL, 
             STATE OF ALABAMA, MONTGOMERY, ALABAMA

    Mr. Pryor. Thank you, Mr. Chairman and members of the 
committee, Senator Sessions. Thank you for inviting me to 
comment on the problems posed by S. 486, which has been 
referred to as the Innocence Protection Act of 2001.
    As the Attorney General of Alabama, my office defends the 
death sentences in capital murder cases and all direct appeals, 
State post-conviction proceedings, and Federal habeas corpus 
proceedings. My office also occasionally prosecutes capital 
murder charges at the trial level.
    In my 4 1/2 years as Attorney General, 10 capital murders 
have been executed, after pursuing an average of 16 years and 5 
months of appeals and other post-conviction proceedings. Our 
process is much longer and involves more levels of review than 
the relatively speedy execution of Timothy McVeigh.
    My concerns about the legislation before you are that it 
would lengthen and complicate an already byzantine system, 
create perverse incentives for the criminal justice systems of 
each State, and harm the real innocents in this process. The 
real innocents, of course, are the families of victims of 
capital murderers and the future victims of those murderers who 
either escape justice or are not deterred by a system that 
fails to punish swiftly and adequately the most heinous crimes 
in our society.
    If your concern is to protect the innocent from being 
executed, then you need not worry. It is not occurring and it 
is highly unlikely to occur. As Professor Paul Cassell of the 
University of Utah School of Law has stated, ``The death 
penalty system in America is the most accurate criminal 
sanction in the world.''
    Consider first how this legislation would cause 
unreasonable delays and complications. Section 201 would shift 
the appointment of defense lawyers in capital cases from the 
independent judges of the State to a so-called independent 
appointing authority. The evaluation of fitness to practice as 
defense counsel in capital cases would shift from the State bar 
and courts to the independent appointing authority.
    I am concerned that this authority might be captured and 
staffed by attorneys who favor the abolition of capital 
punishment and therefore are not independent. It is 
unreasonable and contrary to basic constitutional principles of 
federalism to expect that an independent authority would be 
more objective, balanced and diligent than the judges of the 
State courts who now appoint counsel in capital cases. Judges 
are independent. For that matter, so are prosecutors whose 
ethical duty, in contrast with the defense attorneys, is to 
pursue truth and justice.
    A group of anti-death penalty lawyers would have many 
incentives to set the performance standards and qualifications 
of attorneys on their roster unreasonably high so that few 
lawyers would be placed on the roster. This perverse incentive 
would then mean that indigents who face capital murder charges 
would not have competent counsel for trial. The system created 
by this legislation could become a self-fulfilling prophecy 
where capital murder trials come to an abrupt end because of an 
alleged lack of competent counsel.
    Moreover, this legislation could empower attorneys who 
favor the abolition of capital punishment to inflict real harm 
on the corrections system of each State. Under the guise of 
serving as the independent appointing authority, these 
attorneys could ensure that each State that administers capital 
punishment fails to meet the standards set by the attorneys, 
and as a result the State loses Federal funds for prisons.
    States that desire to forgo the burdens of this legislation 
would also have to forgo the benefits of Federal funds for the 
prisons of that State, which many States would do, to the 
detriment of inmates, the vast majority of whom are not on 
death row, and victims of criminals who could be released from 
prison. In my State, the amount of Federal funds at stake this 
year is over $1.3 million.
    Finally, this legislation would create incentives for 
States to abolish post-conviction proceedings for capital 
murderers. Currently, under the Anti-Terrorism and Effective 
Death Penalty Act of 1996, States with post-conviction 
proceedings receive deference for the determinations made by 
their courts in respect of fundamental principles of 
federalism.
    By removing the benefits of AEDPA, this legislation would 
offer the States no incentive to maintain post-conviction 
proceedings, which are not required by the U.S. Constitution. 
With the elimination of these proceedings after a trial and 
direct appeal, an inmate on death row would have access only to 
Federal courts and habeas corpus proceedings as a process for 
review of his death sentence. This disincentive for access to 
State post-conviction proceedings runs directly contrary to the 
entire purpose and rationale for AEDPA.
    In 1996, Congress wisely concluded that the Federal process 
for review of death sentences should accord deference to State 
courts and be streamlined to make capital punishment a more 
effective deterrent of heinous crimes and a better system of 
justice for the innocent families of victims of capital murder.
    I have also made available to you today for filing with my 
statement my written remarks that I gave last year to the Board 
of Bar Commissioners of the Alabama State Bar to defend our 
system of capital punishment against charges of unfairness and 
the alleged risk of executing an innocent person.
    I want to thank you again for this opportunity on this most 
important issue. I look forward to answering any questions you 
have about the matter.
    [The prepared statement and an attachment of Mr. Pryor 
follow:]

 Statement of Hon. Bill Pryor, Attorney General of the State of Alabama

    Mr. Chairman and Members of the Committee:
    Thank you for inviting me to comment on the problems posed by S. 
486, which has been referred to as the Innocence Protection Act of 
2001. As the Attorney General of Alabama, my office defends the death 
sentences in capital murder cases in all direct appeals, state post-
conviction proceedings, and federal habeas corpus proceedings. My 
office also occasionally prosecutes capital murder charges at the trial 
level. In my four and a half years as attorney general, ten capital 
murderers have been executed after pursuing an average of 16 years and 
5 months of appeals and other post-conviction proceedings. Our process 
is much longer and involves more levels of review than the relatively 
speedy execution of Timothy McVeigh.
    My concerns about the legislation before you are that it would 
lengthen and complicate an already Byzantine system, create perverse 
incentives for the criminal justice systems of each state, and harm the 
real innocents in this process. The real innocents, of course, are the 
families of victims of capital murderers and the future victims of 
those murderers who either escape justice or are not deterred by a 
system that fails to punish swiftly and adequately the most heinous 
crimes in our society. If your concern is to protect the innocent from 
being executed, then you need not worry; it is not occurring and is 
highly unlikely to occur. As Professor Paul Cassell of the University 
of Utah School of Law has stated, ``The death penalty system in America 
is the most accurate criminal sanction in the world.'' Marcia Coyle, 
66% Error Rate Found In Death Case Study: Author Calls Serious Problems 
``Epidemic,'' Nat' L.J., June 19, 2000, at A1 (col.2).
    Consider first how this legislation would cause unreasonable delays 
and complications. Section 201 would shift the appointment of defense 
lawyers in capital cases from the independent judges of the state to a 
so-called independent appointing authority. The evaluation of fitness 
to practice as defense counsel in capital cases would shift from the 
State Bar and courts to the independent appointing authority. I am 
concerned that this authority might be captured and staffed by 
attorneys who favor the abolition of capital punishment and, therefore, 
are not independent.
    It is unreasonable and contrary to basic constitutional principles 
of federalism to expect that an independent authority would be more 
objective, balanced, and diligent than the judges of the state courts 
who now appoint counsel in capital cases. Judges are independent. For 
that matter, so are prosecutors whose ethical duty, in contrast with 
defense attorneys, is to pursue the truth and justice. A group of anti-
death penalty lawyers would have many incentives to set the performance 
standards and qualifications of attorneys on their roster unreasonably 
high so that few lawyers would be placed on their roster. This perverse 
incentive would then mean that indigents who face capital murder 
charges would not have competent counsel for trial. The system created 
by this legislation could become a self-fulfilling prophecy where 
capital murder trials come to an abrupt end because of an alleged lack 
of competent counsel.
    Moreover, this legislation could empower attorneys who favor the 
abolition of capital punishment to inflict real harm on the corrections 
system of each state. Under the guise of serving as the independent 
appointing authority, these attorneys could ensure that each state that 
administers capital punishment fails to meet the standards set by the 
attorneys and, as a result, the state loses federal funds for its 
prisons. States that desire to forego the burdens of this legislation 
would also have to forego the benefits of federal funds for the prisons 
of that state, which many states would do to the detriment of inmates, 
the vast majority of whom are not on death row, and victims of 
criminals who could be released from prison. In my state, the amount of 
federal funds at stake this year is $1,389,635.
    Finally, this legislation would create incentives for states to 
abolish post-conviction proceedings for capital murderers. Currently, 
under the Anti-Terrorism and Effective Death Penalty Act of 1996, 
states with post-conviction proceedings receive deference for the 
determinations made by their courts in respect of fundamental 
principles of federalism. By removing the benefits of AEDPA, this 
legislation would offer the states no incentive to maintain post-
conviction proceedings, which are not required by the U.S. 
Constitution. With the elimination of these proceedings, after a trial 
and direct appeal, an inmate on death row would have access only to 
federal courts in habeas corpus proceedings as a process for review of 
his death sentence. This disincentive for access to state post-
conviction proceedings runs directly contrary to the entire purpose and 
rationale for AEDPA. In 1996, Congress wisely concluded that the 
federal process for review of death sentences should accord deference 
to state courts and be streamlined to make capital punishment a more 
effective deterrent of heinous crimes and a better system of justice 
for the innocent families of victims of capital murder.
    The entire rationale for the competency requirements in this 
legislation is flawed. After many years of review, capital murderers 
are executed because they are guilty, not because their counsel is 
incompetent. Take, for example, in my state, the case of Phillip Wayne 
Tomlin, who last year was tried by prosecutors in my office, convicted, 
and sentenced to death for the fourth time for the murders of 19 year 
old Ricky Brune and 15 year old Cheryl Moore on January 1, 1977. None 
of the reversals of his first three convictions was related to 
competency of defense counsel. He received a death sentence for the 
fourth time even though he was represented by Stephen Bright, who is 
testifying today because of his expertise as a defense lawyer and 
opponent of capital punishment.
    I will also make available to you written remarks that I gave last 
year to the Board of Bar Commissioners of the Alabama State Bar to 
defend our system of capital punishment against charges of unfairness 
and the alleged risk of executing an innocent person.
    Thank you again for this opportunity and I look forward to 
answering any questions you may have about this matter.

                                

Additional Statement of Hon. Bill Pryor, Attorney General of the State 
                               of Alabama
    President Rumore, members of the Executive Committee, and 
Commissioners, I appreciate this opportunity to speak to you today 
regarding a proposed death penalty moratorium in this State. The death 
penalty has the support of a majority of Americans and a large majority 
of Alabamians. Depending on which poll you view, the death penalty in 
this state is supported by anywhere from 65% to 80% of our State's 
citizens.
    The public support for the death penalty is for good reason. The 
statistics kept by the FBI show that there is a strong correlation 
between murder rates and capital punishment. When these statistics are 
graphed, a trend is reflected showing that when executions go up, 
murder rates go down and vice versa. A graph reflecting this trend is 
included in a handout my office has prepared for you which will be 
available after my remarks. Even if you don't believe statistics, 
because--as the saying goes--figures lie and liars figure, it is still 
clear that the death penalty has overwhelming public support for good 
reason. As Professor McAdams of Marquette University put it:
    ``If we execute murderers and there is in fact no deterrent effect, 
we have killed a bunch of murderers. If we fail to execute murderers, 
and doing so would, in fact, have deterred other murders, we have 
allowed the killing of a bunch of innocent victims. I would much rather 
risk the former. This, to me, is not a tough call.''
    The truth of this statement is irrefutable and opponents of the 
death penalty know it. That is why the attack on the death penalty no 
longer focuses on its deterrent effect, but instead focuses on the 
alleged risk that we will execute an innocent person or that we have 
executed an innocent person. Make no mistake about it, the death 
penalty moratorium movement is headed by an activist minority with 
little concern for what is really going on in our criminal justice 
system. You need look no further than the origin of this moratorium 
movement to see that. This movement started in the American Bar 
Association, from which I resigned eleven years ago. The moratorium 
issue was placed before the ABA's House of Delegates not by the 
Criminal Justice Section, but by the ABA's Section on Individual Rights 
and Responsibilities.
    The Criminal Justice Section of the ABA is defense-oriented. A 
study on the ABA's Criminal Justice views, written by a board composed 
of former U.S. Attorney General Edwin Meese, former U.S. Attorney 
General Richard Thornburgh, and the Attorneys General of Idaho, 
California, and Colorado examined how defense-oriented the ABA' 
Criminal Justice Section is. They found that between 1994 and 1996, 11 
of the 15 positions taken before Congress through the CJS's lobbying 
were defense-oriented. The remaining 4 issues were neutral, such as gun 
control where prosecutors and defense attorneys can agree without 
regard to their positions in our legal system. The defense-oriented 
positions included favoring the de novo review of state court decisions 
in habeas corpus, and abolishing, through legislation, exceptions to 
the exclusionary rule established by U.S. Supreme Court precedent. The 
study also found that of 20 articles between the spring to 1995 and 
winter of 1997 in the CJS's publication, 11 articles took defense-
oriented positions, 3 too a prosecutor's side, and the remaining 
articles were neutral. The various amicus curiae briefs filed by the 
CJS with the U.S. Supreme Court on the behalf of the ABA also Section 
of the ABA.
    The revealing factor, however, is that despite its defense-
orientation, the Criminal Justice Section did not report the moratorium 
issue to the House of Delegates. Instead, the even more liberal Section 
on Individual Rights and Responsibilities did. One need only look at 
the ABA's proposal to see how liberal its moratorium proposal is.
    The proposal is to adopt a moratorium until certain standards can 
be imposed to ensure fairness in the system. Insuring fairness in the 
system would involve the following:

        1) the ABA would not allow experienced capital appellate 
        attorneys to represent capital defendants at trial, even as 
        second chair. Attorneys experienced in trying capital cases at 
        the federal habeas corpus level would also be excluded from 
        representing defendants in state trials, even as second chair.
        2) Even more revealing is that, under the ABA's plan, former 
        prosecutors who have tried capital cases for years would be 
        barred from representing capital de3fendants in state trials, 
        even as second chair, because the lack the necessary 
        ``defense'' experience. Again, this is one of the many areas 
        where the ABA is consistently anti-prosecution in its views.
        3) Under the ABA moratorium proposal, the procedural bars 
        enacted by Congress and our legislature would not be recognized 
        in habeas proceedings. Never mind the will of the people as 
        expressed through their elected representatives. The public 
        supported these actions, such as the Anti-terrorism and 
        Effective Death Penalty Act, which made federal habeas corpus 
        proceedings more efficient and reflected the constitutional 
        principles that our State courts are able to address 
        constitutional claims as well as, if not better than, federal 
        courts, something the Section on Individual Rights and 
        Responsibilities deliberately ignores.
        4) the ABA moratorium proposal rejects the presumption of 
        correctness of state court findings of fact under the AEDPA.

    Before I return to why the proposed moratorium is not needed in 
Alabama, allow me to offer you one lesson the ABA is learning the hard 
way. The ABA has always billed itself as the representative of the 
nation's lawyers. In the past 20 years, however, the ABA has started 
taking more and more politicized views, and as I mentioned earlier, has 
started supporting more and more criminal defense-oriented and liberal 
positions. Today, there are an estimated 900,000 to 1,000,000 lawyers 
in the United States. Of that number, the ABA says it represents 
approximately 400,000, or less than 50%. Of that number, many are 
first-year lawyers taking advantage of the ABA's free year of 
membership.
    In 1991-1992 the ABA;s retention rate was 92%. By 1995-1996, the 
retention rate had fallen to 83.9%. The ABA's decision to take on 
political issues that have nothing to do with advancing the legal 
profession has resulted in its decline. This year, there are reports 
that the ABA lost money on its annual conference. The ABA is losing 
members because it is turning into a political action committee. 
Although you might think to yourself that membership in this 
organization is mandatory, so the Alabama State Bar cannot suffer the 
same fate, that is not true. The decision that this body makes COULD 
deprive this organization of its status as an integrated bar, but I 
will explain that later.
    Recently, a report from Columbia University written by a liberal 
professor named James Liebman has been touted as proof that our system 
is broken and that we run the great risk of an innocent person being 
executed. Overlooking, for the moment, that the study's conclusion is a 
non sequitur, there are several problems with this study. First this 
study is skewed because it covers the time period in which Beck v. 
Alabama was decided by the United States Supreme Court, resulting in 48 
reversals in Alabama, without covering the past five, practically 
flawless, years. The Beck decision, for those of you unfamiliar with 
Alabama's capital system, invalidated Alabama's entire capital statute 
in 1980. The study covers the Beck period yet it stops in 1995, 
although Alabama's error rate in the past 5 years is less than 5%. 
These are concerns about the validity and motivation of the study, but 
they are not even the most glaring irregularities.
    I am sure all of you are familiar with the United States Supreme 
Court's Daubert analysis, used for determining the admissibility of 
scientific evidence at a trial. One of the Daubert factors is whether 
the expert's methodology has been subjected to peer-review. If you 
apply that test to the Liebman study, you will find that the study does 
not define ``error rate.'' If you call Liebman, he cannot tell you what 
he used as the basis for qualifying something as ``error.'' He cannot 
supply you with a list of the names of all of the cases he considered. 
He cannot prove to you that he examined every case in Alabama where the 
death penalty was imposed. Liebman cannot give you a baseline of non-
capital cases with which to compare his error rate.
    Finally, Liebman cannot defend his conclusion that the high error 
rate he found--even if he could prove it was accurate--means that there 
is a risk of an innocent person being executed, as opposed to being 
evidence that the Alabama judiciary is doing a fine job of giving these 
cases serious review.
    The Liebman study is more evidence of the ideological nature of 
this issue. if there is a high error rate--presumably meaning a high 
number of reversals or other corrective actions by appellate courts at 
the State and federal level--the anti-death penalty movement argues 
that there is a high level of risk that an innocent person will be 
executed. If there is a low error rate, the argument then becomes that 
the reviewing courts are simply ``rubber stamping'' these cases and 
they are not receiving meaningful review. You cannot have it both ways, 
however.
    In the spirit of ``put up or shut up,'' I am going to put up. I 
have brought with me today handouts for each of you. In these handouts 
you will find the procedural histories of the 281 cases in which the 
death penalty has been imposed since 1975. To the best of my office's 
knowledge, this represents all of the cases. You can review these cases 
for yourself and decide if the 80% error rate cited by Liebman is 
illustrative of the fact that his study is propaganda or if you think 
he was right. In any case, the State of Alabama is doing what the 
author of this study cannot or will not do; we are giving you the 
information from which our opinion has been reached.
    Our list reveals 281 individuals sentenced to death since 1975. Our 
first important statistic is that our error rate, the number of 
innocent people executed by the State of Alabama is 0%. Because there 
are no cases of actual innocence, we must turn to the more practical 
outcome-based analysis. Of the 281cases, 23 people have been executed. 
Another 180 of those cases represent active cases that my office is 
currently involved in. Because they are active, meaning still moving 
towards an execution date, it cannot be said that there is error in 
those cases. Of those 180 cases, we are awaiting execution dates from 
the Alabama Supreme Court on 2 of the cases. Another 10 individuals 
have died while on death row. One person's sentence was commuted by the 
Governor FOB James. Four people settled their cases for sentences less 
than death.
    Of all of these cases, no court found error resulting in the 
reversal of the conviction or sentence. Thus, there can be no legal 
error cited as to these cases. That leaves, of the original 281 cases, 
63 cases. Even if the remaining 63 cases were legally flawed, the 
resulting error rate would still only be 22.4%.
    But of the remaining 63 cases, we know that 47 of them received a 
sentence of less than death. Most of these sentences were life without 
parole or life, or in the case of Dudley Wayne Kyzer, a 10,000-year 
sentence. Thus, the error was not with the guilt or innocence of the 
individual, but involved sentencing. Defining these cases as error 
would be understandable. The risk of executing an innocent person, 
however, is not increased by having a death sentence later decreased to 
10,000 years, or life without parole, if the inmate is guilty. Thus, 
these cases should be subtracted from the remaining 63 cases to which I 
referred earlier. This leaves 16 cases. Our ``error rate'' when we are 
left with 16 problematic cases after we started with 281 cases is 6%, 
if you round the number up. Of those 16 cases, 8 are awaiting new 
trails. If any of these 8 cases are retired and a new death sentence is 
imposed, there is arguable no error. If history is any guide, and I 
will get to this in a moment, at least 4 of these cases will result in 
a new death sentence. Using history as a guide, at least 7 of these 8 
cases will be retried and will result in death or life in prison 
without parole.
    Thus, the number of cases where it can be said there is error can 
probably be decreased to about 10 of the original 281 cases. That 
results in an error rate of 4%, if you round the numbers up.
    There are eight cases that are unaccounted for. We do not know what 
happened after they were reversed. Of these 8 cases, 5 were Beck 
reversals from the 1980-1981 time period, which is why they are 
difficult to track. Another case is twenty-one years old and involved a 
fatal variance between the indictment and the jury's verdict, which is 
why is was difficult to find any records documenting the ultimate 
disposition of this case.
    Even if you do not look at individual cases and outcomes, and 
instead rely on reversals by higher courts, the Liebman study is 
inaccurate. First, it would not be wise to base a study on the number 
of times an appellate court reverses a particular defendant's case. 
There are several persons who have been executed whose cases had been 
reversed and then were re-sentenced to death. The reversal had nothing 
to do with the person's guilt or innocence. The risk of executing an 
innocent person, if you recall, is the reason the Liebman study's error 
rate was considered so important. Phillip Wayne Tomlin, for example, 
has been tried and convicted of capital murder and sentenced to death 4 
times. The total number or reversals, then, is not persuasive evidence 
of a problem in our system. If we executed Phillip Wayne Tomlin 
tomorrow after 4 trials, four guilty verdicts, and four death 
sentences, the risk of executing an innocent person would be minimal, 
though Liebman's study asks you to assume otherwise. To be fair, I will 
also discuss what my office has discovered in regard to the overall 
number of reversals.
    Our findings are that there have been 136 reversals of cases since 
1975. Of that number, 24 of those sentences were later reinstated by a 
higher appellate court, reducing the total number of actual reversals 
to 112. Of the 112 reversals, 46 of the cases were re-sentenced to 
death. Another 47 were sentenced to a punishment less severe than 
death, ordinarily life without parole. Another 8 cases are awaiting new 
trials, so they cannot be included in determining the percentage of 
cases that are later re-sentenced to death. Another 47 were sentenced 
to a punishment less severe than death, ordinarily life without parole. 
Another 8 cases are awaiting new trials, so they cannot be included in 
determining the percentage of cases that are later re-sentenced to 
death or less than death. That leaves a total of 104 reversals. Of 104 
reversals, 89% of the reversals later resulted in the new death 
sentences or sentences of less than death.
    Interestingly, of the 136 overall reversals, 48 were the result of 
the United States Supreme Court's Beck decision. That is 35.3%.That is 
why the starting date of 1975 and cut-off date of 1995 skewed Liebman's 
study and reflects the bias behind the study. Another 9 of those 
reversals were due to Batson violations, which have absolutely nothing 
to do with the defendant's guilt or innocence. An additional 36 
reversals were as to the defendant's sentence only. Again, this shows 
that the reversals had noting to do with the defendant's guilt or 
innocence. These 45 reversals make up 33% of the total number of 
reversals.
    If anyone still believes that the overall number of reversals is 
relevant, then there is a final statistic to consider. Of the 281 cases 
mentioned, we have compiled record of 1145 instances of review by 
courts. This compilation does not include ordered remands where the 
court does not undertake a review of the case. This compilation also 
does not count the pending reviews in courts at both the federal and 
state levels. This compilation includes only reviews where the courts 
were presented with an opportunity to reverse the sentence of 
conviction of an inmate. Finding error in 136 of these 1145 reviews 
would mean out error rate is approximately 11.9% If you discount the 
reversals that were later reversed by a higher court, using the 112 
actual reversals, our error rate in those 1145 instances of judicial 
review falls to 9.8%.
    The bottom line is this: If you look at the persons who have been 
sentenced to death and what has happened in each of their cases, you 
will see that the system in Alabama is not flawed but is working. In 
fact, it is getting better.
    1. Attorneys at the trial level are paid $60/hour in court and $40/
hour out-of-court on these cases, plus overhead. With overhead, the 
hourly rate easily exceeds $100 per hour. There is not cap on these 
fees.
    2. The law in Alabama guarantees you an attorney with five years 
criminal trial experience if you are appointed an attorney.
    3. Death row inmates are routinely represented in post-conviction 
proceedings by the top law firms in the nation, including Wall Street 
law firms.
    Jimmy Davis, for example, is represented by the law of Chadbourne 
and Parke, LLP. This is a law firm with offices in New York, Los 
Angeles, Washington, DC., Hong Kong, Moscow, and London. This law firm 
has over 2000 attorneys. In addition to Chadbourne and Parke, Davis is 
also represented by Foley and Lardner, a Law firm with offices in 
Brussels, Chicago, Los Angeles, Washington, D.C., San Francisco, San 
Diego, Sacramento, Tampa, and West Palm Beach. Foloey and larder 
employs over 750 attorneys. Another inmate, Joseph Hooks is represented 
by Palmer & Dodge. This law firm in Chicago employs more then 190 
lawyers. Another inmate, Christopher Less Price, is represented by 
Ropes & Gray. This law firm over 325 attorneys has offices in Boston, 
Providence and Washington, D.C.
    These are not isolated cases. Huge corporate, high-powered law 
firms get involved in a majority of these cases. You, the State Bar, 
review and retain the pro hac vice requests on these case. Look them up 
and see what is happening in these cases. You can easily see that these 
inmates are well represented at all levels of review. Most of us in 
this room could not afford to pay these to do work for use, yet our 
death row inmates get representation from them. The system is working.
    4. One Large, out-of-state law firm recently spent $100,000 solely 
to investigate an inmate's claims for a Rule 32 proceeding.
    5. A majority of the death row inmates in Alabama are represented 
by Bryan Stevenson's organization, the Equal Justice Initiative. 
Stevenson was recently named one of the top 100 lawyers in the Nation 
by the National Law Journal. Additionally Stevenson has been named the 
public interest Lawyer of the Year, has been awarder the ABA Wisdom 
Award for Public Service, the Thurgood Marshall Medal of Justice, and 
the ACLU Medal of Liberty.Those who are not represented by Stevenson or 
his organization are represented by lawyers, found by Mr. Stevenson, 
who rely heavily on his expertise. I understand that you have heard 
already a presentation by Mr. Stevenson, Who is an able and articulate 
supporter of abolishing capital punishment.
    6. Many Alabama death row inmates are also represented, at some 
point, by Stephen Bright and his organization, the Southern Center for 
Human Rights. In Williams v. Head, 185 F.3d 1223 (11th Cir. 
1999), the Eleventh Circuit had this to say about Stephen Bright, 
singling him out in the opinion of the court:

        Mr. Bright is a nationally known expert who has been litigating 
        against the death penalty for twenty years. He has taught on 
        that and related subjects at Harvard, Yale, Georgetown, Emory 
        and other universities, has written numerous law review 
        articles on the subject, and has testified extensively about it 
        before committees of Congress and many state legislatures. For 
        his efforts and dedication, Mr. Bright was awarded the Roger 
        Baldwin Medal of Liberty by the American Civil Liberties Union 
        in 1991, the Kutak-Dodds Prize by the National Legal Aid & 
        Defenders Association in 1992, and last year he received both 
        the American Bar Association's Thurgood Marshall award and the 
        Louis Brandeis Medal given by the Brandeis Scholars at Brandeis 
        School of Law at the University of Louisville.

    7. Death row inmates are given at least 10 opportunities to present 
their claims to Alabama and federal courts after a death sentence is 
imposed.
    8. Governor Siegelman has offered to grant DNA testing for any 
inmate for whom the test could be determinative of guilt or innocence. 
May office will not deny DNA test to any inmate who presents a valid 
claim of innocence, if they present the claim in a timely manner, not 
on the eve of execution.
    9. In case reviewed by the Alabama Court of Criminal Appeals and 
the Alabama Supreme Court, oral argument is granted usually as a matter 
of right. I have an attorney in my division who has been in practice 
for 1 year who has argued in the Alabama Supreme Court 3 times and the 
Court of Criminal Appeals 11 times. How many of you know lawyers who 
have had oral arguments granted in non-capital cases that many times in 
their careers, let alone in one year of practice?
    10. Although the trend in Alabama is for Rule 32 petitions in non-
capital cases to be dismissed or denied without an evidentiary hearing, 
capital cases often involve evidentiary hearings that last from 2 days 
up to a week in length. That is longer than many non-capital trials in 
this State.
    11. Although non-capital cases are bound by the ``contemporaneous 
objection'' rule requiring lawyers to preserve error for appellate 
review, in Alabama we allow courts to notice any plain error at any 
stage of the direct appeal proceedings. BY law, we require the Court of 
Criminal Appeals to search the record for error, even if the error was 
not preserved by the defendant.
    12. Earlier this year, the Supreme Court of Alabama unanimously 
adopted a change in Rule 39 of the Rules and Appellate Procedure that I 
and Governor Siegelman proposed to streamline appeals of death 
sentences, which have received more scrutiny in Alabama than in any 
other state. The Supreme Court obviously believe the system is working.
    There is no crisis or problem in our capital system. We do not need 
a moratorium to fix the system, because the system is not broken. This 
brings me to my final point.
    Keeping in the tradition of saving the best for last, here is the 
best reason why you should not get involved with the moratorium issue: 
Keller v. State Bar of California, 496 U.S. 1 (1990).
    Should you choose to move this organization away from its purpose 
of regulating the legal profession and into the realm of taking 
political and ideological positions on issues, you invite a legal 
challenge to the status of our Alabama State Bar as an integrated bar. 
The decision to take an ideological position will invite a federal 
lawsuit challenging the use of compelled dues to finance this 
organization, which would be departing from its purpose.
    Even to invite an unsuccessful Keller challenge would cause 
hardship to this group. According to Keller, a challenge would require 
placing the challenging members' dues into an escrow account while an 
accounting is given. If successful, the challenge would result in the 
loss of those dues.
    Consider the question left unresolved by Keller: Can an integrated 
bar be totally disbanded based on freedom of association grounds? In my 
office there are 10 attorneys who prosecute the 180 cases currently 
moving towards execution of their sentences. In addition, there are 
dozens of district attorneys and their hundreds of assistants who 
regularly integrated bar be totally disbanded based on freedom of 
association grounds? In my office there are 10 attorneys who persecute 
the 180 cases currently moving towards execution of their sentences. In 
addition, there are dozens of district attorneys and their hundreds of 
assistants who regularly try these capital murder cases. If the Bar 
adopts the proposed resultion in favor of a moratorium, you will 
declare that you believe the system is flawed and that we run a grave 
risk of executing an innocent person. That declaration would imply that 
you believe that the district attorneys, their assistants, my assistant 
attorneys general and I would violate our duty to see justice done if 
we sought to allowed an execution to proceed. You cannot expect the 
prosecutors of Alabama to be forced to join an organization that 
impugns our integrity. You will invite a challenge by those who wish 
not longer to be forced to associate and contribute financially to a 
group that insults our professional work. Such a challenge might very 
well succeed.
    For several reasons, this body should drop this moratorium 
proposal. First, This body cannot and should not go against the will of 
a majority of the citizens of this state on this political issue. I 
again mention public support for capital punishment for this reason: 
the public holds capital punishment in higher esteem than the members 
of our profession. I believe the low regard of the public of our 
profession is too often deserved. If you want death row inmates to 
obtain better representation, then encourage more members of the Bar to 
perform that public service. If you desire to enhance the image of our 
profession, then you should reject the proposed resolution before you.
    Second, regardless of what ideologies say in their studies while 
hiding their underlying data, there is no problem in Alabama's capital 
system as the handout my office has prepared evidences. Our defense 
attorneys are paid reasonable fees and two of the top lawyers in the 
national are continuing to represent these death row inmates, along 
with some of the top law firms in the United States. The appellate 
courts scrutinize these cases with a fine-toothed comb under the plain 
error standard. Finally, because we are an integrated the Alabama State 
Bar has absolutely no business taking a position on this political and 
ideological issue.
    Thank you for your time.

    Chairman Leahy. Thank you. I should also note for the 
record that General Pryor follows in distinguished footsteps. 
He was appointed to fill the vacancy as attorney general when 
his predecessor left the power and glory of that office for the 
anonymity of the U.S. Senate. But you did follow in 
distinguished footsteps, Mr. Pryor, following Senator Sessions.
    I would also note that Kurt Bloodworth, one of the 
exonerees mentioned earlier, is now here with his wife, Brenda. 
I appreciate them joining us today.
    Senator Sessions. Mr. Chairman, if I could just add----
    Chairman Leahy. Sure. Do you want to contradict my 
statement about distinguished footsteps?
    Senator Sessions. No. He has carried the office to greater 
heights. Bill Pryor was appointed when I was elected to the 
Senate. He has been reelected by the people of Alabama. He has 
a wonderful family. He is committed to the rule of law as 
deeply as any person I know. He is a great constitutional 
scholar, a man who is running his office in an extraordinarily 
fine way, and such things as editor of the Tulane Law Review 
when he was in college and just the kind of person that we are 
proud to have in law enforcement.
    Chairman Leahy. Thank you.
    Senator Rodney Ellis is a State senator from Texas 
representing Houston in his fifth term in office, I believe. He 
had served as chief of staff to the late U.S. Congressman 
Mickey Leland. One of his colleagues in that office, Leah 
Gluskoter, then also of Harris County, is now a key staff 
member in my office.
    Senator Ellis has fought to improve the indigent criminal 
justice system and to ban the execution of the mentally 
retarded. His most recent effort in the Texas Legislature to 
ban the execution of mentally retarded inmates passed the Texas 
Legislature, but was vetoed 10 days ago by the Governor of 
Texas.
    Senator Ellis, go ahead, sir.

 STATEMENT OF HON. RODNEY ELLIS, TEXAS STATE SENATOR, AUSTIN, 
                             TEXAS

    Mr. Ellis. Thank you, Mr. Chairman and members. I 
appreciate being invited here and I applaud your efforts.
    I make my living as an investment banker, and I am also a 
corporate lawyer, not a criminal lawyer. From the State 
legislative standpoint, I know how difficult it is to take 
these issues on. They are not issues where there is generally 
an organized constituency.
    I chair the Senate Finance Committee in the State of Texas. 
We have a very bipartisan body. In fact, I was named as Chair 
by a Republican lieutenant Governor. It is a body that has 16 
Republicans and 15 Democrats, so anything we pass out of the 
senate has to have bipartisan support.
    During the legislative interim, I served as president pro 
tem of the Senate, not because I am so bright; we do it by 
rotation. It was my term. Under the Texas Constitution, the 
president pro tem is the person who serves as Governor of the 
State of Texas when the Governor and the lieutenant Governor 
are out of the State. Obviously, our Governor was busy during 
the interim, and the lieutenant Governor was out of the State a 
bit as well, so I served as Governor of Texas for a total of 50 
days. During that period, I had the awesome responsibility of 
presiding over three executions and granting one reprieve.
    I support the death penalty. Some of my critics, because of 
the legislation I carry, have wondered if I support the death 
penalty. I am one of a handful of people who work in the Texas 
State capital who has both filed death penalty legislation--I 
did it in my freshman term as a senator--and who has had the 
dubious distinction of presiding over an execution. It changes 
one's life and I think gives one greater commitment to a number 
of these issues.
    While I remain a supporter of the death penalty, as I 
stated, that experience has changed me and has made me to fight 
to ensure greater fairness in our death penalty system in 
Texas, particularly Texas because we are the global leader on 
executions in the world.
    We need to ensure that only competent counsel and adequate 
funding handle these life-and-death cases. We need to make sure 
that cases receive full and fair judicial review. In addition, 
we must ensure that execute only the most culpable. I applaud 
the Innocence Protection Act of 2001 for its embodiment of 
these ideals.
    In Texas, I have been working to see similar reform 
enacted. In each of the last two legislative sessions and, in 
fact, over the last decade, I have authored numerous bills to 
promote increased fairness in our criminal defense system in 
Texas, particularly in capital punishment cases.
    I proposed and cosponsored the post-conviction DNA testing 
bill that has been signed into law by our Governor. I passed a 
bill to increase compensation for people who have been 
wrongfully convicted. This will be one area where Texas, I 
guess, will be on the cutting edge and ahead of many other 
States. As you mentioned, I passed a bill to ban executing 
persons with mental retardation that was unfortunately vetoed.
    But perhaps the most significant and far-reaching reform 
that I have championed in Texas is the Texas Fair Defense Act. 
It is the culmination of nearly a decade of work to reform our 
tattered indigent defense system in Texas. We have 254 counties 
in Texas. The counties have the primary responsibility for our 
indigent defense system, so that means that in the second 
largest State in the country we have 254 different ways of 
administering the indigent defense system in our State. We have 
over 500-some-odd trial court judges, and under the current 
system, prior to enactment of the bill, each judge essentially 
determines the indigent defense system in his or her courtroom.
    The effects of the bill that we passed will be felt for 
years to come and, in my judgment, should lay the foundation 
for a criminal defense system in Texas that is both tough and 
fair. For some time now, the Texas criminal justice system has 
been under the glare of the national spotlight. I guess some of 
my colleagues would say I have done a little bit to fan that 
flame occasionally.
    This attention provided us with many examples of how the 
poorest among us are treated in Texas. From sleeping lawyers to 
allowing a person's race to be used as a reason for execution, 
we saw that poor Texans were being sentenced to a poor defense 
as well.
    I, like many of my colleagues, both Democrats and 
Republicans, was outraged by the problems that we were alerted 
to by that media spotlight; for example, a recent report on how 
in the Ricardo Aldape Guerra case defense lawyers fought to get 
authorization for the court to pay $700 for an investigation 
matter and were denied it. Meanwhile, the prosecution spent 
$7,000 alone on a pair of mannequins depicting the suspects. 
Seventeen years later, after $2 million of work by a large law 
firm in the State on a pro bono basis, Guerra was freed from 
death row based on a finding of police and prosecutorial 
misconduct. The Harris County district attorney's office 
declined to re-prosecute the individual.
    Since that case, some changes have been made in the Texas 
criminal justice system, but recent reports reveal that funding 
for investigations remains minimal in our State. I think we 
have a long way to go. The Texas Fair Defense Act addresses 
several critical concerns--timeliness of appointment, method of 
appointment, reporting of data regarding indigent defense 
services, experience requirements for defense attorneys in 
capital cases, and development of statewide standards for 
provision of indigent defense services through an appointed 
task force.
    I worked for 2 years with everyone involved in the system 
because the previous bill that I passed was vetoed. I worked 
with judges, prosecutors, defense lawyers, legislators, the 
State bar and a number of advocacy groups to craft a strong, 
effective and bipartisan reform bill.
    But I must emphasize that the bill is a compromise, 
something that I am sure you are accustomed to doing even in 
this great body. As a result, Texas has launched a series of 
reforms that will eliminate the worst abuses and provide some 
State oversight of our tattered system, without bankrupting our 
counties or mandating a one-size-fits-all approach.
    That means, members of the committee, that in Texas we made 
a good start. What it does not mean is that we have finished 
the job. Still more must be done to ensure a completely fair 
system of indigent defense in our State. The Innocence 
Protection Act provides safety measures that will fill many of 
those gaps that are left in State law.
    I know my time is ending, so I appreciate being invited and 
I will obviously submit the rest of my testimony.
    [The prepared statement of Mr. Ellis follows:]

     Statement of Rodney Ellis, Texas State Senator, Austin, Texas

    Good morning, Chairman Leahy and members of the committee. Thank 
you for conducting this hearing, and for inviting me to lend my support 
to the need for minimum standards for attorneys in capital cases. I 
sincerely appreciate your efforts.
    I am especially pleased to appear today because of the enormous 
respect I have for the U.S. Congress. As you may know, prior to my 
becoming an elected official, I had the honor of serving as Chief of 
Staff for the late Congressman Mickey Leland. It was an eye-opening 
experience and it gave me the opportunity to witness, firsthand, the 
many responsibilities and challenges each of you faces every day.
    Today, I am serving my fifth term as a member of the Texas Senate, 
where I am Chairman of the Senate Finance Committee as well as a member 
of the Jurisprudence and Redistricting Committees. During the last 
interim, I served as President Pro Tempore of the Texas Senate. Under 
the Texas Constitution, the President Pro Tempore becomes the Acting 
Governor when the Governor and Lieutenant Governor are out of state. 
During the 50 days that I served as Acting Governor, I had the 
unenviable task of presiding over three executions and granting one 30-
day reprieve. Like many who must take the grim responsibility for 
overseeing executions, the experience made me reflect deeply on the 
entire practice of executing our citizens. While I remain a supporter 
of the death penalty, that experience made me even more committed to 
ensuring fairness in our death penalty system. We need to ensure that 
only competent counsel with adequate funding handle these life and 
death cases. We need to make sure that cases receive a full and fair 
judicial review. In addition, we must ensure that we execute only the 
most culpable. I applaud the Innocence Protection Act of 2001 for its 
embodiment of these ideals.
    In Texas, I have been working to see similar reform enacted. In 
each of the last two legislative sessions, I authored numerous bills to 
promote increased fairness in the criminal defense system, particularly 
the capital punishment system. I proposed and co-authored the post-
conviction DNA testing bill that has been signed into law in Texas. I 
passed a bill to increase compensation for people who have been 
wrongfully convicted in Texas. I passed a bill to ban executions of 
persons with mental retardation in Texas, which unfortunately was 
vetoed by Governor Rick Perry.
    But perhaps the most significant and far-reaching reform I 
championed was Senate Bill 7, the Texas Fair Defense Act. It was the 
culmination of nearly a decade of work to reform Texas's tattered 
indigent defense system. The effects of this bill will be felt for 
years to come and should lay the foundation for a criminal defense 
system that is both tough and fair.
    For some time now, Texas's criminal justice system has been under 
the glare of the national spotlight. This attention provided us with 
many examples of how the poorest among us are treated. From sleeping 
lawyers to allowing a person's race to be used as a reason for 
execution, we saw that poor Texans were being sentenced to a poor 
defense. I, like many of my colleagues, was outraged by the problems we 
were alerted to by that spotlight.
    For example, a recent report related how in the Ricardo Aldape 
Guerra case, defense lawyers fought to get authorization from the court 
for payment of $700 for investigation. Meanwhile, the prosecution spent 
$7,000 alone on a pair of mannequins depicting the suspects. Seventeen 
years later, after $2 million of work by a large private law firm, 
Guerra was freed from death row based on a finding of police and 
prosecutorial misconduct. The Harris County District Attorney's Office 
declined to re-prosecute him. (Source: A State of Denial: Texas Justice 
and the Death Penalty, published by Texas Defender Service in 2000.) 
Since that case, some changes have been made to the Texas criminal 
justice system. But recent reports reveal that funding for 
investigations remains minimal. We still have a long way to go.
    The Texas Fair Defense Act addresses several critical concerns:

        1) timeliness of appointment of attorneys for indigent persons 
        accused of crimes;
        2) method of the appointment;
        3) reporting of data regarding indigent defense services;
        4) experience requirements for defense attorneys in capital 
        cases; and
        5) development of statewide standards for provision of indigent 
        defense services through an appointed task force.

    I worked for two years with everyone involved in the system--
judges, prosecutors, defense attorneys, legislators, the State Bar and 
advocacy groups--to craft a strong, effective, and bipartisan reform 
plan.
    But I must emphasize that the plan is a compromise. It goes too far 
for some and not far enough for others. As a result, Texas has launched 
a series of reforms that will eliminate the worst abuses and provide 
some state oversight of the system, without bankrupting our counties or 
mandating a one-size-fits-all approach. What that means, members of the 
Committee, is that we have a good start in Texas. What that does not 
mean is that we have finished the job. Still more must be done to 
ensure a completely fair system of indigent defense in Texas.
    I have said that I had to make a lot of compromises in Senate Bill 
7, and I have said that some of those compromises kept me up at night. 
Stronger enforcement mechanisms could be in place to require adherence 
to the task force standards. We could have gone farther on the capital 
standards. And more needs to be done on fees. In one large urban 
county, compensation for out-of-court time is limited to 60 hours, a 
tiny fraction of the average time needed to defend a capital case. 
(Sources: Texas Appleseed Fair Defense Project, The Fair Defense 
Report: Analysis of Indigent Defense Practices in Texas (2000); 
Subcommittee on Federal Death Penalty Cases of the Committee on 
Defender Services, Federal Death Penalty Cases: Recommendations 
Concerning the Cost and Quality of Defense Representation (1998).)
    The Innocence Protection Act includes provisions that will ensure 
gaps in state law get addressed. For example, the Texas Fair Defense 
Act, by design, focuses on trial-level representation and does not 
address adequate counsel for appeals and on habeas corpus writs. But we 
know the stage at which most innocent people get freed on the basis of 
new evidence is the habeas stage. When it comes to these areas of 
critical national concern, it is useful for Congress to make sure all 
states are on an equal footing. I welcome the federal government's 
standard-setting in the area of capital qualifications and pay.
    When the state or federal government takes the life of a person 
using the immense power of the government, we must be ever-vigilant in 
protecting the rights of those individuals and check that the criminal 
justice system operates correctly throughout the process. Having 
carried out three executions and been engaged on this issue in Texas, I 
must say that I have serious concerns with how the death penalty is 
applied and believe we can and should do much more to ensure fairness 
in the system. I think we have seen that states can achieve positive 
improvements on some issues. For example, each state can determine 
appropriate local rates for attorneys. On the other hand, we ought to 
have a national statement of the national consensus that the death 
penalty is not appropriately applied to the mentally retarded. And we 
should have a national panel that ensures that no state fails to 
provide adequate and well-funded counsel to a citizen facing the 
ultimate penalty.
    Title II of the Innocence Protection Act establishes the National 
Commission on Capital Representation to give us that assurance we need 
as a nation. As a supporter of the death penalty, I want to sleep at 
night, even nights when an execution is taking place. I need to be 
satisfied that we are doing everything we can to keep the system honest 
and fair. I believe that the Commission established by the Innocence 
Protection Act is a good first step to achieve this with respect to 
capital counsel standards. I believe that low standards and pay for 
capital defense counsel has been a problem in all states with the death 
penalty, and the problem needs to be solved across the board. I urge 
the members of the Committee to support the establishment of the 
Commission, and the entire Innocence Protection Act.
    Thank you for giving me the opportunity to share the experiences of 
Texas with you today. I will gladly answer any questions you might 
have.

    Chairman Leahy. Thank you very much, Senator Ellis. With 
you and General Pryor traveling this far, it must seem awfully 
arbitrary to have a 5-minute limit. But I can't emphasize 
enough how important it is that you are here. Your experience 
with your legislation in Texas, the fact that you were acting 
Governor during executions, and everything else is extremely 
important to us.
    Stephen Bright is the H. Lee Sarokin Director for the 
Southern Center for Human Rights and, in fact, has directed 
that organization since 1982. The Center provides legal 
representation to defendants facing the death penalty and works 
to ensure that they have qualified attorneys.
    He has written widely on this subject. He teaches courses 
on the death penalty and criminal law at both Yale and Emory 
Law Schools. I wanted to mention Emory because my oldest son 
graduated from law school at Emory.
    Mr. Bright?

 STATEMENT OF STEPHEN B. BRIGHT, DIRECTOR, SOUTHERN CENTER FOR 
                 HUMAN RIGHTS, ATLANTA, GEORGIA

    Mr. Bright. Mr. Chairman, thank you. Thank you for having 
me, Senator Hatch, Senator Feingold, Senator Sessions. It is an 
honor to be here to testify about this Act because it is 
urgently needed.
    Mr. Chairman, you said earlier that the need was urgent, 
real and well-documented. I just want to say Powell v. Alabama 
was decided in 1932. That case said, in capital cases, that 
people had a right to a lawyer. That was 70 years ago. Gideon 
v. Wainwright was decided in 1963. It said people had a right 
to a lawyer.
    Senator Hatch, in your opening statement you said there is 
not a systematic denial of counsel. What there is in many 
States is a systematic failure to provide counsel. That is the 
problem we have. I think what a lot of people don't realize is 
how many States there are that still don't have public defender 
offices.
    We have offices that specialize in the prosecution of these 
cases. They have lawyers there who are trained, who are 
veterans, who know what they are doing, who bring an expertise 
to the table when they try these cases. Then on the other side, 
often we have a general practitioner or somebody like that 
representing people.
    I will give you just one recent example, which is Gary 
Drinkard, one of our clients, Mr. Chairman, just 3 weeks ago 
acquitted at a capital trial. Mr. Drinkard is sitting right 
here directly behind me. What happened to him is typical, I am 
afraid, of too many cases in our system.
    Gary Drinkard was at home with his family the night the 
crime took place. He had been to the doctor that day because he 
had had a disk problem and was in such pain he couldn't have 
committed this crime, physically couldn't have committed this 
crime. But he was appointed lawyers, one who was a collections 
and commercial lawyer with virtually no criminal experience, 
another lawyer who represents creditors in foreclosures and 
bankruptcies. That is the kind of representation people often 
get. A foreclosure lawyer should not be representing somebody 
in a death penalty case.
    What happened was they never called the doctor to testify 
about his medical condition. They just dumped the medical 
records into the evidence. The jury didn't know what to do with 
that. There was nobody to explain, nobody to talk about the 
pain, nobody to talk about how disabling it was. So the jury 
didn't have that critical information.
    There was a man about 70 years old who was just by the home 
that evening, didn't even know Mr. Drinkard, was there with 
somebody else who was there with him during the crime went 
down, the most objective person never called as a witness.
    Now, fortunately, Mr. Drinkard was represented at his 
retrial by Richard Jaffe, a very distinguished and good lawyer 
from Birmingham, Alabama; John Mays, a lawyer from Decatur; and 
Chris Adams from our office. The two people who investigated 
that case are also here today, Kate Weisberg and Jason Marks. 
But that is the exception, Mr. Chairman.
    Most people in Alabama, and I notice the attorney general--
I will mention that I tried a case there, the Tomlin case. I 
tried the Tomlin case because I went to Mr. Tomlin's earlier 
trial and I watched the two court-appointed lawyers trying that 
case and I said after the case was over, if this case gets 
reversed, I am going to come back here and try this case, 
because the lawyering was just dreadful.
    By the way, it said that Tomlin four times got the death 
sentence. Actually, in Mr. Tomlin's case the jury unanimously 
give him a life sentence. Judges in Alabama are allowed to 
override the jury, and they have. About a fourth of the death 
row, as I am sure Senator Sessions and Mr. Pryor know, are 
cases where juries in Alabama gave life, but the judges 
overrode and gave the death penalty.
    That judge, Farrell McRae, was a judge who ran for office 
showing on his TV commercials all the people he had sentenced 
to death on the TV commercials. Now, that is the same judge who 
appoints the lawyers in these cases, which is why we need an 
independent appointing authority. Judges who run for election 
and who unfortunately can't resist sometimes the temptation to 
demagogue on some of these issues should not be appointing 
either the prosecutor or the defense. The judge ought to be 
fair and impartial.
    There are other cases: Anthony Porter, who came within 2 
days of execution in Illinois. His execution was stayed 2 days 
before it was to take place only because there was a question 
of whether he was mentally competent to be executed, only 
because it wasn't clear he could understand why he was being 
executed.
    It was only after that that the journalism class at 
Northwestern became involved. And as I have often said, thank 
goodness those students decided to take journalism that 
semester instead of chemistry, because if they had taken 
chemistry, Anthony Porter would have been executed and we would 
never know. We would be saying no innocent people have been 
executed.
    Look at Earl Washington, who is sitting right here beside 
me. Mr. Washington is a man who confessed to a crime he didn't 
do. It is a classic example of the vulnerability of some of the 
mentally retarded people who come into our criminal justice 
system. But for so many people, there is no journalism class, 
there are no lawyers like the ones that Senator Ellis 
described, the Guerra lawyers who come in and take the case.
    I want to mention one other thing. It was said earlier that 
the sleeping lawyer cases are routinely thrown out. There have 
been three cases where the lawyers slept during the trial out 
of one jurisdiction alone, and that is Houston. And in all 
three of those cases, Senator Hatch, they have been upheld by 
the courts.
    I was at the Fifth Circuit in January and saw 14 life-
tenured United States judges agonizing over the question of 
whether the lawyer who slept during Calvin Burdine's trial 
denied him a fair trial. The panel held two to one that he was 
not denied, that in an 18-hour trial--that is all it took--that 
the fact that his lawyer slept through the trial didn't deny 
him a fair trial. Now, that is what it means to get the dream 
team if you are poor in this country. And that lawyer, Joe 
Cannon, put 14 people on death row.
    I will say this: the judges in Houston are not appointing 
Mr. Cannon anymore, but I think it is only because he is no 
longer in life. I am not sure that that would be the case 
otherwise.
    We need programs to provide competent legal representation, 
lawyers who are trained, who know what they are doing. They 
need to be independent. It has been suggested with this parade 
of horribles here, well, what if we get people who zealously 
want to defend these people? Well, the cases are zealously 
prosecuted. Why shouldn't they be zealously defended? My 
understanding is that is what the Constitution and what the 
Canons of Ethics require, is that the case be zealously 
defended.
    Thank you, Mr. Chairman.
    Chairman Leahy. You would agree with Senator Ellis, if I 
might paraphrase him, that poor defendants should not be 
sentenced to a poor defense?
    Mr. Bright. Well, I wrote an article one time that said the 
death sentence for the worst lawyer, not for the worst crime. 
That is the system we have in Georgia, Alabama, Mississippi, 
Texas. In a number of the States that are sentencing the vast 
majority of people to death row, Mr. Chairman, in this country 
people are getting the death penalty not because they committed 
the worst crime, but because they often have lawyers who have 
no more business trying a death penalty case than I would have 
trying an antitrust case. That is just not right.
    And somebody said we shouldn't have one-size-fits-all. The 
Constitution doesn't come in different sizes. Everybody, no 
matter where they are charged--whether it is Tupelo, 
Mississippi, or Mobile, Alabama, or Atlanta, Georgia, everybody 
is entitled to competent legal representation, with the 
resources necessary to investigate the case and present it. 
Thank you.
    [The prepared statement of Mr. Bright follows:]

  Statement of Stephen B. Bright, Director, Southern Center for Human 
         Rights, Lecturer, Yale, Harvard and Emory Law Schools

    Mr. Chairman and Members of the Committee:
    Thank you for this opportunity to address the committee regarding 
Title II of the Innocence Protection Act of 2001, which is absolutely 
essential to minimizing the risk of executing innocent people.
    I have been interested in the quality of legal representation for 
the poor for over 25 years, as a public defender, as the director of a 
law school clinical program here in the District of Columbia, for the 
last 19 years as director of the Southern Center for Human Rights, and, 
since 1993, as a teacher of criminal law, including the right to 
counsel, at Yale, Harvard and Emory Law Schools. I have testified as an 
expert witness on the subject in the courts and have written a couple 
of law review articles on the subject.\1\
---------------------------------------------------------------------------
    \1\ ``Counsel for the Poor: The Death Sentence Not for the Worst 
Crime but for the Worst Lawyer,'' volume 103 of the Yale Law Journal, 
page 1835 (1994) and ``Neither Equal nor Just: The Rationing and Denial 
of Legal Services to the Poor When Life and Liberty Are at Stake,'' 
Volume 197 of the New York University Annual Survey of American Law, 
page 783 (1997) Both available at http://www.schr.org.
---------------------------------------------------------------------------
    People are wrongfully convicted because of poor legal 
representation, mistaken identifications, the unreliable testimony of 
informants who swap their testimony for lenient treatment, police and 
prosecutorial misconduct and other reasons. Unfortunately, DNA testing 
reveals only a few wrongful convictions. In most cases, there is no 
biological evidence that can be tested. In those cases, we must rely on 
a properly working adversary system--in which the defense lawyer 
scrutinizes the prosecution's case, consults with the client, conducts 
a thorough and independent investigation, consults with experts, and 
subjects the prosecution case to adversarial testing--to bring out all 
the facts and help the courts find the truth. But even with a properly 
working adversary system, there will still be convictions of the 
innocent. The best we can do is minimize the risk of wrongful 
convictions. And the most critical way to do that is to provide the 
accused with competent counsel and the resources needed to mount a 
defense.
                                   I.
    We have been very fortunate that the innocence of some of those 
condemned to die in our courts has been discovered by sheer 
happenstance and good luck. A few of many examples illustrates the 
point.
    Anthony Porter came within hours of execution before his innocence 
was established by the journalism class at Northwestern. Porter had 
been convicted by a jury. He had been sentenced to death. His case had 
been reviewed and affirmed on appeal by the Illinois Supreme Court. He 
had gone through the state and federal post-conviction processes and 
every court had upheld his conviction and sentence. He was scheduled to 
be executed.
    However, a question arose as to whether Porter was mentally 
competent to be executed; that is, whether he understood that he was 
being put to death as punishment for the crime of which he had been 
convicted. A person who lacks the mental ability to understand this 
relationship cannot be executed, but is instead treated until he is 
``restored to competency.'' When he has improved to the point that he 
can understand why he is being executed, he is put to death. Anthony 
Porter was a person of limited intellectual functioning and mental 
impairments. Because there was a question about whether he could 
understand why he was being executed, a court stayed his execution in 
order to determine his competency to be executed.\2\
---------------------------------------------------------------------------
    \2\ Pam Belluck, ``Class of Sleuths to Rescue on Death Row,'' New 
York Times, Feb. 5, 1999, at A14.
---------------------------------------------------------------------------
    After the stay was granted, the journalism class at Northwestern 
University and a private investigator examined the case and proved that 
Anthony Porter was innocent. They obtained a confession from the person 
who committed the crime. Anthony Porter was released from death row.\3\ 
He was the third person released from Illinois's death row after being 
proven innocent by the journalism class at Northwestern.\4\ Since 
Illinois adopted its present death penalty statute in 1977, thirteen 
people sentenced to death have been exonerated and twelve have been 
executed.\5\
---------------------------------------------------------------------------
    \3\ Jon Jeter, ``A New Ending to an Old Story,'' Washington Post, 
Feb. 17, 1999, at C1.
    \4\Don Terry, ``DNA Tests and a Confession Set Three on a Path to 
Freedom in 1978 Murders'', New York Times, June 15, 1996, at A6.
    \5\ Ken Armstrong & Steve Mills, ``Ryan Suspends Death Penalty: 
Illinois First State to Impose Moratorium on Executions,'' Chi. Trib., 
Jan. 31, 2000, at 1.
---------------------------------------------------------------------------
    In 1994, the governor of Virginia, Douglas Wilder, commuted the 
sentence of a mentally retarded man, Earl Washington, to life 
imprisonment without parole because of questions regarding his 
guilt.\6\ Six years later, DNA evidence--not available at the time of 
Washington's trial or the commutation--established that Earl Washington 
was innocent.
---------------------------------------------------------------------------
    \6\ Brooke A. Masters, ``Missteps On Road To Injustice: In Va., 
Innocent Man Was Nearly Executed,'' Washington Post, Dec. 1, 2000, at 
A1.
---------------------------------------------------------------------------
    Frederico Martinez-Macias was represented at his capital trial in 
Texas, by a court-appointed attorney paid only $11.84 per hour.\7\ 
Counsel failed to present an available alibi witness, relied upon an 
incorrect assumption about a key evidentiary point without doing the 
research that would have corrected his erroneous view of the law, and 
failed to interview and present witnesses who could have testified in 
rebuttal of the prosecutor's case. Martinez-Macias was sentenced to 
death. Martinez-Macias received competent representation for the first 
time when the Washington, D.C., firm of Skadden, Arps, Slate, Meagher & 
Flom volunteered to take his case and represented him without charge. 
After a full investigation and development of facts regarding his 
innocence, Martinez-Macias won federal habeas corpus relief. A grand 
jury refused to re-indict him and he was released after nine years on 
death row.
---------------------------------------------------------------------------
    \7\ Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).
---------------------------------------------------------------------------
    Similarly, volunteer lawyers from the Houston firm of Vincent & 
Elkins established in federal habeas corpus proceedings that Ricardo 
Aldape Guerra had been convicted in violation of the Constitution and 
was innocent. He was released and he returned to Mexico.
    Gary Nelson was represented at his capital trial in Georgia by a 
solo practitioner who had never tried a capital case. This court-
appointed lawyer, who was struggling with financial problems and a 
divorce, was paid at a rate of only $15 to $20 per hour. His request 
for co-counsel was denied. The case against Nelson was entirely 
circumstantial, based on questionable scientific evidence, including 
the opinion of a prosecution expert that a hair found on the victim's 
body could have come from Nelson. Nevertheless, the appointed lawyer 
was not provided funds for an investigator and, knowing a request would 
be denied, did not seek funds for an expert. Counsel's closing argument 
was only 255 words long. The lawyer was later disbarred for other 
reasons.
    Nelson had the good fortune to have some outstanding lawyers 
volunteer to represent him in post-conviction proceedings, who devoted 
far more time to the case than had the court-appointed lawyer and spent 
their own money to investigate Nelson's case. They discovered that the 
hair found on the victim's body, which the prosecution expert had 
linked to Nelson, lacked sufficient characteristics for microscopic 
comparison. Indeed, they found that the Federal Bureau of Investigation 
had previously examined the hair and found that it could not validly be 
compared. As a result of such inquiry, Gary Nelson was released after 
eleven years on death row.
    But for the vast majority of those sentenced to death, there are no 
journalism students or volunteer lawyers who come forward and examine 
their cases.
    For example, Exzavious Gibson, a man whose IQ has been tested 
between 76 and 82, was forced to represent himself at his state post-
conviction hearing in Georgia because he could not afford a lawyer. 
There are dozens of people on death row in Alabama who do not have 
lawyers to represent them in post-conviction proceedings. And the 
statute of limitations is running on them.
    Some of the lawyers provided in post-conviction proceedings are 
worse than no lawyer at all. Ricky Kerr was assigned a lawyer by the 
Texas Court of Criminal Appeals who had been in practice only four 
years, had no capital experience and suffered serious health problems. 
Federal Judge Orlando Garcia said the appointment of the lawyer 
``constituted a cynical and reprehensible attempt to expedite [the] 
execution at the expense of all semblance of fairness and integrity.''
    If the journalism class had not become involved in Anthony Porter's 
case, he would have been executed and we would never know to this day 
of his innocence. Those who naively proclaim that no innocent person 
has ever been executed would continue to do so, secure in their 
ignorance. If Martinez-Macias, Guerra, Nelson and others had been left 
without any post-conviction representation, as was Exzavious Gibson in 
Georgia, or had been provided a lawyer like the one assigned by the 
Texas Court of Criminal Appeals to represent Ricky Kerr, they would be 
dead and their innocence would have gone to the grave with them.
    We should not count on luck to discover the innocent. We do not 
know how many Anthony Porters have been put to death and we never will. 
We can be confident that innocent people will be convicted and 
sentenced to death so long as those accused receive inadequate 
representation at trial and equally inadequate representation--or no 
representation at all--during post-conviction review.
    Some have said that the fact that Anthony Porter and others have 
been released shows that the system works. However, someone spending 
sixteen years on death row for a crime he did not commit is not an 
example of the system working. When journalism students prove that 
police, prosecutors, judges, defense lawyers and the entire legal 
system did not discover a man's innocence and instead condemned him to 
die, the system is not working. And it is not a system of justice. It 
is a cruel lottery.
                                  II.
    The major reason that innocent people are being sentenced to death 
is because the representation provided to the poor in capital cases is 
often a scandal. The state legislatures have been unwilling to provide 
the resources and structure necessary to provide competent legal 
representation. And the courts have been willing to tolerate 
representation that is an embarrassment to our legal system and the 
legal profession.
    In at least four cases in Georgia, counsel referred to their 
clients before the jury with a racial slur. A woman in Alabama was 
represented by a lawyer so drunk that her trial had to be suspended for 
a day and the lawyer sent to jail to sober up. The next day, both 
lawyer and client were produced from jail and trial resumed. Defense 
lawyers in Alabama and Missouri cases had sexual relations with clients 
facing the death penalty. There have been far too many cases in which 
defense lawyers defending capital cases were impaired by alcohol, drugs 
or infirmity.\8\ In case after case, defense lawyers for people facing 
the death penalty are denied investigators and funds for expert 
assistance.\9\
---------------------------------------------------------------------------
    \8\ See Jeffrey L. Kirshmeier, Drink, Drugs and Drowsiness: The 
Constitutional Right to Effective Assistance of Counsel and the 
Strickland Prejudice Requirement, 75 Nebraska Law Review 425, 455-60 
(1996) (citing cases in which convictions were upheld even though 
defense lawyers were intoxicated, abusing drugs, or mentally ill).
    \9\ Numerous examples are collected in Stephen B. Bright, ``Counsel 
for the Poor: The Death Sentence Not for the Worst Crime but for the 
Worst Lawyer,'' volume 103 of the Yale Law Journal, page 1835 (1994) 
(also available at http://www.schr.org.)
---------------------------------------------------------------------------
    Last January, 14 judges of the United States Court of Appeals for 
the Fifth Circuit earnestly considered the issue of whether a death 
sentence can be carried out in a case in which the one lawyer appointed 
to defend the accused slept through much of a trial that lasted only 18 
hours. The Texas Solicitor General's office argued that Calvin 
Burdine's conviction and death sentence should be upheld because a 
sleeping lawyer is no different from a lawyer who is intoxicated, under 
the influence of drugs, suffering from Alzheimer's disease or having a 
psychotic break. The judges engaged the assistant solicitor general on 
this argument, asking whether there was not some difference between a 
lawyer who was merely impaired by alcohol and a lawyer who was 
completely unconscious. A panel of three members of that court had 
previously concluded in a 2-1 opinion that sleeping did not violate the 
right to counsel. The two judges in the majority held that the record 
did not show that the lawyer slept through an important part of the 
trial.\10\ Of course, the person responsible for making the record was 
the lawyer. And he was asleep. The entire Court is now reconsidering 
the case.
---------------------------------------------------------------------------
    \10\ Burdine v. Johnson, 234 F.3d 1339 (5th Cir. 2000), reversing 
Burdine v. Johnson, 66 F. Supp. 2d 854, 866 (S.D. Tex. 1999).
---------------------------------------------------------------------------
    The standard for counsel is so low that Judge Alvin Rubin of the 
U.S. Court of Appeals for the Fifth Circuit, once observed that, ``The 
Constitution, as interpreted by the courts, does not require that the 
accused, even in a capital case, be represented by able or effective 
counsel.'' \11\ A trial judge in Houston put it even more bluntly, 
saying that while the Constitution guarantees a lawyer, ``[t]he 
Constitution doesn't say the lawyer has to be awake.'' That judge 
presided over the case of George McFarland, another of the three 
capital cases tried in a single city, Houston, in which the defense 
lawyers slept through trial. The Houston Chronicle described 
McFarland's trial as follows:
---------------------------------------------------------------------------
    \11\ Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin, 
J., concurring).

        Seated beside his client--a convicted capital murderer--defense 
        attorney John Benn spent much of Thursday afternoon's trial in 
        apparent deep sleep.
        His mouth kept falling open and his head lolled back on his 
        shoulders, and then he awakened just long enough to catch 
        himself and sit upright. Then it happened again. And again. And 
        again.
        Every time he opened his eyes, a different prosecution witness 
        was on the stand describing another aspect of the Nov. 19, 
        1991, arrest of George McFarland in the robbery-killing of 
        grocer Kenneth Kwan.
        When state District Judge Doug Shaver finally called a recess, 
        Benn was asked if he truly had fallen asleep during a capital 
        murder trial.
        ``It's boring,'' the 72-year old longtime Houston lawyer 
        explained.
        Court observers said Benn seems to have slept his way through 
        virtually the entire trial.\12\
---------------------------------------------------------------------------
    \12\ John Makeig, ``Asleep on the Job; Slay Trial Boring, Lawyer 
Said,'' Houston Chronicle., Aug. 14, 1992, page A35.

    The Texas Court of Criminal Appeals affirmed McFarland's conviction 
and death sentence, as it did in the cases of Calvin Burdine and Carl 
Johnson.\13\ Johnson was executed by Texas in 1995.\14\
---------------------------------------------------------------------------
    \13\ Burdine v. Johnson, 66 F. Supp. 2d 845 (S.D. Tex. 1999).
    \14\ A full description of the case is provided by David R. Dow in 
his article, ``The State, the Death Penalty, and Carl Johnson,'' 
published in volume 37 of the Boston College Law Review page 691 
(1996).
---------------------------------------------------------------------------
    For poor people facing the death penalty, this is what is means to 
be represented by the ``dream team.''
    The old adage ``you get what you pay for'' applies with particular 
force in the legal system, and many states pay very little to lawyers 
appointed to defend capital cases. Studies of capital cases in 
Illinois, Kentucky and Texas have found that about one-third of those 
sentenced to death in those states were represented by lawyers who were 
later been disbarred, suspended or convicted of crimes.\15\
---------------------------------------------------------------------------
    \15\ Ken Armstrong & Steve Mills, ``Inept defense cloud verdicts,'' 
Chicago Tribune, November 15, 1999 (reporting that in 33 of the 285 
cases in which death was imposed in Illinois the defense lawyers were 
later disbarred or suspended); Steve Mills & Ken Armstrong, ``Flawed 
trials lead to death chamber,'' Chicago Tribune, June 11, 2000 
(reporting that in 43 of the 131 most recent executions in Texas prior 
to publication of the story the defendants were represented by an 
attorney who was later disbarred, suspended or otherwise sanctioned).
---------------------------------------------------------------------------
    States also fail to provide a structure, such as there is on the 
prosecution side, so that lawyers defending the poor are trained and 
supervised and develop an expertise in criminal law and the sub-
speciality of capital punishment law. The lawyer who defended Wallace 
Fugate at his capital trial in Georgia had never heard of Furman v. 
Georgia, the case which declared Georgia's death penalty law 
unconstitutional in 1972, or Gregg v. Georgia, the case which upheld 
Georgia's current death penalty law in 1976. He could not recall ever 
having had an investigator in over 40 years of defending people in 
court-appointed cases and thought he may have had an expert on one 
occasion. He failed to find out that the gun, which his client said had 
fired accidentally, had a design defect that made it susceptible to 
accidental discharge.
    Another lawyer who handled the cases of a several people sentenced 
to death in Georgia, when asked to name all the criminal cases with 
which he was familiar, answered, ``the Miranda and Dred Scott.'' (Dred 
Scott was not a criminal case.)
    These are only a few of the most egregious examples of the poor 
quality of legal representation that one sees every day in states that 
lack a structure for providing indigent defense, that fail to provide 
the resources to defend a case properly and that fail to provide for 
the independence of defense counsel from the judiciary. But they tell 
you how urgently this legislation is needed.
    Unfortunately, many jurisdictions--including many which are sending 
large numbers of people to their death rows--still do not have a 
working adversary system, even in cases in which a person's life is at 
stake. In those states, it is better to be rich and guilty than poor 
and innocent because the poor are represented by court-appointed 
lawyers who often lack the skill, resources, and, on occasion, even the 
inclination to defend a case properly.
    There are exceptions. Some states, like Colorado and New York, not 
only have public defender offices, but capital defender offices that 
specialize in the defense of capital cases. But other states, such as 
Alabama, Georgia, Mississippi, Texas and Virginia have no state-wide 
public defender system. There are some outstanding lawyers who will 
occasionally take a capital case, but they find those cases drain them 
emotionally and financially. In states where at any one time there are 
hundreds of people facing capital trials and hundreds more on death row 
whose cases are under review in the courts, there are not nearly enough 
good lawyers willing to take the cases for the small amount of money 
paid to defend them. There are also lawyers who, although lacking in 
experience, training and resources, make conscientious efforts to do 
the best they can in defending people in capital cases, but many find 
it simply impossible to overcome these disadvantages in these complex 
and difficult cases. And, unfortunately, there are too many lawyers who 
are taking court-appointed cases because they can get no other work and 
do not even make conscientious efforts.
                                  III.
    One of the very important provisions of Title II is the requirement 
of an independent authority for appointing attorneys in capital cases. 
Lawyers are ethically, professionally and constitutionally required to 
exercise independent professional judgment on behalf of a client.\16\ 
The appointment of counsel by judges creates--at the least--the 
appearance that lawyers are being assigned cases to move dockets and 
that lawyers may be more loyal to the judge than to the client. A 
lawyer's conduct in a case should not be influenced in any way by 
considerations of administrative convenience or by the desire to remain 
in the good graces of the judge who assigned the case. However, because 
some lawyers are dependent upon judges for continued appointments--
which, in some cases, are the only business the lawyer receives--a 
lawyer may be reluctant to provide zealous advocacy for fear of 
alienating the judge. Some lawyers have remarked that one way to avoid 
being assigned indigent cases is to provide a vigorous defense in one.
---------------------------------------------------------------------------
    \16\ American Bar Association, Canons of Ethics, Canon 5.
---------------------------------------------------------------------------
    Almost half of the judges in Texas, responding to a survey, said 
that an attorney's reputation for moving cases quickly, regardless of 
the quality of the defense, was a factor that entered into their 
appointment decisions.\17\ One-forth of the judges said an attorney's 
contribution to the judge's campaigns was a factor in appointing 
counsel. When the judges were asked whether contributions influenced 
appointments by other judges they knew, over half said that judges they 
knew based their appointments in criminal cases in part on whether the 
attorneys were political supporters or had contributed to the judge's 
political campaign. The perception of lawyers and court personnel is 
that the influence of campaign contributions on elected judges 
decisions is even more significant, with 79 percent of the lawyers and 
69 percent of the court personnel saying they believe campaign 
contributions effect judges' decisions.
---------------------------------------------------------------------------
    \17\ See Allan K. Butcher & Michael K. Moore, Committee on Legal 
Services to the Poor in Criminal Matters, Muting Gideon's Trumpet: The 
Crisis in Indigent Criminal Defense in Texas (Sept. 22, 2000), 
available at http://www.edu/pols/moore/indigent/whitepaper.htm. Judges 
in the survey were specifically asked to discount their experiences in 
capital cases, but there is no reason to believe that their motivations 
for appointment decisions would vary depending on the type of case.
---------------------------------------------------------------------------
    The same factors influence some judges in other states. But even if 
a judge appoints laywers based their reputation for providing competent 
representation, there is the danger that some lawyers may not always 
provide the zealous representation that the Constitution requires 
because of the fear--whether justified or not--that the lawyer risks 
losing future appointments from the judge. For lawyers whose entire 
practice is made up of appointments from the court, such fears may 
considerably chill their performance.
    This is a system riddled with conflicts. A judge's desire for 
efficiency conflicts with the duty to appoint indigent defense counsel 
who can provide adequate representation; a lawyer's need for business 
taints the constitutional and ethical requirement of zealous advocacy. 
And later, if there is a claim of ineffective assistance, the judge who 
appointed the lawyer is the one to decide the claim. This is not a good 
way to run a system of justice. Judges do not appoint prosecutors to 
cases. Judges should be fair and impartial. They should not be managing 
the defense.
    Accordingly, Standard 5-1.3 of the American Bar Association's 
Criminal Justice Standards, provides:

        (a) The legal representation plan for a jurisdiction should be 
        designed to guarantee the integrity of the relationship between 
        lawyer and client. The plan and the lawyers serving under it 
        should be free from political influence and should be subject 
        to judicial supervision only in the same manner and to the same 
        extent as are lawyers in private practice. The selection of 
        lawyers for specific cases should not be made by the judiciary 
        or elected officials, but should be arranged for by the 
        administrators of the defender, assigned-counsel and contract-
        for-service programs.
        (b) An effective means of securing professional independence 
        for defender organizations is to place responsibility for 
        governance in a board of trustees. Assigned-counsel and 
        contract-for-service components of defender systems should be 
        governed by such a board. Provisions for size and manner of 
        selection of boards of trustees should assure their 
        independence. Boards of trustees should not include prosecutors 
        or judges. The primary function of boards of trustees is to 
        support and protect the independence of the defense services 
        program. Boards of trustees should have the power to establish 
        general policy for the operation of defender, assigned-counsel 
        and contract-for-service programs consistent with these 
        standards and in keeping with the standards of professional 
        conduct. Boards of trustees should be precluded from 
        interfering in the conduct of particular cases. A majority of 
        the trustees on boards should be members of the bar admitted to 
        practice in the jurisdiction.

    The Innocence Protection Act will bring jurisdictions to where they 
should have been long ago in having independent defender programs whose 
primary concern is providing zealous and effective representation to 
those facing the death penalty so that the adversary system can work 
properly.
                               CONCLUSION
    The states have received enormous amounts of federal funds to 
improve their law enforcement and prosecution functions. But they have 
failed to develop and maintain a properly working adversary system in 
criminal cases involving poor defendants. Many states--those I have 
mentioned and many others--lack the key elements of an effective 
indigent defense system: a structure, independence from the judiciary 
and the prosecution, and adequate resources.
    It is much easier to convict a person and obtain the death penalty 
when the defendant is represented by a lawyer who lacks the skill and 
resources to mount a defense. And it is much easier to execute people 
who are not adequately represented in post-conviction proceedings. But 
there is a larger question than whether adequate indigent defense 
systems make it harder for prosecutors to obtain convictions and for 
attorneys general to carry out executions swiftly. There is the 
question of fairness. It is not supposed to be easy to convict someone. 
Under our system required by our Constitution, the prosecution's case 
is supposed to undergo a vigorous adversarial testing process.
    The American people are realizing that we have sacrificed fairness 
for finality and reliability for results. They want protection from 
crime, but they want fairness. The system is woefully out of balance. 
The many exonerations from DNA evidence as well as the release of over 
95 people those sentenced to death shows that the system is broken. A 
major component, the defense function, lacks the structure, 
independence and resources to contribute to a fair, reliable and just 
result. It is not unreasonable for Congress to require the states as a 
condition of receiving millions of federal dollars to implement an 
adequate indigent defense system to protect the innocent at least in 
capital cases.

    Chairman Leahy. I want to make sure that General Pryor gets 
a chance to give us his views on that, too.
    To give you an example of what happens, Michael Graham was 
wrongly convicted of murder. He spent 14 years on death row in 
Louisiana. The majority of U.S. Senators have not served here 
in the Senate for 14 years. Last December, after a 9-month 
investigation, the Louisiana Attorney General dismissed the 
charges against Mr. Graham and his co-defendant, who had also 
been sentenced to death, citing the total lack of credible 
evidence linking either of them to the crime.
    Mr. Graham?

       STATEMENT OF MICHAEL R. GRAHAM, ROANOKE, VIRGINIA

    Mr. Graham. Thank you, Mr. Chairman. It is an honor to be 
here.
    My name is Michael Graham. In 1986, I was 22 years old, 
working as a roofer and living with my mom and my two little 
brothers in Virginia Beach. That summer, I met a family from 
Louisiana and became friends with their son, Kenneth. They 
suggested that I return with them to Louisiana for a vacation 
and I took up their offer.
    While down in Louisiana, Kenneth and I got arrested for 
writing some bad checks. I wasn't an angel back then, but I 
never physically hurt anyone and was never accused of hurting 
anyone, that is until a couple of months later. While in jail 
for the bad checks, I was arrested for the brutal murders of an 
elderly couple. I couldn't believe it and I told the police 
that I didn't know anything about the murders and I had never 
met the couple. All the time, I was sure that the truth would 
come out and I would be found innocent. It seems funny now, but 
I even asked one of my public defenders if he would represent 
me in a false arrest lawsuit.
    My trial was in early 1987. One of my two lawyers had some 
criminal law experience, but had never tried a death penalty 
case. My other lawyer just graduated from law school. The State 
didn't have any physical evidence against me. Basically, all it 
had was three witnesses, including a jailhouse snitch with a 
history of serious mental illness.
    The lawyers had a tough time at the trial. They didn't 
investigate the snitch's deal with the prosecution. They didn't 
know the rules of evidence. They didn't object to a jury 
instruction that I later learned was totally illegal under 
Louisiana law. They did nothing to prepare for my sentencing 
phase. They didn't ask my mother to come down and testify on my 
behalf.
    My trial only lasted a few days. When the jury convicted me 
of capital murder, I was stunned. So was my experienced lawyer, 
who disappeared. That left with my inexperienced lawyer, just 1 
year out of law school, to handle the sentencing hearing by 
himself.
    When the jury sentenced me to death, I could hardly talk 
and I was in a state of shock. A few months later, my co-
defendant, Albert Burrell, was also convicted and given the 
death sentence. I understand that his lawyers were even worse 
than mine.
    I will never forget my first night on death row. The night 
before, the State had executed another inmate and I was given 
his cell. During the night, I looked down on the floor and 
completely freaked out. I thought I saw a pool of blood and it 
turned out to be rusty water. That pretty much set the tone for 
the next 14 years.
    I spent 23 hours a day in my 5-by-10-foot cell alone. I was 
allowed out 1 hour a day to shower and walk up and down the 
tier. Three times a week, I could go outside and spend an hour 
by myself in an exercise yard. Whenever I left my tier, my 
hands and legs were shackled. Everyone in my world was either a 
prison guard who considered me an animal or a condemned man.
    The guards told me when to wake up and when to go to sleep, 
and just gave me a few minutes to eat. I tried not to go crazy 
by reading and praying to the Lord. I also passed the time by 
trying to keep up on my case and what was happening in the 
outside world. I studied for the GED, but the prison ended the 
program right before I was going to take the test.
    Each day, I would beg the Lord to make sure nothing 
happened to my family. My family was poor, and my mother was 
only able to visit me twice. My brothers never made it. The 
Lord answered my prayers, but my co-defendant wasn't so 
fortunate. My co-defendant's mother died while we were on death 
row. One of the guards told me that it was the hardest thing he 
has ever had to do.
    As in many cases, there was no DNA evidence to exonerate me 
and Albert, but we were two of the lucky ones. We both had pro 
bono lawyers who worked diligently for us and stuck with our 
cases for many years. If we had depended on State lawyers, we 
probably would still be on death row, or worse.
    After years of hard work, my attorneys got me a new trial 
on March 3, 2000. It was the second greatest day of my life. My 
lawyers proved that the prosecution had withheld evidence 
showing I was innocent. They also proved that the jailhouse 
snitch was a pathological liar. They got sworn statements from 
the two other witnesses recanting their testimony. They even 
got a statement from the prosecutor saying that the case should 
never have been brought to trial to begin with because the 
evidence was too weak.
    Ten long months later, in December, the State dismissed the 
case against me and Albert. The attorney general said that 
there was a total lack of credible evidence linking us to the 
crime. On December 28, 2000, the best day of my life, I was 
released from Louisiana's death row, where I had spent close to 
14 years for two murders I did not commit. I was the 92nd 
innocent person released from death row since 1973. My co-
defendant was released a few days later and became the 93rd 
innocent person released.
    Half of my adult life had been taken from me. I had been 
falsely branded as a murderer in connection with horrible 
crimes. Meanwhile, the suffering family of the victims was 
misled into believing that the crime was solve when, in fact, 
the real murderer or murderers had not been brought to justice.
    In compensation, the State gave me a $10 check and a coat 
that was five sizes too big, not even the price of a bus ticket 
back to Virginia. My lawyers had to buy that for me.
    At first when I got back to my family in Virginia, I was 
afraid to go out. I thought people would guess from my 
complexion that I had just come out of prison. I couldn't stop 
guzzling down my food and pacing the floor. Men in uniform 
freaked me out. Nowadays, I am just trying to put my life back 
together. I am getting to know my family again, including my 
brothers, who are now young men. I have a job as a roofer and I 
am getting married in October.
    During my 14 wasted years on death row, I always hoped that 
my nightmare would count for something. That is why I am here 
today. Mistakes like my nightmare are real. I never figured 
that this could happen to an innocent person before it happened 
to me, and I am sure that many people listening today feel the 
same way. I ask you to listen to my story and to the many 
others like mine and do what you can to fix the process.
    Thank you.
    [The prepared statement of Mr. Graham follows:]

     Statement of Michael Graham, Roofer, Virginia Beach, Virginia

    My name is Michael Graham. In 1986, I was 22 years old, working as 
a roofer, and living with my mom and my two little brothers in Virginia 
Beach. That summer, I met a family from Louisiana and got friendly with 
their son, Kenneth. They suggested that I return with them to Louisiana 
for a vacation. I took up their offer.
    While down in Louisiana, Kenneth and I got arrested for writing 
some bad checks. I was no angel back then, but I never physically hurt 
anyone, and was never accused of hurting anyone.
    That is, until a couple of months later. While in jail for the bad 
checks, I was arrested for the brutal murders of an elderly couple. I 
couldn't believe it. I told the police that I didn't know anything 
about the murders and had never met the couple.
    All the time, I was sure that the truth would come out and I would 
be found innocent. It seems funny now, but I even asked one of my 
public defenders if he would represent me in my false arrest lawsuit.
    My trial was in early 1987. One of my two lawyers had some criminal 
law experience, but had never tried a death penalty case. My other 
lawyer had just graduated from law school. The state didn't have any 
physical evidence against me. Basically, all it had was three 
witnesses, including a jailhouse snitch with a history of serious 
mental illness.
    My lawyers had a tough time at the trial. They didn't investigate 
the snitch's deal with the prosecution. They didn't know the rules of 
evidence. They didn't object to a jury instruction that I later learned 
was totally illegal under Louisiana law. And they did nothing to 
prepare for my sentencing phase. They
    didn't even ask my mother to come down and testify on my behalf.
    My trial only lasted a few days. When the jury convicted me of 
capital
    murder, I was stunned. So was my experienced lawyer, who 
disappeared. That left my inexperienced lawyer, just out of law school, 
to handle the sentencing hearing by himself. When the jury sentenced me 
to death, I could hardly talk - I was in such a state of shock.
    A few months later, my co-defendant, Albert Burrell, was also 
convicted and given a death sentence. I understand that his lawyers 
were even worse than mine.
    I'll never forget my first night on death row. The night before the 
state had executed another inmate, and I was given his cell. During the 
night, I looked down at the floor and completely freaked out. I thought 
I saw a pool of blood. It turned out to be rusty water.
    That pretty much set the tone for the next fourteen years. I spent 
23 hours a day in my 5 by 10 foot cell, alone. I was allowed out one 
hour a day to shower and walk up and down my tier. Three times a week I 
could go outside and spend an hour by myself in an exercise yard. 
Whenever I left my tier, my hands and legs were shackled. Everyone in 
my world was either a prison guard who considered me an animal or a 
condemned man. The guards told me when to wake up and when to go to 
sleep, and just gave me a few minutes to eat.
    I tried not to go crazy by reading and praying to the Lord. I also 
passed the time by trying to keep up on my case and what was happening 
in the outside world. I studied for a GED, but the prison ended the 
program right before I was going to take the test.
    Each day I would beg the Lord to make sure nothing happened to my 
family. My family is poor and my mother was only able to visit me 
twice. My brothers never made it down. The Lord answered my prayers. 
But my co-defendant wasn't so fortunate. Albert's mother died while we 
were on death row. One of the guards told me that telling Albert his 
mother was dead was one of the hardest things he ever did.
    As in many cases, there was no DNA evidence to exonerate me and 
Albert. But we were two of the lucky ones. We both had pro bono lawyers 
who worked their tails off for us and stuck with our cases for many 
years. If we had depended on state lawyers, we probably would still be 
on death row, or worse.
    After years of hard work, my attorneys got me a new trial on March 
3, 2000. It was the second greatest day in my life. My lawyers proved 
that the prosecution had withheld evidence showing I was innocent. They 
also proved that the jailhouse snitch was a pathological liar, and got 
sworn statements from the other two witnesses recanting their 
testimony. They even got a statement from the prosecutor saying that 
the case should never have been brought in the first place because the 
evidence was too weak.
    Ten long months later, in December, the state dismissed the case 
against me and Albert. The Attorney General said that there was ``a 
total lack of credible evidence'' linking us to the crime.
    On December 28, 2000 - the best day in my life - I was released 
from Louisiana's death row, where I had spent close to 14 years for two 
murders I did not commit. I was the 92nd innocent person released from 
death row since 1973. Albert was released a few days later, and became 
the 93rd innocent person released from death row.
    Half of my adult life had been taken from me. I had been falsely 
branded as a murderer in connection with horrible crimes. Meanwhile, 
the suffering family of the victims was misled into believing that the 
crime was solved, when in fact the real murderer or murderers had not 
been brought to justice.
    In compensation, the state gave me a $10 check and a coat that was 
five sizes too big. Not even the price of a bus ticket back to 
Virginia. My lawyers had to buy that for me.
    At first, when I got back to my family in Virginia, I was afraid to 
go out. I thought people would guess from my complexion that I had just 
come out of prison. I couldn't stop guzzling down my food and pacing 
the floor. Men in uniforms freaked me out.
    Nowadays, I am just trying to put my life back together. I am 
getting to know my family again, including my brothers who are now 
young men. I have a job as a roofer, and I am getting married in 
October.
    During my 14 wasted years on death row, I always hoped that my 
nightmare would count for something. That's why I'm here today. 
Mistakes like my nightmare are real. I never figured that this could 
happen to an innocent person before it happened to me, and I am sure 
that many people listening today feel the same way. I ask you to listen 
to my story and to the many others like mine, and do what you can to 
fix the process.

    Chairman Leahy. Thank you very much, Mr. Graham, and I wish 
you and your fiancee well. I met her earlier this morning.
    Mr. Graham. Thank you.
    Chairman Leahy. I will submit for the record a letter I 
received from Mr. Charles Lloyd, who represented your co-
defendant, Albert Burrell. Mr. Lloyd took the case pro bono 
after Burrell was convicted and sentenced to death. The letter 
describes the shocking incompetence of Burrell's trial lawyers, 
who were just a few years out of law school, apparently did 
little investigation before the trial, were ineffective during 
the trial, and did nothing to prepare for the penalty phase. 
Mr. Burrell was sentenced to death, both of his lawyers were 
indicted and convicted, one on a drug charge, the other for 
stealing client money. Both were later disbarred.
    Ronald Eisenberg is the Deputy District Attorney in 
Philadelphia. He previously served as chief of the Appeals Unit 
in Philadelphia, an office where he began work as a prosecutor 
in 1981. Mr. Eisenberg served on the Task Force on Death 
Penalty Litigation of the Third Circuit Court of Appeals. He is 
a member of the Pennsylvania Supreme Court's Criminal Rules 
Committee.
    Mr. Eisenberg, thank you for taking the time to come down 
and join us today.

   STATEMENT OF RONALD EISENBERG, DEPUTY DISTRICT ATTORNEY, 
                   PHILADELPHIA, PENNSYLVANIA

    Mr. Eisenberg. Thank you, Mr. Chairman, and members of the 
committee. I would like to touch briefly on two points from my 
written testimony that I have submitted to the committee.
    First, one of the arguments that has been made in favor of 
Federal intervention into the State appointment process in 
capital cases is that there is a chronic lack of funding for 
lawyers in State capital cases, and that, in fact, previous 
Federal funding for those cases, for assistance in State 
capital cases, was cutoff by Congress in 1996.
    In fact, however, while that money was cutoff in the form 
of one program, it was then paid out again ever since in the 
form of another program administered by the United States 
courts. And in fiscal year 2001, over $20 million was paid by 
the Federal Government to lawyers for assistance and training 
in State capital cases, not Federal cases like the McVeigh 
case, but State capital cases.
    Now, I know that the argument will be made that, well, if 
they were paying out that money and we still have a bad system, 
it must not be enough money. The point is that for opponents of 
capital punishment, and I understand their position, there is 
no amount of money or Federal intervention that is ever going 
to be enough to solve the problem as long as juries in State 
capital cases, on review of all the evidence, keep returning 
death penalties in some cases.
    Chairman Leahy. So your position is totally the opposite of 
what the three Members of Congress testified earlier, that it 
is not a question of whether you are for or against the death 
penalty, and it is totally different from that of the position 
of the pro-death penalty Members of Congress who have supported 
this legislation?
    Mr. Eisenberg. Senator, my point was that I understand that 
for people who are opponents of the death penalty--and as we 
have acknowledged, there are many who are and I can understand 
their position--the amount of money or the nature of the 
standards will not be enough, whatever they are, and that leads 
me to my next point about standards.
    Chairman Leahy. So you do not accept the testimony of 
Congressman LaHood, for example?
    Mr. Eisenberg. I don't think it is a contradiction, 
Senator.
    Chairman Leahy. OK.
    Senator Sessions. He is simply saying if you oppose the 
death penalty, Senator Leahy, deeply and personally and so 
greatly, nothing is going to make you satisfied with the 
system.
    Chairman Leahy. I just wanted to make sure I understood 
him.
    Mr. Eisenberg. Thank you, Senator.
    On the issue of standards, there has been a lot of talk 
about the absence of standards in State courts. The reality is 
that most death penalties arise in States that do have 
standards for the appointment of counsel. In fact, those 
standards are in most cases much stricter, much higher, than 
the standards that the Federal Government itself imposes for 
appointment of counsel in Federal capital cases such as the 
McVeigh case.
    The Justice Department, not the current Justice Department 
but the previous Justice Department, did a study reviewing 
standards for appointment of counsel in capital cases and 
collected all of this information. Those States have been doing 
that, have been promulgating these standards on their own, 
without Federal compulsion, for many years.
    Now, there has been talk about State courts today and about 
the claim that we can't trust the State courts, that there are 
a lot of errors found in death penalties, reference to the 
study by Professor Liebman. While I certainly believe that the 
numbers in his study are greatly exaggerated, there is no 
question that death penalty cases are reversed at a 
significantly higher rate than other cases, even cases that 
were tried under identical circumstances but simply resulted in 
the end in a non-capital verdict rather than a death penalty 
verdict, and that significant numbers of those reversals occur 
in the State courts.
    Now, the question arises, I believe, that if the State 
legislatures and courts are already out in front in many areas 
in the standards that they have promulgated, and if the State 
courts are already out in front in the number of death penalty 
cases that they are reversing, that they are reviewing and 
reversing, I think it is quite questionable whether it is 
necessary for the Federal Government then to come in and 
mandate different standards for those States and different 
procedures than they have already been following.
    I understand the argument--and I believe that this is 
Professor Liebman's argument--that if lots of cases are being 
reversed in the State courts, then there must be lots more that 
should have been reversed. In other words, in effect, what we 
are saying is we can trust the State courts completely to the 
extent they reverse death penalty cases, but they must be wrong 
as to the cases they are not reversing.
    I think really that the argument goes the other way that if 
we are going to trust the State courts are properly reversing 
in the cases where they are, then we should trust the results 
in the cases where, after years of review, they do not reverse 
those cases.
    The argument has been made that because of the alleged 
politically biased nature of those same State courts that are 
reversing so many death penalty cases, we can't let those 
courts appoint counsel; we have to have an independent 
appointing authority that will be run by zealous advocates 
against the death penalty. After all, it is argued, prosecutors 
can be zealous advocates for the death penalty.
    Well, an independent counsel-appointing authority is not 
performing a function of an advocate; it is a performing a 
function of the court, of a neutral arbitrator and it controls 
access to the system. That access can have a great effect on 
the ability of the capital litigation system to proceed or not.
    In California, for example, death penalty cases are 
routinely delayed for 3 and 4 years at the appellate stage 
after the conviction merely to wait for the court to try to 
find lawyers to take the cases. So if the access of available 
lawyers is restricted, these cases can't proceed and delay 
results.
    We already have, on average, 10 and 20 years of delay in 
these cases. If we put the access to the system in the hands of 
lawyers whose job it is to be against the death penalty, we 
cannot assume a proper result. The appointment process is a 
function that we put in the hands of a neutral body, the court 
system. People can make complaints about the court system, but 
certainly it is far more neutral, we can assume, than either 
adversary on either side. And if we want the system to be able 
to function at all, we have to make sure that that neutrality 
remains.
    The current proposal, as I understand it, would penalize 
the States or not adopting such a proposal. It would penalize 
the States for not paying defense lawyers, for example, at 
local markets rates, which in my jurisdiction for lawyers for 
complex litigation may be $200, $300, $400 an hour.
    One of the penalties that the States will suffer is the 
elimination of various provisions for Federal habeas corpus 
review of State courts. Right now, the Federal courts that have 
these cases, after three and sometimes four appeals in State 
courts, are required to abide by the factfinding and give 
deference to the legal rulings of the State courts.
    The argument is made that if the State courts aren't 
following mandated Federal standards, we can't trust their 
results, and the Federal courts therefore should ignore them. 
As I have said, however, we trust the State courts to reverse 
death penalty cases that we know they are doing in large 
numbers. We trust the State courts to appoint counsel on 
standards which are higher than the current Federal standards.
    I think that if we want to encourage a system, as Attorney 
General Pryor said, where the States provide this process, we 
must continue current law that gives effect to the process that 
occurs in the State courts.
    Thank you very much.
    [The prepared statement and an attachment of Mr. Eisenberg 
follow:]

Statement of Ronald Eisenberg, Deputy District Attorney, Philadelphia, 
                              Pennsylvania

    Mr. Chairman and Members of the Committee:
    Thank you for the opportunity to address the Committee on the 
important issue of competency of counsel in state capital proceedings. 
I believe there is no real disagreement on this goal; I know of no 
prosecutor who does not desire an active, ethical capital defense bar 
pursuing clients' interests. Such quality representation is necessary 
to achieve justice, public confidence, and efficiency.
    The real question here is whether it is appropriate and productive 
for the federal government to intervene in the states' processes for 
appointing counsel in state criminal proceedings. I would like to 
address two points that may bear on that question: the existence of 
federal funding for state capital litigation, and the existence of 
standards for appointment of counsel.
    Existing federal funding. Capital punishment opponents charge that 
defense lawyers in state capital cases are chronically underfunded. 
Much of the impetus for the complaint stems from the so-called 
defunding of the capital resource centers, set up by Congress in 1994 
to provide legal advice, training and assistance in state death penalty 
cases. While it was largely unreported, however, federal assistance for 
state capital defense was not actually cut off. Instead, the funding 
was picked up by the Administrative Office of United States Courts. 
This reallocation process began at the end of 1995, before the resource 
center cutoff date, so that new funding would be immediately in place. 
There was never any gap, and many of the new federal court-funded 
attorneys were the very same lawyers who had worked for the resource 
centers.
    Each year, the funding level has risen. In FY 2001, the total 
amount was over $20,000,000. The money went to many of the most active 
capital litigation jurisdictions: California, Pennsylvania, Georgia, 
Oklahoma, Arizona, Nevada, and Tennessee. The federal office 
administering the program reports that no defender organizations in 
other states have been refused funding. (The list does not include 
states such as Florida and New York that have independently established 
highly-funded statewide capital defense organizations.)
    Ostensibly, this money is to be used for representation of state 
capital defendants in federal habeas proceedings, after the case has 
already moved through the state courts. In my jurisdiction, however, 
capital defense lawyers paid by the federal government have spent at 
least as much of their time in state court as in federal court.
    At the very minimum, the federal millions free up considerable 
resources for direct use in state court, at the trial, appeal, and 
post-conviction level. Undoubtedly, capital defense lawyers will still 
claim it is not enough. (I am not personally aware of any government-
funded lawyers, at least at the state and local levels, who believe 
they have enough resources to perform their jobs optimally.) But the 
existence of this funding stream surely impacts on the question of 
whether Congress need impose new federal mandates on the states, with 
significant financial and legal penalties for those jurisdictions that 
devise their own different solutions to the problem.
    Existing counsel standards. Opponents of the death penalty claim 
that the system is unfair because lawyers are not sufficiently 
qualified. The deficit can be redressed, it is argued, only if the 
federal government steps in to force states to adopt federal standards 
for appointment of counsel in capital cases.
    Under the previous administration, however, the Department of 
Justice performed a study finding that most state death penalty cases 
arise in jurisdictions that have already adopted standards for 
appointment of capital counsel. And in most cases, those standards 
exceed the qualifications that Congress chose to require for 
appointment of counsel in federal capital cases.
    The Clinton Justice Department study can be found on the internet 
at http://www.ojp.usdoj.gov/indigentdefense/compendium/pdftxt/vol3.pdf. 
It concluded that at least 17 states have by statute or court rule 
promulgated standards for appointment of counsel at various stages of a 
capital case. These states include California, Florida, Georgia, 
Missouri, New York, North Carolina, Ohio, and Utah. (The list does not 
include Pennsylvania, which does not have statewide standards, but does 
have detailed standards for Philadelphia, which represents the majority 
of capital cases in the state.)
    At least 14 other states, according to the study, have public 
defender systems for capital representation. These states include 
Colorado, Delaware, Maryland, New Jersey, New Mexico, Oklahoma, and 
Oregon. (The study predates the recent establishment of a statewide 
indigent defense system in Texas.)
    Standards for appointment of counsel in federal cases carrying a 
potential death sentence are set forth in 21 U.S.C. Sec. 848(q)(4)(A) 
and (5)-(7). They provide only that the court appoint one (and for good 
cause shown, a second) attorney, who has been a member of the bar for 
five years and has three years of felony trial or appellate experience. 
Unlike many of the state appointment standards, the federal standards 
do not require experience in any prior capital cases, or any training 
in capital litigation.
    This discussion of counsel appointment standards is not to suggest, 
however, that particular standards necessarily result in reduced claims 
of attorney error. Experience is actually to the contrary. In 
Philadelphia, for example, where capital appointment standards were 
adopted a decade ago, I am unaware of any capital case that does not 
involve claims of ineffective assistance of counsel. Frequently, 
counsel whose ineffectiveness is raised will testify that they did 
indeed err in some fashion. Of course, a lawyer who avoids a death 
sentence for his client by confessing his own ineffectiveness is, 
paradoxically, supremely ``effective.''
    But if the goal is to achieve effective counsel in the 
constitutional sense, rather than simply to reduce the number of 
successful capital prosecutions, then it is unclear that any particular 
appointment methods are optimal whether or not Congress chooses to 
punish states that diverge from federally mandated provisions.

                                

                                 District Attorney's Office
                           Philadelphia, Pennsylvania 19102
                                                       July 5, 2001

Hon. Patrick Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510-6275
    Dear Chairman Leahy,
    I was a witness at the June 27, 2001, Judiciary Committee hearing 
exploring issues related to competency of counsel in state capital 
proceedings. During the hearing, you read from the posed questions to 
me concerning an April 2001report by Janice L. Bergmann entitled ``The 
Crisis in Post-Conviction Representation in Capital Cases Since the 
Elimination by Congress of Funding for the Post-Conviction Defender 
Organizations.''
    Because I was previously unaware of the report, I would like to add 
to my responses to your questions, which focused on the report's 
discussion of post-conviction capital litigation in the Commonwealth 
Pennsylvania.
    At page 75, the report alleges that Pennsylvania fails ``to provide 
trained legal counsel for indigent death row prisoners.'' The report 
attempts to justify this charge with several assertions.
    First, the report states that the post-conviction capital defender 
organization originally funded by the federal government in 1994 was 
downsized and eventually forced to close entirely in 1999. In reality, 
as I mentioned at the hearing, federal funding for post-conviction 
capital defense in Pennsylvania never ended; on the contrary, it has 
increased ten-fold since 1994.
    It is true that the organization originally called the Pennsylvania 
Capital Case Resource Center has changed its name several times--but 
not its function. The resource center changed its title to the 
Pennsylvania Post-Conviction Defender Organization, and then, after the 
so-called ``defunding,'' to the Center for Legal Education, Advocacy, 
and Defense Assistance.
    At the same time that the CLEADA title emerged, however, so did 
another; the Capital Habeas Unit of the Federal Defenders Office for 
the Eastern District of Pennsylvania. This was the entity that 
officially received the continuing federal funding for post-conviction 
capital defense in Pennsylvania. The report acknowledges that this 
organization was created ``not long after'' the ostensible defunding of 
the resource center. In reality, there was no gap at all; the 
Administrative Office of United States Courts Defender Services 
Division officially acted, months before the ``defunding,'' to 
appropriate money to the new Capital Habeas Unit.
    The overlap between the resource center and the Capital Habeas Unit 
was more than temporal. The staff of the habeas unit largely consisted 
of attorneys who had, until the moment of the unit's creation, been 
resource center lawyers. Indeed, while two of the resource center's 
lawyers worked under the separate letterhead of CLEADA, the remainder 
officially became employees of the capital habeas unit.
    But these lawyers did not have to go far to communicate. CLEADA and 
the capital habeas unit shared offices on the same floor of the same 
building. While they had different suite and telephone numbers, lawyers 
from these offices answered the phones and used the face machines 
interchangeably, regardless of their official title. (The rest of the 
Federal Defenders Office, of which the Capital Habeas Unit was 
officially a part, was housed in a different location.)
    Most importantly, however, all of these lawyers continued to work 
together on state capital cases. The Bergmann report implies that 
lawyers of the Capital Habeas Unit represent capital defendants only in 
federal court, after state post-conviction proceedings have been 
completed. That is flatly false. Lawyers employed by the Capital Habeas 
Unit represent capital defendants in the majority of--indeed, in almost 
all--post-conviction proceedings in state court. My colleagues deal 
with these lawyers, in writing and in person and in state court, every 
day.
    So when in 1999 CLEADA chose to end its independent existence, 
there was no question what would happen to its lawyers and state court 
caseload. All were immediately assumed by the Capital Habeas Unit 
staff. The report carefully asserts that, when CLEADA dissolved, ``no 
state entity in Pennsylvania'' was available for capital defense. The 
author seemingly was aware that an entity did indeed exist, although it 
had been created and funded by the federal government though the AOUSC.
    And that entity has flourished. In 1995, the Defender Services 
Division allocated $1,590,744 to the Capital Habeas Unit for the 
portion of FY96 following the upcoming resource center ``cut-off'' date 
of March 31--apparently far more federal funding than the resource 
center ever received as such. For FY97, the Division allocated 
$2,327,600. In FY98, the allocation was $2,485,100. In FY99, the unit 
received $2,904,800. And for FY2000, Capital Habeas Unit funding jumped 
to $5,565,000. When the Pennsylvania resource center was supposedly cut 
off, there were four federally funded lawyers providing assistance, 
training, and most of all, direct representation of state capital 
defendants. Today, there are at least fifteen. The report says none of 
this.
    The report misrepresents Pennsylvania conditions in other respects 
as well. The report implies that capital defendants go unrepresented, 
stating that the Commonwealth adopted a one-year filing deadline for 
state post-conviction petitions (as Congress did for federal post-
conviction petitions), yet has no state standards for appointment or 
funding of post-conviction counsel. In reality, Pennsylvania has a 
guaranteed right to appointment of counsel for one full round of post-
conviction counsel, but to the effective assistance of post-conviction 
counsel, to be judged on Strickland standards. No court can dispose of 
the first post-conviction petition without appointing counsel, even if 
the one-year filing deadline has passe. I am aware of no case in which 
an unrepresented capital defendant was time-barred from an initial 
State post-conviction petition. The report says none of this.
    As to appointment standards and funding, the report makes no effort 
to gauge conditions. Instead it simply takes the position that, since 
these functions are not mandated at the state level in identical, 
centralized terms for all of Pennsylvania's 67 counties, they must be 
performed inadequately. Astonishingly, the report fails to discuss 
practices in Philadelphia, which accounts for roughly three fourths of 
all homicides in Pennsylvania, and two-thirds of the capital cases.
    As I mentioned at the hearing, Philadelphia has for more than a 
decade had in place appointment standards that far exceed federal 
standards. The standards apply not just for appointment of trial and 
direct appeal counsel, but for appointment of post-conviction counsel 
as well. They require that the court appoint at least one attorney (and 
two attorneys if the case presents numerous or complex issues). The 
attorney must have at least five years of litigation experience, must 
have handled at least ten trials or hearings to final factual 
resolution, must have taken training within the previous two years 
focusing on capital post-conviction litigation, and must submit an 
adversary writing sample and questionnaire to a screening committee of 
defense lawyers. The report says none of this.
    All these commissions are not surprising. The report states that it 
was prepared ``with the assistance of local practitioners.' I know of 
no Pennsylvania prosecutors, however, who were consulted under the 
auspices of the report, or who were even informed of its existence 
after completion.
    The report's author is identified as ``a federal defender staff 
attorney.'' It is unclear to me from this description whether the 
author is a direct employee of the Defender Services Division of AOUSC, 
or whether she is in fact a practicing capital defense attorney; at the 
least, as a Westlaw search shows, her training and experience are as a 
capital defense attorney. What is clear, then, it that this report is 
hardly an objective analysis by a neutral government agency. It is an 
advocacy document, written by an advocate.
    Still, the existence of the report underscores two points made at 
the hearing: that many state and local governments are now taking great 
efforts to provide competent capital defense counsel, and that, in many 
areas, their primary opponent in defending capital convictions is an 
agency of the federal government. I hope that this more complete 
discussion of the Pennsylvania experience in capital litigation will 
aid the Committee in the consideration of the issues before it.
    Thank you for this opportunity to supplement the record of the 
hearing.
            Sincerely,

                                           Ronald Eisenberg
                                           Deputy District Attorney

    Chairman Leahy. Unfortunately, in Illinois, we had to trust 
some teenage or just-out-of-their-teens journalism students to 
do what the courts and the whole criminal justice system had 
not done--to find innocent people.
    Beth Wilkinson, our next witness, was the lead prosecutor 
in the Oklahoma City bombing case. She delivered the closing 
arguments in the sentencing phase of the McVeigh case--in which 
he received the death penalty--and delivered also the arguments 
in the Nichols trial.
    She began her legal career as a captain in the U.S. Army, 
where she served as an assistant to the general counsel for the 
Office of the Army General Counsel. She has also served as an 
Assistant U.S. Attorney in New York and as the principal deputy 
chief of the Terrorism and Violent Crime Section at the 
Department of Justice. She is now a partner with Latham and 
Watkins here in Washington, and serves as co-chair of the 
Constitution Project's Death Penalty Initiative.
    Ms. Wilkinson, I thank you very much for taking time in 
what I know has already been a very busy day to be here with 
us. Go ahead.

 STATEMENT OF BETH WILKINSON, CO-CHAIR, CONSTITUTION PROJECT'S 
           DEATH PENALTY INITIATIVE, WASHINGTON, D.C.

    Ms. Wilkinson. Thank you very much, Mr. Chairman. It is a 
privilege to be here with you; Senator Hatch, to see you again; 
Senator Sessions and Senator Feingold to speak about something 
that is so important to, I believe, everyone on this panel.
    I come to you today not just in my personal capacity as a 
former Federal prosecutor, but also as the co-chairman of the 
Death Penalty Initiative that made its recommendations public 
this morning. We are a bipartisan group of people who are in 
favor and oppose the death penalty, and have worked in a 
similar way that I think you, Senator Leahy, and you, Senator 
Hatch, are trying to do on these very important issues.
    We have brought together people as diverse as Paula 
Kurland, who is here today, who is a mother of a victim of a 
murder who actually witnessed the execution of her daughter's 
murderer. Her daughter, Mitzi, was murdered at age 21.
    We are also joined on our committee by Judge William 
Sessions, the former Director of the FBI, a proponent of the 
death penalty and a strong supporter of DNA evidence and 
analysis.
    On the other side of the aisle is David Bruck, a prominent 
capital defense lawyer who has chosen in his career to defend 
many people who have faced capital punishment. We even are 
joined by Reverend James Andrews, who represents a variety of 
the clergy, including the Presbyterian Church, who oppose the 
death penalty.
    We took the time to come together with our divergent views 
and make 18 recommendations for what we saw as the minimum 
standards that States and jurisdictions across the country 
needed to employ to ensure that capital litigation was improved 
in our country.
    Today, we have announced those recommendations, and three 
are directly related to the topic of your hearing today and 
that is the competency of counsel. I personally believe there 
is nothing more important in any type of litigation, but 
especially in capital litigation, that defendants receive good 
and zealous representation.
    It is important for obvious reasons, to protect the system, 
to protect the victims who want to know that the right person 
was convicted fairly, to streamline the appellate process so we 
don't have the long delays that some of the other panelists 
have alluded to this morning, and so that we know our system is 
working properly and is tested at every level.
    As a former prosecutor, I found great comfort in 
participating in the McVeigh case knowing that Mr. McVeigh and 
Mr. Nichols were represented by very fine, experienced 
advocates. In the end, when Mr. McVeigh challenged most 
recently his death penalty conviction and sentence, I think 
Judge Matsch and the rest of us found great comfort in knowing 
that there had been a thorough investigation, a thorough pre-
trial process, extraordinary resources expended by the defense 
that left no doubt that Mr. McVeigh was the perpetrator of the 
crime.
    I believe that most people who participate in the system 
want to know on both sides that the defendant is being 
represented zealously. Unfortunately, that doesn't happen in 
our system in very many instances. While States across the 
country do have standard, as Mr. Eisenberg noted, few or any of 
them are enforced on a regular basis. It does us no good to 
have those standards if those counsel that represent indigent 
defendants are not actually accomplished, experienced criminal 
lawyers. As Mr. Bright was saying, many of these lawyers have 
no experience in criminal law.
    What the Constitution Project's Death Penalty Initiative 
recommends to you, and is consistent with the legislation that 
we support, the Innocence Protection Act, is that three main 
fixes be made in the system.
    First, there is an independent authority that appoints 
counsel, sets the standards, and ensures that each individual 
defendant has adequate and well-trained counsel. Now, Mr. 
Eisenberg noted that if such an independent authority were 
established, it might be taken over by people who are zealous 
anti-death penalty advocates.
    Well, first of all, I think most people who defend death 
penalty defendants are opposed to the system. Few other people 
would ever take on that type of representation. It is 
emotionally exhausting, it is intellectually challenging, and 
it is not well-paying. So I don't think that it should surprise 
anyone that if there is an independent authority that the 
people who actually take on the representation would oppose the 
death penalty. That should make no difference in how they 
zealously represent the defendants. In fact, if it improves 
their skills--that is, if they receive more training and they 
have more experience--that is only to all of our benefit.
    Second, we want to ensure that all of the counsel who 
represent individuals in this system are paid properly. 
Everyone knows and has heard of the stories of people who 
receive $20 to $40 an hour in Alabama, Tennessee where there is 
a $20 to $30 limit, and in Mississippi a $1,000 cap. No 
attorney, no matter how zealous, who has to pay their bills, 
pay back their law school loans, can afford to take on those 
types of representations.
    It is essential that attorneys are well compensated, and 
that not only are they compensated but that their investigators 
and experts can be paid so that they can pursue all of their 
rights under the system.
    Finally, the third recommendation we make is that the 
current standard under the Supreme Court precedent of 
Strickland v. Washington for competency of counsel be changed 
for capital litigation. The idea that you can have effective 
assistance but fatal assistance, as we have heard described 
here so dynamically by Mr. Graham, is shocking. We should hold 
defense counsel who represent capital defendants to a higher 
standard.
    I come here today to thank all of you for all the hard work 
that you have been doing, and I know you will continue to do on 
this bipartisan issue, and to provide the support of our 
committee and me personally for the Innocence Protection Act. I 
look forward to answering any questions you may have.
    [The prepared statement of Ms. Wilkinson follows:]

  Statement of Beth Wilkinson, Co-Chair, Constitution Project's Death 
                           Penalty Initiative

    Good morning, Mr. Chairman and Members of the Committee. My name is 
Beth Wilkinson. I presently serve as co-chair of the Constitution 
Project's Death Penalty Initiative. I am here today to speak on behalf 
of the Committee and personally, as a former federal prosecutor, about 
the importance of competent counsel for defendants facing capital 
punishment.
    The members of the Committee are supporters and opponents of the 
death penalty, Democrats and Republicans, conservatives and liberals. 
We are former judges, prosecutors, and other public officials, as well 
as victim advocates, defense lawyers, journalists, scholars, and other 
concerned Americans. We disagree on much, including whether abolition 
of the death penalty is warranted. But we agree that insufficient 
safeguards are in place to assure fairness in the administration of 
capital punishment. We have come together not to abolish the death 
penalty, but to improve the administration of capital litigation.
    We have conducted extensive research and have deliberated long and 
hard about the issues presented today, seeking consensus because we 
recognized the need to overcome past divisions. For too long, society 
has cast the death penalty debate as one between ``liberals'' and 
``conservatives,'' those who are ``soft on crime'' and those who ``care 
about victims of crime.''
    This morning our Committee announced to the public some of the 
minimum reforms essential to a fair and just death penalty system. One 
of our paramount concerns is competent counsel for indigent defendants 
facing the death penalty. All of our citizens, regardless of ability to 
pay, and especially those facing capital punishment, should be well 
represented.
    As a prosecutor in the federal system and specifically, as a 
prosecutor in the Oklahoma City bombing case, this is especially 
important to me. Timothy McVeigh and Terry Nichols were defended by 
highly skilled teams of lawyers, experienced in capital cases. All of 
the participants in the process wanted a fair trial, and with talented 
and zealous counsel, McVeigh and Nichols indeed received fair trials.
    Far too few capital defendants have quality defense attorneys at 
trial, and while not every defendant may be entitled to a dream team of 
defense lawyers, every defendant facing the death penalty is entitled 
to qualified counsel who meet minimum qualifications.
    As a prosecutor, I wanted both Timothy McVeigh and Terry Nichols to 
be represented by a good defense lawyer for many reasons. First and 
foremost, a competent defense lawyer is essential in getting at the 
truth. I wanted the defense to do a thorough investigation to make it 
easy for the appellate court to decide there had been a fair trial. 
Substandard counsel is likely to result in an inadequate trial record, 
through failure to investigate and failure to preserve objections. I 
also wanted the families of the victims to rest knowing the 
perpetrators were punished. When a defendant has ineffective counsel 
the state, the families of victims, and society all suffer. Litigation 
becomes protracted, complicated and costly, putting legitimate 
convictions at risk. This subjects the victims' families to continuing 
uncertainty, and deprives society of the knowledge that the real 
perpetrator is behind bars. This means that ensuring competent counsel 
to defendants facing the death penalty benefits not only the defendant, 
but also victims and society at large.
    We have all heard the stories of wrongful convictions involving 
defense lawyers who lacked the appropriate experience and resources. We 
hear that sometimes, capital defense lawyers were under the influence 
of alcohol or drugs, or slept through parts of a trial; and that there 
have been a number of capital defense lawyers who were subsequently 
disbarred or otherwise cited for serious ethical violations.
    For example, in 1986 in Georgia, defendant Aden Harrison, Jr. was 
all but abandoned by his court-appointed attorney James Venable. Not 
surprising since Harrison was a black man and his attorney was a former 
imperial wizard of the Ku Klux Klan who was later disbarred.
    In 1992 in Texas, defendant George McFarland's attorney admitted to 
sleeping through parts of the trial. The judge permitted the trial to 
continue saying ``the Constitution guarantees the right to an attorney. 
It doesn't say the lawyer has to be awake.'' McFarland is currently on 
death row.
    The state of Oklahoma paid approximately three thousand dollars for 
Ronald Keith Williamson's defense. His lawyer conducted no 
investigation and failed to mention to the jury that another man had 
confessed to the killing.
    These cases highlight the need for death penalty reform on a 
National level. Today we announced to the public a number of 
recommendations for reform, including three provisions dealing 
specifically with representation of capital defendants.
    First, we recommend every jurisdiction create an independent 
authority to screen, appoint, train, and supervise capital defense 
attorneys, and to set minimum standards for capital representation.
    Without such a process, as numerous studies have shown, competent 
representation becomes more a matter of luck than of constitutional 
guarantee. The independence of the authority and its freedom from 
judicial or prosecutorial conflicts is crucial to ensure that its 
members can act without partisanship and in a manner consistent with 
the highest professional standards.
    Instead, many states award capital cases by contract or 
appointment, employing explicit or implicit incentives to these 
attorneys to keep their costs low and their hours on the case few. The 
attorneys may be chosen based on friendship with the judge, a desire 
not to ``rock the boat,'' their willingness to work for low wages, 
their presence in the halls of the courthouse, or other factors poorly 
correlated with competent representation. Many of them have little 
knowledge of capital litigation or even criminal law in general. Many 
have little experience or skill in the courtroom. A disproportionate 
number have records of disciplinary action, even disbarment. 
Establishing independent appointing authorities to alleviate many of 
these problems is a crucial and central recommendation of this 
committee.
    All jurisdictions should adopt minimum standards for the provision 
of an adequate capital defense at every level of litigation. The 
standards for qualified counsel will vary according to the requisites 
of the particular stage of proceedings. There is some flexibility as to 
which minimum standards a jurisdiction ought to adopt. However, we 
suggest that minimum standards should, at the least, require two 
attorneys on each capital case, and at the trial level that: (1) the 
lead attorney have at least five years of criminal litigation 
experience as well as experience as lead or co-counsel in at least one 
capital case; (2) co-counsel have at least three years of criminal 
litigation experience; (3) each counsel have significant experience in 
jury trials of serious felony cases; (4) each attorney have had recent 
training in death penalty litigation and (5) demonstrated commitment 
and proficiency. Similar standards should be met at the appellate and 
post-conviction stages, although at these stages the type of relevant 
prior experience will vary. The important thing is that a set of 
stringent and uniform minimum standards should be adopted, implemented 
and enforced.
    Second, we recommend that each jurisdiction adopt standards 
ensuring adequate compensation of counsel appointed in capital cases, 
as well as adequate funding for expert and investigative services. Many 
jurisdictions impose shockingly low maximum hourly rates or arbitrary 
fee caps for capital defense (Alabama $20-40 an hour, up to $2000 cap, 
meaning that an attorney devoting 600 hours to pretrial preparation in 
Alabama would earn $3.33 an hour; Tennessee, $20-30 an hour; 
Mississippi, a $1000 cap). Courts often will not make funds available 
for reasonable expert, investigative, support or other expenses that 
are crucial to the adequate preparation for both trial and sentencing 
in capital cases. Attorneys should not be forced to choose whether to 
spend a severely limited pool of funds on their own fees or on experts 
and investigators. Failure to provide adequate funding and resources is 
a failure of the system which forces even the most committed attorneys 
to provide inadequate assistance.
    Third, we recommend that the current standard of review for 
ineffective assistance in capital sentencing be replaced with a more 
stringent standard better keyed to the particulars of capital 
representation.
    The current Supreme Court (Strickland v. Washington, 466 U.S. 688 
(1984)) standard for effective assistance of counsel permits 
``effective but fatal counsel.'' Every state that permits the death 
penalty should adopt a more demanding standard to replace the current 
test for effective assistance of counsel in the capital sentencing 
context.
    In support of the Death Penalty Initiative, my law firm, Latham & 
Watkins, took on a research project of death penalty laws in 6 states. 
All of the states, Texas, Virginia, Indiana, Pennsylvania, Tennessee, 
California, have laws governing standards for counsel in capital cases. 
Yet, stories like Aden Harrison, Jr., George McFarland, and Ronald 
Keith Williamson are rampant. This is why it is so important to address 
this issue on a National level with an enforcement mechanism to ensure 
counsel standards are actually met.
    There are very few ways to ensure from a federal perspective that 
indigents facing the death penalty have effective counsel. We all can 
agree that there is a problem. The question becomes how can the federal 
government help enforce and resolve the problem. The reforms proposed 
today, coupled with the Innocence Protection Act of 2001, will ensure 
that minimum standards for competent counsel will be met in all States. 
This is why the Committee and I, personally, am such a strong supporter 
of this legislation.
    The Act rightly enforces standards for qualified counsel through 
monetary incentives, both through award and withholding of grants; and 
through the invocation of certain procedural advantages in federal 
habeas corpus review for those states that provide competent counsel to 
capital defendants. Unless these standards are enforced in ways that 
assure compliance, the mere adoption of standards is meaningless.
    The lack of adequate counsel to represent capital defendants is 
likely the gravest of all problems, which makes the death penalty 
arbitrary, unfair, and rife with error. I urge the Congress to support 
the reforms establishing a National standard for competent counsel in 
death penalty cases. These reforms will benefit not only defendants, 
but also victims and society at large.
    In closing, I urge the Congress to pass the Innocence Protection 
Act of 2001 in order to fulfill the Constitutional guarantee of 
effective assistance of counsel to all defendants.
    I look forward to answering any questions that you might have.
    Thank you.

    Chairman Leahy. Thank you, Ms. Wilkinson. You never taught 
me how to hold on to some of these props, Senator Hatch. You 
were supposed to teach me some of these things before I took 
over the chairmanship.
    Senator Hatch. I would just like you to share them with the 
Minority, because we asked for it yesterday and still don't 
have a copy.
    Chairman Leahy. I got this about a half hour ago and I will 
be glad to give you my copy, if you would like.
    Senator Hatch. If you would, we would be glad to have it.
    Ms. Wilkinson. I would be happy to provide one.
    Chairman Leahy. Why don't you bring it up right now?
    Senator Hatch. We will send somebody down.
    Chairman Leahy. I just want to make sure you get it. I have 
not read it.
    Kevin Brackett is the Deputy Solicitor of the 16th Judicial 
Circuit in South Carolina. You have been there for 10 years. 
You have prosecuted capital cases, you have trained colleagues 
in handling such cases. You were named the Ernest F. Hollings 
Prosecutor of the Year in 1998.
    Mr. Brackett, I appreciate you taking the time to come 
here, and I hope while you are here you have a chance to stop 
by and say hello to both of your Senators. For one you have an 
award named after him; the other, Senator Strom Thurmond, is a 
member of this committee.

STATEMENT OF KEVIN S. BRACKETT, DEPUTY SOLICITOR, 16TH JUDICIAL 
                 CIRCUIT, YORK, SOUTH CAROLINA

    Mr. Brackett. Thank you, Mr. Chairman, Senator Hatch, 
members of the committee. As Chairman Leahy has said, my name 
is Kevin Brackett, and I am honored and pleased to be here to 
participate in this discussion on this very important topic.
    I have been a prosecutor for nearly 10 years and I have 
been serving the citizens of York and Union Counties in South 
Carolina. I have prosecuted the last five capital murder cases 
that have occurred in our jurisdiction. Prior to my employment 
with the solicitor, I worked as a law clerk with the Richland 
County Public Defender's Office, which is down in Columbia, the 
capital city of South Carolina. And while employed there, I was 
privileged to participate in the defense of a capital murder 
case in which the defendant was sentenced to life in prison. I 
feel that my experience on these issues on both sides gives me 
a good perspective on some of the issues that we are discussing 
here today.
    My written statement which I have submitted for the 
consideration of the committee details my thoughts on the 
necessity of this legislation in the State of South Carolina. 
In sum, I believe that South Carolina already complies with any 
reasonable standards which the proposed commission may choose 
to suggest. Minimum standards of competence for counsel in 
capital cases are already in place.
    This year's budget provides $2.75 million to compensate 
counsel and for the purpose of retaining experts and 
investigative services in capital cases. In addition, that 
$2.75 million is augmented by a special levy that is attached 
to every fine imposed in any court in the State of South 
Carolina. If a fine is given of $50, there is an additional $50 
levy that is placed on that. Eleven percent of that levy goes 
into the fund for the defense of indigents. So the $2.75 
million is just the baseline funded by the legislature. 
Additional funds are available throughout the year as these 
fines and fees are paid.
    I believe if the committee's proposals are reasonable, I 
don't think that Title II of the Innocence Protection Act is 
really going to have any kind of noticeable impact on capital 
case processing in South Carolina.
    I would point out that we just finished a capital case 
about 3 months ago, State v. Bobby Lee Holmes. It was a 
retrial. It was a 10-year-old murder case and Mr. Holmes was 
represented by two very capable counsel, one of whom is 
basically a specialist in defending capital cases, defends them 
all across the State, and the other of whom has approximately 
15 years' experience on both defense and prosecution.
    In addition to these two lawyers, they were supported by a 
phalanx of attorneys. I think there were four or five other 
attorneys who were volunteering pro bono to assist in this 
case. There were investigators in the courtroom at all times. 
They had numerous experts. Six, eight, ten experts testified, 
and there were other experts who were retained to assist who 
never testified.
    There is no shortage of assistance to indigent capital 
defendants in South Carolina, and the system there I believe 
works to give them every opportunity. In fact, were I charged 
with a capital murder in South Carolina, I would divest myself 
of every asset I have and ask to be given indigent 
representation so that I could access this quality of 
representation because I could not afford to mount the defense 
that Mr. Holmes mounted 3 months ago.
    Nobody can quibble with the contention that capital 
defendants are entitled to competent representation and 
adequate resources to help assist in their defense, hiring 
experts and investigators. That notwithstanding, I cannot 
support or endorse Title II of the Innocence Protection Act as 
it is proposed.
    First, while there may be isolated incidents of 
incompetence and insufficient funding for capital defendants, 
there is already a mechanism in place to remedy the problem. It 
is called the Sixth Amendment and the Due Process Clause.
    The courts do a fine job. They are in the best position to 
evaluate these situations on a case-by-case basis and determine 
whether there is any merit to these claims. I submit that the 
courts do an excellent job of this, and this legislation only 
tends to indicate a lack of faith in their ability.
    Second, Title II appears to put the cart before the horse 
by accepting that there is a need for change prior to 
undertaking an objective assessment of the situation and the 
system. The Act is premised on the supposition that 
incompetence and underfunding are rampant through the system. I 
know that this is the position taken by those who are opposed 
to capital punishment under any circumstances.
    I do not believe that an objective study of capital 
punishment in this country would support this premise, however. 
It would be much more practical to undertake a thorough, 
objective assessment of the system first and then proceed to 
recommend positive changes.
    Finally, if the Congress feels it is necessary to mandate 
changes--in other words, if we must do this, if we are going to 
make these changes, it should resolve to correct as many of the 
flaws in the system as it can. Perhaps it would be prudent to 
rename the bill the Truth Protection Act.
    As our Supreme Court noted in Oregon v. Haas, we are, after 
all, engaged in a search for the truth. Mandating safeguards 
for the truth-seeking function of the courts of this country 
achieves the goal of protecting the innocent. The truth will 
also set the innocent man free. It also has the added benefit 
of ensuring that the guilty are held accountable.
    A Truth Protection Act could embrace all the concerns 
addressed in the Innocence Protection Act. It could mandate 
minimum standards of competence and experience for all capital 
counsel, but this should also include, however, a requirement 
that any defense attorney found to be ineffective in more than 
a set number of habeas proceedings, or grossly ineffective in 
just one, should be barred from ever representing capital 
defendants again. Currently, there are no ramifications for 
such a finding, and thus no deterrent to prevent an over-
zealous defense attorney from falsely confessing to 
incompetence to secure a new trial for his client.
    It could also set reasonable standards for the 
appropriation of expert and investigative funding for indigent 
defendants. This should include a requirement that any experts 
retained be required to generate reports, to be turned over to 
the State, to preclude expert witness-shopping and frivolous 
expenditures of public money. This should be mandated for non-
indigent defendants as well.
    These are not the only areas of the system that need 
attention. Most Americans would be appalled to learn that a 
criminal defendant is required to be given the entire State's 
file and access to all the evidence prior to deciding what his 
defense will be. Originally intended to prevent trial by 
ambush, the criminal discovery laws now serve only to frustrate 
the search for the truth by allowing the defendant to conform 
his defense to the State's evidence. This is an example of 
another problem that a Truth Protection Act could address. 
There are problems on both sides and they both need to be 
addressed.
    In conclusion, I submit that the issues this bill addresses 
are more complex than they may first appear. I urge the 
committee to study the matter more carefully before acting, and 
if action is taken, the committee should resolve to take a more 
comprehensive approach to the system's problems.
    I would ask that my statement be made part of the record. 
Thank you again, Mr. Chairman, for this opportunity to be here 
today and I look forward to answering your questions.
    [The prepared statement of Mr. Brackett follows:]
    [Additional material is being retained in the Committee 
files.]

    Statement of Kevin S. Brackett, Deputy Solicitor, 16th Judicial 
                     Circuit, York, South Carolina

    I am honored to be here today to participate in this important 
debate on the quality of our criminal justice system as it relates to 
capital murder trials. I have been a prosecutor for ten years now and 
have participated in the prosecution of six capital murder trials in 
South Carolina. While in law school I also enjoyed the experience of 
participating in the defense of an individual on trial for capital 
murder. Additionally, I was witness to the first execution in South 
Carolina by lethal injection. More than this though, I think a lot 
about what I do. The prosecution of capital cases demands a great deal 
of sober reflection: This is a business with no room for regrets.
    I take no exception to the goals of Title II of the Innocence 
Protection Act. Who, after all, could be opposed to protecting the 
innocent? In fact, I believe that I come from a jurisdiction that will, 
in all likelihood, probably be found to already meet any standards set 
by the proposed commission:
    I am not aware of any sleepy or drunken capital defense attorneys 
in South Carolina. No judge I know would tolerate it.
    Nor have I seen any incompetent attorneys take up the cause of a 
man on trial for their life. South Carolina already imposes minimum 
standards for capital defense counsel and the judges are required to 
find affirmatively that any prospective capital defense attorney is 
qualified. Five years of recent felony trial experience is the minimum 
requirement for the lead attorney. In most cases the actual level of 
experience far surpasses this. South Carolina law requires indigent 
defendants be appointed at least two attorneys.
    I have also had the pleasure of meeting many fine defense experts 
over the last 10 years. South Carolina provides ample funding for 
retaining expert witnesses and private investigators. This year's 
budget provides $2.75 million for use in paying appointed counsel and 
hiring experts and investigators. In addition, state law allows for 
part of every dollar paid in criminal fines to be deposited into the 
same account. When you consider that South Carolina tries approximately 
15 capital cases per year you realize that our legislature is not 
stingy in this regard.
    In short, I believe that Title II of the Innocence Protection Act 
won't really have much of an impact on my state. South Carolina should 
have an impact on the Innocence Protection Act though. Consider this 
case study:
    Three months ago our office concluded the retrial of Bobby Lee 
Holmes. Mr. Holmes was being retried for the rape and murder of 86-
year-old Mary Stewart. He was granted a new trial after a post-
conviction relief hearing in which he asserted that he was denied a 
fair trial because the judge led him to believe that he OR his attorney 
could make a closing argument instead of he AND his attorney. Had he 
realized that both he and his attorney could have addressed the jury he 
asserted that he would have spoken in his own defense. Both of his 
experienced attorneys from the first trial conceded at the hearing that 
they had failed to properly advise Mr. Holmes of his rights. The court 
granted his request.
    The evidence against the defendant was straightforward: Blood from 
the victim (who was sodomized) was found on the defendant's underwear, 
the defendants bodily fluids were found on a paper towel in the victims 
apartment. Fibers consistent with the defendant's clothes were found in 
the apartment and fibers consistent with the victims bedding were found 
on the defendant's clothes. Finally, the defendants palm print was 
found in the victim's apartment. The defendant told the police he had 
never been in the apartment.
    Mr. Holmes was represented by at least five attorneys. I say at 
least because I am still not sure who at the defense table was an 
attorney and who was not. The ``lead'' attorney specialized in capital 
murder litigation in South Carolina and his co-counsel has 
approximately 15 years felony trial experience. I don't know who paid 
for the other attorneys.
    During jury selection there appeared to be a jury consultant 
working with the defense. Throughout the trial there was a social 
worker/therapist by the defendants side at almost all times. There was 
at least one investigator in the courtroom at all times. Possibly two.
    During the defendants case in chief numerous experts from various 
parts of the country were called on his behalf. An expert on DNA, an 
expert from New Mexico on laboratory standards, one hair and fiber 
expert from Alabama, a fingerprint expert from South Carolina, an 
expert on criminal investigation from North Carolina, a professor of 
neuro-psychology from the University of South Carolina, a psychiatrist 
from the Medical University of South Carolina, the former Director of 
the Indiana State Department of Corrections and a social worker all 
were paid to give testimony on the defendants behalf. There were at 
least four other experts who were retained yet never used.
    The first point to be made concerns the attorneys who represented 
Mr. Holmes in his first trial. There are no apparent consequences in 
South Carolina for being found to be an ineffective attorney in a post 
conviction relief hearing. It is close to impossible to prove but it is 
the opinion of many prosecutors who spend any time in capital 
litigation that some defense attorneys will deliberately infect a 
record with error or, confess to error at a later habeas hearing in 
order to secure a new trial for their client. A competent prosecutor 
worries not only about their own case but also must be vigilant to 
protect the record to ensure that the conviction can withstand 
appellate and habeas scrutiny.
    If Congress intends to compel the states to maintain rosters of 
qualified capital defense attorneys they should establish as a criteria 
for determining competence the number of times the attorney has been 
adjudicated ineffective. This should then be tracked to guarantee 
continued competence.
    The second point concerns effective allocation of resources. 
Everyone agrees that an indigent defendant should be entitled to the 
reasonable resources needed to present his defense. But consider the 
defense in Mr. Holmes' case. How many Americans could afford to mount 
such an extravagant defense?
    Unfortunately this sword has two edges. If we spend the money then 
the cost of the death penalty is cited as a reason for it's 
abolishment, if we don't then the battle cry becomes ``No justice for 
the poor''.
    The solution to the problem has to lay in stricter accountability. 
The law allows for ex parte applications for funding. These must be 
explicitly detailed by defense counsel and then more carefully 
scrutinized by the judiciary. In addition, no funds should be disbursed 
until a detailed report from the expert or investigator is tendered to 
the court. The report should include the results of any testing done 
along with a strict accounting of the time spent. Lastly, judges should 
not hesitate to limit the amount that any expert can charge. The former 
director of the Indiana Department of Corrections was paid five hundred 
($500.00) dollars per hour to testify in the Holmes case. Would he have 
refused to participate if the court had told him that he could only 
charge $150.00 per hour? How about if they had capped his total payment 
at $2000.00?
    A balance must be struck between the need to provide adequate 
resources to indigent defendants and the need to prevent frivolous 
expenditures of public funds. The Constitution guarantees every 
criminal defendant to equal access to justice. This does not absolve 
the legislatures or the courts of their responsibility to regulate the 
spending of these monies.
    In conclusion it is my opinion that while the goals of the 
Innocence Protection Act are laudable I am concerned about the methods 
that will be employed to achieve these goals. We don't know what 
conclusions or recommendations the proposed commission will make. 
Perhaps it would be a more intelligent use of our time and resources to 
commission the study first and then draft the legislation needed to 
address the problems the commission identifies. The scope of the study 
could be widened to include an investigation into the issue of 
incompetent counsel and inadequate resources. Our course could then be 
charted based on reliable information rather than anecdotal evidence 
and reports issued by individuals and organizations with a known bias 
towards the death penalty.

    Chairman Leahy. I thank you for making the trip to 
Washington to do this. I appreciate it very much.
    Senator Hatch has a scheduling conflict. Normally, I would 
begin questioning, but to accommodate him, of course, I will 
yield to him first.
    Senator Hatch. Well, thank you, Mr. Chairman. I only intend 
to take a minute or so.
    I apologize for not being here for your testimony, General 
Pryor, and yours, Senator Ellis. I apologize for that, but I 
have really appreciated this whole panel. Each of you has, I 
think, presented your case very persuasively and well.
    Let me also say I want to make a point about the cases 
Chairman Leahy mentioned in his opening statement. Many, if not 
all, of these individuals were released because of DNA testing, 
not all, but many of them. Senator Leahy's bill contains two 
major parts, one dealing with DNA testing, and the other 
addressing competency of counsel. As you can tell, the 
competency of counsel provisions are controversial.
    The DNA provisions, however, are similar to a bill I 
introduced last year and a bill Senator Feinstein recently 
introduced. Indeed, DNA legislation enjoys nearly universal 
support in this committee. I notice Mr. Scheck here, for whom I 
have a great deal of respect, who has been a great advocate on 
this and has been persuasive to me.
    Now, I am confident that we could reach an agreement on DNA 
immediately. We very quickly could get it through both Houses 
of Congress. I think we could have done this 2 years ago, to be 
honest with you, or at least a year ago, on the DNA provisions. 
I am equally confident the House would move quickly on such a 
bill. This would ensure that innocent individuals in prison 
have the opportunity to prove their innocence, and immediately, 
not while we argue this other part.
    I am also concerned about this other aspect. I think all of 
you have made good cases, but I am concerned about competency 
of counsel. Let me just say that I will commit to continue to 
work with the chairman of this committee on the issues related 
to competency of counsel, but let us at least accomplish what 
we can to help remedy some of the injustices that the 
distinguished chairman has described, and let's do that right 
away.
    I think we should have done this a couple of years ago and 
we were just unable to, but I would like to offer that to the 
chairman and get that done, and then make a good-faith effort 
to try and solve the competency of counsel difficulties that 
all of you have spoken eloquently about on both sides.
    In particular, I am very happy to have your report, Ms. 
Wilkinson. I appreciate the work that you have done and I 
appreciate the bipartisan nature of your testimony, and we will 
read that very carefully and see what we can do to help here.
    So, I would like to have that done. It is something that 
can be done now, and the other we may be able to do also, but I 
don't think that it can happen as quickly as we can solve the 
DNA problem. So I just want to make that good-faith offer here 
so that we don't waste another day not providing this type of 
resource, help from the Federal Government, in both State and 
Federal cases in ways that will help to alleviate and remedy 
some of these problems. And then I commit to work on the 
competency of counsel aspect in good faith and try and see what 
we can do, taking into consideration all of the testimony and 
the evidence to see what can be done in that particular area.
    But thank you, Mr. Chairman. I will get out of your hair.
    Chairman Leahy. It is very easy to get out of my hair with 
my hair line. But if you could hold just for a moment, do we 
agree that DNA evidence should be available? Of course, we all 
do on this panel. That is not an issue.
    Senator Hatch. But every day we delay----
    Chairman Leahy. That is not an issue. But let's not fool 
ourselves. You have got to have competent counsel to know when 
and how to ask for DNA evidence and determine whether it is 
available. It is not so that the person charged can prove their 
innocence. That is not their burden. The burden is on the state 
to prove their guilt beyond a reasonable doubt. The burden is 
on the state in this case.
    I would remind everybody--every prosecutor and former 
prosecutor knows this--a lot of the cases aren't going to have 
DNA evidence of any sort anyway, just like a lot of cases don't 
have fingerprints. I recall once when I was prosecuting cases, 
I had to put an investigator on the stand to testify that, one, 
he or she didn't find any fingerprints at the scene; second, 
they had investigated several hundred cases; and, third, it is 
not unusual that there are no fingerprints. In the large 
majority of the cases they investigated, there were no 
fingerprints. Well, in the large majority of cases that are 
going to be raised here, there is not going to be any DNA 
evidence.
    An easy example is somebody goes into a bank to rob the 
bank. On the way out, they shoot the guard and the guard dies. 
We have got a Federal case against this bank robber. In most 
States, it would be a felony murder; if the State had the death 
penalty, it would carry the death penalty. But it would be 
awfully hard to think where there was going to be DNA there. 
Now, there may have been three people who identify somebody as 
being the perpetrator. Then you go in to question everything 
from alibi to eyewitnesses, and so on.
    In Mr. Graham's case, a man who served years upon years 
upon years on death row, who was finally released with a check 
for $10 and a suit that was too big, there was no DNA. So we 
want access to DNA, of course; to fingerprints, of course; to 
blood samples, of course. But you are not going to get any of 
these things unless you have competent counsel.
    Senator Hatch. If the Senator would yield, I am, of course, 
talking about post-conviction DNA for people who already may be 
unjustly convicted. I think we could start that tomorrow and I 
think we could get it through both Houses even before we leave 
this week, if we really wanted to do it.
    Why not do that, and at the same time accept by good-faith 
offer to try and resolve the competency of counsel issue, 
taking into consideration all these respective points of view 
that are sincere and educated and well thought through?
    That is my point. There is no reason to continue to hold 
post-conviction DNA from being enacted when we can do that 
right off the bat. And hopefully we can solve this other 
problem, too, because I am concerned about it; anybody with 
brains would be concerned about it. But there are two sides to 
that issue. That is my point, and both sides have good 
arguments. I think we have got the ability on this committee to 
resolve these conflicts and to try and do what is in the best 
interests of people.
    I don't think you need to hold up the passage of post-
conviction DNA solutions in order to solve trial competency 
problems, but I do think it is going to take more effort to 
solve the competency of counsel problems. We can do the post-
conviction DNA stuff, like I say, right now.
    Well, I need to leave, but I want to thank you for letting 
me make that statement.
    Chairman Leahy. I appreciate it, and I will continue to 
work with you on that. Obviously, post-conviction DNA is a 
small part of this problem. We can work on achieving that. We 
should also make sure that if we are going to have post-
conviction DNA, we also have counsel competent enough to know 
when to ask for it.
    We will start questions on 5-minute rounds.
    Ms. Wilkinson, you described your committee's 
recommendations regarding competence counsel, and I am going to 
submit for the record the executive summary of your committee's 
report.
    What are some of the other recommended reforms, if you 
could just briefly mention them?
    Ms. Wilkinson. Yes, Mr. Chairman. Some of them are so 
basic, I think they are recommendations that many people would 
hope are already in place across the jurisdictions, but they 
are not.
    For example, we recommend that no one who is mentally 
retarded or a juvenile who commits the crime under 18 be 
subject to the death penalty. We did that because, as we saw 
most recently in Texas, jurisdictions have refused to set that 
standard, and so we think that is a minimal standard that 
should be set in all jurisdictions.
    We have also asked for things like the felony murder rule 
to be limited in capital cases so that a felony defendant who 
had no intent to commit the murder or did not commit the murder 
would not be subject to the death penalty, even though they 
would under the precedent of the felony murder rule in many 
jurisdictions.
    We made recommendations about the roles of prosecutors and 
judges. We asked that judges ensure that every capital 
defendant be provided with a jury instruction to jurors to 
choose between death and life without parole, meaning truly 
life with no reduced sentence, and that juries understand what 
those sentencing options are, just like a judge would if he or 
she were to make that determination.
    We talked about open-file discovery, which I know Mr. 
Brackett was saying has been used by some defense counsel in 
nefarious ways. I found just the opposite. I found that as a 
prosecutor in the McVeigh and Nichols cases what really saved 
our conviction at the very end was that we did have open-file 
discovery, and that the defense has access to all the 
information that honestly we couldn't have known at some points 
whether it was Brady or not. And only by sharing all of it with 
the other side were we able to know that they could pursue 
whatever they thought was appropriate during the pre-trial 
phase.
    So those are some of the recommendations that we made as a 
committee. There are 18 recommendations that we are going to 
send obviously not just to you, but to State legislatures and 
policy advocates around the country, hoping that other 
jurisdictions will pursue these recommendations.
    Chairman Leahy. I appreciate that. When I looked at the 
list of people who were there, you went about as far across the 
spectrum on this issue as possible, people with a lot of 
experience, and I commend you in reaching the agreement that 
you did.
    Mr. Bright, I was taking some notes here. I was wondering 
if you could respond to Mr. Eisenberg's statements about what 
he calls the de-funding of the Federal resource centers.
    Mr. Bright. Yes, Mr. Chairman. I must say both from my own 
practical observations and also from reading some of the 
reports that have been done, I don't understand those comments.
    It is true that some Federal defender offices have provided 
some representation in Federal post-conviction. In Georgia, for 
example, there is only one defender, obviously, and that is in 
the Northern District of Georgia. So for a small number of 
cases that are in the Northern District of Georgia, the Federal 
defender may be involved in the Federal post-conviction.
    In the Middle and Southern Districts, which is where most 
of the death cases come from, there is no Federal defender 
office. It is a court-appointed system. There is no provision 
at all. Those lawyers are not providing any assistance in State 
court. The result of that is a man named Exzavious Gibson, with 
an I.Q. measured on various tests at 76 to 82, represented 
himself in his first State post-conviction case. The result of 
that in Alabama is that there have been a number of people for 
whom the statute of limitations ran who were not represented at 
all just simply because the time ran out.
    There is a report here, Mr. Chairman, ``The Crisis in Post-
Conviction Representation Since Elimination of Funding.'' I 
would ask, Mr. Chairman, to make this a part of the record, if 
you would like. It was issued in April of 2001 and describes 
this in much greater detail than I can here.
    Basically, there is a real crisis particularly in those 
States that have not been willing to provide lawyers at the 
post-conviction stage. I mean, Alabama theoretically does; it 
will pay $1,000, but you don't get much of a lawyer for $1,000. 
Georgia doesn't pay anything at all. Some of the lawyers 
appointed in Texas have missed the deadlines.
    Federal Judge Orlando Garcia, in San Antonio, said in one 
case that the lawyer who was appointed, who was a kid right out 
of law school with no experience and was very, very ill--that 
the appointment of this lawyer to handle post-conviction was a 
cynical and reprehensible attempt to expedite his execution 
without even the pretense of fairness. Now, that is a Federal 
judge getting this case when it comes into the Federal court.
    There is a tremendous crisis in this area, and I don't 
quite understand how someone objectively could claim to the 
contrary.
    Chairman Leahy. Thank you.
    Mr. Graham, could I ask you a question? You spent 14 years 
on death row waiting to be executed for a crime you did not 
commit. When it was finally admitted that you shouldn't have 
been on death row, you said that the State of Louisiana gave 
you $10 and a coat that was a few sizes too big.
    Did the State of Louisiana do anything else? Did they 
apologize to you or to your family, or compensate you or your 
family for locking you up for 14 years?
    Mr. Graham. A couple of delegates from the legislature 
apologized, but as far as compensation, nothing.
    Chairman Leahy. Senator Ellis, one of the criticisms of the 
Texas system of appointed counsel includes allegations that 
some judges appoint specific counsel who, for example, will 
move cases quickly and cheaply through the system, or who 
contribute to the judge's reelection campaign coffers.
    You acknowledge that the Texas Fair Defense Act does not go 
as far as you would like in establishing a neutral system of 
appointment for indigent counsel. Does it address the conflict 
of interest problem?
    Mr. Ellis. No, it does not, Mr. Chairman, directly, and 
that would have been very difficult to do. Obviously, judges 
jealously guard that prerogative of appointing lawyers. The 
judges are elected in our State; a good number are appointed 
and then run for election. But nobody in their right mind would 
run a campaign for a judge, not even me, on the notion of 
fairness. You run on the notion of efficiency. For whatever 
reason, the word ``fairness'' denotes coddling to criminals.
    You run on efficiency, and efficiency generally means that 
you want people who work the docket. I mean, I don't think it 
is really fair to criticize the judges directly. I criticize 
the system because the system just breeds that kind of 
cynicism, but the bill does not directly address it.
    I think the spotlight on the issue nationally and the 
spotlight that will remain in the local press make it more 
difficult for judges to appoint people just because people gave 
them contributions. But obviously, you wouldn't necessarily, 
even if you or I were a judge, appoint someone that you thought 
would be financing your opponent's campaign. That is just not 
how the system works.
    Chairman Leahy. Thank you, Senator Ellis.
    Senator Sessions, you have been waiting patiently and I 
appreciate your time. You are also a former prosecutor, and 
that has been very valuable to all of us here on this 
committee.
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Graham, your story is something that touches all of us. 
Anybody in the criminal justice system who is involved in a 
circumstance where an innocent person has been charged has got 
to be affected, also, and all of us who believe in law, who 
believe in the justice system, the jury system and the criminal 
justice system have got to be extremely troubled to hear your 
story. I think truly it is an unusual event, but that it 
happens at all is something that should give us all cause for 
pause.
    I know I used to tell my prosecutors on my staff if they 
believed a defendant was innocent or the did not believe they 
had sufficient evidence to proceed with the case, they should 
never proceed with it; come tell me about it, but never 
prosecute a case you don't believe in. That would be a horrible 
thing to do, and to convict someone who is innocent is a great 
and tragic event.
    These cases are for the most part, in my background, pretty 
aggressively defended--Mr. Brackett, you have testified about 
that--and pretty intense sometimes. I have a quote here from 
one defense lawyer: ``Sometimes, counsel should file motions 
just to make trouble. It is part of a capital defense 
attorney's job to do that. If the prosecution wants to kill the 
client, they have to go through the defense attorney. File 
motions for money for special investigations, for opinion polls 
of the community; file all kinds of motions, support them as 
much as possible with affidavits or proffers that can be 
introduced in evidentiary form. Constantly make a record and 
constantly make trouble.'' That is a quotation from an article 
by the head of the Illinois Capital Resource Center, a defense 
attorney.
    Was that what you were referring to? Is that the kind of 
aggressiveness that you see?
    Mr. Brackett. Well, sir, I have certainly experienced what 
that article describes, and I have had capital murder cases 
where the motions come piling in and a lot of them have very 
little merit. We have had cases where 20 or 30 motions were 
filed, and on the day of trial when these motions were to be 
heard a great number of them were abandoned.
    It seems to be part of the strategy, and whether it is 
legitimate or not I am not going to debate. But it seems to be 
part of the strategy to make capital litigation as expensive as 
possible because that is one of the things that you can then 
argue. Is it worth the cost? I think that the courts need to 
step in and take a more active role in monitoring the expense 
of capital cases to ensure that the moneys that are being 
expended are being expended wisely.
    Senator Sessions. Well, I think there is something there. 
It does appear to me that there are groups--I know Mr. Bright 
is very talented, and certainly not timid about expressing his 
views and defending people in criminal cases. That is healthy.
    It does not bother me that attorneys who are absolutely 
opposed to the death penalty are hired to defend the cases. It 
doesn't bother me at all. I am troubled, Mr. Chairman, by 
funding organizations who are advocacy organizations in many 
ways against the death penalty. That troubles me.
    I will ask Mr. Eisenberg and General Pryor, are you aware 
of any other criminal legal system in which a lawyer, an office 
of the court, is appointed by some advocacy or independent, 
non-legal organization to represent somebody at the taxpayers' 
expense? Are you aware of anything like that?
    Mr. Eisenberg. Senator, I am not aware of anything like 
that, but I will say, to echo these comments, that in death 
penalty cases specifically we are essentially fighting against 
the Federal Government, in the sense that our opponents in 
virtually every case, from the point of the death penalty 
verdict onward for years, are funded by the Federal Government.
    It has been commented that those lawyers don't come into 
State court. I can tell you they do. I see them everyday in 
State court, in court itself and in legal filings. It has been 
commented that a lot of jurisdictions don't have those kinds of 
federally funded lawyers. Well, the Administrative Office of 
U.S. Courts says that they have given funding to every defender 
organization under this program that has asked for it.
    Senator Sessions. So they are getting money now? Mr. 
Bright's group is----
    Mr. Bright. Senator, my group has never, ever gotten a 
penny of State or Federal money, ever.
    Mr. Eisenberg. I am not talking about Mr. Bright's group. 
In addition to all those privately funded organizations and in 
addition to all those non-profit corporations, et cetera, there 
are lawyers that are hired in the same manner as Federal public 
defenders are in Federal criminal cases, but whose job is to 
litigate State capital cases. That is the $20 million-plus that 
I referred to in my testimony earlier.
    I agree with you, there is nothing wrong with zealous 
attorneys representing the defendants in capital cases. They 
should be zealous. The question is whether we should hand them 
administrative control over the appointment process.
    Senator Sessions. General Pryor, do you want to comment on 
that?
    Mr. Pryor. I do.
    Senator Sessions. First, the historic uniqueness of a plan 
to allow that to happen.
    Mr. Pryor. Well, that is exactly what I wanted to refer to, 
Senator. I am not aware of anything like this, and I think that 
the most troubling aspect of this legislation as it pertains to 
the competency of counsel is the notion that we are totally 
rejecting the perspective that judges are independent, that 
they do not perform their sworn duty.
    They take oaths of office to uphold the Constitution and 
the rule of law. The overwhelming majority of judges in our 
system do that work diligently and honestly and with integrity, 
and the entire premise of this legislation is that they do not.
    Senator Sessions. General Pryor, can you see this chart 
from where you are?
    Mr. Pryor. Yes.
    Senator Sessions. You have good eyes. This is a chart I put 
together to deal with the appellate process. I do think that we 
could do a better job with trial attorneys. I think every State 
needs to look at that. That is the most critical phase of it. I 
know Ms. Wilkinson would agree that is the most critical phase, 
but these cases receive extraordinary review.
    This is a typical appeal of a criminal case in Alabama. 
Would you run through real briefly--my time is expired--how 
that appellate process would work?
    Mr. Pryor. Yes, it is typical capital case, which is quite 
different from a typical criminal case. After a trial where you 
have two attorneys--the lead attorney would have to have at 
least 5 years' criminal trial experience. The payment for the 
attorneys, in contrast to what was said earlier, is there are 
two kinds of payments, $60 for in-court work, $40 for out-of-
court work, plus overhead, which really works out to be an 
effective rate of about $100 an hour. There is no cap. We have 
been doing more work to make that a better system.
    Senator Sessions. You are working on improving it?
    Mr. Pryor. Yes, we have done that in recent years and I 
have been supportive of it.
    Then there is an appeal to the Alabama Court of Criminal 
Appeals, a direct appeal. At that level, two lawyers each 
receive $2,000, plus the overhead. Then there is an appeal to 
the Supreme Court of Alabama. By the way, I favored raising 
that to $15,000 per lawyer; again, the same method of payment.
    Then there is an appeal to the Supreme Court of the United 
States. Then there are State post-conviction proceedings under 
Rule 32 which go to the circuit court, the Court of Criminal 
Appeals, the Alabama Supreme Court and the U.S. Supreme Court.
    Now, in many of those instances which Mr. Bright referred 
to the $1,000 cap, there are international law firms, Wall 
Street law firms representing inmates on death row in Alabama. 
Then there is the Federal habeas process in the Federal 
district court, the Federal court of appeals, and the U.S. 
Supreme Court. Of course, there is taxpayer-financed 
representation throughout that system. So there are ten levels 
of appellate review and post-conviction review of death 
penalties.
    Senator Sessions. Are you aware of any of the cases, unless 
the defendant just insisted it be short-cut, that those ten 
steps at least did not occur?
    Mr. Pryor. Yes, there have been a couple of recent 
instances, and this Congress passed a law that was meant to 
streamline the death penalty appeals process and provide a 
statute of limitations. Despite that statute of limitations, 
two executions in Alabama have been stayed without real regard 
to what the statute of limitations is.
    Senator Sessions. Well, at any rate, it is a remarkable 
appellate process. When I was attorney general, I think there 
were two executions. One had been to the U.S. Supreme Court 
three times and had a long history of appellate review. They 
are given a great deal of scrutiny, but perhaps if we did a 
better job at the trial, we wouldn't have as much fussing on 
appeal.
    Chairman Leahy. Am I correct, General Pryor, that the two 
people whose executions were stayed obtained those stays 
because they didn't have any lawyers at all?
    Mr. Pryor. No, that is not the reason for the stays, 
Senator.
    Chairman Leahy. Did they have lawyers?
    Mr. Pryor. Well, they certainly did when they obtained the 
stays.
    Chairman Leahy. But had they not had lawyers before?
    Mr. Pryor. There were some periods in which--let me take 
the two cases. One is Thomas Arthur. Mr. Arthur has been tried 
three times and convicted. At his last trial, he testified that 
he wanted the death penalty; he asked the jury to give him the 
death penalty because he wanted the heightened scrutiny and 
additional counsel that the system provides. He was 
represented, of course, until the Rule 32 stage. He did not 
file a Rule 32 petition, despite his great experience with the 
death penalty system. He has been tried three times.
    Chairman Leahy. So that qualified him as a good lawyer. Is 
that what you are saying?
    Mr. Pryor. No, I didn't say it qualified him as a lawyer.
    Chairman Leahy. Well, anyway, we are going into Senator 
Feingold's time. I will come back.
    Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    First of all, in his opening statement Senator Hatch spoke 
briefly about the Federal system and he said that the 
Department of Justice has confirmed that there is no evidence 
of bias in the Federal death penalty system. But he didn't 
mention that the Department of Justice has a renewed commitment 
to studying racial and geographic disparities.
    So I would like to correct the record at this point and 
note that at the subcommittee hearing that I held on this issue 
following the release of the June report, the Justice 
Department announced that it would proceed with a thorough 
examination of these disparity issues. Deputy Attorney General 
Thompson acknowledged that the June report was not the 
Department's final word on this matter. So I simply want to 
clear the record on that.
    Mr. Chairman, I want to thank you for this hearing. It has 
been extremely good. I want to commend you for your efforts on 
this issue overall. I think it is one of the finest legislative 
efforts I have witnessed since I have been in the U.S. Senate 
and I am grateful to you for it.
    Chairman Leahy. Thank you.
    Senator Feingold. I wish every American could hear Mr. 
Graham's words and the words of other people in the room that I 
have met and the stories that they have to tell.
    Mr. Chairman, I would ask that my full statement be placed 
in the record.
    Chairman Leahy. Without objection.
    [The prepared statement of Senator Feingold follows:]

Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of 
                               Wisconsin

    Mr. Chairman, I commend you for holding this hearing. I am proud to 
be an original cosponsor of your bill, the Innocence Protection Act. I 
am very pleased that this Committee--and, more importantly, our 
nation--is beginning to re-examine the administration of the ultimate 
punishment a society can impose, the death penalty.
    Mr. Chairman, the American people are becoming increasingly 
uncomfortable with the fact that our criminal justice system runs the 
very real risk of executing innocent people. Many believe that we have 
already executed innocent people. Since 1973, close to 100 people who 
were sentenced to death were later found innocent and released from 
death row. And the number of innocent people walking free keeps 
growing.
    We know that one of the primary factors resulting in wrongful 
convictions across the country is the fact that all too often, 
incompetent counsel defend those needing the best legal representation, 
and at a very minimum, competent representation. It is clear, to even 
the most cursory observer of our nation's death penalty system, that 
the standards for competent counsel and the process for assigning 
counsel to capital cases is in dire need of repair. I hope the national 
attention brought to this issue by this hearing will do much to begin 
to repair that breach.
    Mr. Chairman, I think Congress should pass your bill. But Congress 
should do even more, and I think the American people expect more. A key 
part of the Innocence Protection Act focuses on the need for a national 
commission to develop standards for competent counsel in death penalty 
cases. I think this is such a good idea that I propose Congress go a 
step further. A national, blue ribbon commission can not only provide 
excellent guidance for counsel standards but can provide Congress and 
the American people with a thorough, top-to-bottom review of all the 
flaws in the administration of the death penalty at the state and 
federal levels. There are a number of additional issues that can be 
addressed by a commission--issues like racial disparities, geographic 
disparities and other questions of arbitrariness in the application of 
the death penalty, police or prosecutorial misconduct, and the 
fallibility of eyewitness testimony.
    I hope my colleagues would agree that a matter as grave as the risk 
of executing innocent people should be reviewed at the highest levels 
of our government, with input from experts. An independent, blue ribbon 
commission could do just that.
    Furthermore, if we are prepared to acknowledge that our death 
penalty system is broken, we should not go forward with executions. As 
most Americans have come to realize, a suspension of executions while a 
thorough study is undertaken is the fair and just approach. It is time 
we had a time-out on executions and review of why basic fairness and 
due process are sometimes ignored. Yes, we should consider legislation 
like the Innocence Protection Act but as part of a broader program that 
includes a thorough review of the death penalty system at the state and 
federal levels and a suspension of executions while it takes place. 
That is why I encourage my colleagues to join me on the National Death 
Penalty Moratorium Act.
    Mr. Chairman, I thank you again for holding this hearing, and I 
look forward to hearing from the witnesses.

    Senator Feingold. I would also like to commend Ms. 
Wilkinson. I am very impressed with the report of your group, 
the Death Penalty Initiative group. It is a thoughtful set of 
recommendations to improve our criminal justice system and, 
very importantly, reduce the risk that innocent people are 
executed.
    The recommendations touch on a number of areas that are in 
dire need of reform and some of the issues that are addressed 
in the Innocence Protection Act, like competent counsel, access 
to DNA testing, and the right to an informed jury. I, of 
course, am a proud cosponsor of the Innocence Protection Act. 
The Death Penalty Initiative's report clearly and unequivocally 
makes the case for why this has to become law, and I hope the 
Congress takes up this legislation soon and passes it.
    I also believe that the Innocence Protection Act is part of 
a broader program to ensure fairness and restore public 
confidence in our criminal justice system. In fact, I believe 
that, given the grave issues we are confronting--obviously, the 
risk of executing innocent people--that the work of the 
Initiative should be elevated to the national level. I have a 
bill that would do that.
    The National Death Penalty Moratorium Act would create a 
national blue-ribbon commission to review the fairness of the 
administration of the death penalty, and I believe it is time 
for Congress to create a commission to thoroughly review the 
State and Federal death penalty systems.
    Mr. Chairman, in the couple of minutes I have, I would like 
to ask a couple of questions, first, of Mr. Brackett.
    You mentioned that you witnessed, I believe, a lethal 
injection. Was that the execution of Sylvester Adams on August 
18, 1995?
    Mr. Brackett. Yes, it was.
    Senator Feingold. Now, the Adams case, I am told, arose 
from your home county of York. Is that right?
    Mr. Brackett. That is correct.
    Senator Feingold. Isn't it true that no mitigation evidence 
was presented to the jury by Adams' court-appointed attorneys, 
even though his I.Q. scores were in the mentally retarded 
range?
    Mr. Brackett. Well, I didn't come prepared to discuss that 
in any detail, but I did review the file before I went down to 
see the execution. I wanted to know exactly what it is that I 
was going to witness, so I took the time to go to the police 
department and review the file. I did not have a copy of the 
transcript, so I couldn't read the transcript of the trial so I 
don't know exactly what took place there.
    However, I also went and reviewed the physical evidence in 
that case. It involved the kidnapping of a 12-year-old boy from 
his home. He was taken out back into the woods and a piece of 
cloth tied around his neck. A stick was stuck inside the piece 
of cloth and twisted like a tourniquet until he was choked to 
death. He was then buried under a pile of leaves and sticks. 
Mr. Adams then went to a telephone and attempted to ransom the 
boy to his mother. Apparently, they believed that the family 
had money, and they did not. The police----
    Senator Feingold. Is that your way of suggesting that his 
I.Q. was not in the mentally retarded range?
    Mr. Brackett. Well, no, sir. In the course of investigating 
the case and making these determinations, I wanted to give you 
some background on the crime. But I did review some of the 
files and it appeared from the files that the individual who 
tested his I.Q. at the Department of Disabilities and Special 
Needs found him to be malingering when they were attempting to 
determine what his I.Q. was.
    The expert that was appointed by the court to evaluate his 
I.Q. said that basically I can't tell you what is I.Q. is 
because he appears to be attempting to fake the results to this 
test to possibly get an advantage. I think that is indicative 
that perhaps he was not mentally retarded.
    Senator Feingold. Mr. Chairman, I would ask if we could 
supplement the record subsequently with information regarding 
this individual.
    Chairman Leahy. Yes. In fact, the record will remain open 
for a week and further questions from Senators can be submitted 
until Thursday, July 5.
    Senator Feingold. Let me ask you one other question, sir, 
about this case. Isn't it true that on the day you watched Mr. 
Adams die, his lead defense attorney at his trial was sitting 
in Federal prison?
    Mr. Brackett. I have no knowledge of that. I know Mr. 
Bruck, who is seated in the room here, was standing behind me. 
And I suppose that Mr. Bruck was involved in his defense, but I 
have no knowledge of who his defense counsel were at the 
various stages of the proceedings or where they might have 
been. I know that he was allowed to have one attorney in the 
chamber with him, and then ultimately Mr. Bruck stepped out of 
the chamber and was standing behind me. I assumed that he was 
the counsel for Mr. Adams.
    Senator Feingold. Now, I would like to ask Beth Wilkinson 
and Stephen Bright, how do you respond to the argument that the 
fact that innocent people have been freed from death row is a 
sign that the system is working and that there is no need for 
the Innocence Protection Act and other legislation to ensure 
fairness?
    We will start with Ms. Wilkinson.
    Ms. Wilkinson. Well, just simply I think it is a red 
herring and really doesn't get to the point that we are trying 
to get to today. The fact that the system somehow, through 
efforts of individuals like college journalism students or pro 
bono lawyers who come in at the last minute and find that there 
are facts, obvious facts in some cases, that would free 
individuals like Mr. Graham, only tells me that with more 
diligence and better representation, we will find that there 
are more of these problems, not less.
    So I don't understand the argument that somehow, because 
the system has thankfully freed people like Mr. Graham, it is 
working properly. I don't think anyone sitting here today 
believes that these stories of sleeping counsel, drunk counsel, 
or lack of investigation, lack of mitigating evidence is 
something any of us should be proud of. We shouldn't here one 
of those stories in capital litigation.
    Senator Feingold. Mr. Bright?
    Mr. Bright. Well, I would just echo that. I think somebody 
spending 16 years on death row for a crime they didn't commit 
is not an example of the system working. I think when 
undergraduate journalism students--and I should have pointed 
out when I talked about Anthony Porter that he was the third 
person freed from Illinois' death row by the journalism 
students, not by the police, not by the prosecution, not by 
defense lawyers, not by judges, but by journalism students who 
took this on as a class project. I would also point out that 
Illinois is a State that provides a much better quality of 
representation than a lot of the States in the Death Belt where 
so many people are sentenced to death.
    It has been suggested that the notion of an independent 
appointing authority would somehow be unusual. Florida, 
Tennessee, Kentucky--there are a number of States where the 
defense function is independent of the courts. In fact, we 
recently had hearings in Georgia where the public defenders in 
both Florida and Tennessee came and said the judges were 
relieved not to have that responsibility anymore. And the 
system was working a lot better; it was a real adversary 
system. So it is not true.
    The ABA standards say that the appointment function should 
be independent. In Illinois, for example, the Cook County 
public defender's office has an excellent capital defender unit 
where people are represented by lawyers who really specialize 
and who know what they are doing, investigate the cases, and 
you don't have these sorts of things happening.
    Not a single one of the 13 innocent people freed from death 
row in Illinois was represented by that public defender's 
office. It shows what a difference and how fundamental counsel 
is. Counsel is the most fundamental because DNA doesn't apply 
in the vast majority of cases. So what Senator Hatch was saying 
about DNA--in the small number of cases where there is 
biological evidence that is very helpful, but really what is 
fundamental is that people be adequately represented by real 
lawyers who know what they are doing.
    Senator Feingold. I thank you for that.
    Mr. Chairman, I just have one more question, if I could.
    Chairman Leahy. Go ahead.
    Senator Feingold. Ms. Wilkinson, the Justice Department, as 
I pointed out, recently renewed its commitment to continue a 
study by the NIJ on racial and geographic disparities in the 
Federal death penalty system.
    As a former Federal prosecutor, were you troubled by the 
Justice Department's September 2000 report on the Federal death 
penalty system that related to these issues of racial and 
geographic disparities, and do you support a thorough 
examination of these disparities to be conducted by the 
National Institute of Justice?
    Ms. Wilkinson. I do, and I am glad that finally this 
Justice Department has supported that, although belatedly, this 
new and more thorough investigation. I believe last year when 
the initial report came out, Ms. Reno and the rest of the 
Justice Department recognized that we needed a more thorough, 
extensive study.
    One of the recommendations that we put forward as the 
bipartisan Committee for the Death Penalty Initiative was to 
look at racial bias. People who are much more experienced than 
I am who have lived through the system in the 1950's, 1960's, 
1970's, former prosecutors and defense attorneys, all say they 
are very troubled by the history of racial bias in capital 
litigation. So I think it is something we should pursue 
vigorously and I am happy, although it is belated, that the 
Justice Department has authorized the study.
    Senator Feingold. Thank you very much. Thank you, Mr. 
Chairman.
    Chairman Leahy. Thank you.
    Senator Sessions?
    Senator Sessions. Well, Ms. Wilkinson, a study had already 
been done in great depth by Attorney General Reno, who opposes 
the death penalty herself, and this was just an additional 
study that focused, I think, on one additional aspect. Isn't 
that correct?
    Ms. Wilkinson. That is part of it, but I don't believe that 
the study was exhaustive. As you know, there are very few 
Federal defendants on death row, and so it makes a statistical 
study very difficult to pursue. And I think Ms. Reno and others 
determined that there was additional research that needed to be 
done, and I am sure most people----
    Senator Sessions. And that is being done by General 
Ashcroft. But let me ask you, just basically on the death row 
and death penalty charges in Federal court, you have to do, as 
a prosecutor, a prosecutorial memorandum to the Department of 
Justice, and a committee reviews that for objectivity and 
fairness and legal soundness. Isn't that correct?
    Ms. Wilkinson. Yes, that is right.
    Senator Sessions. The individual prosecutors don't have 
that authority.
    Ms. Wilkinson. No, they don't have the authority to make 
the ultimate decision, but obviously they are, with the Federal 
agents that are normally involved in the State, law enforcement 
agents, conducting the investigation, developing the facts that 
they would put forward in the memorandum. As we all know, 
prosecutors have extraordinary discretion, and that includes 
how they develop the case and present it to the Justice 
Department.
    Senator Sessions. One more thing, General Pryor and Mr. 
Eisenberg. You work on appeals, do you not, Mr. Eisenberg?
    Mr. Eisenberg. Yes, Senator.
    Senator Sessions. My question is simply this: do you have 
an opinion, Mr. Eisenberg, on generally what percentage of the 
appeals actually focus on guilt or innocence as a primary part 
of the appeal, and what percentage of the appeals focus on 
issues such as ineffective counsel or other issues of that 
kind?
    Mr. Eisenberg. In our capital cases, Senator, I would be 
surprised if it is even more than 1 or 2 percent. In fact, the 
Department of Corrections in Pennsylvania----
    Senator Sessions. Only 1 or 2 percent focus on guilt or 
innocence?
    Mr. Eisenberg. On issues related to guilt or innocence.
    In Pennsylvania, the Department of Corrections wanted to 
take DNA samples from every death row inmate in the State. 
There are over 200. The lawyers for those defendants opposed 
that effort to have DNA samples taken from those death row 
inmates. We have only had one case in my experience, death 
penalty case, where the defense lawyers asked for DNA testing. 
We agreed to that testing. The testing was done by the defense 
and they then refused to turn over the results to us, as they 
had previously promised to do.
    Senator Sessions. General Pryor, is that somewhat 
consistent with your experience?
    Mr. Pryor. Yes.
    Senator Sessions. You handle all the appeals in Alabama?
    Mr. Pryor. We do, and some trials as well. I don't know if 
I would characterize it as less than 1 percent, but it is a 
very small percentage.
    Senator Sessions. Mr. Chairman, I think in many of these 
cases lawyers defend them aggressively and it is a question of 
whether death should be the jury verdict or other questions. 
But for the most part, most cases that come to a trial of this 
kind, the guilt or the innocence of the defendant is pretty 
plain, almost undisputed.
    Chairman Leahy. All those ``guilty accused,'' is that it, 
as a former Attorney General once said?
    Senator Sessions. Well, the evidence is overwhelming many 
times. I mean, sometimes the murders are committed, filmed by 
the cameras in the 7-Eleven store and things of that kind.
    Chairman Leahy. I understand. Like you, I prosecuted my 
share of murder cases, and I think most prosecutors do want to 
make sure they are convinced in their own mind of the guilt of 
the accused, before they go pursue a charge. But we also know 
of a number of people on death row who were about to be 
executed. Suddenly somebody says, ``Wait. We made a mistake''. 
But it is usually not the prosecutor who says, ``wait.'' It is 
usually not the judge. Typically, it is somebody on the outside 
that makes that statement. This is a cause for worry.
    I will let his Mr. Eisenberg's testimony speak for itself. 
But I would like to point out that it gives the impression that 
there are no problems. I read a very recent report by the 
Administrative Office of the U.S. Courts about Pennsylvania. 
Allow me to read this.
    In that report it says, ``The Commonwealth of Pennsylvania 
has long been widely regarded as having one of the worst 
systems in the country for providing indigent defense services. 
Indeed, Pennsylvania's death penalty representation crisis has 
been recognized for years. As early as 1990, the Joint Task 
Force on Death Penalty Litigation in Pennsylvania warned of a 
problem of major proportions in the provision of legal 
representation to indigent death row inmates, and noted several 
series problems including the shortage of qualified counsel to 
assist inmates in State and Federal post-conviction 
proceedings, the lack of standards governing the qualifications 
for capital counsel or the appointment of counsel at any stage 
of State capital proceedings, the lack of standards for the 
compensation of counsel, the lack of State funding for 
investigation of capital cases, and the lack of any mechanism 
for the identification and recruitment of qualified counsel. In 
the decade since the Task Force report, little in Pennsylvania 
has changed.''
    Mr. Eisenberg. Senator, I would like to comment on those 
points briefly.
    Chairman Leahy. Of course. Please go ahead.
    Mr. Eisenberg. Well, thank you.
    Chairman Leahy. I would not present this material without 
giving you a chance to respond.
    Mr. Eisenberg. Thank you, Senator. Pennsylvania is a State 
where appointment of counsel standards funding is done at the 
county level rather than on a uniform statewide basis. So that 
report, when it referred to, for example, an absence of State 
standards, what it meant was not that there were no appointment 
standards; it meant that the standards are implemented at the 
county level rather than the State level.
    Let me tell you briefly about the standards for appointment 
of counsel in Philadelphia, which represents over two-thirds of 
the death penalty cases in the State. They were promulgated in 
1991. To get appointed to a murder trial, any murder trial, 
since it could be capital, you have to have 5 years of trial or 
appellate criminal law experience. You have to have previously 
been the sole or lead counsel in 10 serious criminal jury 
trials.
    You have to have previously been the sole or lead counsel 
in at least one homicide case that went to verdict, or assisted 
in two homicide cases that went to verdict. And you have to 
have taken continuing legal education classes within the 
previous 2 years focusing on capital cases. You are then 
screened by a committee of defense lawyers in order to get on 
to the roster for appointment by the court. Those standards are 
well in excess of the standards that the Federal Government 
implemented for appointment of counsel in Federal death penalty 
cases.
    Chairman Leahy. It is interesting, with those standards, 
that they still say the Commonwealth of Pennsylvania has long 
been widely regarded as having one of the worst systems in the 
country for providing indigent defense services. Pennsylvania's 
death penalty representation crisis has been recognized for 
years.
    Mr. Eisenberg. Based, Senator, on the technicality that 
those standards are implemented at the county level, and the 
Commonwealth is the Commonwealth, the State. The report that 
you mention makes no reference to the kind of protections that 
I have just outlined. It doesn't dismiss them. It doesn't say 
that they weren't good enough. It just doesn't talk about them.
    Chairman Leahy. The executive summary of that report will 
be part of the record.
    General Pryor, is your office seeking execution of any 
people who have never had State or Federal post-conviction 
review of their cases?
    Mr. Pryor. Well, in our earlier colloquy that we were not 
able to finish that Senator Feingold began----
    Chairman Leahy. That is why I wanted to give you a chance 
to respond.
    Mr. Pryor. There are two cases where we have moved to set 
execution dates where, at least after the last conviction, 
there had not been--there had been, of course, the direct 
appeal process with an appeal to the Court of Criminal Appeals.
    Chairman Leahy. Was there any State or Federal post-
conviction review?
    Mr. Pryor. There had not been a Rule 32 proceeding in the 
State courts as to Mr. Arthur. There had been an evidentiary 
hearing and a Rule 32 as to Mr. Barber. There was no appeal 
taken from that, and neither filed a petition for a Federal 
writ of habeas corpus within the statute of limitations. They 
did so outside of the statute of limitations and Federal courts 
have stayed both of those executions.
    Chairman Leahy. Let me ask you this, and then I will go 
back to that other question. Do you have any death row inmates 
in Alabama who are currently not represented by lawyers?
    Mr. Pryor. That is a difficult thing for us and the 
prosecution to know.
    Chairman Leahy. Are you aware of any death row inmates in 
Alabama who are currently not represented?
    Mr. Pryor. I am aware that Brian Stevenson, who heads the 
Equal Justice Initiative of Alabama, sometimes claims that 
there are not attorneys for some inmates.
    Chairman Leahy. Are you aware of any inmates on death row 
in Alabama who do not have lawyers? Are you aware of any?
    Mr. Pryor. No, I am not, because I don't represent inmates.
    Chairman Leahy. Is it your understanding that all death row 
inmates in Alabama are represented?
    Mr. Pryor. It is my understanding that all inmates on death 
row in Alabama can obtain counsel and have counsel appointed by 
the courts at all stages, including Rule 32 stages.
    Chairman Leahy. Notwithstanding your earlier comment to me 
suggesting that if one went through a death penalty case as a 
defendant, one would have a pretty good understanding of the 
system--would it be fair to say that if you really wanted to 
file for post-conviction relief in State or Federal court, with 
the standards required in State and Federal court, you had 
better have a lawyer to do it for you, a lawyer who is 
competent in such post-conviction relief acts?
    Mr. Pryor. I think the obsessions with Federal and State 
post-conviction proceedings is a bad one. I think that we need 
to spend much more of our resources at the trial and direct 
appeals stage.
    Chairman Leahy. I must be having a difficult time conveying 
my question to you, and it is probably my Vermont accent. I 
apologize for that. I don't think you understand my question, 
so I will ask it again.
    Is it your understanding that if somebody wants to take a 
post-conviction relief act remedy in State or Federal court 
that they are hampered at the very least in that effort unless 
they are represented by counsel who has some experience in that 
type of post-conviction relief act?
    Mr. Pryor. They are certainly assisted by counsel, Senator.
    Chairman Leahy. Mr. Bright, what do you think?
    Mr. Bright. I think having just any lawyer in town 
represent somebody in a death penalty case is sort of like if 
someone in town brain surgery and you say, well, we don't have 
any brain surgeons in this town, but there is a chiropractor 
down the street, so we will just take this person down to the 
chiropractor and have him do the brain surgery.
    The Barber case is a good example of that, Mr. Chairman. 
Barber was given a local lawyer who had no idea what he was 
doing. The lawyer showed up for a little evidentiary hearing. 
He didn't even file the notice of appeal.
    A few years ago, Mr. Chairman, the idea of a person not 
having a lawyer during the post-conviction process and being 
executed because they were too poor to afford a lawyer would 
have been unthinkable, absolutely unthinkable. Now, we have got 
two people, and there are more in the pipeline in Alabama, who 
have missed the statute of limitations. Or in Barber's case, 
the lawyer shows up for this hearing, doesn't file a notice of 
appeal, and then misses the Federal statute. So this fellow has 
no post-conviction review at all. That is unthinkable in any 
system that says we are going to have equal justice. If he had 
been a person of means, he would have had State post-conviction 
review and he would have had Federal post-conviction review.
    I agree there is a need to provide lawyers at trial for 
people, and the quality of representation at trial is a scandal 
and something has to be done about it and this bill is a small 
first step toward that. But people have to be represented all 
the way through this process if this system is going to be 
fair.
    I will give you another example, Walter McMillan, the 
innocent man who was freed in Alabama by Brian Stevenson, first 
with our office and then with the Equal Justice Institute. 
Walter McMillan would have never been freed if he had not had 
post-conviction review. Brian Stevenson got his case. He proved 
that Walter was in another community at the time the crime took 
place, and he was ultimately exonerated and released from death 
row after a number of years.
    Mr. Chairman, one other thing that I just think is 
important to point out here. Brian Stevenson's office, the 
Equal Justice Institute, and our office, the Southern Center 
for Human Rights, receive no State or Federal money. We simply 
are there providing representation to people because there are 
people that desperately need legal assistance that don't have 
any other source of it.
    The lawyers from law firms that provide pro bono assistance 
are recruited by the American Bar Association or by our office 
to provide that representation, but none of these people are 
paid anything. The State of Alabama has no system for providing 
people, and some people that we represent or the firms 
represent do get good representation. Many other people don't 
get any representation at all, and that is just a cruel lottery 
that says that one person, because their number comes up, gets 
competent legal representation, and the next person the statue 
of limitations expires on because they are not represented at 
all.
    Chairman Leahy. Mr. Pryor, I don't want you to feel that 
you were treated unfairly. Did you want to respond to that?
    Mr. Pryor. Whenever Stephen speaks, there are so many 
things I would like to respond to, but the notion that Walter 
McMillan would have been executed had he not had post-
conviction proceedings is not true. His conviction was 
overturned in the direct appeal stage, in the first level of 
review, where we ought to spend most of our considerable 
resources in this system, and do.
    Chairman Leahy. Do you disagree with the article in the New 
York Times which said the lack of appeals lawyers in Alabama is 
one reason the State has the fastest growing death row in the 
country and the second largest number of condemned prisoners 
per capita?
    Mr. Pryor. Yes, I disagree, and I was, I think, quoted in 
that article.
    Chairman Leahy. I would note in the article that you were 
quoted as saying the State should increase the money paid to 
trial lawyers for indigent defendants, which is consistent with 
what you have said here.
    Mr. Pryor. Right, trial and direct appeals.
    Chairman Leahy. I understand, and I will put that article 
in the record.
    Well, General Pryor and Senator Ellis and Mr. Bright and 
Mr. Graham and Mr. Eisenberg and Ms. Wilkinson and Mr. 
Brackett, we have kept you here a long time. I appreciate you 
being here. I realize we have gone back and forth with some of 
you, and I am sure each of you can think of other things you 
would like to say. I will keep the record open for a week. I 
will keep it open to Senators for additional questions until 
Thursday, July 5.
    I think everybody agrees that there is a need to have 
evidence of all kinds available to both the prosecution and the 
defense. I think there is a need to have standards for 
competent counsel throughout the country.
    When I prosecuted cases I wanted the best counsel possible 
on the other side because I didn't want the case to be remanded 
5 or 6 years later for lack of competent counsel. Every 
prosecutor knows it is extraordinarily difficult to retry a 
case 5 or 6 years later. You want to get it right the first 
time.
    I hope that if any of you have further material you want to 
add, you will do so. If you feel that you were not given 
adequate time to answer any of the questions and want to add to 
your answers, feel free to do that.
    We have several statements that have been submitted for the 
record and we will include them in the record at this point.
    With that, we stand in recess.
    [Whereupon, at 1:06 p.m., the committee was adjourned.]
    [Submissions for the record follow.]
    [Additional material it being retained in the Committee 
files.]

                       SUBMISSIONS FOR THE RECORD

         Statement of Administrative Office of the U.S. Courts

                           Executive Summary
    In 1995, during consideration of the federal judiciary's annual 
appropriations request, Congress defunded Post-Conviction Defender 
Organizations (PCDOs), providing a small amount of fiscal year 1996 
money for an orderly termination of the program. Only seven years 
earlier, Congress had authorized the federal judiciary to support the 
creation of the PCDOs to address a looming crisis in state and federal 
post-conviction death penalty cases. There were too few competent 
lawyers willing and able to represent the indigent condemned, and too 
few resources provided to those who stepped forward. In those states 
with large death-row populations, the dearth of qualified counsel 
willing to provide representation in capital cases had brought the 
process to a standstill.
    To address these problems, PCDOs were established in 20 states 
where the death penalty is authorized. PCDOs were staffed by counsel 
experienced in the intricacies of capital litigation. They provided 
numerous death-sentenced individuals with competent representation, and 
offered training and assistance to private counsel, thereby increasing 
the pool of attorneys willing to accept appointment in capital cases. 
In 1995, the federal judiciary concluded that the PCDOs played a vital 
role in providing cost-effective, qualified counsel to death-sentenced 
individuals.
    PCDOs, however, received a harsh reaction from death penalty 
proponents. Prompted by criticism of the program from the National 
Association of Attorneys General and others, Congress eliminated 
funding for PCDOs. With the termination of federal funding, many of the 
PCDOs had to dramatically scale back operations; seven of the 20 
offices closed their doors entirely. This left hundreds of people 
facing the death penalty without adequate representation and some with 
no representation at all. The demise of the PCDOs also has made 
cooperation of private counsel less forthcoming. Many have refused to 
take capital cases without the backup of a PCDO. As a result, a growing 
number of cases have entered federal habeas corpus proceedings with no 
development of claims, no investigation of facts, and no competent 
counsel to continue on the case.
    Shortly after defunding PCDOs, Congress passed the Antiterrorism 
and Effective Death Penalty Act of 1996 (AEDPA), which created a 
statute of limitations that in most states allows one year for filing a 
federal habeas corpus petition, usually from the denial of certiorari 
on direct appeal. AEDPA also established a scheme whereby if a state 
``opts in'' by establishing a mechanism for the appointment and 
compensation of counsel in state post-conviction proceedings, it can 
obtain certain ``benefits,'' including the reduction of the statute of 
limitations for filing a first federal petition from one year to 180 
days, and an accelerated process of decision in the federal courts. 
Although no state has yet been held to qualify as an ``opt-in'' state 
under these provisions, in the wake of the enactment of AEDPA, many 
states created new post-conviction processes in an attempt to ``opt 
in'' and obtain these ``benefits.'' Thus, while the availability of 
counsel was diminishing due to the defunding of PCDOs, the state and 
federal jurisprudence became more rigorous and complex.
    When PCDOs were defunded, 3,045 individuals were under a state 
sentence of death; today more than 3,688 reside on death row. The vast 
majority are in states that once had a PCDO. Many of these inmates are 
in the state post-conviction process and will soon enter federal court.
    Section I of this report traces the history of the PCDOs, from 
their creation to their demise. Section 11 describes the post-PCDO 
world state-by-state. This review leads to the conclusion that most of 
the problems that precipitated the creation of the PCDOs exist once 
again, but now there are more cases, fewer experienced attorneys, and 
an increasingly complex and accelerated jurisprudence.
       i. history of the post-conviction defender organizations.
    In 1976, the Supreme Court's decision in Gregg v. Georgia \1\ 
cleared the way for the reimposition of the death penalty in the United 
States. In the years following Gregg, an increasing number of states 
passed death penalty laws. This led to a greater number of criminal 
trials ending with a defendant sentenced to death and a rise in the 
number of death-row inmates who had completed direct appeal \2\ and 
post-conviction proceedings \3\ in the state courts. Those inmates 
denied relief by the state courts then moved into the federal courts, 
seeking federal review of their cases by writ of habeas corpus. The 
federal habeas corpus statute \4\ permits a state inmate to obtain 
federal court review of his conviction and sentence to determine 
whether any violation of the United States Constitution or federal laws 
occurred. Historically, habeas corpus has acted as a vital systemic 
check upon the state courts and their application of fundamental 
federal constitutional protections. This is especially true in cases 
where the inmate has been sentenced to death. Of the capital cases 
reviewed in federal habeas corpus proceedings between 1973 and 1995, 
two out of five (40 percent) were found to have constitutional 
error.\5\
---------------------------------------------------------------------------
    \1\ 428 U.S. 153 (1976).
    \2\ On direct appeal, the defendant contends before state appellate 
courts that the trial judge committed an error of law that requires 
reversal of the conviction or sentence. Direct appeal is generally 
limited to those errors provable on the trial record. If state 
appellate courts find no error and affirm the conviction and sentence, 
the defendant can petition to the United States Supreme Court for 
certiorari review.
    \3\ State post-conviction review allows a defendant to raise claims 
of error that were not litigated on direct appeal because the 
constitutional violation did not appear in the trial record. Generally, 
post-conviction review follows the completion of direct appeal, 
although some states combine the two processes. In some states, the 
post-conviction petition is initially filed in the appellate court; in 
others, it is filed in the trial court and any denial of relief is 
appealed. At times, factual development of claims at an evidentiary 
hearing occurs. If the state courts ultimately deny post-conviction 
relief, certiorari review in the United States Supreme Court may be 
sought.
    \4\ 28 U.S.C. Sec. 2254(a).
    \5\ JAMES LIEBMAN, JEFFREY FAGAN & VALERIE WEST, BROKEN SYSTEM: 
ERROR RATES IN CAPITAL CASES, 1973-1995, at 4 (2000).
---------------------------------------------------------------------------
    a. why congress funded pcdos: too few lawyers for the indigent 
             condemned, stalled cases, and chaotic review.
    Little more than ten years after the Gregg decision, the review of 
capital cases in federal habeas corpus proceedings had become a 
quagmire. As more and more cases entered the federal courts, a greater 
number came to the district courts' attention not through the filing of 
an ably-written petition, but on a hastily-drafted emergency motion for 
a stay of execution filed by volunteer counsel recruited 
serendipitously only days before. In some states, emergency motions 
were filed by prisoners acting without counsel. Often, federal judges 
were forced to put aside scheduled work and consider, sometimes through 
the night, such emergency filings.
    It soon became apparent why a growing number of state capital cases 
were arriving at the federal courthouse door slapped together at the 
last minute.\6\ In many states, ill-funded indigent defense systems 
failed to provide sufficient numbers of seasoned defense attorneys for 
capital trials and subsequent state appeals. As a consequence, 
important issues were not litigated properly, or were not litigated at 
all, in those proceedings. Moreover, after the direct appeal was 
completed, indigent death-sentenced inmates had to fend for themselves 
to find pro bono counsel for state post-conviction proceedings.\7\ Few 
states had in place a mechanism for matching qualified counsel with 
indigent capital inmates so that claims not resolved adequately on 
direct review could be promptly and thoroughly reviewed in the state 
post-conviction process. Finally, once they reached federal court, 
condemned inmates had no right to counsel to pursue habeas corpus 
relief; the appointment of counsel was within the discretion of the 
federal district court judge.\8\ And even if the district court 
appointed federal habeas counsel, the appointment generally occurred 
after a habeas corpus petition was already filed, thereby precluding 
counsel's assistance at the most critical stage of any habeas corpus 
proceeding the preparation of the petition.\9\
---------------------------------------------------------------------------
    \6\ See generally American Bar Association Task Force on Death 
Penalty habeas corpus (Ira P. Robbins, rep.), Toward a More Just and 
Effective System of Review in State Death Penalty Cases, 40 AM. U. L. 
Rev. 1 (1990) (containing materials produced by the American Bar 
Association Criminal Justice Section Project to Study habeas corpus 
Review of State Death Penalty Convictions); Report and Proposal of the 
Judicial Conference Ad Hoc Committee on Federal habeas corpus in 
Capital Cases at 1, 5 (1989) (also called the ``Powell Committee 
Report'' after its chair, former Supreme Court Justice Lewis Powell, 
Jr.).
    \7\ Although there is a constitutional right to counsel at trial, 
Gideon v. Wainwright, 372 U.S. 335 (1963), and on direct appeal, 
Douglas v. California, 372 U.S. 353 (1963), there is no recognized 
constitutional right to counsel in state post-conviction or federal 
habeas corpus proceedings. Murray v. Giarratano, 492 U.S. 1 (1989); 
Coleman v. Thompson, 501 U.S. 722 (1991).
    \8\ U.S.C. Sec. 3006A(g).
    \9\ Indeed, in McFarland v. Scott, 512 U.S. 849, 856 (1994), the 
Supreme Court noted that in light of the heightened pleading 
requirements for habeas corpus petitions, requiring an indigent capital 
petitioner to file a petition without the assistance of counsel ``would 
thus expose him to the substantial risk that his habeas claims would 
never be heard on the merits.''
---------------------------------------------------------------------------
    During these years, the difficult and time-consuming task of 
recruiting and matching willing volunteer counsel with indigent capital 
prisoners in state post-conviction and federal habeas corpus 
proceedings usually fell to small, non-profit legal services 
organizations, national civil rights groups, the American Bar 
Association, and individual citizens. But by 1988, the demand for 
counsel greatly exceeded the number of volunteers these groups could 
identify. Indeed, the American Bar Association noted in 1988 that 
``there simply are not, and will not be, enough (qualified attorney) 
volunteers'' to handle the death row cases generated by the states.\10\ 
In those states with large deathrow populations, the dearth of 
qualified counsel willing to provide representation in death penalty 
cases brought the process virtually to a stand still. And increasingly, 
state judges or governors, frustrated with the slow pace of capital 
appeals, set execution dates to move the cases through the system.
---------------------------------------------------------------------------
    \10\ Linda Greenhouse, Supreme Court Roundup: Right to Death-Row 
Lawyer Curbed, N.Y. TIMES, June 24, 1989, at 8 (citing amicus curiae 
brief of the American Bar Association in Murray v. Giarratano, 492 U.S. 
1 (1989), LEXIs, News Library, NYT File.
---------------------------------------------------------------------------
    By this time, concerns over the large number of death penalty cases 
in the pipeline, and the limited number of attorneys familiar with the 
complexities of both death penalty and federal habeas corpus 
jurisprudence, caused the federal judiciary and bar to search for some 
vehicle to ensure that trained and adequately supported attorneys could 
be found. Without such a mechanism, neither the courts nor the bar 
could ensure that the death-penalty review process would continue to 
function. In June 1988, in cooperation with the Administrative Office 
of the United States Courts, the American Bar Association sponsored a 
national conference to address the growing crisis resulting from the 
unavailability of counsel in capital post-conviction and habeas corpus 
proceedings.\11\ Following this conference, a number of states formed 
blue-ribbon panels--comprised of the state and federal judiciary, bar 
association leaders, state and local prosecutors, civil rights leaders, 
and the defense bar--to study the problem further. These committees 
found that the shortcomings within the states' systems were frustrating 
both the pace and quality of justice in the federal courts, and that 
federal habeas corpus review of state capital cases would continue to 
be chaotic and inefficient unless Congress took action to deal with the 
crisis realistically. In response, the committees recommended the 
creation of death penalty resource centers.
---------------------------------------------------------------------------
    \11\ Douglas W. Vick, Poorhouse Justice: Underfunded Indigent 
Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329, 
333 (1995).
---------------------------------------------------------------------------
    Soon thereafter, Congress took two important steps to address the 
chronic lack of seasoned and adequately compensated counsel in the 
capital process. First, recognizing that early assignment of competent 
counsel can greatly reduce both the length of time and the amount of 
resources required to litigate a death penalty case to conclusion,\12\ 
Congress enacted a statutory right to counsel for condemned inmates in 
federal habeas corpus proceedings in the Anti-Drug Abuse Act of 
1988.\13\ Under section 848(q) of Title 21, federal courts are 
obligated by statute to appoint experienced attorneys to represent 
financially eligible federal habeas corpus petitioners under a sentence 
of death. So that counsel may assist in the preparation of the federal 
petition, section 848(q) also allows the inmate to request appointment 
before the petition is filed.\14\ And to make such representation more 
financially feasible for experienced practitioners, it directs that 
appointed counsel handling capital habeas corpus cases be compensated 
higher than in non-capital cases.
---------------------------------------------------------------------------
    \12\ The Powell Committee Report reached similar conclusions.
    \13\ 21 U.S.C. Sec. 848(q).
    \14\ McFarland v. Scott, 512 U.S. 849 (1994).
---------------------------------------------------------------------------
    Second, and importantly, Congress recognized that the complexity 
and demanding nature of capital cases required additional litigation 
resources. Following the recommendations put forth by the states' blue-
ribbon panels, it approved the federal judiciary's request for federal 
funding of defender organizations to recruit, assist, and support the 
private bar with these cases. Congress also understood that the quality 
of review afforded in the state system had a direct bearing upon the 
cost, speed, and integrity of subsequent federal review. Thus, these 
organizations were also encouraged to seek state resources so that they 
could likewise aid counsel in state post-conviction proceedings. Such 
assistance in state proceedings would enhance the quality of 
representation, and thus simplify later federal proceedings. Moreover, 
such a system would encourage continuity of representation; lawyers 
recruited in the state system would remain with a case as it entered 
federal court.
    Thus, in a model of cooperation between the federal judiciary, 
state governors, state judges, state and local prosecutors, private bar 
associations, and Congress, death penalty resource centers were 
established in a number of jurisdictions.\15\ These resource centers, 
later known as Post-Conviction Defender Organizations (PCDOs), were 
structured as community defender organizations pursuant to subsection 
(h)(2)(B) of the Criminal Justice Act, 18 U.S.C. Sec. 3006A. PCDOs 
received grants upon approval of the United States Judicial Conference, 
contingent upon each PCDO's ability to obtain funds to support the 
state-court-related work that it intended to perform. In FY 1995, 
grants totaling $19,354,400 supported PCDOs in 20 states.\16\
---------------------------------------------------------------------------
    \15\ See Roscoe C. Howard, Jr., The Defunding of the Post-
Conviction Defense Organizations as a Denial of the Right to Counsel, 
98 W. VA. L. REV. 863, 906-13 (1996).
    \16\ FY 1995 was the last year of full funding for PCDOs.
---------------------------------------------------------------------------
    PCDOs performed a number of functions. They tracked the status of 
the appeals of those on death row so that counsel could be found and 
filings could be made in a timely, orderly fashion. They recruited 
volunteer attorneys and provided the assistance required to acquaint 
attorneys with the complex procedural and substantive aspects of 
capital habeas corpus representation. This assistance included training 
programs for volunteer and appointed counsel, consultations with 
counsel, assistance in investigating and litigating cases, and 
providing manuals, sample pleadings, briefs, and other support 
materials. Although counsel employed by the PCDOs personally 
represented a limited number of capital habeas corpus petitioners, 
direct representation was not their primary orientation.
 b. the cox committee report: the judiciary recommends continued pcdo 
             funding with increased direct representation.
    Six years after their creation, the federal judiciary concluded 
that the PCDOs played a vital role in providing cost-effective, 
qualified counsel in capital cases. In 1994, Judge Gustave Diamond, 
Chair of the Committee on Defender Services of the United States 
Judicial Conference, named three members of the Committee to a 
Subcommittee on Death Penalty Representation.\17\ The Subcommittee's 
task was to evaluate PCDO performance in assisting the federal 
judiciary in meeting its goals of making qualified counsel available 
for appointment, and providing quality cost-effective representation in 
capital federal habeas corpus proceedings.
---------------------------------------------------------------------------
    \17\ Judge Emmett Ripley Cox, of the United States Court of Appeals 
for the Eleventh Circuit, chaired the Subcommittee. Judge Arthur L. 
Alarcon of the Ninth Circuit Court of Appeals and Judge Miriam Goldman 
Cedarbaum of the Southern District of New York served as Subcommittee 
members.
---------------------------------------------------------------------------
    The Subcommittee's ``Report on Death Penalty Representation'' 
(hereinafter the ``Cox Committee Report,'' after its chair, Judge 
Emmett Ripley Cox), concluded that PCDO handing should continue because 
PCDOs ``play a vital role in providing representation in capital 
cases.'' \18\ The Subcommittee found that the very presence of PCDOs, 
and their ability to offer training and expert advice regarding each 
step of the habeas corpus process, emboldened private attorneys to 
accept assignments in capital habeas corpus cases. ``Private lawyers 
who communicated with the Subcommittee almost uniformly expressed the 
view that they would not willingly represent a deathsentenced inmate 
without the assistance of a PCDO or similar organization. State and 
federal judges agreed that PCDO assistance was critical to the 
recruitment of private attorneys to represent death sentenced 
inmates.'' \19\ Much more importantly, the Subcommittee noted that 
PCDOs brought for the first time some coordination in the delivery of 
defense services into the state and federal post-conviction process. 
These offices were crucial in motivating private attorneys to represent 
condemned inmates in state post-conviction proceedings, where often 
there is little or no compensation.\20\ Created at a time when the lack 
of competent and knowledgeable counsel in state post-conviction and 
federal habeas corpus proceedings often resulted in confusion, delay, 
and increased costs, the PCDOs dramatically expanded the pool of 
qualified counsel willing to accept these demanding cases.
---------------------------------------------------------------------------
    \18\ Cox Committee Report at 7.
    \19\ Id. at 6.
    \20\ Id.
---------------------------------------------------------------------------
    However, this reliance on private counsels central tenet of the 
PCDO concept caused the Subcommittee concern. It found that ``the 
availability of private counsel both pro bono and compensated is 
diminishing across the country, despite PCDO assistance.'' \21\ For 
example, the Report noted that at the time, 28 condemned inmates were 
without counsel in state post-conviction proceedings in Texas. To 
address this concern, the Subcommittee recommended that PCDO funding be 
continued, but that PCDO counsel represent more death-sentenced inmates 
directly, rather than simply providing consultation and training to 
appointed counsel. The reason for this recommendation was twofold. 
First, because PCDOs received both federal and state resources, PCDO 
counsel could work in both state and federal court, thereby providing 
quality representation in state post-conviction proceedings and 
continuing that representation into federal court two factors that tend 
to decrease costs of federal habeas representation. Second, the cost of 
experienced salaried counsel employed by PCDOs was less than private 
counsel compensated under the CJA. Thus, to the extent PCDO counsel 
were able to provide representation in lieu of private appointed 
counsel, cost savings in capital cases could be achieved. In September 
1995, the United States Judicial Conference approved the 
recommendations in the Cox Committee Report.
---------------------------------------------------------------------------
    \21\ Id. at 8.
---------------------------------------------------------------------------
                     c. congress defunds the pcdos.
    PCDOs received a harsh reaction from death penalty proponents.\22\ 
In the spring of 1995, South Carolina Attorney General Charles Condon, 
testifying for the National Association of Attorneys General, urged 
Congress not to fund PCDOs unless state prosecutors got equal 
funding.\23\ Representative Bob Inglis, a Republican from South 
Carolina, and Representative Charles Stenholm, a Republican from Texas, 
in an open letter to their congressional colleagues in June 1995, 
assailed the PCDOs as `` `one of the major reasons that justice is 
being frustrated in capital cases around the country' and blamed `the 
flow of federal money (to the PCDOs) that goes to finance endless and 
fruitless appeals.' '' The two congressmen persuaded the Subcommittee 
of the Departments of Commerce, Justice, and State of the House 
Appropriations Committee to eliminate funding for PCDOs.\24\ On January 
5, 1996, Congress passed H.R.#1358, which called for a budget of 
$262,217,000 for the federal judiciary's Defender Services program so 
long as none of the funds were expended on PCDOs after April 1, 
1996.\25\ With the termination of federal funding, many PCDOs closed 
their doors.
---------------------------------------------------------------------------
    \22\ PCDOs never had universal support. The Cox Committee heard 
complaints that in some states, PCDO staff worked to abolish the death 
penalty rather than recruit attorneys or represent inmates. Cox 
Committee Report at 6 n.12.
    \23\ In fact, a number of studies on the relative resources 
available for the prosecution and defense in capital cases have found 
that there is a disparity of funding in favor of the prosecution at all 
levels of capital cases. For example, in 1991, the American Bar 
Association study of the cost of the death penalty in state 
jurisdictions, made at the request of Congressman Don Edwards, Chairman 
of the Subcommittee on Civil and Constitutional Rights, reached this 
conclusion.
    \24\ Roscoe C. Howard, Jr., The Defunding of the Post Conviction 
Defense Organizations as a Denial of the Right to Counsel, 98 W. VA. L. 
REV. 863, 913-14 (1996) (citing Marcia Coyle, Republicans Take Aim at 
Death Row Lawyers, NAT'L L. J., Sept. 18, 1995, at A 1, and Lis Wiehl, 
Program for Death-Row Appeals Facing Its Own Demise, N.Y. TIMES, Aug. 
11, 1995, at A13).
    \25\ Act of Jan. 6, 1996, Pub. L. No. 104-91, 110 Stat. 7.
---------------------------------------------------------------------------
  ii. post-pcdo problems: all of the old ones plus more cases, fewer 
  experienced attorneys, and an increasingly complex and accelerated 
                             jurisprudence.
    The PCDOs were defunded before they achieved a uniform system of 
qualified representation in state post-conviction and federal habeas 
corpus cases. Nevertheless, in less than seven years, these offices had 
dramatically improved the level of defense services provided to 
hundreds of death sentenced inmates. With the withdrawal of PCDO 
funding, the national picture of post-conviction representation now 
resembles a tattered patchwork quilt.
    After Congress eliminated funding for the PCDOs, those in Arkansas, 
Florida, Mississippi, Nevada, Oklahoma, Tennessee, and Texas closed 
their doors almost immediately. Drastically scaled-back services 
survived in Arizona, Alabama, California, Georgia, Illinois, Kentucky, 
Louisiana, Missouri, North Carolina, Ohio, Pennsylvania, South 
Carolina, and Virginia. In a minority of states, the surviving 
organizations receive limited state funds. In only a very few does the 
level of funding come close to that previously provided the PCDOs. Many 
no longer provide representation or assistance to counsel appointed in 
capital habeas corpus proceedings before the federal courts. Federal 
defender offices in some states have been called upon to represent 
death row inmates in federal habeas proceedings. The resulting 
hodgepodge of post-conviction representation since the withdrawal of 
PCDO funding has caused the cases of many indigent condemned inmates to 
slip through the cracks.
    Other recent actions by the states since the defunding of the PCDOs 
have also affirmatively deepened the crisis in post-conviction 
representation. Many states, frustrated with the slow pace of 
executions, enacted new statutes imposing time limitations on the 
filing of capital post-conviction petitions. Counsel representing 
death-sentenced inmates in Arizona, Georgia, Illinois, Missouri, North 
Carolina, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee, 
Texas, and Virginia must now file post-conviction petitions and 
litigate their claims under accelerated timetables. Many private 
attorneys are unwilling to accept appointments in light of these 
changes. By speeding up the capital post-conviction process, these 
states have caused cases that would have worked their way through the 
state system over a period of time to become a tidal wave. The result: 
too many cases, too few experienced attorneys, and too little time.
    But the old problems have hardly gone away. A large number of 
states still fail to provide adequate defense services for capital 
trial, appellate, and post-conviction proceedings, with some furnishing 
none at all after direct appeal. As before, a substantial and growing 
number of condemned inmates who have completed direct review have no 
legal representation, nor any immediate prospects of being matched with 
competent counsel. Once again, in many states the difficult and time-
consuming task of recruiting and matching willing volunteer counsel 
with indigent capital prisoners in state post-conviction and federal 
habeas corpus proceedings has fallen on nonprofit organizations, 
national civil rights groups, the American Bar Association, and 
individual citizens, but without the assistance of PCDOs.
    For example, in response to the growing crisis in post-conviction 
representation following the demise of the PCDOs, the American Bar 
Association Death Penalty Representation Project has accelerated its 
efforts to recruit volunteer lawyers. The process of recruitment, 
however, is a protracted one. Because law firms are aware that capital 
cases demand attorney time and resources at a level few other pro bono 
cases demand, approval, on average, takes four to six months. In 
addition, many of the firms recruited have no previous capital 
experience and require the guidance of experienced capital litigators. 
But without the support of the PCDOs, this guidance is difficult to 
find.\26\ Since early 1998, the Project has successfully recruited some 
60 major law firms to represent capital inmates in post-conviction 
proceedings. But these efforts cannot come close to meeting the need. 
Indeed, in 1997 the American Bar Association called for a moratorium on 
executions, noting that the death penalty is administered through ``a 
haphazard maze of unfair practices,'' that many defendants facing the 
death penalty are represented by inadequately paid or incompetent 
lawyers, and that hundreds of the men and women on death row nationwide 
have no lawyers to represent.them in post-conviction appeals.\27\ The 
call for a moratorium was recently reemphasized by the ABA in light of 
mounting evidence of exonerations of death-row inmates, and the role 
that inadequate counsel played in their wrongful convictions.\28\
---------------------------------------------------------------------------
    \26\ Recognizing that it cannot persuade firms to undertake capital 
post-conviction cases without the kind of direction formerly offered by 
PCDO lawyers, the Project, through grants and other fund-raising 
efforts, now underwrites the salaries of six experienced capital 
litigators in Alabama, Georgia, Missouri, Texas, and Virginia who are 
designated as ``resource counsel'' to the pro bono firms the Project 
recruits. This action is viewed by the Project as a necessary, short-
term response to the current crisis in post-conviction representation.
    \27\ Saundra Torry, ABA Endorses Moratorium on Capital Punishment, 
WASH. POST, Feb. 4, 1997, at A4, available at 1997 WL 2249666.
    \28\ See Bill Rankin, Critics Speak Out on Death Penalty: Citing 
Shift in Attitudes on Capital Punishment, Lawyers Continue to Urge 
Execution Moratorium, ATLANTA CONST., Oct. 13, 2000, at D1, available 
at 2000 WL 5480954.
---------------------------------------------------------------------------
    One reason for the devastating shortage of qualified counsel is the 
failure of most states to provide adequate compensation in capital 
post-conviction cases. Some states still provide no compensation for 
post-conviction counsel at all. A 1987 study commissioned by the 
American Bar Association Death Penalty Representation Project found 
that the average time devoted to a case by post-conviction counsel was 
2,000 hours.\29\ These figures were gathered before the decade of 
United States Supreme Court decisions that substantially increased the 
complexity of habeas corpus litigation,\30\ and prior to the enactment 
of the Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA).\31\ More recently, the Spangenberg Group conducted a study of 
time and expenses required in Florida capital post-conviction cases. It 
concluded that ``the most experienced and qualified lawyers at [one of 
Florida's three Capital Collateral Regional Offices] have estimated 
that, on average, over 3,300 lawyer hours are required to take a post-
conviction death penalty case from the denial of certiorari by the 
United States Supreme Court following direct appeal to the denial of 
certiorari'' through that state's post-conviction proceedings.\32\ The 
study found that these estimates were ``consistent with'' those 
reported by a number of pro bono firms involved in capital post-
conviction litigation that were also surveyed.\33\ In addition, the 
ancillary costs expended by volunteer firms ranged from approximately 
$14,000 to in excess of $1.5 million.\34\ These reported costs far 
exceed those compensated by the vast majority of states. Moreover, the 
failure of the states to provide adequate compensation and 
reimbursement of costs not only contributes to the unavailability of 
lawyers, but also to the poor quality of performance that is actually 
rendered.\35\
---------------------------------------------------------------------------
    \29\ The Spangenberg Group, Time and Expense Analysis in Post-
Conviction Death Penalty Cases, 11, 20 (Feb. 1987).
    \30\ See, e.g., League v. Lane, 489 U.S. 288 (1989); Coleman v. 
Thompson, 501 U.S. 722 (1991); Keeney v. Tamayo-Reyes, 504 U.S. 1 
(1992); Herrera v. Collins, 506 U.S. 390 (1993); Brecht v. Abrahamson, 
507 U.S. 619 (1993).
    \31\ Pub. L. 104-32, 110 Stat. 1214 (1996).
    \32\ The Spangenberg Group, Amended Time and Expense Analysis of 
Post-Conviction Capital Cases in Florida, 16 (April 1998).
    \33\ Id.
    \34\ Id. at 13.
    \35\ American Bar Association Task Force on Death Penalty habeas 
corpus (Ira P. Robbins, rep.), Toward a More Just and Effective System 
of Review in State Death Penalty Cases, 40 AM. U.L. Rev. 1, 78 (1990).
---------------------------------------------------------------------------
    And all of these problemsboth new and old have only been 
exacerbated by the accelerated timetables and legal complexities 
arising from enactment of AEDPA. Several key provisions of AEDPA have 
heightened the obligations of counsel in state post-conviction 
proceedings. AEDPA has rendered the state post-conviction process more 
fraught with peril to the client who does not have a lawyer, or whose 
lawyer is unable, because of inadequate funding, to fully investigate, 
prepare, and present all claims in the first round of state post-
conviction litigation.
      a. aedpa: a swifter, more complicated habeas jurisprudence.
    The withdrawal of PCDO funding could not have come at a worse time. 
On April 24, 1996, Congress passed the Antiterrorism and Effective 
Death Penalty Act of 1996.\36\ Although AEDPA has transformed an 
already painfully complex habeas jurisprudence in many ways, exactly 
how it has done so is still not entirely clear. Indeed, although five 
years have passed since its enactment, the interpretation and 
implication of many of AEDPA's provisions are still being litigated.
---------------------------------------------------------------------------
    \36\ Pub. L. 104-132, 110 Stat. 1214 (1996).
---------------------------------------------------------------------------
    One of the dramatic changes wrought by AEDPA is the creation of a 
statute of limitations which in most states allows one year for filing 
a federal habeas corpus petition, usually from the denial of certiorari 
on direct appeal.\37\ Although AEDPA deals strictly with cases being 
litigated in federal court, the statute of limitations provision 
creates a de facto statute of limitations for filing a post-conviction 
petition in state court. Some federal courts have held that even if the 
state post-conviction application would be considered timely under 
state law if filed at a later date, AEDPA's limitations period is not 
tolled until a state post-conviction application is actually filed in 
state court.\38\ Thus, for all practical purposes, death-sentenced 
inmates must file their state post-conviction petitions within one 
year, or more accurately, early enough to ensure that there will be 
time to investigate and prepare a federal habeas petition should the 
state challenge fail.
---------------------------------------------------------------------------
    \37\ 28 U.S.C. Sec.  2244(d)(1) (2000).
    \38\ See Webster v. Moore, 199 F.3d 1256, 1259 (11th 
Cir.), cert. denied, 121 S. Ct. 481(2000); Bingham v. Anderson, 21 F. 
Supp. 2d 639 (S.D. Miss. 1998).
---------------------------------------------------------------------------
    AEDPA thus creates a dire situation for unrepresented death row 
inmates. Once the United States Supreme Court denies certiorari 
following affirmance on direct appeal, the limitations period begins 
running. But without counsel, these inmates have no ability to 
investigate the kind of claims that form the basis of most successful 
post-conviction applications, that is, those that are developed from 
facts outside the record. Moreover, they have no ability to prepare and 
file for post-conviction relief. In an increasing number of cases, the 
state courts have appointed post-conviction counsel with only weeks 
left in the limitations period to file a state post-conviction 
petition, or the federal courts have appointed counsel with only weeks 
or days within which to file a federal habeas corpuspetition. In a few 
cases, the limitations period has passed without appointment of 
counsel.
    AEDPA also creates a quid pro quo whereby if a state ``opts in'' by 
establishing a mechanism for the appointment and compensation of 
counsel in state post-conviction proceedings,\39\ it can obtain certain 
``benefits,'' including the shortening of the statute of limitations 
for filing a first federal petition from one year to 180 days,\40\ and 
an accelerated process of decision in the federal courts.\41\ No state 
has yet been held to qualify as an ``opt-in'' state under these 
provisions. However, in the wake of the enactment of AEDPA, many states 
created new post-conviction processes in an attempt to ``opt in'' and 
obtain these ``benefits.'' \42\ Thus, in many states, not only have 
post-conviction capital counsel had to unravel the mysteries of AEDPA, 
but have also had to learn, and litigate, the meaning of totally new 
state post-conviction statutes.
---------------------------------------------------------------------------
    \39\ 28 U.S.C. Sec. Sec. 2261, 2265 (2000).
    \40\ 28 U.S.C. Sec. 2263 (2000).
    \41\ 28 U.S.C. Sec. 2266 (2000).
    \42\ See, e.g., ARIZ. REV. STAT. Sec. 13-4041 (1999); ARK. CODE. 
ANN. Sec. 16-91-204 (2000) (legislative intent of statute is to obtain 
expedited federal review under AEDPA); S.C. CODE ANN. Sec. 17-27160(B) 
(1999) (``South Carolina Effective Death Penalty Act of 1996 '').
---------------------------------------------------------------------------
    These and many other AEDPA provisions have significantly 
complicated and increased the uncertainty inherent in both state and 
federal post-conviction practice. Many part-time capital lawyers 
appointed in state post-conviction and federal habeas corpus 
proceedings who came to depend upon the PCDOs to keep them abreast of 
significant legal developments are now required to master these 
comprehensive alterations to post-conviction practice in an accelerated 
environment. Some have failed to understand AEDPA's implications, and 
unwittingly forfeited their clients' right to federal habeas corpus 
review.\43\ Many others are simply refusing to represent capital 
clients altogether.
---------------------------------------------------------------------------
    \43\ See, e.g., Kreutzer v. Bowersox, 231 F.3d 460 (8th Cir. 2000); 
Goodman v. Johnson, No. 9920452 (5th Cir. Sept. 19, 1999) 
(unpublished), cert. denied, 528 U.S. 1131 (2000); Cantu-Tzin v. 
Johnson, 162 F.3d 295 (5th Cir. 1998), cert. denied, 528 U.S. 1091 
(1999); Calderon v. United States District Court (Kelly), 127 F.3d 782 
(9th Cir. 1997), cert. denied, 528 U.S. 1063 (1998). Spencer Goodman 
was executed by the State of Texas on January 18, 2000, and Andrew 
Cantu-Tzin was executed by Texas in January 1999.
---------------------------------------------------------------------------
    EJI's small staff is unflaggingly dedicated in its attempt to fill 
the huge gap in capital representation in Alabama, but it simply cannot 
do it all. Although EJI represents almost 100 deathrow inmates,\44\ and 
the American Bar Association Death Penalty Representation Project and 
other groups have had some very limited success identifying volunteer 
counsel willing to represent capital prisoners in Alabama post-
conviction proceedings pro bono, in no way can these resources meet the 
need. Approximately 31 Alabama inmates under sentence of death do not 
have lawyers to represent them in state post-conviction proceedings.
---------------------------------------------------------------------------
    \44\ Rimer, supra, note 46 at Al.
---------------------------------------------------------------------------
    Other than EJI, there is no one else to provide these services. 
Alabama law does not require appointment of counsel in post-conviction 
proceedings.\45\ Resources for capital representation in Alabama are 
virtually nonexistent. Alabama has no statewide public defender 
system,\46\ nor is any other state or local entity including the state 
courts responsible for identifying counsel willing to represent death 
row inmates in post-conviction proceedings. No court in Alabama 
routinely appoints counsel for death row inmates who have concluded 
direct appeal. If a condemned inmate files a post-conviction petition 
pro se, the circuit court may appoint a local lawyers.\47\
---------------------------------------------------------------------------
    \45\ Ex parte Cox, 451 So.2d 235 (Ala. 1983).
    \46\ See Rimer, supra, note 46, at A1 In 2000, legislation to 
create a statewide public defender office in Alabama failed to pass.
    \47\ In one such case, Henderson v. State, 733 So.2d 484 (Ala. 
Crim. App. 1998), an appointed lawyer, who successfully ran for 
District Attorney a few months later, told the court that the trial 
lawyer was not ineffective as had been alleged in the pro se petition 
and that the claim and the petition should be dismissed, which they 
were. The client contacted ER on the last day for filing a notice of 
appeal and asked for help. An appeal notice was filed and EJI recruited 
counsel. The client was nonetheless precluded from further post-
conviction review because of the conduct of appointed counsel.
---------------------------------------------------------------------------
    But there are few financial resources to work the case even if 
counsel is identified. On October 1, 2000, following the first rate 
increase in 18 years, post-conviction counsel in a capital case is now 
paid $60 per hour for in-court work and $40 per hour for out-of-court 
work, but there remains a $1,000 cap.\48\ There continues to be no 
state statutory right to funds for investigative or expert assistance. 
Moreover, there are no qualifications for capital post-conviction 
counsel required under state law or rule, and no state entity provides 
training or resource materials to those attorneys who are 
appointed.\49\
---------------------------------------------------------------------------
    \48\ ALA. CODE 15-12-23.
    \49\ EJI provides these services as its budgetary and staffing 
constraints allow.
---------------------------------------------------------------------------
    It is therefore not surprising that even if counsel is appointed by 
the state court, these attorneys usually have no post-conviction 
experience, and rarely investigate claims, gather evidence, or seek 
evidentiary hearings.\50\ Even those attorneys recruited by EJI and the 
ABA Death Penalty Representation Project rarely have any experience in 
capital litigation. Most are pro bono civil attorneys from outside 
Alabama who need substantial guidance. At present, the ABA Death 
Penalty Project provides limited funding for one EJI attorney to act as 
resource counsel to assist pro bono post-conviction counsel, but one 
person can only do so much.
---------------------------------------------------------------------------
    \50\ Elisabeth Semel, Representing Death Row Inmates at the 
Outskirts of the Southern Front, CACJ FORUM, vol. 26, no. 1, at 37, 40.
---------------------------------------------------------------------------
    The need to provide guidance to inexperienced capital counsel is 
made even more critical by recent events. At the urging of the Alabama 
Attorney General and the Governor,\51\ the Alabama Supreme Court 
enacted a rule change, made retroactive to pending cases, that 
eliminates the Court's automatic review of capital cases, and also 
imposes strict deadlines.\52\ In a rather bizarre twist, although the 
rule change was made effective in May 2000, the rule was not actually 
published until August 2000.
---------------------------------------------------------------------------
    \51\ Analysis: Alabama State Officials Continue to Rely on Electric 
Chair as Alabama's Primary Means of Execution, (All Things Considered, 
NPR radio broadcast, Feb. 17, 2000), available at 2000 WL 21469803.
    \52\ See Court Comment to Ala. R. App. P. 39. The May 2000 
amendment completely revises Rule 39 to remove the provision in the 
former rule that provided that a petition for writ of certiorari in a 
death penalty case would be granted as of right. Review is now at the 
discretion of the Supreme Court. Rule 39 also requires that a petition 
for rehearing be filed in the Court of Criminal Appeals before a 
certiorari petition may be filed in the Supreme Court, and that a 
certiorari petition be filed within 14 days of the denial of rehearing 
by the Court of Criminal Appeals, Rule 39(c). If certiorari is granted, 
the briefing on the merits is to be completed by both parties within 28 
days of the date the writ issues. Rule 39(h). There is no guarantee 
that the Supreme Court will hear oral argument even if certiorari is 
granted. Rule 39(1)&(j).
---------------------------------------------------------------------------
    There is no doubt that capital post-conviction representation is in 
crisis in Alabama. But perhaps most unsettling is the fact that 
numerous unrepresented Alabama death row inmates now face the 
expiration of the federal statute of limitations. Indeed, in an 
unprecedented move, the State recently asked the Alabama Supreme Court 
to set execution dates for two unrepresented death row inmates for whom 
the federal statute of limitations has run.
Pennsylvania.
    At the time of the defunding of the PCDOs, about half of the then 
nearly 200 death row inmates in Pennsylvania had no lawyer.\53\ The 
Commonwealth has long been widely regarded as having one of the worst 
systems in the country for providing indigent defense services. Indeed, 
Pennsylvania's death penalty representation crisis has been recognized 
for years. As early as 1990, the Joint Task Force on Death Penalty 
Litigation in Pennsylvania warned of a ``problem of major proportions'' 
in the provision of legal representation to indigent death-row inmates, 
and noted several ``serious problems'' including: the shortage of 
qualified counsel to assist inmates in state and federal post-
conviction proceedings; the lack of standards governing the 
qualifications for capital counsel or the appointment of counsel at any 
stage of state capital proceedings; the lack of standards for the 
compensation of counsel; the lack of state funding for investigation of 
capital cases; and the lack of any mechanism for the identification and 
recruitment of qualified counsel.
---------------------------------------------------------------------------
    \53\ As of July 2000, Pennsylvania had a death row population of 
235 men and women, the fourth largest in the nation. NAACP Legal 
Defense Fund, Death Row USA, July 1, 2000.
---------------------------------------------------------------------------
    In the decade since the Task Force's report, little in Pennsylvania 
has changed. The Pennsylvania Capital Case Resource Center (PCCRC) was 
founded to address Pennsylvania's systemic and endemic failures to 
provide trained legal counsel for indigent death row prisoners. After 
more than a three-year delay in the provision of matching state 
funding, the PCCRC opened its doors as a federally-funded PCDO in July 
1994. In FY 1995, its PCDO grant totaled $621,000. But after Congress 
defunded the PCDOs, state funding was also discontinued. After its 
defending and substantial downsizing, PCCRC became the Center for Legal 
Education, Advocacy and Defense Assistance (LEADA). LEADA received no 
governmental sustaining grants, and in 1996 the Legislature twice 
defeated measures to fund it.\54\ Finally, because of a shortage of 
resources, LEADA closed its doors in June 1999.\55\ At the time, it 
represented more than 70 of Pennsylvania's 227 death-row inmates.\56\ 
When LEADA dissolved, no state entity in Pennsylvania was available to 
systematically obtain stays of execution, recruit pro bono counsel for 
state post-conviction and federal habeas proceedings, or provide 
consulting, training, and support for appointed counsel.
---------------------------------------------------------------------------
    \54\ In 1997, while continuing to deny funding for post-conviction 
representation for indigent capital inmates, the Pennsylvania 
Legislature appropriated $500,000 to create a resource center for 
prosecutors in the Attorney General's office to assist with the 
opposition of capital post-conviction appeals.
    \55\ Elizabeth Amon, No Stay for Pa. Defense Group: A Lack of 
Funding Shuts Down Death Row Advocate Group, NAT'L L. J., July 5, 1999, 
at A16.
    \56\ Charles Thompson, Advocate for Death Row Inmates Closes Its 
Doors: Agency that Represented More than 70 Convicted Killers Loses 
Battle for Funding, PATRIOT-NEWS (Harrisburg, Pa.), July 4, 1999, at 
A7, available at 1999 WL 5144962.
---------------------------------------------------------------------------
    Other actions by Pennsylvania affirmatively deepened the crisis in 
post-conviction representation. In November 1995, Pennsylvania amended 
its post-conviction statute so as to limit to one year the time in 
which condemned inmates may initiate collateral review.\57\ But the 
Commonwealth still has no standards governing the appointment of post-
conviction counsel, and still provides no statewide funding for 
compensation of counsel and reimbursement of expenses in capital post-
conviction cases. Instead, Pennsylvania leaves the funding for such 
cases to county governments.\58\ Indeed, 2000 was the first time 
Pennsylvania has ever provided any type of funding for post-conviction 
work, when the Legislature appropriated $600,000 for capital post-
conviction training. However, this money is for training only. It 
cannot be used to compensate post-conviction counsel nor to reimburse 
expenses. Moreover, although the Governor's office was placed in charge 
of distributing these training funds, it has yet to do so.
---------------------------------------------------------------------------
    \57\ 1995 Pa. Legis. Serv. 32 (Spec. Sess. No. 1), Sec. 1, codified 
at 42 PA. CONS. STAT. Sec. 9545(b)(I) (2000).
    \58\ Amon, supra note 249.
---------------------------------------------------------------------------
    Not long after the defunding of the resource center, a capital 
habeas unit was created in the Federal Court Division of the Defender 
Association of Philadelphia, the federal defender organization for 
Pennsylvania. Since its creation, the unit has attempted to take all 
new capital habeas corpus cases in the federal courts in Pennsylvania. 
This has recently become more difficult. The Pennsylvania Supreme Court 
has begun to dramatically reduce its backlog of capital cases, and 
headed for federal court is a wave of cases35 are now awaiting decision 
before the state supreme court, and another 15 have completed state 
evidentiary hearings and are awaiting decision by the trial court. At 
present, the unit represents over 50 capital habeas petitioners. 
Unfortunately, because of the lack of competent counsel and resources 
in state post-conviction proceedings in Pennsylvania, when cases come 
to the unit following completion of the state post-conviction process, 
usually no discovery has been undertaken and little independent 
investigation has been done in the case. The unit must therefore expend 
federal resources to uncover all colorable claims to be included in the 
federal petition, and must do so within the time constraints of AEDPA's 
statute of limitations.
    In June 1996, South Carolina enacted the ``South Carolina Effective 
Death Penalty Act of 1996.'' \59\ The Act imposed for the first time a 
deadline for filing a post-conviction petition in state coup. Now, 
counsel in capital post-conviction proceedings in South Carolina must 
file an application for post-conviction relief within 60 days of 
appointment. The Act also expedites other aspects of South Carolina 
capital post-conviction proceedings.\60\ Many South Carolina judges 
strictly adhere to the statutory time limits. Moreover, due to fears 
that South Carolina may at some point be held to be an ``opt-in'' state 
and therefore entitled to the expedited procedures of AEDPA, counsel 
are often required to file a state post-conviction application within 
only days or weeks of appointment.
---------------------------------------------------------------------------
    \59\ 1996 S.C. Acts No. 448, Sec. 1 (eff June 18, 1996), codified 
at S.C. CODE ANN. Sec. 17-27-160 (1999).
    \60\ S.C. CODE ANN. Sec. 17-27-160(C) (1999) (after the state files 
its return, the statute requires the court to hold a status conference 
within 30 days and to schedule an evidentiary hearing within 180 days 
of the conference, except for good cause shown.).
---------------------------------------------------------------------------
    The Act also provides for appointment and compensation of post-
conviction counsel. Indigent death-sentenced inmates are entitled to 
the appointment of two attorneys.\61\ Private counsel is compensated at 
the statutory rate of $50 per hour for out-of-court work and $75 per 
hour for incourt work. The statutory cap is $25,000.\62\
---------------------------------------------------------------------------
    \61\ Id., Sec. 17-27-160(B) (1999).
    \62\ See Id.; S.C. CODE ANN. Sec. 16-3-26 (1999).

---------------------------------------------------------------------------
                                

                               Administrative Office of the
                                       United States Courts
                                     Washington, D.C. 20544
                                                       July 5, 2001

Hon. Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510-6275

    Dear Mr. Chairman:

    I am providing this letter in response to your July 3, 2001 letter 
asking that the judiciary clarify the record with regard to testimony 
given at the hearing held by the Committee on ``Protecting the 
Innocent: Ensuring Competent Counsel in Death Penalty Cases.'' At that 
hearing the Committee heard testimony that the federal judiciary is 
spending more than $20 million in FY 2001 to fund ``assistance and 
training in state capital cases-not federal cases. . . .'' I want to 
assure the members of the Committee that this is not the case. The 
federal judiciary does not fund representation in state proceedings of 
individuals under a state-imposed death sentence, except in rare and 
limited circumstances.
    Let me provide some background information on this issue. The 
federal judiciary is required to appoint and compensate at least one 
lawyer for any death-sentenced inmate in a federal habeas corpus case. 
See 21 U.S.C. Sec. 848(q). The federal courts provide counsel in one of 
two ways. They may appoint an attorney from the private bar (known as a 
Criminal Justice Act panel attorney) or they may appoint a federal 
defender organization (FDO).
    At its December 1998 meeting, the Defender Services Committee of 
the Judicial Conference resolved that ``Defender Services appropriation 
funds may not be used to represent an individual under a state-imposed 
death sentence in a state proceeding unless a presiding judicial 
officer in a federal judicial proceeding involving the individual has 
determined that such use of Defender Services appropriation funds is 
authorized by law.'' The Administrative Office (AO) monitors such 
appearances in state court by FDOs.
    The most recent data available to the AO indicate that such 
appearances in state court are rare. For the period from April 1, 2000, 
through March 31, 2001, seven of the 67 FDOs reported a total of 47 
state court appearances on behalf of 43 clients. The total cost of FDO 
appearances in state court, including out-of-court and in-court 
activities, was approximately $157,600. The state court activity was 
for specified purposes, including: matters related to exhaustion of 
remedies in state court; motions related to a stay of execution in 
state court; pleadings related to successor post-conviction litigation; 
and motions for release of public records. In accordance with the 
Defender Services Committee policy, these activities were pursued at 
the direction of a federal judge and in connection with a federal 
capital habeas corpus proceeding that had been filed in a federal 
court.
    The $20 million referenced at the hearing as being available for 
state capital case assistance and training is, in fact, limited to use 
by FDOs to support the direct representation of petitioners in the 
federal review of state capital habeas cases pursuant to 28 U.S.C. 
Sec. 2254. As noted above, in a limited number of circumstances, these 
FDOs are authorized to use federal funds to represent death-sentenced 
inmates in state court proceedings, but only where a federal judge 
determines that such use of funds is authorized by law.
    We believe that part of the confusion on this point may stem from 
the fact that some attorneys represent indigent defendants in both 
state and federal capital cases, which may lead to an erroneous 
assumption that they are paid only by federal sources. The federal 
judiciary only reimburses counsel for representation in a federal 
proceeding (except in the circumstances identified above), and other 
sources of funding must be found to compensate an attorney appearing in 
a state court action. One defender organization, the FDO serving the 
Eastern District of Pennsylvania, does receive nonfederal money to 
support its staff appearing in state court. That FDO is a community 
defender organization receiving grant funds from the judiciary for its 
federal court work. It has secured non-federal funds through grants and 
private contributions to support state court representations. During 
the most recent reporting period, according to this organization's 
documents and the independent audit that was done, it did not use 
federal resources on state court activity.
    I appreciate this opportunity to clarify any confusion about these 
issues. I ask that a copy of this letter be made a part of the record 
of the hearing. Please let me know if the AO can provide any additional 
information on this matter to the Committee.
            Sincerely,

                                      Leonidas Ralph Mecham
                                                           Director

                                

                               Administrative Office of the
                                       United States Courts
                                     Washington, D.C. 20544
                                                      July 16, 2001

Hon. Orrin G. Hatch
Ranking Member
Committee on the Judiciary
United States Senate
152 Dirksen Senate Office Building
Washington, D.C. 20510-6275

    Dear Senator Hatch:
    Pursuant to a request from a member of your staff, I am writing to 
clarify the record with regard to a document referred to at the hearing 
held by the Committee on ``Protecting the Innocent: Ensuring Competent 
Counsel in Death Penalty Cases.'' I want to emphasize that the report, 
entitled ``The Crisis in Post-conviction Representation in Capital 
Cases Since the Elimination by Congress of Funding for the Post-
Conviction Defender Organizations,'' does not represent the official 
position or policies of the Administrative Office of the United States 
Courts or the Judicial Conference of the United States.
    This report was drafted by Janice L. Bergmann, an attorney in a 
federal public defender organization, at the request of my staff to 
assist the judiciary in responding to its ongoing obligation to provide 
lawyers for death-sentenced inmates in federal capital habeas corpus 
cases. See 21 U.S.C. Sec. 848(q). In that regard, it has been provided 
to Judicial Conference's Committee on Defender Services, as well as to 
capital habeas practitioners participating in the judiciary's strategic 
planning efforts.
    The report was completed in 1999 and updated in 2001. A disclaimer 
was incorporated into the report in the hope that it would avoid any 
confusion. I regret that it was not more clear.
    The opinions, findings, and conclusions expressed in the report are 
those of the author. As part of the updating process, portions of the 
report were sent to various capital habeas practitioners for fact-
checking purposes in anticipation of having a revised report available 
to the Committee on Defender Services at its May 2001 meeting. In order 
to meet this deadline, Administrative Office staff incorporated a 
number of the suggestions made by these practitioners into the report 
when the report's author became unavailable for an extended period this 
Spring. This activity, however, did not cause the Administrative Office 
to adopt or endorse the report, and I want to reiterate that the report 
does not reflect the official position or policies of the 
Administrative Office or the Judicial Conference of the United States. 
Indeed, the judiciary's policy making process frequently is informed by 
materials garnered from a broad range of sources, and their use to 
educate judges and others involved in that process about particular 
points of view does not constitute an endorsement of either the source 
material or the opinions expressed therein.
    I appreciate the opportunity to clarify this issue. I ask that a 
copy of this letter be made a part of the record of the hearing. Please 
let me know if the Administrative Office can provide any additional 
information on this matter to the Committee.
            Sincerely,

                                      Leonidas Ralph Mecham
                                                           Director

                                

Statement of Norman Lefstein, Dean, Indiana University School of Law at 
 Indianapolis and Member, Standing Committee on Legal Aid and Indigent 
          Defendants on behalf of The American Bar Association

    Mr. Chairman and Members of the Committee:
    My name is Norman Lefstein. I am currently Dean and Professor of 
Law at the Indiana University School of Law at Indianapolis.
    For many years I have dealt extensively with issues concerning the 
legal representation of indigent defendants in criminal cases in the 
United States, including death penalty cases. I was a reporter for the 
American Bar Association in preparing standards dealing with defense 
services in criminal cases\1\ and directed a study on the cost and 
quality of defense representation in federal death penalty cases for a 
committee of the Judicial Conference of the United States.\2\ I also 
have been an expert witness in post-conviction death cases in which the 
quality of representation furnished by counsel was attacked. Currently, 
I am a member of the American Bar Association's Standing Committee on 
Legal Aid and Indigent Defendants. Since 1989, I have served as 
Chairman of the Indiana Public Defender Commission, which developed 
death penalty representation standards for the consideration of the 
Indiana Supreme Court, most of which were later adopted.
---------------------------------------------------------------------------
    \1\ See ``Providing Defense Services,'' Chapter Five, American Bar 
Association Standards for Criminal Justice (2d ed., Little Brown & Co., 
1980).
    \2\ See Federal Death Penalty Cases Recommendations Concerning the 
Cost and Quality of Defense Representation, Report of the Subcommittee 
on Federal Death Penalty Cases of the Committee on Defense Services of 
the Judicial Conference of the United States (1998).
---------------------------------------------------------------------------
    This statement is submitted on behalf of the American Bar 
Association (hereafter ABA or Association). With the exception of its 
opposition to the use of the death penalty for the mentally retarded 
and for juveniles who committed their crimes when they were under the 
age of 18, the ABA has not adopted a position either for or against 
capital punishment. In 1997, however, because of its concern that the 
death penalty was not being carried out in accordance with due process 
principles, and did not adequately minimize the risk of executing 
innocent persons, the ABA called for a moratorium on the use of capital 
punishment in the United States.
    Since the death penalty was held constitutional a quarter century 
ago, the Association has adopted policies concerning the administration 
of capital punishment. Underlying these policies is a concern for 
protecting the innocent. Thus, the ABA has made protection of the right 
to effective assistance of counsel a top priority and has developed 
standards or guidelines for the effective representation of criminal 
defendants in capital cases.
    In 1989, the ABA adopted the American Bar Association Guidelines 
for the Appointment and Performance of Counsel in Death Penalty Cases. 
These guidelines deal with the structure of defense systems for capital 
representation, the qualifications of counsel to represent defendants 
in capital cases, and the ways in which counsel should perform their 
various defense functions. As stated in the introduction to the 
guidelines, ``they enumerate the minimal resources and practices 
necessary to provide effective assistance of counsel.'' Because the 
guidelines are now more than 10 years old and outdated due to numerous 
changes in the law, the ABA has recently undertaken to review the 
guidelines and to propose necessary changes, which will likely be 
considered for adoption by the Association in 2002.
    This statement addresses three fundamental issues that are bound up 
in the consideration of the Innocence Protection Act of 2001. First, 
why are standards for the representation of defendants in capital cases 
necessary? Second, what are the essential elements of a system for 
capital representation? And, lastly, why is it important that standards 
for representation in death penalty cases be enforceable?
 i. why are standards for the representation of defendants in capital 
                            cases necessary?
    There is an enormous amount of evidence that the quality of legal 
representation provided to defendants in capital cases in this country 
is woefully inadequate. If proof of this assertion is doubted, one need 
only recall that nearly 100 persons have been released from death rows 
in this country, with either substantial or incontrovertible evidence 
of their innocence. Ours is a country that prides itself on the quality 
of its criminal justice system. In the death penalty area, however, it 
is clear that something has gone wrong. Too often our adversary system 
of criminal justice, which requires that the accused be provided a 
vigorous defense, has not operated as intended. It is largely because 
of this that the ABA has called for a moratorium on the use of the 
death penalty, as noted earlier.
    The problems in death penalty representation have been repeatedly 
documented in law journal articles, studies, newspapers, and in 
decisions of appellate courts. Too often the lawyer who represents the 
defendant in a capital case is inexperienced and lacks the requisite 
qualifications to defend a person on trial for his life. The lack of 
adequate compensation for counsel, experts and investigators sometimes 
means that the most qualified attorneys refuse to become involved in 
capital defense representation, thus leaving the defendant to be 
represented by an inexperienced and untrained attorney. Unfortunately, 
such lawyers all too frequently conduct inadequate factual 
investigations, fail to keep abreast of the complex and constantly 
changing legal doctrines that apply in capital litigation, and make 
procedural errors that later preclude review of meritorious claims. The 
deficiencies of lawyers in death penalty cases also have included the 
failure to make appropriate objections, to present mitigating evidence, 
and even to file briefs on appeal.
    In one of his last opinions as a member of the United States 
Supreme Court, Justice Blackmun identified the lack of standards as one 
of the primary reasons why there are so many problems in the area of 
defense representation in capital cases. ``The absence of standards 
governing courtappointed capital-defense counsel means that unqualified 
lawyers often are appointed, and the absence of funds to compensate 
lawyers prevents even qualified lawyers from being able to present an 
adequate defense. Many states that regularly impose the death penalty 
have few, if any, standards governing the qualifications required of 
court-appointed capital-defense counsel. . . .'' \3\
---------------------------------------------------------------------------
    \3\ McFarland v. Scott, 114 S. Ct. 2785, 2786 (1994)(Blackmun, J., 
dissenting).
---------------------------------------------------------------------------
    Justice Blackmun offered this analysis in 1994, but his assessment 
of the situation is still accurate in 2001. Although standards for the 
appointment of counsel have been adopted by rule or statute in some 
states, most are not comprehensive and thus fail to deal with all 
facets of capital representation. In about half of the death penalty 
states, moreover, there are no court rules or statutes of any kind 
governing capital defense representation, and this includes a number of 
jurisdictions that have large death row populations.
    The importance of standards for capital representation can perhaps 
best be understood by recalling what has happened in Illinois. Governor 
Ryan, a proponent of the death penalty, imposed a moratorium on the use 
of the death penalty in that state because of the release from death 
row of numerous defendants determined to be innocent. In these cases, 
there was abundant evidence that the lawyers who represented the 
defendants were not qualified by either experience or training to do 
so. Significantly, until March of this year, Illinois did not have any 
standards governing the appointment of counsel in death penalty cases 
or any of the other facets of capital representation.
    In contrast, Indiana has had since 1994, by virtue of a Supreme 
Court rule, one of the more comprehensive provisions governing capital 
defense representation in the country.\4\ As a result of this rule, 
there is considerable evidence that the quality of defense 
representation in capital cases has improved, as documented in a study 
that I published in 1996.\5\ The Honorable Randall T. Shepard, Chief 
Justice of Indiana, seemingly agrees with this conclusion. As he stated 
in a speech, ``[t]he net result of our rule and [state] appropriations 
is some very thorough, high quality, and effective representation.'' 
\6\ Since the adoption of Indiana's rules, no person has been released 
from the state's death row because of innocence. Nor has there been a 
case in which lawyers were appointed pursuant to the Supreme Court's 
rule, complied with its requirements, and were held to be 
ineffective.\7\
---------------------------------------------------------------------------
    \4\ Ind. R. Crim. P. 24. The rule was originally effective January 
1, 1990. Subsequently, it was amended on several occasions. The most 
important provisions related to defense representation in capital cases 
did not take effect until 1993.
    \5\ Lefstein, ``Reform of Defense Representation in Capital Cases: 
The Indiana Experience and Its Implications for the Nation,'' 29 Ind. 
L. Rev. 495 (1996).
    \6\ ``Capital Litigation from the State Court Perspective or 
Rushing to Judgment in Fifteen Years,'' Speech by Randall T. Shepard at 
Judicial Meeting of the U.S. Court of Appeals for the Seventh Circuit 
(May 2, 1996).
    \7\ There is one death penalty case in which lawyers appointed 
pursuant to the Indiana rule were found to be ineffective. However, the 
caseload of one of the lawyers substantially exceeded the caseload 
restrictions specified in the Indiana rule. See State v. Prowell, 741 
N.E.2d 704 (Ind. 2001).
---------------------------------------------------------------------------
    In short, whether contained in court rules or statutes, standards 
for capital defense representation can and do make a difference, just 
as in other criminal cases requiring counsel for the indigent. 
Standards can assure that only attorneys with appropriate experience 
and training are appointed to represent defendants. Thus, standards can 
be instrumental in assuring that defendants' constitutional rights are 
protected, reduce the likelihood of error in proceedings, diminish the 
number of appeals and ultimately enhance the efficiency and 
effectiveness of the criminal justice process.
    The Innocence Protection Act of 2001 contemplates the creation of a 
National Commission on Capital Representation to develop standards for 
providing adequate legal representation for indigents in death penalty 
cases. Although the ABA has never taken a position on the establishment 
of such a commission, clearly the approach of the proposed legislation 
is fully consistent with the ABA's guidelines on defense representation 
in death penalty cases and with other policies of the Association.
   ii. what should be the essential elements of a system for capital 
                            representation?
    The ABA guidelines on capital defense representation call for an 
independent appointing authority to develop qualification and 
compensation standards, to recruit and train lawyers to handle capital 
cases, to certify them as competent in this specialty area, and to make 
the actual appointments of counsel in all cases. The guidelines also 
provide that this independent authority should establish standards of 
performance for counsel and monitor their conduct to assure that 
clients are receiving quality legal representation. In addition, this 
independent body should have the authority to remove unqualified 
lawyers from the roster of attorneys eligible to receive appointments 
in capital cases.
    As long as state court judges continue to make capital case 
assignments without adequate regard for the qualifications and training 
of counsel, the problems of incompetent counsel will surely continue. 
Unskilled attorneys will continue to make serious errors during trial; 
subsequently, post-conviction counsel will seek to discover those 
errors and seek reversals of death sentences imposed; and state 
appellate courts and federal courts will bear the brunt of correcting 
those errors. The only longterm answer is to conduct trials correctly 
in the first place. In the Association's view, this requires 
independently appointed, competent counsel.
    The recommendation in the ABA's guidelines that the program for 
furnishing counsel in capital cases be vested in an independent 
appointing authority had its genesis in earlier reports and standards 
of the Association. In 1973, for example, the National Advisory 
Commission, organized during the Nixon administration and comprised of 
criminal justice experts from across the country, expressed the 
following viewpoint: ``The method employed to select public defenders 
should insure that the public defender is as independent as any private 
counsel who undertakes the defense of a fee-paying criminally 
accused.'' \8\ This approach for providing defense counsel to the 
indigent was spelled out in further detail in the ABA's second edition 
of Providing Defense Services, adopted by the Association in 1979.\9\ 
The current version of these standards, approved by the Association in 
1990, reads as follows: ``The plan and the lawyers serving under it 
should be free from judicial supervision only in the same manner and to 
the same extent as are lawyers in private practice. The selection of 
lawyers for specific cases should not be made by the judiciary or 
elected officials. . . .'' \10\
---------------------------------------------------------------------------
    \8\ National Advisory Commission on Criminal Justice Standards and 
Goals, Courts 13.8 (1973).
    \9\ See supra note 1, Standard 5-1.3.
    \10\ ``Providing Defense Services,'' Standard 5-1.3, ABA Standards 
for Criminal Justice (3d ed. 1992).
---------------------------------------------------------------------------
    There are a variety of reasons why judges should not appoint 
lawyers in indigent cases, or otherwise be involved in the overall 
supervision of indigent defense, and these arguments are even more 
compelling when capital cases are involved because the stakes are so 
much greater. The paramount reason for not having judges appoint 
defense lawyers is to assure that counsel always feels completely free 
to act in the client's best interest. While there are obviously many 
fine judges who preside over criminal cases, there are occasions when 
judges are angered by motions filed by defense attorneys, resent 
arguments advanced by counsel, and rule against lawyers insistent upon 
continuances. Judges, for example, are understandably concerned with 
moving their dockets, but this is not defense counsel's concern and 
should never be the reason that a lawyer fails to make arguments or 
take actions on the client's behalf.
    A lawyer should not have to fear reprisals of any kind from either 
the judge before whom he or she is appearing or some other judge before 
whom the lawyer might later appear. The power of judges to appoint 
lawyers and approve claims for compensation necessarily includes the 
power to withhold appointments and to reduce payments for the time 
lawyers devote to indigent cases.
    A lawyer's advocacy on behalf of an indigent defendant in an 
appointed criminal case, especially a capital case, should be no more 
inhibited than the lawyer's advocacy in representing a client in a 
retained private case. Judges do not select privately retained lawyers 
or prosecutors. Judges should not be involved in the selection and 
operation of indigent defense programs either. The appointment of 
counsel and the oversight of indigent defense by an independent 
authority should also alleviate the fear of defendants that the judge 
or some other court official in charge of assignments controls the 
defense lawyer.
    While it was noted earlier that some changes in the Association's 
guidelines are likely to be recommended next year, clearly the call for 
an independent appointing authority, which is quite central to the 
guidelines, will not be one of them. As the foregoing discussion 
demonstrates, the call for independence in the operation of indigent 
defense predates the development of the ABA's guidelines for capital 
representation.
    But, in addition to an independent appointing authority, there are 
a number of other components deemed essential to a system of capital 
defense representation specified in the guidelines. Included among 
these are the following:

         The appointment of two qualified attorneys at trial, 
        on appeal, and in post-conviction proceedings, due to the 
        complexity of capital defense litigation;
         Specific, detailed qualification standards to assure 
        that attorneys appointed to capital cases are capable of 
        rendering competent representation by virtue of their prior 
        experience and training;
         Adequate support assistance in the form of 
        investigative, expert, and other services necessary to prepare 
        and present an adequate defense;
         Mandatory training in capital defense representation 
        as a precondition for continuing to be eligible to receive 
        appointments in death penalty cases; and
         Reasonable compensation paid to defense counsel for 
        actual time and service performed, based upon a rate of hourly 
        compensation that is commensurate with the provision of 
        effective representation and taking into account the 
        extraordinary responsibilities inherent in death penalty 
        litigation.
    Obviously, there is a good deal of similarity between the ABA's 
guidelines for death penalty representation and the provisions of the 
Innocence Protection Act of 2001. In the view of the Association, the 
proposed statute is absolutely right in declaring that a ``centralized 
and independent appointing authority,'' as specified in paragraph (c) 
of Title II, should be an element of an effective system for capital 
defense. The statute is also correct in granting to the independent 
authority broad responsibilities for administering the system of 
capital defense representation. The appointment of a National 
Commission on Capital Representation to develop national standards 
would be a monumental advance in addressing the many problems that 
exist in this country in capital defense representation.
       iii. why is it important that standards for death penalty 
                     representation be enforceable?
    The Innocence Protection Act of 2001 proposes that sanctions be 
imposed on states if they fail to maintain a system of capital defense 
representation consistent with the National Commission's standards. The 
sanctions would take the form of withholding from non-compliant states 
a portion of funds under prison grant programs and making habeas corpus 
relief more available to petitioners in capital cases from such states.
    Although the Association has never addressed withholding funds from 
states failing to comply with national standards, in 1990 the ABA 
adopted a resolution urging that certain procedural barriers to habeas 
corpus review not apply if a state ``failed to appoint competent and 
adequately compensated counsel to represent the defendant. . . .'' As 
the resolution explained, this would help ``[t]o assure that the state 
provides competent representation and to avoid procedural delays as 
well as multiple reviews of the same issues. . . .''
    In addition, the Association adopted a resolution in 1998 calling 
upon state and local jurisdictions ``to adopt minimum standards for the 
creation and operation of its indigent defense delivery systems'' based 
upon previously approved standards, including the ABA's guidelines for 
capital defense representation. The resolution also calls upon 
government bodies, which fund indigent defense services, to insist that 
minimum standards for representation are being met ``as a condition for 
receiving funds.'' As the commentary to the resolution explained, 
``standards have the greatest impact when the state or other funding 
entity reimburses a jurisdiction's indigent defense program for some or 
all of the cost of delivering services, but reimbursement is made only 
if the jurisdictions adopt and enforce standards for the delivery of 
indigent defense services.''
    In the commentary to this ABA resolution, Indiana is the state that 
is most prominently cited for linking compliance with standards to the 
funding of indigent defense. Pursuant to statute in Indiana, the 
Indiana Public Defender Commission is authorized in capital cases to 
reimburse counties for SO% of their defense service expenditures if 
county officials and the trial court certify compliance with the 
Supreme Court's requirements governing death penalty representation. 
The standards in Indiana are contained in a rule of the Indiana Supreme 
Court, which requires the appointment of two attorneys on trial and 
appeal; establishes experiential requirements for lawyers willing to 
serve as lead and co-counsel in capital cases at trial and on appeal; 
sets caseload limitations for lawyers handling capital cases, as well 
as their rates of compensation; and requires that adequate 
investigative, expert and other services be provided to the defense.
    Because counties do not want to forego 50% reimbursement of their 
defense expenditures in capital cases, which are often quite 
substantial, there has been almost complete compliance with the rule of 
the Indiana Supreme Court on capital defense representation. As noted 
earlier, there is also evidence that the system of indigent defense in 
Indiana has improved. However, the compliance of counties has not been 
100%. Recently, as Chairman of the Indiana Public Defender Commission, 
I wrote to the Chief Justice of Indiana to advise him that the 
Commission has learned of instances where two attorneys were not 
appointed to a death penalty case and of capital cases where caseload 
restrictions of lawyers were violated. This leads, therefore, to this 
question: if you cannot achieve 100% compliance with a rule of the 
state's highest court on capital representation when a county has much 
to lose from non-compliance, are there not apt to be far more 
violations of requirements for death penalty representation if the 
officials have absolutely nothing to lose?
    The incentives for a state to comply with requirements aimed at 
assuring that every capital defendant is vigorously represented must be 
strong. The history of the past 25 years in providing counsel in death 
penalty cases shows that many states are quite reluctant to spend the 
funds necessary to assure that every capital defendant is effectively 
represented. Although many legislators undoubtedly understand what is 
needed to improve the system, there is not a strong constituency 
advocating for reform of indigent defense in most states. If national 
standards are developed as envisioned in the Innocence Protection Act, 
the reality is that many state and/or local jurisdictions are going to 
ignore them unless they decide it is simply too costly to do so.
    The opposite of enforceable standards for capital defense 
representation is voluntary standards. Essentially, this is what we 
have had in the United States for many years. Ever since 1989 when the 
ABA adopted its guidelines for the appointment and performance of 
counsel in capital cases, a detailed blueprint has been available to 
every state and local jurisdiction to adopt. But this has not happened 
in any systematic or organized way, and in many jurisdictions nothing 
at all has been done. Meanwhile, enormous problems in the defense of 
capital cases have been experienced in virtually all 38 of the nation's 
death penalty states.

                                

Statement of Steven D. Benjamin, Benjamin & DesPortes, P.C., Richmond, 
                                Virginia

                              Introduction
    I am a member of the Virginia State Bar, and have practiced in the 
Commonwealth of Virginia since 1979. I am admitted to practice in the 
United States District Court, Eastern and Western Districts of 
Virginia, the Fourth Circuit Court of Appeals, and the United States 
Supreme Court. I am a partner in the Richmond, Virginia, firm of 
Benjamin & DesPortes, P.C. My partner, Betty Layne DesPortes, and I 
limit our practice to the defense and appeal of criminal cases. I am a 
director of the Virginia College of Criminal Defense Attorneys and an 
active member of the National Association of Criminal Defense Lawyers. 
I am an adjunct professor of law at the University of Richmond School 
of Law. I present continuing legal education in all phases of criminal 
defense.
    During my career, I have tried dozens of murder cases. I have 
represented as lead counsel approximately 15 to 20 defendants who were 
charged with capital murder in the Eastern District of Virginia, the 
City of Richmond, Henrico County, Chesterfield County, Fairfax County, 
Brunswick County, Henry County, and Ameba County. No defendant 
represented by me or Ms. DesPortes at the trial court level has ever 
received a death sentence.
    In view of my experience and background, I have been asked to 
describe and comment generally on Virginia's provision of indigent 
defense in capital cases.
                 Mechanism and Criteria for Appointment
    In Virginia, a Public Defender Commission is responsible for 
adopting standards for the appointment of counsel in capital cases 
which take into consideration the following criteria: (i) license or 
permission to practice law in Virginia; (ii) general background in 
criminal litigation; (iii) demonstrated experience in felony practice 
at trial and appeal; (iv) experience in death penalty litigation; (v) 
familiarity with the requisite court system; (vi) current training in 
death penalty litigation; and (vii) demonstrated proficiency and 
commitment to quality representation. In addition, the Commission is 
required to maintain a list of counsel qualified to provide capital 
representation. In establishing this list, the Commission's mandate is 
to consider all relevant factors, including the Commissions's 
assessment of whether the attorney is competent to provide quality 
legal representation. In any case in which an indigent defendant is 
charged with a capital offense, the trial court judge is directed, but 
not required, to appoint one or more attorneys from that list.
    To date, the Commission's promulgation of standards has been little 
more than a parroting of the statutory criteria. The list of qualified 
counsel has been compiled by the implementation of a questionnaire 
which requires only that an applicant confirm that he has met the 
specified criteria. The most egregious deficiency of this methodology 
is that the criteria of demonstrated proficiency and commitment to 
quality representation is satisfied on a purely self-reported basis. No 
administrative mechanism or procedure exists within the Commission or 
elsewhere to subjectively review this requirement or to deny placement 
on the list of any attorney who checks-off each of the specified 
criteria. Despite the statutory direction, the Commission undertakes no 
assessment of an attorney's competence to provide quality legal 
representation, and lacks any means to remove an attorney from the 
list.
    The criteria in Virginia for capital appointment is meaningless and 
discretionary. As a consequence, attorneys who are only marginally 
competent in routine criminal cases are eligible for appointment even 
in those cases where a defendant might be sentenced to death. Because 
of a combination of factors in Virginia, the provision of indigent 
defense is characterized by the systematic appointment of attorneys who 
are either unqualified or too busy and conflicted with other cases to 
adequately represent their clients.
                              Compensation
    Virginia's compensation of assigned counsel in non-capital cases is 
wretchedly inadequate. Unlike any other state in the country, Virginia 
imposes an absolute, unwaivable cap on the compensation which can be 
paid to attorneys appointed to represent the poor in criminal cases. 
The maximum compensation for the defense of a single felony punishable 
up to twenty years is $318. If a felony carries a possible life term, 
the maximum compensation is $882. This inflexible disincentive to 
zealous representation is immune from pre-trial or post-conviction 
systemic review.
    The compensation for the defense of cases punishable by death is 
not capped. Instead, the amount and rate of pay is left to the 
discretion of the trial court. This allocation is questionable, as the 
provision of adequate representation can conflict with the management 
of an efficient docket. Trial courts may cut the hours submitted for 
compensation, leaving attorneys with no opportunity for review. 
Attorneys who complain are threatened with the loss of appointed work.
    Virginia's trial courts have generally approved compensation to 
attorneys in capital cases for all time expended at a rate deemed 
reasonable for indigent defense. This practice will soon change. Trial 
courts are required by statute to consider any guidelines for 
compensation established by the Supreme Court of Virginia. Effective 
July 1, 2001, the Virginia Supreme Court has suggested that trial 
courts provide compensation at the hourly rates of $75 and $125 for the 
respective provision of out-of-court and in-court representation. These 
levels represent a substantial reduction in the current rate of 
compensation. The (unintended) effect of this reduction will be to 
further discourage experienced and competent attorneys from undertaking 
the defense of these most serious and unpopular of cases.
                               Same Pool
    In any event, the absence of a cap on fees in capital cases 
accomplishes little towards the goal of ensuring the appointment of 
truly qualified attorneys. This is because the relatively generous 
death penalty fees are used to reward or subsidize the attorneys who 
accept the financially devastating non-capital fees. The result is that 
the attorneys who are appointed in capital cases are the same attorneys 
who depend on court-appointed work for their livelihood. Because the 
ordinary fees are hopelessly inadequate, the attorneys who handle the 
bulk of court-appointed representation must often carry staggering 
caseloads in a number of jurisdictions. Attorneys who are forced to 
rely on volume are reluctant to refuse appointment, especially in 
capital cases, and quite simply do not have the time to adequately 
defend any serious or complex criminal case. Some attorneys are 
appointed to defend multiple capital cases at the same time. Not 
surprisingly, these are the attorneys with multiple clients on death 
row. Regardless of an individual's motive for undertaking such crushing 
responsibilities, it is the client who suffers from the inevitable 
inattention and neglect. Any system--such as Virginia's--which permits 
an attorney to assume the simultaneous responsibility for multiple 
lives asks too much, and sets up the innocent for execution.
                               Efficiency
    Another facet of capital appointment in Virginia is the premium 
placed on efficiency over zealousness. The attorneys who are appointed 
are only rarely known for innovation or indefatigable efforts on behalf 
of their clients. Instead, those attorneys are valued who can bring a 
capital case to judgment as smoothly and efficiently as possible. 
Unfortunately, these are often the same attorneys who file boiler-plate 
motions, raise no challenges, miss obvious objections, conduct 
ineffective voir dire, seek no forensic or investigatory assistance, 
preserve no record for competent counsel to appeal, and make little or 
no case for innocence or mitigation. Too often in Virginia the price of 
efficiency is the neglect of the client. Attorneys are not encouraged 
to rock the boat.
                          Exceptional Efforts
    Some courts diligently seek to provide capital defendants with the 
best representation available, and have reached out to a responsive 
private bar. In other instances, the quality of representation has been 
so manifestly inadequate that courts (or prosecutors) have intervened 
to correct an obvious injustice. That judges have done so is a 
testament to their commitment to the provision of adequate 
representation, and to an uncommon ability to divine omissions from an 
otherwise silent record. But a criminal justice system is flawed that 
depends on the judiciary or prosecution to discharge the responsibility 
of the defense. And a system lacks integrity which permits--as does 
Virginia--the continued appointment of attorneys obviously unwilling or 
incapable of providing zealous and competent representation. It is 
rarely a secret to the bench or the bar who should not be practicing; 
it is a shame of unparalleled magnitude that the lives of the indigent 
accused should be held in such a precarious balance.
    First rate representation is uncommon, and when it occurs, it is 
the product of personal sacrifice and extraordinary dedication by an 
individual attorney abiding the dictates of his conscience and the 
ethics of his profession. Virginia boasts an exceptional bar, but 
neither the standards for capital representation nor the logistics of 
appointment are designed to draw representation from that bar. The 
reality in Virginia is that the provision of appointed counsel is a 
haphazard event. The quality of representation is inconsistent at best, 
and at times, so abysmally deficient as to amount to a complete 
charade.

                                

                                    State of South Carolina
                                    Office of the Solicitor
                                 Sixteenth Judicial Circuit
                                                       July 2, 2001

The Honorable Patrick Leahy
U.S. Senate Judiciary Committee
224 Dirksen Building
Washington, DC 20510

    Dear Senator Leahy,

    During my testimony before the committee on June 27, 2001, Senator 
Feingold asked me about an execution that I witnessed in August of 
1995. In order for the record to be as complete as possible, I have 
researched the issues he inquired about and submit this letter to 
supplement my answers to his questions.
    Senator Feingold first desired to know whether it was true that the 
defendant in that case, Sylvester Adams, had an IQ that was below 
normal. I am enclosing the psychiatric and psychological reports from 
his evaluation by the state Department of Mental Health in 1979. This 
was the agency charged by the court with the responsibility for making 
these determinations. These reports were made part of the court's 
record in Mr. Adams' Post-conviction Relief Hearings.
    As you can see from the reports, the defendant ``answers `I don't 
know' to virtually every question and then asks why I am asking 
questions in a rather mocking manner''. It goes on to say, his ``entire 
demeanor is that of a coy cat and mouse game which he obviously 
enjoys''.
    The psychologist's scoring of his IQ test did place the defendant 
in the range of mild mental retardation, however ``the psychologist 
reported) that he was uncooperative and made little effort during 
testing so that his intelligence is probably significantly higher than 
is reflected by the test data''. In another section the psychologist 
puts it thus: ``The lowered score on the performance section (of his IQ 
test) is a direct function of his negativism, belligerence and lack of 
concerted effort.''
    In addition, I also enclose copies of both sentencing reports that 
were filed by the two trial judges who presided over the two trials of 
this case. The judges in this case had the opportunity to interact with 
the defendant in court and both listed his intelligence level as 
``average''.
    I realize that the defense may tender evaluations performed by 
experts they paid to assist them however I do not believe that they are 
as credible as the evaluations I am submitting. Their experts have a 
financial interest in the matter and also can be chosen by the defense 
based on an anti-capital punishment bias. The South Carolina Department 
of Mental Health is not in any way beholden to our office and has often 
submitted reports and testified that capital defendant's are mentally 
ill.
    The second area of inquiry focused on the post-trial status of Mr. 
Adams' attorney. I did not know who his attorney was at the various 
stages of litigation but have since informed myself on the topic. Sam 
Fewell represented the defendant at both his first trial and his 
retrial. He was also represented by James Boyd.
    In the early 1990's, Fewell was convicted in federal court and 
sentenced to a term of imprisonment in a federal correctional facility. 
I believe this was due to a drug related conviction. I do not know 
whether or not he was incarcerated at the time of Adams' execution. 
That is irrelevant though as Fewell had no involvement with the appeal 
of the case
    The question of his attorney's status is calculated to highlight 
the issue of attorney incompetence in capital cases. Instead, it only 
serves to highlight the type of specious logic employed by the anti-
capital punishment groups to make their case. The fact that Fewell was 
convicted in 1991 or 1992 does not lead one to conclude that he was 
incompetent in 1981 or 1982. A former professor of mine has since been 
disbarred and removed from the faculty at the University of South 
Carolina. Should I be required to return my diploma?
    In fact, Fewell's conviction in the early 90's was well known for 
some years before Adams was executed and if the defense were able to 
establish a connection between the two events, they surely would have. 
The issue of Fewell's competence was fully litigated and no basis found 
to warrant a new trial.
    I hope this helps the committee as you grapple with these weighty 
and complex issues. If I may be of any further service to you at any 
time please do not hesitate to call me.
            Sincerely,

                                          Kevin S. Brackett
                                                   Deputy Solicitor

                                

 Statement of David I. Bruck, Federal Death Penalty Resource Counsel, 
                        Columbia, South Carolina

    Chairman Leahy, Senator Hatch, and members of the Committee:
    I appreciate the opportunity to submit this statement as the 
Judiciary Committee considers the important question of how indigent 
capital defendants are represented at trial in the courts of this 
country. I would like to focus on the two jurisdictions I know the most 
about--the state courts of South Carolina, and the federal courts 
throughout the United States.
    I have been a criminal defense attorney in Columbia, South 
Carolina, for the past 25 years, and have devoted most of that time to 
the defense of capital cases. I have served as lead counsel in 17 death 
penalty trials in the South Carolina state courts, have argued some 
sixty death row inmates' appeals in the South Carolina Supreme Court, 
and six before the United States Supreme Court. I have also been a 
close observer of the federal death penalty since early 1992, when the 
federal defender system contracted with me and a colleague in 
Frankfort, Kentucky, to provide expert assistance on as ``as-needed'' 
basis to federal defenders and court-appointed counsel in federal 
capital cases. In the nine-and-a-half years since then I have worked 
roughly half-time in assisting counsel who have been appointed to 
defend the increasing numbers of federal death penalty prosecutions 
brought under the Anti-Drug Abuse Act of 1988, 21 U.S.C. 848(e), and 
later under the Federal Death Penalty Act of 1994 (18 U.S.C. Sec. 3591 
et seq.). In addition to working with individual court-appointed 
lawyers, our responsibilities as Resource Counsel include 
identification and recruitment of qualified, experienced defense 
counsel for possible appointment by the federal courts in death penalty 
cases, and development of training programs and publications, including 
a web site, www.caydefnet.org, to assist federal defenders and court 
appointed private counsel in death penalty cases.
    In a few jurisdictions, the counsel standards in Title II of S. 
486, the Innocence Protection Act of 2001, will effect little change, 
since these states already furnish highly-qualified and adequately-
compensated counsel in capital cases. Other jurisdictions, however, 
have persistently refused to adopt the minimum safeguards that Title II 
would encourage. My own state of South Carolina is one of these.
                             SOUTH CAROLINA
                        1. the present ``system"
    South Carolina enacted its current death penalty statute in 1977. 
S.C. Code Sec.  16-3-20 (Supp. 2000). Although from the outset the 
statute required appointment of two lawyers for each death penalty 
defendant, of whom only one could be a public defender, state law set 
counsel fees and litigation expenses at $10 per hour out-of-court and 
$15 per hour in-court, with total allowable counsel fees capped at 
$1500. Expert and investigative expenses were likewise capped at $2000 
per case. S.C. Code Sec. Sec. 16-3-26(B), -(C); 17-3-50 (1985). The 
only qualifications for this essentially pro bono service was that one 
of the two court-appointed lawyers had to have five years' bar 
membership and three years' felony trial experience. Sec.  16-3-26(B).
    In 1992, the state supreme court acknowledged the gross inadequacy 
of South Carolina's statutory counsel fees, and held that the local 
counties where capital prosecutions were brought had to provide 
minimally adequate counsel fees and expert funding. Bailey v. State, 
424 S.E.2d 503 (S.C. 1992). As a result of Bailey, county officials 
were faced for the first-time with the problem of paying substantial 
legal bills in death penalty cases, and in 1994 the state legislature 
responded by increasing ten-fold the state funds available for 
attorney, expert and investigative services. S.C. Code Sec. 16-3-26 
(Supp. 2000). Accordingly, current law now provides for payment of up 
to $25,000 per attorney (which can be exceeded upon a showing of 
necessity) at $50 per hour for out-of-court work and $75 per hour in-
court. Expert and investigative costs are now capped at $20,000 per 
case, which limit can also be exceeded for good cause.
    Despite increased funding for capital defense during the 1990s, 
South Carolina's method of selecting and appointing counsel has 
remained essentially unchanged. Every South Carolina county has some 
sort of locally-organized public defender system, S.C. Code Sec. 17-3-
60 (Supp. 2000), but this extremely decentralized system includes no 
statewide oversight or training. State judges have unfettered 
discretion to select and appoint counsel, subject only to the ``five 
year/three year'' restriction and a requirement that one of the two 
appointed attorneys be a public defender whenever possible. S.C. Code 
Sec. 16-3-26(B)(1) (Supp. 2000).\1\ A statewide agency created in 1994 
to administer state indigent defense funding, the South Carolina Office 
of Indigent Defense, performs no function other than disbursement of 
funds, and has no role in identifying, training or selecting defense 
counsel in capital cases. S.C. Code Sec. 17-3-330 (Supp. 2000).
---------------------------------------------------------------------------
    \1\ An additional restriction is that no attorney may be appointed 
and compensated in a death penalty case who is not both a South 
Carolina resident and a member of the South Carolina Bar. S.C. Code 
Sec. 17-3-330(C) (Supp. 2000). This restriction, which applies only in 
capital cases, was added as a direct legislative response to the 
appointment of Judy Clarke, a distinguished West Coast federal defender 
and University of South Carolina law graduate, as co-counsel in the 
highly-publicized Susan Smith death penalty case in 1995. Twila Decker, 
``Smith Case Spurs S.C. House to Rethink Indigent Defense,'' The State 
B-5 (Mar. 9, 1995) (quoting sponsor as explaining amendment: ``If 
people come here and kill our citizens, they ought to have to use our 
attorneys. '').
---------------------------------------------------------------------------
                   2. South Carolina rejects reform.
    In 1997, the South Carolina Bar approved and submitted to the state 
supreme court a proposal to create modest experience and training 
qualifications for trial counsel in death penalty cases. The Bar 
proposal would have required only that one of the lawyers appointed in 
a capital case have substantial capital or non-capital trial 
experience, and that both lawyers have received some specialized 
training in capital defense by the time of trial, and have 
``demonstrated that level of knowledge, skill and commitment to the 
defense of indigent persons expected of defense counsel in capital 
cases.'' The South Carolina Supreme Court summarily rejected the Bar's 
proposal. Most recently, as part of a general revision of the court-
appointment process in criminal and civil cases, the state court 
(without notice, hearings or public comment) promulgated the following 
rule:
           certification of attorneys in death penalty cases
        (a) Classes of Certified Attorneys. There shall be two classes 
        of attorneys certified to handle death penalty cases: lead 
        counsel and second counsel.
        (b) Lead Counsel. Lead counsel shall have at least five years 
        experience as a licensed attorney and at least three years 
        experience in the actual trial of felony cases. The application 
        for certification to act as lead counsel shall be on a form 
        designated by the Supreme Court.
        (c) Second Counsel. Second counsel shall have at least three 
        years experience as a licensed attorney. Second counsel is not 
        required to be further certified to be eligible for 
        appointment.

    RULE 421, SCACR; SC Order 01-7 (May 29, 2001; effective September 
1, 2001).
    Given South Carolina's persistent refusal, over nearly 25 years, to 
adopt meaningful standards to govern selection of counsel in capital 
cases, it should come as no surprise that the actual performance of 
appointed counsel has been, to be charitable, uneven. South Carolina 
has the eighth-highest ratio of executions to population of the 38 
death penalty states, with 25 post-Furman executions and approximately 
70 prisoners currently on death row. The cases of South Carolina's 
executed and condemned prisoners include:
    State v. Mitchell Sims, in which court-appointed counsel began his 
penalty-phase summation as follows:
    What we've got here is a very simple question of what do we do with 
our junk. In a few minutes [the defendant] will speak with you . . . 
I'm just going to ask you to listen to the junk that's been produced 
and that has done these unspeakable, heinous acts and then consider 
what to do. We kill our rabid dogs. And perhaps you may view him as 
that . . . . And that's the question: What do we do with our junk? 
(Trial transcript at 1488-89).
    This lawyer continues to be appointed on capital cases in the 
Charleston, South Carolina area; all but one of his capital clients 
have been sentenced to death, and two have already been executed.
    State v. Joseph Gardner, a highly-publicized and racially-charged 
rape-murder case in which, a year prior to his appointment, lead 
defense counsel had participated as a prosecutor in a nationwide 
manhunt for the perpetrators.
    State v. Robert Conyers, in which a 74-year-old parttime public 
defender, handling his first death penalty case along with an annual 
caseload of 400 other courtappointed clients, advised his client to 
waive a jury sentencing by pleading guilty to a murder that he had 
committed at age 16. A state circuit judge, reviewing the case, 
recently found the attorney's performance inadequate; the state is 
appealing.
    State v. Johnny Ray, in which defense counsel began preparing for 
their client's capital re-sentencing just about a week before it began, 
and were later forced to acknowledge that their efforts were 
``disorganized, rushed . . . seat-of-the-pants.'' A state judge, 
granting sentencing relief, noted that counsel had 11 months notice of 
the sentencing hearing, but that ``[i]nexplicably, little or nothing 
was done until panic set in about two weeks before . . .  .'' and 
concluded that if the defense accorded to Mr. Ray were constitutionally 
adequate, ``then we should dispense with the legalese and simply admit 
that the Sixth Amendment has no meaningful role in capital defense 
litigation.'' The state is appealing this ruling.
    State v. Edward Lee Elmore is an interracial case involving the 
rape-murder of an elderly white woman and based entirely on 
circumstantial evidence. The county public defender was battling severe 
alcoholism at the time of the trial; his co-counsel, a private lawyer 
recruited and paid by other local attorneys hoping to avoid the 
appointment themselves, privately referred to his client as ``a red-
headed nigger.'' Neither lawyer challenged questionable physical 
evidence, and hair evidence suggesting the defendant's innocence 
remained tucked away in a state police locker for some 15 years. 
Raymond Bonner, ``Old Evidence Resurfaces, Unsettling '82 Murder,'' New 
York Times (Dec. 12, 2000).
    State v. Robert Nance. Lead counsel in this capital case, a veteran 
public defender who gave up practicing law not long after this trial, 
suffered from mental impairment caused by dementia, alcohol abuse, 
heart disease, blood sugar fluctuations and four prescription 
medications, all of which have psychological side effects including 
sedation, disturbance of sleep, and impaired memory and planning 
ability.
    State v. Ronnie Howard. In this case, a South Carolina circuit 
judge solved the problem of whom to appoint by selecting the first two 
names--Acker and Anderson--from an alphabetical roster of the 
Greenville county bar. Neither lawyer had ever handled a capital case 
before, and failed to obtain such basic mitigating information as their 
client's school military records in time for the trial. However, their 
errors were held insufficiently prejudicial to interfere with Mr. 
Howard's execution on January 8, 1999.
    This list could go on and on. Of course, not every South Carolina 
capital case has been marred by inadequate defense counsel, and some 
cases have been very well-defended. My point is simply that in the 
absence of any sort of system for identifying and training competent 
counsel, and then matching them with the cases where they're needed, 
compliance with the Sixth Amendment is hit-or-miss, and will remain so.
    There are only between 15 and 20 death penalty cases in South 
Carolina in any given year (and, on average, about 5 new death 
sentences), so a reliable system for assuring adequate an defense in 
each case would not be difficult to create. A statewide capital 
defender unit with a staff of five or six lawyers could handle most of 
the work, supplemented by appointments (by the statewide capital 
defender office) from a small, carefully-screened list of private 
counsel. This is exactly the sort of system whose creation would be 
encouraged by Title II of the Innocence Protection Act. South Carolina, 
like many other states, has given every indication that in the absence 
of such encouragement, nothing will change.
                           The Federal Courts
    The relatively small number of capital cases in the federal courts 
make it difficult to compare the federal system for assigning counsel 
with those of the states. That said, it is notable that the capital-
case counsel provisions of 21 U.S.C. Sec. 848(q) and 18 U.S.C. 
Sec. 3005 have worked to ensure that the federal system provides 
adequate resources for the defense in such cases. While the federal 
system lacks an independent appointing authority, a 1994 amendment to 
18 U.S.C. Sec. 3005 that mandates involvement of the Federal Defender 
system in the appointment process has provided some of the benefits of 
such a system. As a result, the federal courts have avoided replicating 
the seemingly chronic problems of under-funded, under-trained and 
under-motivated counsel that have plagued so many of the states' death 
penalty systems.
    As amended by the 1994 Federal Death penalty Act, 18 U.S.C. 3005 
provides, in pertinent part:

                Whoever is indicted for treason or other capital crime 
                shall be allowed to make his full defense by counsel; 
                and the court before which the defendant is to be 
                tried, or a judge thereof, shall promptly, upon the 
                defendant's request, assign two such counsel, of whom 
                at least 1 shall be learned in the law applicable to 
                capital cases . . . . In assigning counsel under this 
                section, the court shall consider the recommendation of 
                the Federal Public Defender organization, or, if no 
                such organization exists in the district, of the 
                Administrative Office of the United States Courts.

    Reflecting and explicating this statutory provision, Judicial 
Conference policy specifies that:

    As required by statute, at the outset of every capital case, courts 
should appoint two counsel, at least one of whom is experienced in and 
knowledgeable about the defense of death penalty cases. Ordinarily, 
``learned counsel'' should have distinguished prior experience in the 
trial . . . of federal death penalty cases, or . . . in state death 
penalty . . . that, in combination with co-counsel, will assure high 
quality representation.

    Judicial Conference of the United States, Subcommittee on Federal 
Death Penalty Cases, Federal Death Penalty Cases: Recommendations 
Concerning the Cost and Ouality of Defense Representation (The 
``Spencer Committee Report'') http://www.uscourts.gov/dpenalty/
2TABLE.htm (May 1998). While the implementation of this statute has not 
been uniform, it has generally meant that in each federal capital case, 
the Federal Defender's office undertakes to identify highly-qualified 
capital defense counsel ``with distinguished prior experience'' for 
appointment. Most often, this effort to identify the best attorneys for 
appointment involves the assistance of contract counsel affiliated with 
the Federal Death Penalty Resource Counsel Project. The defender's 
recommendation is usually accepted by the court. Recruitment of top-
flight capital defense attorneys has been made possible by a fairly 
uniform practice of compensating counsel at the statutory maximum rate 
of $125 per hour. 21 U.S.C. Sec. 848(q)(10)(A).
    It should be kept in mind that the federal death penalty system is 
still very small. Only a little over 200 capital prosecutions have been 
authorized by the Attorney General since enactment of the first modern 
federal death penalty statute in 1988, and most of those cases ended in 
a less-than-death sentence without the necessity of a jury trial. Given 
the relatively small scale of the federal death penalty to date, and 
the fact that federal judges can and do select counsel from the capital 
defense bar of the entire nation, it should not be surprising that the 
over-all quality of representation has been fairly high. Nevertheless, 
the federal experience does demonstrate that by allocating reasonable 
funding to the defense as well as the prosecution, and by relying on a 
recruitment process that emphasizes skill and experience instead of 
expedience or patronage, a court system can ensure that defendants in 
capital cases are adequately defended. This is an experience that the 
states can and should be encouraged to emulate.

                                

                     Federal Death Penalty Resource Counsel
                             Columbia, South Carolina 29201
                                                       July 2, 2001
Senator Patrick Leahy
Chairman
Senator Orrin G. Hatch
Ranking Minority Member
Judiciary Committee
United States Senate
Washington, D.C. 20510
    Dear Chairman Leahy and Senator Hatch,
    At last Wednesday's hearing on Title II of S. 486, the Innocence 
Protection Act of 2001, some factual issues arose involving recent 
South Carolina capital cases. I write to set forth the relevant facts, 
and ask that this letter be accepted as a supplement to the statement 
that I previously submitted.
    In his written statement, Deputy Solicitor Kevin Brackett of South 
Carolina's Sixteenth Judicial Circuit noted that he had personally 
attended the first lethal injection in South Carolina. After Mr. 
Brackett described the defense furnished to a defendant in one recent 
capital case in his circuit, Senator Feingold asked whether the 
execution Mr. Bracket had attended was that of Sylvester Adams on 
August 18, 1995. Mr. Brackett acknowledged that it was, and that Mr. 
Adams' case originated from Mr. Brackett's home county of York. 
However, when Senator Feingold then asked whether Mr. Adams had been 
sentenced to death by a jury that had heard no mitigating evidence on 
his behalf, despite the fact that Mr. Adams' IQ scores were in the 
mentally retarded range, Mr. Brackett responded as follows:

        Well, I didn't come prepared to discuss that in any detail. But 
        I did review the file before I went down to see the execution . 
        . . And it appeared from the files that the individual who 
        tested his IQ at the Department of Disabilities and Special 
        Needs found him to be malingering when they were attempting to 
        determine what his IQ was. The expert that was appointed by the 
        court to evaluate his IQ said that, basically, ``I can't tell 
        you what his IQ is because he appears to be attempting to fake 
        the results to this test to possibly get an advantage.'' But I 
        think that is indicative that perhaps he was not mentally 
        retarded.
    Sen. Feingold then asked whether ``on the day you watched Mr. Adams 
die, his lead defense attorney at his trial was sitting in federal 
prison?'' Mr. Brackett responded that he had ``no knowledge of who his 
defense counsel were at the various stages of the proceedings or where 
they might have been.'' I represented Sylvester Adams in state and 
federal post-conviction proceedings, and thus am in a position to 
provide the information that Mr. Brackett did not have.
    Mental retardation. Prior to Sylvester Adams' first trial, a state-
employed examiner reported that Mr. Adams had a full-scale IQ score of 
65.\1\ This examiner did not, as Mr. Brackett claims, accuse Mr. Adams 
of ``attempting to fake the results,'' but he did opine that Mr. Adams' 
true IQ level might be between 70 and 80. The state's chief forensic 
examiner nevertheless determined, and later testified in post-
conviction proceedings, that Mr. Adams suffered from mild mental 
retardation. Adams v. Aiken, 965 F.2d 1306, Joint Appendix at 1567 (4th 
Cir. 1992) (testimony of Herbert D. Smith, M.D.). After Mr. Adams' 
convictions and death sentence were reversed by the state supreme 
court, a second trial was held at which the defense presented no 
mitigation evidence whatever on Mr. Adams' behalf. He was again 
sentenced to death. In 1984, an experienced forensic psychologist 
retained by the defense retested Mr. Adams and found him to have a 
full-scale IQ of 69--still within the range of mental retardation. 
Application for Executive Clemency in the Matter of Sylvester Lewis 
Adams, Aug. 9, 1995, Appendix C ] 11 (Affidavit of David R. Price, Ph. 
D). As the Charlotte Observer summarized the facts in an editorial two 
days before Mr. Adams was executed, ``the jurors who imposed the death 
sentence were never told that Sylvester Adams . . . is mentally 
retarded. Tests show he has an IQ of between 65 and 69.'' ``Mercy 
Denied,'' Charlotte Observer at 10-A (Aug. 16, 1995).
---------------------------------------------------------------------------
    \1\ Mr. Brackett erroneously attributes this evaluation to the 
South Carolina Department of Disabilities and Special Needs. In 
reality, the IQ testing was performed by Mr. T. V. Smith, an employee 
of the Department of Mental Health with an M.A. degree in psychology.
---------------------------------------------------------------------------
    Defense counsel's subsequent imprisonment. Senator Feingold also 
inquired of Mr. Brackett about the whereabouts of Mr. Adams' ``lead 
defense attorney at . . . trial'' on the day of his execution. While 
Mr. Brackett correctly recalled that I was present when Mr. Adams was 
executed, I did not represent him at trial. Mr. Adams' lead defense 
counsel at both of his trials was Samuel B. Fewell, Jr. Neither Mr. 
Fewell nor the young public defender who served as his co-counsel had 
ever tried another death penalty case. By the time of Mr. Adams' 
execution, Fewell had been disbarred, and was serving a federal prison 
sentence, after pleading guilty in federal court to tax fraud and 
possession of cocaine, and in state court to two counts of criminal 
conspiracy for having a client provide sexual favors to a family court 
judge in exchange for favorable rulings. In the Matter of Samuel B. 
Fewell, Jr., 450 S.E.2d 46 (S.C. 1994). Bob McAlister, Mitigating 
circumstances are there for Sylvester Adams, too,'' The State 
(Columbia, S.C.) A-7 (Aug. 14, 1995).
    In my statement to the Committee, I described several South 
Carolina capital cases in which the state clearly failed to provide 
minimally adequate defense representation. The Adams case was another. 
Mr. Brackett points to yet another York County case, State v. Bobby Lee 
Holmes, in which the quality of the defendant's legal representation 
was good.\2\
---------------------------------------------------------------------------
    \2\ Mr. Brackett's account of the Holmes retrial calls for some 
additional comments. His claim that a defense correctional expert 
received $500 per hour is incorrect. The expert to whom he referred was 
paid $125 an hour, and no other witness received anything like the $500 
rate about which he complains. His claim that he does not know ``who 
paid'' for Mr. Holmes, additional attorneys is hard to credit, since 
the trial record plainly reflects that these attorneys were volunteers 
from the Washington, D.C. firm of Akin, Gump, Strauss, Hauer & Feld who 
were not paid a penny, by anyone, for their unprecedented contribution 
to the defense of this indigent South Carolina death row inmate. Mr. 
Brackett also failed to note that Mr. Holmes' unusual defense team was 
assembled only after the trial judge arbitrarily refused to reappoint 
the lawyer who had successfully represented Mr. Holmes in post-
conviction proceedings, former S.C. Death Penalty Resource Center 
Director John H. Blume.
    Unfortunately, the Holmes case marks the only occasion in at least 
the past 25 years in which an out-of-state firm has volunteered to 
assist a South Carolina capital defendant at the trial level, and the 
appointment (or compensation) of any out-of-state attorney is expressly 
prohibited by South Carolina law. S.C. Code Sec. 16-3-26(I) (Supp. 
2000).
---------------------------------------------------------------------------
    The conclusion that can and should be drawn from this record is 
that some capital defendants in South Carolina receive an adequate 
defense, and some don't. Until South Carolina and other states like it 
adopt some sort of fair and reliable system for identifying, training, 
appointing and monitoring the lawyers who represent the poor in death 
penalty cases--the sort of system that Title II of S. 486 would 
encourage--capital cases will continue to resemble a lottery, in which 
the right to counsel and to a fair and reliable trial turns on the luck 
of the draw.
            Yours truly,

                                             David I. Bruck

                                

     Statement of Constitution Project's Death Penalty Initiative, 
                             Washington, DC

                       Summary of Recommendations
                          i. effective counsel
    Every jurisdiction that imposes capital punishment should create an 
independent authority to screen, appoint, train, and supervise lawyers 
to represent defendants charged with a capital crime. It should set 
minimum standards for these lawyers' performance. An existing public 
defender system may comply if it implements the proper standards and 
procedures.
    Capital defense lawyers should be adequately compensated, and the 
defense should be provided with adequate funding for experts and 
investigators.
    The current Supreme Court standard for effective assistance of 
counsel (Strickland v. Washington) is poorly suited to capital cases. 
It should be replaced in such cases by a standard requiring 
professional competence in death penalty representation.
ii. prohibiting execution in cases involving questionable categories of 
                        defendants and homicides
    Mentally retarded persons should not be eligible for the death 
penalty.
    Persons under the age of eighteen at the time the crime was 
committed should not be eligible for the death penalty.
    Persons convicted of felony murder, and who did not kill, intend to 
kill, or intend that a killing take place, should not be eligible for 
the death penalty.
        iii. expanding and explaining life without parole (lwop)
    Life without the possibility of parole should be a sentencing 
option in all death penalty cases in every jurisdiction that imposes 
capital punishment.
    The judge should inform the jury in a capital sentencing proceeding 
about all statutorily authorized sentencing options, including the true 
length of a sentence of life without parole. This is commonly known as 
``truth in sentencing.''
                    iv. safeguarding racial fairness
    All jurisdictions that impose the death penalty should create 
mechanisms to help ensure that the death penalty is not imposed in a 
racially discriminatory manner.
                       v. proportionality review
    Every state should adopt procedures for ensuring that death 
sentences are meted out in a proportionate manner to make sure that the 
death penalty is being administered in a rational, nonarbitrary, and 
even-handed fashion, to provide a check on broad prosecutorial 
discretion, and to prevent discrimination from playing a role in the 
capital decision-making process.
        vi. protection against wrongful conviction and sentence
    DNA evidence should be preserved and it should be tested and 
introduced in cases where it may help to establish that an execution 
would be unjust.
    All jurisdictions that impose capital punishment should ensure 
adequate mechanisms for introducing newly discovered evidence that 
would more likely than not produce a different outcome at trial or that 
would undermine confidence that the sentence is reliable, even though 
the defense would otherwise be prevented from introducing the evidence 
because of procedural barriers.
                  vii. duty of judge and role of jury
    If a jury imposes a life sentence, the judge in the case should not 
be allowed to ``override'' the jury's recommendation and replace it 
with a sentence of death.
    The judge in a death penalty trial should instruct the jury at 
sentencing that if any juror has a lingering doubt about the 
defendant's guilt, that doubt may be considered as a ``mitigating'' 
circumstance that weighs against a death sentence.
    The judge in a death penalty trial must ensure that each juror 
understands his or her individual obligation to consider mitigating 
factors in deciding whether a death sentence is appropriate under the 
circumstances.
                       viii. role of prosecutors
    Prosecutors should provide ``open-file discovery'' to the defense 
in death penalty cases. Prosecutors' offices in jurisdictions with the 
death penalty must develop effective systems for gathering all relevant 
information from law enforcement and investigative agencies. Even if a 
jurisdiction does not adopt open-file discovery, it is especially 
critical in capital cases that the defense be given all favorable 
evidence (Brady material), and that the jurisdiction create systems to 
gather and review all potentially favorable information from law 
enforcement and investigative agencies.
    Prosecutors should establish internal guidelines on seeking the 
death penalty in cases that are built exclusively on types of evidence 
(stranger eyewitness identifications and statements of informants and 
co-defendants) particularly subject to human error.
    Prosecutors should engage in a period of reflection and 
consultation before any decision to seek the death penalty is made or 
announced.

                                

                      BLACK LETTER RECOMMENDATIONS
                          i. effective counsel
1) Creation of Independent Appointing Authorities
    Each state should create or maintain a central, independent 
appointing authority whose role is to ``recruit, select, train, 
monitor, support, and assist'' attorneys who represent capital clients 
(ABA Report). The authority should be composed of attorneys 
knowledgeable about criminal defense in capital cases, and who will 
operate independent of conflicts of interest with judges, prosecutors, 
or any other parties. This authority should adopt and enforce a set of 
minimum standards for appointed counsel at all stages of capital cases, 
including state or federal post-conviction and certiorari. An existing 
statewide public defender office or other assigned counsel program 
should meet the definition of a central appointing authority, providing 
it implements the proper standards and procedures.
2) Provision of Competent and Adequately Compensated Counsel at All 
        States of Capital Litigation and Provision of Adequate Funding 
        for Expert and Investigative Services
    Every capital defendant should be provided with qualified and 
adequately compensated attorneys at every stage of the capital 
proceeding, including state and federal postconviction and certiorari. 
Each jurisdiction should adopt a stringent and uniform set of 
qualifications for capital defense at each stage of the proceedings. 
Capital attorneys should be guaranteed adequate compensation for their 
services, at a level that reflects the ``extraordinary responsibilities 
inherent in death penalty litigation'' (ABA Report). Such compensation 
should be set according to actual time and service performed, and 
should be sufficient to ensure that an attorney meeting his or her 
professional responsibility to provide competent representation will 
receive compensation adequate for reasonable overhead; reasonable 
litigation expenses; reasonable expenses for expert, investigative, 
support, and other services; and a reasonable return.
3) Replacement of the Strickland v. Wahsington Standard for Effective 
        Assistance of Counsel at Capital Sentencing
    Every state that permits the death penalty should adopt a more 
demanding standard to replace the current test for effective assistance 
of counsel in the capital sentencing context. Counsel should be 
required to perform at the level of an attorney reasonably skilled in 
the specialized practice of capital representation, be zealously 
committed to the capital case, and possess adequate time and resources 
to prepare. (NLADA Standards) Once a defendant has demonstrated that 
his or her counsel fell below the minimum standard of professional 
competence in death penalty litigation, the burden should shift to the 
state to demonstrate that the outcome of the sentencing hearing was not 
affected by the attorney's incompetence. Moreover, there should be a 
strong presumption in favor of the attorney's obligation to offer at 
least some mitigating evidence.
ii. prohibiting execution in cases involving questionable categories of 
                        defendants and homicides
    To reduce the unacceptably high risk of wrongful execution in 
certain categories of cases, to ensure that the death penalty is 
reserved for the most culpable offenders, and to effectuate the 
deterrent and retributive purposes of the death penalty, jurisdictions 
should limit the cases eligible for capital punishment to exclude those 
involving (1) the mentally retarded; (2) persons under the age of 
eighteen at the time of the crimes for which they were convicted; and 
(3) those convicted of felony murder who did not kill, intend to kill, 
or intend that a killing occur.
        iii. expanding and explaining life without parole (lwop)
1) Availability of Life Sentence without Parole
    In all capital cases, the sentencer should be provided with the 
option of a life sentence without the possibility of parole.
2) Meaning of Life Sentence without Parole (Truth in Sentencing)
    At the sentencing phase of any capital case in which the jury has a 
role in determining the sentence imposed on the defendant, the court 
shall inform the jury of the minimum length of time those convicted of 
murder must serve before being eligible for parole. However, the trial 
court should not make statements or give instructions suggesting that 
the jury's verdict will or may be reviewed or reconsidered by anyone 
else, or that any sentence it imposes will or may be overturned or 
commuted.
                    iv. safeguarding racial fairness
    Each jurisdiction should undertake a comprehensive program to help 
ensure that racial discrimination plays no role in its capital 
punishment system, and to thereby enhance public confidence in the 
system. Because these issues are so complex and difficult, two 
approaches are appropriate. One very important component--perhaps the 
most important--is the rigorous gathering of data on the operation of 
the capital punishment system and the role of race in it. A second 
component is to bring members of all races into every level of the 
decision-making process.
                       v. proportionality review
    In order to (1) ensure that the death penalty is being administered 
in a rational, non-arbitrary, and even-handed manner; (2) provide a 
check on broad prosecutorial discretion; and (3) prevent discrimination 
from playing a role in the capital decision-making process, every state 
should adopt procedures for ensuring that death sentences are meted out 
in a proportionate manner.
        vi. protection against wrongful conviction and sentence
1) Preservation and Use of DNA Evidence to Establish Innocence or Avoid 
        Unjust Execution
    In cases where the defendant has been sentenced to death, states 
and the federal government should enact legislation that requires the 
preservation and permits the testing of biological materials not 
previously subjected to effective DNA testing, where such preservation 
or testing may produce evidence favorable to the defendant and relevant 
to the claim that he or she was wrongfully convicted or sentenced. 
These laws should provide that biological materials must be generally 
preserved and that, as to convicted defendants, existing biological 
materials must be preserved until defendants can be notified and 
provided an opportunity to request testing under the jurisdiction's DNA 
testing requirements. These laws should provide for the use of public 
fimds to conduct the testing and to appoint counsel where the convicted 
defendant is indigent. If exculpatory evidence is produced by such 
testing, notwithstanding other procedural bars or time limitations, 
legislation should provide that the evidence may be presented at a 
hearing to determine whether the conviction or sentence was wrongful. 
If the conviction or sentence is shown to be erroneous, the legislation 
should require that the conviction or sentence be vacated.
2) Lifting Procedural Barriers to Introduction of Exculpatory Evidence
    State and federal courts should ensure that every capital defendant 
is provided an adequate mechanism for introducing newly discovered 
evidence that would otherwise be procedurally barred, where it would 
more likely than not produce a different outcome at trial, or where it 
would undermine confidence in the reliability of the sentence.
                  vii. duty of judge and role of jury
1) Eliminating Authorization for Judicial Override of a Jury's 
        Recommendation of a Life Sentence to Impose a Sentence of Death
    Judicial override of a jury's recommendation of life imprisonment 
to impose a sentence of death should be prohibited. Where a court 
determines that a death sentence would be disproportionate, where it 
believes doubt remains as to the guilt of one sentenced to death, or 
where the interests of justice require it, the trial court should be 
granted authority to impose a life sentence despite the jury's 
recommendation of death.
2) Lingering (Residual) Doubt
    The trial judge, in each case in which he or she deems such an 
instruction appropriate, should instruct the jury, at the conclusion of 
the sentencing phase of a capital case and before the jury retires to 
deliberate, as follows: ``If you have any lingering doubt as to the 
defendant's guilt of the crime or any element of the crime, even though 
that doubt did not rise to the level of a reasonable doubt when you 
found the defendant guilty, you may consider that doubt as a mitigating 
circumstance weighing against a death sentence for the defendant.''
3) Ensuring That Capital Sentencing Juries Understand Their Obligation 
        to Consider Mitigating Factors
    Every judge presiding at a capital sentencing hearing has an 
affirmative obligation to ensure that the jury fully and accurately 
understands the nature of its duty. The judge must clearly communicate 
to the jury that it retains the ultimate moral decision-making power 
over whether the defendant lives or dies, and must also communicate 
that (1) mitigating factors do not need to be found by all members of 
the jury in order to be considered in the individual juror's sentencing 
decision, and (2) mitigating circumstances need to be proved only to 
the satisfaction of the individual juror, and not beyond a reasonable 
doubt, to be considered in the juror's sentencing decision. In light of 
empirical evidence documenting serious juror confusion on the nature of 
the jury's obligation, judges must ensure that jurors understand, for 
example, that this decision rests in the jury's hands, that it is not a 
mechanical decision to be discharged by a numerical tally of 
aggravating and mitigating factors, that it requires the jury to 
consider the defendant's mitigating evidence, and that it permits the 
jury to decline to sentence the defendant to death even if sufficient 
aggravating factors exist.
    The judge's obligation to ensure that jurors understand the scope 
of their moral authority and duty is affirmative in nature. Judges 
should not consider it discharged simply because they have given 
standard jury instructions. If judges have reason to think such 
instructions may be misleading, they should instruct the jury in more 
accessible and less ambiguous language. In addition, if the jury asks 
for clarification on these difficult and crucial issues, judges should 
offer clarification and not simply direct the jury to reread the 
instructions.
                       viii. role of prosecutors
1) Providing Expanded Discovery in Death Penalty Cases and Ensuring 
        That in Death Penalty Prosecutions Exculpatory Information Is 
        Provided to the Defense
    Because of the paramount interest in avoiding the execution of an 
innocent person, special discovery provisions should be established to 
govern death penalty cases. These provisions should provide for 
discovery from the prosecution that is as full and complete as 
possible, consistent with the requirements of public safety.
    Full ``open-file'' discovery should be required in capital cases. 
However, discovery of the prosecutor's files means nothing if the 
relevant information is not contained in those files. Thus, to make 
discovery effective in death penalty cases, the prosecution must obtain 
all relevant information from all agencies involved in investigating 
the case or analyzing evidence. Disclosure should be withheld only when 
the prosecution clearly demonstrates that restrictions are required to 
protect witnesses' safety or shows similarly substantial threats to 
public safety.
    If a jurisdiction fails to adopt full open-file discovery for its 
capital cases, it must ensure that it provides all exculpatory (Brady) 
evidence to the defense. In order to ensure compliance with this 
obligation, the prosecution should be required to certify that (1) it 
has requested that all investigative agencies involved in the 
investigation of the case and examination of evidence deliver to it all 
documents, information, and materials relevant to the case and that the 
agencies have indicated their compliance; (2) a named prosecutor or 
prosecutors have inspected all these materials to determine if they 
contain any evidence favorable to the defense as to either guilt or 
sentencing; and (3) all arguably favorable information has been either 
provided to the defense or submitted to the trial judge for in camera 
review to determine whether such evidence meets the Brady standards of 
helpfulness to the defense and materiality to outcome. When willful 
violations of Brady duties are found, meaningful sanctions should be 
imposed.
2) Establishing Internal Prosecutorial Guidelines or Protocols on 
        Seeking the Death Penalty Where Questionable Evidence Increases 
        the Likelihood That the Innocent Will Be Executed
    Because eyewitness identifications by strangers are fallible, co-
defendants are prone to lie and blame other participants in order to 
reduce their own guilt or sentence, and jailhouse informants frequently 
have the opportunity and the clear motivation to fabricate evidence to 
benefit their status at the expense of justice, prosecutors should 
establish guidelines limiting reliance on such questionable evidence in 
death penalty cases. The guidelines should put that penalty off limits 
where the guilt of the defendant or the likelihood of receiving a 
capital sentence depends upon these types of evidence and where 
independent corroborating evidence is unavailable.
3) Requiring Mandatory Period of Consultation before Commencing Death 
        Penalty Prosecution
    Before the decision to prosecute a case capitally is announced or 
commenced, a specified time period should be set aside during which the 
prosecution is to examine the propriety of seeking the death penalty 
and to consult with appropriate officials and parties.

                                

 Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of 
                                Illinois

    In the course of the past seventeen months since Governor George 
Ryan declared a moratorium on all executions in my home state of 
Illinois, a healthy national debate on the topic of death penalty has 
ensued. I want to thank Chairman Leahy for continuing to keep this 
issue in the forefront of our national agenda by holding this hearing 
today.
    We cannot understate the importance of having competent counsel 
represent a person charged with a crime, especially if that person 
faces the ultimate penalty of death. Like prosecutors, defense 
attorneys play an integral role in our adversarial process. The 
criminal justice system works best when both sides are adequately 
represented as this judicial process is the most effective means of 
getting at truth and rendering justice.
    But we cannot forget that for many criminal defendants, it is 
simply not possible to hire the best lawyers in town to represent them. 
For them, their only hope is to pray that the public defender or court-
appointed counsel they will end up getting is an experienced lawyer 
with competence and conscience. But we have seen that often, this is a 
luck of the draw. We have all read about attorneys who were appointed 
to defend capital cases even though they have never handled a criminal 
case before, or attorneys who sleep through trials, or show up in court 
under influence of alcohol.
    It has often been said that ``it is better to be rich and guilty 
than poor and innocent.'' I hope this statement does not reflect the 
real state of affairs in the American criminal justice system. The 
witnesses we will hear from today will hopefully tell us that getting 
assigned an incompetent counsel is the rare exception rather than the 
norm. If not, it is incumbent upon this Senate to act in the best 
interest of our criminal justice system by identifying the causes of 
these problems, and providing innovative and common sense legislative 
solutions.
    That is why today, I reintroduced a bipartisan legislation with 
Senator Chafee to provide student loan forgiveness for public defenders 
under the Federal Perkins Loan program. The Higher Education Act of 
1965 already provides loan forgiveness for law enforcement officers, 
which the Department of Education interprets to include prosecuting 
attorneys. But the Department's interpretation excludes public defense 
attorneys. This policy creates an obvious disparity of resources 
between public defenders and prosecutors by encouraging talented law 
students and lawyers to pursue public service as prosecutors but not as 
defenders.
    My bill provides parity to full-time public defenders who play an 
equally important role in the adversarial process of our judicial 
system. Like prosecuting attorneys, public defenders are law 
enforcement officers dedicated to upholding, protecting, and enforcing 
our laws. Providing loan forgiveness incentive to these attorneys will 
lead to a larger pool of competent counsel to defend death penalty 
cases, which is consistent with the goals set forth by the Supreme 
Court to equalize access to legal resources.

                                

Question submitted by Hon. Richard J. Durbin to William H. Pryor, Jr., 
                     Alabama State Attorney General

    In your prepared testimony, you state: ``If your concern is to 
protect the innocent from being executed, then you need not worry; it's 
not occurring and is highly unlikely to occur.''
    Question: In Illinois, Governor Ryan declared a moratorium on the 
death penalty after 13 death row accused were found to be innocent 
during the same time that 12 people were executed by the state. How can 
you be so certain of a system which fails so often when the most severe 
punishment is involved?

                                

  Question submitted by Hon. Richard J. Durbin to Stephen B. Bright, 
                    Southern Center for Human Rights

    You have stated that the old adage, ``you get what you pay for,'' 
applies with particular force in the legal system, and many states pay 
very little to lawyers appointed to defend capital cases. You also 
indicate that in my home state of Illinois and in two other states, 
studies have found that a significant number of those sentenced to 
death were represented by lawyers who were later disbarred, suspended, 
or convicted of crimes.
    I am concerned about the quality of counsel that are assigned to 
criminal cases; particular for those who face the death penalty. I 
believe that a part of the problem is the lack of financial incentives 
for potential lawyers to take on criminal defense work.
    That is why I recently introduced bipartisan legislation to provide 
student loan forgiveness for public defenders under the Federal Perkins 
Loan program (S.1112). The Higher Education Act of 1965 already 
provides loan forgiveness for law enforcement officers, which the 
Department of Education interprets to include prosecuting attorneys. 
But the Department's interpretation excludes public defense attorneys. 
This policy creates an obvious disparity of resources between public 
defenders and prosecutors by encouraging talented law students and 
lawyers to pursue public service as prosecutors but not as defenders.
    My bill provides parity to full-time public defenders who play an 
equally important role in the adversarial process of our judicial 
system. Providing loan forgiveness incentive to these attorneys will 
lead to a larger pool of competent counsel to defend death penalty 
cases.
    Question: Do you agree that there are disparities in resources 
available to prosecutors versus defenders? How would you recommend we 
address these disparities?

                                

Statement of Equal Justice Initiative, Bryan A. Stevenson,\1\ Executive 
                     Director, Montgomery, Alabama

    Thank you for the opportunity to address the much needed 
legislation pending before this Committee. The ``Innocence Protection 
Act'' is an enormously important step forward in the effort to improve 
the administration of criminal justice in the United States. DNA 
testing technology has dramatically advanced forensic science and 
criminal case investigations. However, unless addressed, the current 
crisis surrounding adequate legal assistance to death row prisoners and 
capital defendants will seriously compromise any meaningful, reform 
which attempts to reduce the incidence of wrongful convictions and 
executions through DNA testing.
---------------------------------------------------------------------------
    \1\ I am the Executive Director of the Equal Justice Initiative 
(EJI) in Montgomery, Alabama. I have represented capital defendants and 
death row prisoners for nearly 17 years. I am also an Assistant 
Professor of Law at the New York University School of Law where I 
teach, among other things, Postconviction Remedies, Capital Punishment 
Law and Litigation, and Race, Poverty and Criminal Justice. I have 
handled dozens of capital cases, conducted postconviction litigation in 
the capital and noncapital areas and consulted on these matters for 
many years.
---------------------------------------------------------------------------
    The Innocence Protection Act will do much to restore confidence in 
many criminal cases where biological. evidence can resolve lingering 
questions about guilt or innocence. Our nation's status as the worlds 
leading democracy and our activism on human rights in the international 
context requires us to take all steps possible to protect against 
wrongful convictions and execution of the innocent. Improved procedures 
for postconviction DNA testing will tremendously aid the goal of more 
reliable and equitable administration of criminal justice. However, it 
is worth emphasizing that DNA testing will influence a relatively small 
subset of cases where innocent people have been wrongly convicted. 
Improved, access to DNA testing for. prisoners will be useful only in 
those cases where (1) biological evidence can determinatively establish 
guilt or innocence, most notably rape, rape-murder and sexual assault 
cases, (2) the accused is still in prison or on death row and, most 
likely, had his case tried before 1994, and (3) the biological evidence 
has been preserved and is still available for testing. This is a 
relatively fixed and finite universe of cases.
    In most instances postconviction DNA testing has required the 
assistance of counsel to accomplish the exoneration of an innocent 
person who has been wrongly comvicted of a crime. The provisions in the 
Innocence Protection Acr for improving defense services to prisoners 
who have been wrongly convicted are thus crucial to the effectiveness 
of any effort to protect innocent people from wrongful incarceration or 
execution.
   the crisis surrounding legal representation of death row prisoners
    In the last 30 years the number of people incarcerated in the 
United States has increased dramatically. In 1972, there were 200,000 
people in jails and prisons. Today there are over 2,000,000 people 
incarcerated. The dramatic increase in the number of people imprisoned 
has presented enormous challenges to the fair administration of 
criminal justice.
    The extraordinary increase in the number of people prosecuted and 
imprisoned has strained the ability of state governments to provide 
adequate legal representation to the accused or the indigent and to 
protect against wrongful conviction of the innocent.
    In the death penalty arena this problem is especially acute. There 
are now close to 3,900 people on death row in the United States. 
Hundreds of these condemned prisoners have no legal representation. The 
ability of indigent death row prisoners to find competent legal 
representation throughout the litigation process has created tremendous 
uncertainty and raised serious concerns abouc the fairness and 
reliability of capital sentencing in many jurisdictions--The problems 
involved in providing adequate counsel to capital defendants and death 
row prisoners are the primary reasons why the American Bar Association 
has recommended that a nationwide moratorium on capital punishment be 
implemented.
The Crisis in Alabama
    There are now 185 people under sentence of death in Alabama. The 
size of Alabama's death row has doubled in the last ten years. In 1989, 
there were 90 people under sentence of death, in Alabama. Alabama now 
has the third largest death row per capita in the United States and the 
number of death sentenced prisoners is growing at a pace that greatly 
exceeds other death penalty jurisdictions. In 1998-1999, the last year 
for which data is currently available, Alabama sentenced more people to 
death per capita than any other state in the country. (See Appendix A)
    EJI's records indicate that there are currently over 300 people 
awaiting capital murder trials across the state of Alabama. This is an 
enormously high number of pending capital prosecutions for a state with 
a population of only 4.5 million people.
    While lawyers are appointed to handle trials and direct appeals in 
Alabama death penalty cases, until recently, compensation to appointed 
lawyers in capital cases was capped at $1000 per case for an attorney's 
out of couxt time. Most of the people currently under sentence of death 
in Alabama were defended by attorneys whose compensation was severely 
restricted. The result is that many poor people were convicted of 
capital crimes in trials that lasted less than 2 days. Many death row 
prisoners were defended by attorneys who have subsequently been 
disbarred or suspended from the practice of law due to serious failures 
in adequately protecting the legal rights of clients.
    Alabama is one of the few jurisdictions in the country that has no 
state funded mechanism for providing lawyers to death row prisoners 
once a conviction and death sentence is affirmed by state courts on 
direct appeal.\2\ If a death row prisoner seeks review of his 
conviction and sentence on direct appeal in the United States Supreme 
Court, a volunteer lawyer must be found. If state collateral appeals 
are to be filed under Rule 32 of the Alabama Rules of Criminal 
Procedure, volunteer counsel must also be found.
---------------------------------------------------------------------------
    \2\ In the other states of the Eleventh Circuit there are state 
funded services to assist death row prisoners in the timley filing of 
state and federal collateral challenges to their convictions and 
sentences. The Georgia Appellate Practice and Educational Resource 
Center received nearly $1 million dollars in its 1999 appropriation 
from the Georgia legislature. Supreme Court of Georgia, 1998 Annual 
Report on the Work of the Georgia Courts, Judicial Branch in Review, 
Stare Appropriations for the Judicial Branch; Fiscal Years 1997, 1998 
and 1999--Florida's Office of the Capital Collateral Representative 
exclusively represents death-sentenced inmates and received over 
$8,000,000 in its 1999 legislative appropriation. Mary Smith Judd, 
``Changes continue in death sentence appeals arena,'' The Florida Bar 
News, June 15, 1998.
---------------------------------------------------------------------------
    The increasing number of death row prisoners needing counsel for 
postconviction appeals has greatly exceeded the supply of volunteer 
attorneys willing to take on these difficult cases. Consequently, there 
are many death row prisoners who are currently without legal 
representation and who have been unable to file appeals under Rule 32 
of the Alabama Rules of Criminal Procedure or under 28 U.S.C. 
Sec. 2254.
    While there is language that permits a trial judge to appoint 
counsel after a Rule 32 petition has been filed, Ala. R. Crim. Pro. 
32.7(c), state law currently limits compensation to the appointed 
counsel to $1,000 per case.\3\ The ridiculously low level of 
compensation makes involvement by counsel in these cases effectively 
pro bono work. Moreover, since hundreds of hours of work are required 
before a petition is filed,\4\ there must be an assignment of counsel 
months before a petition is filed and much time-consuming and costly 
work undertaken.\5\ Death row prisoners can not safely initiate 
litigation pro se with any protection against adverse rulings or 
summary dismissals.
---------------------------------------------------------------------------
    \3\ This compensation was increased from $600 to $1,000 by the 
Alabama legislature, elective ,June 10, 1999. Ala. Code 415-12-23 
(1975), as amended by Act 99-427 (1999).
    \4\ A survey of volunteer lawyers who took on death penalty appeals 
found the median amount of work on each appeal was 665 hours. Howard 
The Defunding of the Post Conviction Defense Organizations as a Denial 
of the Right to Counsel, 98 W.Va--L.Rev. 863, 893 (Spring 1996).
    \5\ Preparation and filing of a Rule 32 petition requires a 
complete reading of the trial transcript, appellate briefs and 
pleadings, an investigation into factual based claims such as 
innocence, jury misconduct, discovery violations, ineffective 
assistance of counsel anal thorough preparation for a host of complex 
procedural issues unique to collateral litigation relating to 
exhaustion, retroactiviry, procedural default, res judicata, the Anti-
Terrorism and Effecrive Death Penalty Act (AFDPA) and federal habeas 
corpus jurisprudence. The Mississippi Supreme Court has recently 
recognized that ``[applications for post-conviction relief often raise 
issues which require investigation, analysis and presentation of facts 
outside the appellate record. The inmate is confined, unable to 
investigate, and often without training in the law or the mental 
ability to comprehend the requirements of the [state law]. The inmate 
is in effect denied meaningful access to the courts by lack of funds 
for this state-provided remedy.'' Jackson v. State, 732 So. 2d 187, 190 
(Miss. 1999).
---------------------------------------------------------------------------
    In some jurisdictions, the state Supreme Court assumes 
responsibility for recruiting and assigning counsel to death row 
prisoners after the direct appeal is complete. See e.g., Cal. Gov. Code 
Sec. 68662 (2000) (``The Supreme Court of shall offer to appoint 
counsel to represent all state prisoners subject to a capital sentence 
for purposes of state postconvietion proceedings. . .''); Miss. Code 
Ann. Sec. 99-39-23(9) (2000).
    In many jurisdictions, either a state-wide public defender system 
ensures that indigent persons receive access to counsel or state-funded 
agencies have been created to provide legal representation to death row 
prisoners for state and federal, collateral review procedures. See, 
e.g., Fla. Stat. Sec. 27.702 (2000); 2000 Miss. Laws Ch. 569 (H.B. 
1228); Tenn. Code. Ann. Sec. 40-30-301-309 (1999); N.C. Gen. Stat. Ann. 
Sec. 7A-486-3 (2000); Cal. Gov. Code Sec. 68661 (2000); Ill. Stat. ch. 
725 Sec. 5,122-4 (2000); Okla. Stat. tit-22, Sec. 1089 (2000).
    Filing postconviction pecid.ons pro se is not a viable option for 
death row prisoners who do not have counsel. Alabama courts have 
interpreted its procedural rules to require the dismissal of claims 
that lack factual specificity. The Alabama Rules of Criminal Procedure 
provide that petitioners ``shall have the burden of pleading and 
proving by a preponderance of the evidence the facts necessary to 
entitle the petitioner to relief.'' Ala. Crim. R. Pro. 32.3.
    Rule 32.6(b), requires that Rule 32 petitioners plead each claim by 
fully disclosing the factual basis for each claim. Claims not meeting 
this burden of pleading are due to be dismissed. Most claims in 
petitions filed pro se by indigent death row prisoners necessarily will 
be dismissed. Without the ability to investigate claims personally or 
pay for someone else to conduct an investigation, it is impossible for 
indigent prisoners in a maximum security prison to develop any facts to 
provide the required specificity needed to avoid summary dismissal for 
most constitutional claims.\6\
---------------------------------------------------------------------------
    \6\ The Attorney General's Office in Alabama will seek summary 
dismissal of claims even though death row prisoners are unrepresented, 
seeking counsel and filed petitions pro se. For example, in Donald 
Dallas' case, a pro se petition was filed. The trial judge then granted 
the State's motion to dismiss most of the claims in the petition 
eliminating the possibility of relief. Only months after most claims 
had been decided adversely to Mr. Dallas was counsel appointed to 
represent him. Donald Dallas' case is still pending in the Montgomery 
County Circuit Court. See Dallas v. State, Case No. CC-94-2142.
---------------------------------------------------------------------------
    The crises surrounding counsel for indigent death row prisoners in 
Alabama is likely to get worse. There are forty-two (42) death row 
prisoners who currently need counsel. Many of these indigent prisoners 
have had their convictions and death sentences recently affirmed by the 
Alabama Supreme Court and are months away from deadlines which could 
bar their appeals.\7\ There are dozens of other cases which could soon 
be affirmed where death row prisoners will need counsel.
---------------------------------------------------------------------------
    \7\ See e.g., Exparte Richard Flowers,--So. 2d--, CR-97-1254 (Ala. 
Crlin. App. Oct. 27, 2000), cent. deiced, So. 2d--, No. 1000577 (Ala. 
Mar. 30, 2001); Ex parte Roy Perkins, --So. 2d--, No. (Ala. Mar. 30, 
2001); Ex parte Trace Duncan, So. 2d--, No. 1990652 (Ala. Mar. 30, 
2001); Ex parte Andrew Apicella,--So. 2d--, No. 1992273 (Ala. Mar. 30, 
2001); Ex parte Joseph Smith,--So. 2d--, CR-98-0206 (Ala. Crim. App. 
May 26, 2000), cert. denied,--So. 2d--, No. 1992220 (Ala. Mar. 16, 
2001); Ex parte Jarrod Taylor,--So. 2d--, No. 1991307 (Ala. Mar. 9, 
2001); Ex parte LaSarguel Gamble,--So. 2d--, CR-97-0698 (Ala. Crim. 
App. June 30, 2000), cert. denied,--So. 2d--, No. 1992229 (Ala. Mar. 2, 
2001); Ex parte Geoffrey West,--So. 2d--, CR-98-1956 (Ala. Crim. App. 
Aug. 25, 2000), cert. denied,--So. 2d--, No. 1000231(Al.a. Feb. 23, 
2001); Ex parte Marcus Williams, So. 2d--, No. 1990902 (Ala. Jan. 12, 
2001); F -x parte Eddie Powell,--So. 2d--, No. 1990546 (Ala. Jan, 12, 
2001); Ex parte Nicholas Acklin,--So. 2d---, CR-98-0330 (Ala. Crim. 
.App. Apr. 28, 2000), cert. denied,--So. 2d--, No. 1991908 (Ala. Jan. 
12, 2001); Ex harte Joe an les, -So. 2d--, CR-98-2417 (Ala. Crim. App. 
Apr. 28, 2000), cert, denied,- So. 2d--, No. 1991959 (Ala. Dec.15, 
2000); Ex parte'Ion.yBarhsdale,--So. 2d--, CR-96-07 54 (Ala. Crim. App. 
Mar. 31, 2000), cert. denied,-----So. 2d--, No- 1992230 (Ala. Dec. 15, 
2000); Ex parte Anthony Tyson,--So. 2d--, CIZ-98-0267 (Ala. Crim. App. 
Feb. 4, 2000), cert. denied, ,--So. 2d--, No. 1991309 (Ala. Nov. 17, 
2000); Ex parte John Hardy,--So. 2d---- No. 1981646 (Ala. Nov, 3, 
2000); Ex parte Jeremiah Jackson,--So. 2d--, CR-97-0998 (Ala. Crim. 
App. Mar. 31, 2000), cert. denied, So. 2d--, No. 1991742 (Ala. Nov. 3, 
2000); Ex parte Willie Burgess,--So. 2d--, No. 1980803 (Ala. Aug. 25, 
2000); Ex parte Casey McWhorter,--So. 2d--, No. 1990427 (Ala. Aug. 11, 
2000); Ex parte Robert Melsod, 775 So. 2d--904 (Ala. Aug. 4, 2400); Ex 
parte Frederick WoodT1,--So. 2d--, No. 1990867 (Ala. Jan. 12, 2001); Ex 
parte Larry Whitehead, 777 So. 2d--854 (Ala. Jun. 30, 2000); Ex parte 
Artez Hammonds, , So. 2d--, No. 1.990258 (Ala. juri. 23, 2000); Ex 
parte Robert Ingram, So. 2d--, No. 1990282 (Ala. Jun--23, 2000); Ex 
parte Joseph Wilson, 777 So. 2d--935 (Ala.--)un. 23, 2000); Ex parte 
Kenneth Loggins, 771 So. 2d--1093 (Ala. Jun. 2, 2000); Ex parte Derrick 
Mason, 768 So. 2d--1008 (Ma. Apr. 7, 2000); Ex parte Marcus Presley, 
770 So. 2d--143 (Ala---- Apr. 7, 2000), and Ex parte Marcus Presley, 
770 So. 2d 114 (Ala. Mar. 31, 2000); Ex parte Wayne Travie, 776 So. 
2d--874 (Ala. Mar. 31, 2000); Ex parte David Freeman, 776 So. 2d--203 
(Ala. Mar. 10, 2000); Ex parte Matthew Hyde, 778 So. 2d--237 (Ala. Mar. 
10, 2000); Ex arte Michael Samra, 771 So. 2d--1122 (Ala. Mar. 3, 2000); 
Ex parte Lines Borden, 769 So. 2d--950 (Ala. Feb. 4, 2000); Ex parte 
Demetrius Frazier, 758 So. 2d--611(Ala. Dec. 30,1999); Ex parte Ronald 
Smith, 756 So. 2d--957 (Ala. Jan 21, 2000).
---------------------------------------------------------------------------
    There is an immediate need to have a system established for 
providing adequately trained and compensated counsel to death row 
prisoners for postconviction review. Without such a system, 
unreliability and unfairness will continue to characterize the 
administration of capital punishment and the risk of executing the 
innocent will be unacceptably high.
Recent Congressional Enactments Have Exacerbated the Problem
    The problem of providing lawyers to death row prisoners for state 
and federal post-conviction appeals has been acute for many years. The 
problem has been worsened by recent legal developments that have 
shortened the period of time by which collateral appeals should be 
filed. Under the Anti-terrorism and Effective Death Penalty Act 
(``AFDPA ''), there is a one year statute of limitations for prisoners 
seeking habeas corpus relief in federal court 28 U.S.C. 2244(d). Under 
the AEDPA, the limitations period begins to run at the conclusion of 
direct review. 28 U.S.C. 2244(d)(1)(A). While the time during which a 
Rule 32 petition is pending does not count toward the federal statute 
of limitation period, 28 U.S.C. 2244(d)(2), a death row prisoner must 
file his Rule 32 petition within one year, to preserve an opportunity 
to appeal his conviction, and sentence in federal court Thus, although 
the statute of limitations under Rule 32 is two years, Ala. R--Crim. 
Proc. 32.2(c), ALDPA has effectively shortened the statute of 
limitations period to one year.
    In addition to death row prisoners having one-half of the time 
previously available to file a Rule 32 petition, the number of death 
row prisoners needing lawyers has dramatically increased since the 
passage of AEDPA.\8\ Because neither state courts nor the state 
legislature has provided a mechanism for appointing counsel to indigent 
death row prisoners, condemned inmates must rely on volunteer lawyers 
to come forward to file their appeals. The reduction of time during 
which lawyers can be recruited from two years to one year has made the 
dependence on volunteer counsel inadequate, the dramatic increase in 
the number of prisoners needing lawyers has made finding sufficient 
number of volunteer counsel impossible.
---------------------------------------------------------------------------
    \8\ Increases in the total number of people on death row, many of 
whom rely on pro bono legal assistance, has drained the available 
number of lawyers to assist Alabama prisoners. Less than 20 percent of 
the death row prisoners in Alabama, who have counsel, are represented 
by law firms or attorneys who are not members of the state bar. 
Moreover, there has been a general decrease in pro bono assistance 
among large law firms. In 1992 lawyers at the 100 highest-grossing law 
firms volunteered an average of 56 hours a year, in 1999 the lawyers at 
those same fines averaged 36 hours a year. Winter, ``Legal Firms 
Cutting Back on Free Services for Poor,'' New York Times, Aug--17, 2000 
at Al. See also, ``Lack of Lawyers Hinders Appeals in Capital Cases,'' 
New York Times, July 5, 2001.
---------------------------------------------------------------------------
    Without greater assurance that indigent death row prisoners will be 
provided legal representation, an unacceptable risk is created that 
innocent people will be executed.
                               conclusion
    The Innocence Protection Act is desperately needed. Postconviction 
DNA testing and improving legal representation for death row prisoners 
is absolutely critical if we are to prevent innocent people from being 
executed and if we are to provide equal justice for all.
    I strongly urge this Committee to recommend passage of this 
important legislation.

                                  Bryan Stevenson, Director
                                Equal Justice Initiative of Alabama

                               APPENDIX A

   Death Sentences Imposed in 1998 and 1999 Combined (Ranking: Death Sentences Per Capita 1998-1999 Combined)
----------------------------------------------------------------------------------------------------------------
                                                                                              Ranking by Death
                                                    1998 and 1999     Sentences to Death    Sentenced Per Capita
          State                  Population        Total Sentenced    Per Capita in 1988      in 1998 and 1999
                                                      to Death             and 1999               Combined
----------------------------------------------------------------------------------------------------------------
              Alabama               4,369,862              41              1: 106,582                      1
             Oklahoma               3,358,044              21              1: 159,907                      2
       North Carolina               7,650,789              44              1: 173,882                      3
             Delaware                 753,538               4              1: 188,385                      4
                     Louisiana      4,372,035              19              1: 230,107                      5
                Texas              20,044 141              87              1: 230,392                      6
          Mississippi               2,768,619              12              1: 230,718                      7
               Nevada              1, 809,253               7              1: 258,465                      8
             Arkansas               2,551,373               9              1: 283,486                      9
       South Carolina               3,885,736              13              1: 298,903                     10
              Florida              15,111,244              45              1: 335,805                     11
              Arizona              4, 778,332              12              1: 398,194                     12
              Georgia               7,788,240              19              1: 409,907                     13
             Missouri               5,468,338              13              1: 420,641                     14
             Virginia               6,872,912              16              1: 429,557                     15
                 Ohio              11,256,654              26              1: 432,948                     16
             Kentucky               3,960,825               9              1: 440,092                     17
         Pennsylvania              11,994,016              27              1: 444,223                     18
           California              33,145,121              74              1: 447,907                     19
              Wyoming                 479,602               1              1: 479,602                     20
            Tennessee               5,483,535              10              1: 548,354                     21
                Idaho               1,251,700               2              1: 625,850                     22
               Oregon               3,316,154               5              1: 663,231                     23
         South Dakota                 733,133               1              1: 733,133                     24
              Ilinois              12,128,370              15              1: 808,558                     25
              Indiana               5,942,901               5            1: 1,188,580                     26
               Kansas               2,654,052               2            1: 1,327,026                     27
             Maryland               5,171,634               3            1: 1,723,878                     28
           Washington               5,756,361               3            1: 1,918,787                     29
                 Utah               2,129,836               1            1: 2,129,836                     30
          Connecticut               3,282,031               1             1:3,282,031                     31
             New York              18,196,601               5            1: 3,639,320                     32
             Colorado               4,056,133               1            1: 4,056,133                     33
           New Jersey               8,143,412               2            1: 4,071,706                     34
              Montana                 882,779               0                     N/A                     35
             Nebraska               1,666 028               0                     N/A                     35
        New Hampshire               1,201,134               0                     N/A                     35
           New Mexico               1,739,844               0                     N/A                     35
----------------------------------------------------------------------------------------------------------------


                                

Statement of Former Prosecutors, Law Enforcement Officers, and Justice 
                          Department Officials

    Dear Member of Congress:
    The undersigned individuals are current and former prosecutors, law 
enforcement officers, and Justice Department officials who have served 
at the state and federal levels. Some of us support capital punishment 
and others of us oppose it. But we are united in our support for the 
federal Innocence Protection Act 2001 (S 486/HR 912).
    Capital cases present unique challenges to our judicial system. The 
stakes are higher than in other criminal trials and the legal issues 
are often more complex. When the government seeks a death sentence, it 
must afford the defendant every procedural safeguard to assure the 
reliability of the fact-finding process. As prosecutors, we feel a 
special obligation to ensure that the capital punishment system is fair 
and accurate.
    The Innocence Protection Act seeks to improve the administration of 
justice by ensuring the availability of post-conviction DNA testing in 
appropriate cases, and would establish standards for the appointment of 
capital defense attorneys. The interests of prosecutors are served if 
defendants have access to evidence that may establish innocence, even 
after conviction, and if they are represented by competent lawyers.
    For these reasons, we are pleased to endorse the Innocence 
Protection Act. Please feel free to contact any of us to discuss this 
matter.

         Mr. William G. Broaddus, Esq.
         Former Attorney General
         Commonwealth of Virginia

         Mr. W.J. Michael Cody
         Former Attorney General
         State of Tennessee

         Mr. Lee Fisher
         Former Attorney General
         State of Ohio

         Mr. Scott Harshbarger
         Former Attorney General
         Commonwealth of Massachusetts

         Mr. Charles M. Oberly, III
         Former Attorney General
         State of Delaware

         Mr. Tyrone C. Fahner
         Former Attorney General
         State of Illinois

         Mr. Charles Hynes
         District Attorney
         Kings County, NY

         Mr. Ralph C. Martin, II
         District Attorney
         Suffolk County, MA

         Mr. Terence Hallman
         District Attorney
         City & County of San Francisco, CA

         Mr. E. Michael McCann
         District Attorney
         Milwaukee County, WI

         Mr. Robert M. Morganthau
         District Attorney
         New York County, NY

         Mr. William J. Kunkle, Jr.
         Former Prosecutor
         DuPage County, IL

         Mr. Francis X. Bellotti
         Former United States Attorney
         Commonwealth of Massachusetts

         The Honorable Phillip Heymann
         Former United States Deputy
         Attorney General
         Department of Justice

         The Honorable Robert S. Litt
         Former Principal Associate Deputy
         Attorney General
         Department of Justice

         The Honorable Irvin Nathan
         Former Associate Deputy Attorney
         General
         Department of Justice

         Ms. Laurie Robinson
         Former Assistant Attorney General
         Department of Justice

         The Honorable Harold R. Tyler, Jr.
         Former Deputy Attorney General
         Department of Justice

         The Honorable Gerald Kogan
         Chief Justice
         Florida Supreme Court (ret.)

                                

                             Columbia University Law School
                                                       July 2, 2001

Senator Patrick Leahy
Chair
Senate Judiciary Committee
United States Senate
224 Dirksen Building
Washington, D.C. 20510

Senator Orrin Hatch
Senate Judiciary Committee
United States Senate
152 Dirksen Building
Washington, D.C. 20510

    Re: Hearings on the Innocence Protection Act, June 27, 2001,

Dear Senator Leahy and Senator Hatch:
    I understand that Alabama Attorney General Bill Pryor has inserted 
into the record of your committee's June 27, 2001 hearing on the 
Innocence Protection Act an October 27, 2000 speech at a bar meeting. 
General Pryor's speech refers to a study colleagues and I conducted 
last summer of rates of serious error in capital cases in Alabama and 
elsewhere in the United States. See James S. Liebman, Jeffrey Fagan & 
Valerie West, A Broken System: Error Rates in Capital Cases at http://
www.law.columbia.edu/instructionalservices/liebman/liebman final.pdf 
(June 2000) [hereinafter, A Broken System], reprinted in part in James 
S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 
1973-1995, 78 TEX. L. REV. 1839 (2000) [hereinafter Capital Attrition].
    General Pryor's speech contains inaccurate statements about our 
study and a faulty analysis of his own data on Alabama cases. I 
therefore respectfully request that you include this letter in the 
record of the hearing, immediately following General Pryor's speech, to 
set matters straight. I understand that the hearing record remains open 
for this purpose until July 5, 2001.
    General Pryor's October 27 speech prompts the following nine 
responses (among others that would require more extended analysis than 
is appropriate here):

    1. In our study, we showed that state and federal courts found 
serious error in, and reversed, 77 percent of the Alabama capital 
verdicts that were imposed and finally reviewed between 1973 and 1995. 
A Broken System, supra, at A-9. General Pryor implies that most of the 
errors we identified in Alabama occurred in the early part of our 1973-
1995 study period, and that Alabama's rate of serious error in capital 
cases improved after that. In fact, the number of serious errors in 
Alabama capital verdicts discovered by state and federal courts during 
the 23-year study period held fairly steady, at about seven per year, 
throughout the entire study period-the beginning as well as the end. 
Alabama errors were not, as General Pryor suggests, front-loaded to the 
early part of the period.
    2. General Pryor also claims that many of the serious errors found 
in Alabama cases were due to Alabama's refusal to permit jurors to 
consider whether the defendant was guilty of an offense less than 
capital murder, thus giving jurors the Hobson's choice of either 
convicting the defendant capitally or acquitting him of homicide 
altogether. The United States Supreme Court ruled that practice 
unconstitutional in Beck v. Alabama in 1980. Why General Pryor believes 
the frequency of Beck error in Alabama cases is a point in Alabama's 
favor is unclear. Beck errors are serious, because (as the Supreme 
Court ruled) they call into question the accuracy and integrity of the 
jury's decision that the defendant was guilty of a capital crime. In 
any event, for the following reasons, it is inaccurate for General 
Pryor to suggest that Beck error was the main reason that 77 percent of 
the Alabama capital verdicts that were finally reviewed during our 
study period were overturned by the courts:
    (A) Most (87%) of the Alabama reversals occurred at the direct 
appeal stage, where duly elected members of either the Alabama Court of 
Criminal Appeals or the Alabama Supreme Court overturned capital 
verdicts because of errors of state or federal law. The single most 
common basis for reversal at that stage was not Beck violations (as 
serious as they are) but, rather, unlawful practices designed to keep 
African-American citizens from serving as jurors in capital cases.
    (B) Over half of the remaining Alabama reversals occurred at the 
state post-conviction stage, following rulings by either elected 
Alabama trial judges or, again, by elected members of the Alabama Court 
of Criminal Appeals and the Alabama Supreme Court. At that stage, 67% 
of the errors were of three types: incompetent lawyenng, prosecutorial 
suppression of evidence or other prosecutorial misconduct, and jury 
bias. See A Broken System, supra, at C-6.
    (C) The most common source of error at the third and final (federal 
habeas corpus) review stage was, again, incompetent lawyering.
    As one would expect of the judges elected by the citizens of 
Alabama or appointed by the President to uphold the law, their reasons 
for overturning more than three-fourths of the state's fully reviewed 
death sentences during the 23-year study period were serious and a 
cause for concern-not only about each of the cases in which error was 
found, but also about the reliability of the capital system as a whole.
    3. General Pryor's speech claims that our study ``does not define 
`error rate' or ``the basis for qualifying something as `error.' '' 
General Pryor did not read our study. (From the moment we issue the 
report last June, it has been publicly available for free to all 
members of the public on a number of web sites, including: http://
www.law.columbia.edu/instructionalser-vices/liebman/liebman final.pdf). 
The study extensively defines both ``error rate'' and ``the basis for 
something qualifying as `error.' '' See A Broken System, supra, at 5-6, 
25-27 & nn.33, 36, 38, 40, 42; Appendices C and D. As the study 
explains:
    (A) Our definition of error is the courts' own definition-we made 
no subjective judgments of our own, and instead relied entirely on the 
courts' own judgments. '
    (B) Error defined by the courts as reversible (the only kind we 
counted) is serious error, because it requires a finding by a full set 
of courts that the defect in the case that required the state or 
federal courts to overturn a capital verdict and order a retrial of 
guilt-innocence, sentence, or both was ``non-harmlesss,'' ``actually 
prejudicial,'' or ``inherently prejudicial'' as the United States and 
Alabama Supreme Courts have carefully defined those legal standards.
    4. General Pryor suggests that he called us to ask us to define 
these two phrases. We never received a telephone call, e-mail, letter 
or other inquiry of any sort from General Pryor or any member of his 
staff. Had he called, we would have happily supplied him with a copy of 
the Report and directed him to the definitions of ``serious error'' and 
``error rates'' that are a prominent part of the text and supporting 
materials and are cited above.
    5. General Pryor says we ``cannot supply you with a list of the 
names of all of the cases [w]e considered.'' This is inaccurate. We 
have case lists for all 34 states in our study. Those lists will be 
posted on a publicly accessible web site maintained by the University 
of Michigan when we complete our study late this year or early next 
year. In the meantime, we have made the lists available to requesters, 
including the press, pursuant to a data-sharing agreement drafted by 
the General Counsel of Columbia University.
    6. General Pryor says we ``cannot give you a baseline of non-
capital cases with which to compare his error rate.'' General Pryor did 
not read our report. The baseline to which he refers was published in 
the Texas Law Review (``Capital 
Attrition '') at p. 1854, with sources provided in footnote 49.
    7. In his speech, General Pryor says we cannot defend our 
``conclusion that the high error rate [w]e found . . . means that there 
is a risk of an innocent person being executed . . . .'' We would like 
to directly study the number of innocent individuals executed in the 
United States in the modern era, but no such study is possible because 
state attorneys in Virginia and elsewhere have consistently refused to 
disclose the information in their files (including DNA samples) that 
are indispensable to any such inquiry. See, e.g., Frank Green, DNA 
Tests Not Likely after an Execution: Va. Opposing Third Request of its 
Kind, Richmond Times-Dispatch, March 26, 2001. Like other Americans, 
therefore, we are forced to rely on evidence of risk, because the 
evidence of what actually happened is not available. The evidence of 
risk is substantial, in Alabama as elsewhere. When jurors are forbidden 
to convict defendants of the crime they actually committed and instead 
are required either to convict them of a more serious crime, of which 
they are innocent, or release them altogether-this being the Beck error 
that the Attorney General acknowledges occurred with some frequency in 
Alabama-that creates an obvious risk that people who did not commit a 
capital crime will be executed. The same is true of defendants denied a 
jury of their peers because African-Americans were excluded, defendants 
represented by incompetent lawyers, and defendants prosecuted by 
officials who withheld evidence of innocence. Yet, these are the very 
kinds of errors that were most common in Alabama, as elsewhere, during 
our study period. Such error puts a difficult burden on appellate 
courts to catch and correct all the problems. When there is so much 
error (e.g., in 77 percent of the fully reviewed cases in Alabama), and 
when the error is so serious, there is a risk-a real risk-that some of 
it will slip through the inspection process and never be caught. If 
American Airlines or U.S. Airlines had a 77 percent rate of equipment 
failure, we would undoubtedly conclude that the risk of innocent death 
is far too high-no matter how good those airlines' inspection 
procedures were for catching problems. The same is true here.
    8. General Pryor reports his own data about all Alabama capital 
cases from the 1970s until October of last year. His figures confirm 
our findings. He reports 281 death sentences, of which 180 have not 
reached a final outcome in the courts, and 10 more were ended prior to 
a final outcome when the prisoners died in prison while the review 
process was continuing. Of the 91 remaining death verdicts, which were 
finally determined, 63 were reversed by the courts, 4 were abandoned by 
prosecutors as the result of settlements after errors were challenged 
in court, and only the remaining 124 cases were cleared by the courts. 
The reversal rate revealed by General Pryor's own figures thus is 67 
(63 + 4) overturned out of 91 fully reviewed, or 74 percent. We found a 
77 percent reversal rate for the period through 1995. General Pryor has 
carried the study forward through the first half of 2000, and found 
that the reversal rate remains about three-quarters, with only a 
negligible improvement in the most recent years.
    9. General Pryor reports a smaller figure as the reversal rate. He 
gets his figure by using the 281 death verdicts imposed in Alabama, not 
the 91 verdicts that were actually reviewed by the courts, as his base. 
That is not an appropriate way to calculate an error rate because it 
inaccurately assumes that 100 percent of the thus far unreviewed cases 
(A) have been reviewed, and (B) have all been found to be without 
error. When 74 percent of the reviewed cases were found to contain 
reversible error, it is not appropriate to assume (as General Pryor 
does) that none of the unreviewed cases contain such errors. To use 
another example, if an automobile plant manufactured 281 vehicles, but 
only subjected 91 of them to inspections, and if 67 of the inspected 
vehicles were found too flawed to go to market and had to be sent back 
for retooling or scrap, we would not permit the plant to report a 124% 
error rate (as bad as that rate would be) by dividing 281 by 67. 
Instead, we would demand to know how many of the inspected cars were 
found to have serious problems-meaning 91 divided by 67, or 74 percent. 
The same applies here.
    Thank you very much for the opportunity to insert these comments in 
the record of the July 27 hearing.
            Sincerely,

                                           James S. Liebman
                                  Simon H. Rifkind Professor of Law
                                                Columbia Law School

                                

                                Lindquist & Vennum P.L.L.P.
                                  Minneapolis MN 55402-2205
                                                      June 26, 2001

Hon. Patrick Leahy
United States Senate
433 Russell Senate Office Building
Washington, D.C. 20510

    Dear Senator Leahy:

    I have been asked to share with you and the Judiciary Committee 
some experience that I have had representing an innocent person who 
spent thirteen years on death row in the State of Louisiana. On January 
2, 2001, Albert Burrell walked out of the Louisiana State Penitentiary 
at Angola a free man. Unfortunately, Mr. Burrell is unable to tell you 
his own story using his own words. He is mentally retarded, 
schizophrenic and most likely suffered a serious brain injury as a 
child. He is also illiterate. Given his disabilities, he most likely 
does not know and is probably incapable of understanding the various 
ways in which the system failed to protect him.
    In the fall of 1987, Mr. Burrell was convicted for murdering two 
elderly residents of Northern Louisiana over the Labor Day holiday 
weekend in 1986. The day after the jury determined his guilt, they 
unanimously agreed that he should die for his crimes. Mr. Burrell was 
then sent to death row at Angola. The conviction and death sentence was 
unanimously affirmed by the Louisiana Supreme Court. Similarly, two 
motions for a new trial were presented to the trial court but were 
rejected.
    My law firm agreed to represent Mr. Burrell on a pro bono basis in 
early 1992. Over the years, as we were slowly granted access to the 
State's files on the case, our investigation uncovered substantial 
misconduct by law enforcement officers and prosecutors in securing the 
convictions of Mr. Burrell and his co-defendant, Michael Graham. Police 
investigation reports and witness statements that contradicted both 
trial testimony and the State's theory of the case had been suppressed. 
The State also withheld information concerning plea agreements with a 
jailhouse snitch that, at least with respect to Mr. Burrell, the State 
knew was lying. The significant government misconduct involved in Mr. 
Burrell's case most likely could fill a separate hearing of your 
committee. Nevertheless, in the summer of 1996, a warrant for Mr. 
Burrell's execution was issued. When we finally obtained a stay, Mr. 
Burrell was only seventeen days from execution.
    As if misconduct by the State were not enough, a review of the 
record in Mr. Burrell's case also revealed a shocking incompetence by 
his counsel. Mr. Burrell was represented at trial by two young lawyers. 
The lead attorney, Keith Mullins, had been out of law school less than 
four years. His associate, Roderick Gibson, had been in practice less 
than two. Neither lawyer had ever tried a capital murder case; in fact 
Mr. Mullins had only handled a relatively few felony cases of any kind 
in his career.
    As an initial matter, the lawyers were woefully unprepared when 
they began the trial. They did not investigate Mr. Burrell's 
significant mental health history--Mr. Mullins told me many years later 
when I interviewed him that he did not realize that Mr. Burrell had 
mental health problems. Instead, he simply thought Mr. Burrell was ``a 
little slow.'' They did not investigate the long standing child custody 
dispute between Mr. Burrell and his ex-wife, a critical prosecution 
witness who admitted to me that she lied about Mr. Burrell in order to 
regain custody of her son away Mr. Burrell, her ex-husband. They did 
not investigate a civil settlement that Mr. Burrell received from his 
former in-laws for injuries he received during an assault by his former 
father-in-law. The source of this money would have fully explained why 
Mr. Burrell supposedly had more money than his ex-wife had ever known 
him to have at the time of the murders. The State had advanced a theory 
that Mr. Burrell got the money from the victims after he killed them.
    The defense team also did absolutely nothing to prepare for the 
penalty phase of the case. When it came time for that part of the 
trial, the defense called only one witness, Mr. Burrell, and then 
elicited no useful or relevant testimony. No effort was made to present 
any mitigating facts before the jury. Any lawyer who were to read the 
very short transcript of the penalty phase of that trial (it's less 
than 20 pages) would be ashamed for the profession.
    The defense provided by these lawyers was worse than ineffective; 
in many instances, the defense lawyers blundered so badly that they 
themselves elicited damaging evidence against their own client, 
evidence that in at least one instance could not have been presented to 
the jury. For example, during Mr. Mullins' cross examination of law 
enforcement officers, he questioned why they had never asked Mr. 
Burrell about his alibi. The response was that Mr. Burrell refused to 
talk with police without a lawyer being present and that Mr. Mullins 
later refused to permit the police to interview Mr. Burrell. The State 
could never have even mentioned Mr. Burrell's invocation of his right 
to remain silent but for Mr. Mullins pitiful examination. In another 
example, after a critical prosecution witness had admitted that the man 
she had seen on the night of the murders was not Mr. Burrell, Mr. 
Mullins bumbled his way through the remainder of the examinaiton that 
by the time it was completed, the witness was claiming that perhaps it 
was possible the man she saw was his client. The message that Mr. 
Mullins communicated to the jury during that exchange must have been 
that he thought his own client guilty.
    Mr. Mullins was also unable to demonstrate even basic trial skills, 
such as impeaching witnesses. Almost every time he made an attempt at 
the impeachment of a witness during the course of the trial (such 
opportunities were numerous in a case that the prosecutor had 
originally opined should not even be presented to the grand jury), the 
State's objections were sustained. Mr. Mullins was not able to follow 
the correct procedures. At one point, the trial judge took pity on Mr. 
Mullins and actually explained the steps he needed to follow in order 
to lay proper foundation for reputation testimony. Even then, Mr. 
Mullins was unable to lay the foundation and failed to get the 
testimony before the jury. This list of the lawyers' shortcomings is, 
by no means, exhaustive. These are just some of the examples.
    Incompetence alone, however, does not explain the poor defense that 
Mr. Burrell received from the lawyers. After Mr. Burrell's conviction 
and death sentence, Keith Mullins was indicted in federal court in 
Louisiana for cocaine trafficking. He ultimately pled guilty to a 
marijuana charge and was sentenced to serve a prison term. He did, 
however, receive a downward departure from the federal sentencing 
guidelines because of his own previously undisclosed mental illness. He 
was subsequently disbarred from the practice of law.
    His associate, Mr. Gibson, was also criminally charged after Mr. 
Burrell's conviction. He ultimately pled guility to stealing client 
money. He too has been disbarred.
    Mr. Burrell never had a chance. Between the unscrupulous 
prosecution and the incompetent defense, Mr. Burrell's fate was 
certain. Thankfully, we prevented the State of Louisiana from killing 
him and were able to secure his release after the State concluded 
following its own investigation that there was no credible evidence 
tying him to the murders. Today, Albert Burrell lives on a very small 
ranch in Texas with his sister.
    The Innocence Protection Act is a critical first step to helping 
ensure that cases such as Mr. Burrell's do not recur. I strongly urge 
its adoption.
            Respectfully yours,

                                           Charles J. Lloyd

                                

     Statement of Clive Stafford Smith, Director, Louisiana Crisis 
                           Assistance Center

    Chairman, Members of the Committee:
    Thank you for inviting me to address the problems with the defense 
of those charged with capital crimes in the State of Louisiana. As a 
lawyer, I have been involved in defending capital cases for 17 years. 
Since 1993, I have been the director of the Louisiana Crisis Assistance 
Center, a not-for-profit legal services organization founded to address 
the crisis in capital defense representation in that state.
    There is an old saying in capital defense circles in the United 
States that `capital punishment means them without the capital get the 
punishment.' Nowhere was this adage more true in 1993 than Louisiana. 
At that time, people facing the death penalty were represented by 
lawyers paid next to nothing for their work on these complicated and 
emotionally difficult cases. The caseload, and lack of resources, of 
some of the public defenders had reached such crisis limits that one 
lawyer in the western part of the state attempted suicide on the 
morning of a capital trial.
    Plus ca change, plus ca reste meme. A decade ago, a study 
commissioned by the state Supreme Court indicated that a minimum of $21 
million was needed to provide basic defense services in Louisiana. Ten 
years on, and the vast majority of the funds have not been forthcoming.
    The profile of indigent defense in Louisiana is balkanized chaos. 
The first major problem is the inadequate funding. Most states fund 
indigent defense through a central government. Not so Louisiana, where 
the majority of the inadequate funding comes from traffic tickets 
issued by the local police. In one parish, when the public defender was 
too aggressive, the police stopped writing tickets, bringing the office 
close to bankruptcy. The local indigent defender boards are appointed 
by the judges, and must ask the judges for any increase on the ticket 
assessment. They come under heavy pressure not to rock the political 
boat, and 35 of the 41 districts do not even collect the maximum income 
permitted, $35 per ticket.
    The second problem is the quality of counsel in both capital and 
non-capital cases. In the vast majority of Louisiana's 41 districts, 
public defenders are part time. This means that they have private 
practices on the side--or, to be more honest, they have public defender 
jobs ``on the side.'' In New Orleans, for example, a public defender is 
permitted to ask a client to retain him (generally, upon the promise 
that he can expect better representation that way).
    The number of lawyers available is wholly inadequate. We are 
currently conducting a study of three of the largest districts, in New 
Orleans, Baton Rouge and Lake Charles. In Baton Rouge, public defenders 
average 3 80 open cases at any given moment. The numbers that are 
opened during a year range to a high of over 700 cases. Given that most 
of us do not know that many people in the world, it is obviously 
impossible to provide that number of clients with effective 
representation. This is all the more true when one considers that even 
the director is part time, and most of them probably spend less than 
half their time on their indigent work.
    Since 1994, there has theoretically been a requirement that lawyers 
be ``certified'' for trying capital cases. Unfortunately, when the 
regulation was enacted, opponents ensured that a rider was added saying 
that the provision would create no rights that could be raised on 
appeal. Thus, Dan Bright was sentenced to death for a crime he did not 
commit after being represented by a lawyer who was drunk during the 
trial. The lawyer only called one witness (Mr. Bright's mother) at the 
penalty phase, and asked her only two questions--her name and whether 
she knew her own son. Shareef Cousin, a sixteen year old, was likewise 
sentenced to death for a crime he did not commit; his lawyer's first 
step in preparing for a penalty phase was a phone call made to my home 
after the guilty verdict.
    Overall resources are pitiful. In Lake Charles, the average time 
the lawyers spend visiting their felony clients at the jail (including 
capital clients) was 69.6 seconds per year. With only one investigator, 
the office generates only one witness interview memo per two hundred 
clients. I have never tried a case, capital or non-capital, without 
consulting an expert on some subject or other; in Lake Charles, they 
average only one expert per two hundred cases.
    The lack of investigative assistance is a monumental problem in 
capital and non-capital cases alike. No criminal charge, from a car 
accident to a capital case, should proceed without a complete 
investigation. ``At the heart of effective representation is the 
independent duty to investigate and prepare.'' Goodwin v. Balkcom, 684 
F.2d 794, 805 (11th Cir. 1982). Yet Lake Charles has one 
investigator who is responsible for a current office caseload of 
roughly 9,000 cases, including, at the moment, twelve capital cases. 
The New Orleans public defenders have only six investigators who are 
meant to provide assistance in 16 felony courts, as well as another 
dozen juvenile, magistrate and municipal courts. At a most basic level, 
the imbalance between prosecution and defense is reflected by the fact 
that the Office of the District Attorney has 24 investigators, in 
addition to the assistance of the thousands of officers with the NOPD. 
The public defenders receive no federal funds, while grants are made 
readily available to the prosecution.
    Consider the impact of this inequity: In an experiment from January 
1999 to June 2000, my office took over the burden of capital 
preliminary hearings from the public defenders. We were ultimately 
involved in precisely 100 cases where citizens had been arrested for 
capital murder, and preliminary hearings were held. Where, before, 
there had been no investigation to determine whether the client was 
properly charged, we put an investigative team on each case. When we 
exposed the truth, the State chose to dismiss the charges against 
almost half (49) of these citizens. In that 18 month period, in not one 
case where we did the preliminary hearing was the client ultimately 
found guilty of first degree murder, let alone receive the death 
penalty.
    This might be considered a success story; sadly, it is not. First, 
we must remember the hundreds of men and women who were arrested before 
1999. Angola Penitentiary holds 90 people on Death Row, and over 3,460 
serving life without the possibility of parole. The Australian State of 
Victoria, with a population roughly twice as large as Louisiana, does 
not have that many people in prison for any charge. Yet many of those 
serving life or death in Louisiana stem from New Orleans convictions, 
and were apparently victims of the earlier system. Second, and perhaps 
even more sad, my office's intervention was so successful that we came 
under heavy criticism from those committed to the status quo ante, who 
prefer that the PD's ineffectual boat remain afloat. We have recently 
been forced out of providing this critical service.
    The availability of expert assistance is also critical to fairness. 
In 1985, the United States Supreme Court held that an indigent capital 
defendant has the right to a state-funded expert. Ake v. Oklahoma, 470 
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Louisiana, enormous 
problems are posed by scientific evidence that is downright bogus. This 
is partly due to the inadequate funding and expertise in the local 
crime labs, and partly due to the lack of experts available to the 
defense. In one of the smaller parishes, for example, an experienced 
public defender admitted to using just one independent expert in twenty 
years.
    The same is true across the state. Ricky Coston spent two years 
awaiting a trial for his life in New Orleans, before being acquitted in 
December 1998. The only evidence that purportedly linked him to the 
crime was a single fiber. The NOPD crime lab technician simply should 
not have been acting as an expert in any kind of criminal case. He 
began doing fiber analysis in criminal cases before he had his first 
training seminar in the speciality, and initially issued a report 
saying that a fiber from Ricky's jacket matched the victim's green 
blanket. He amended the report to reflect that it matched a blue 
sweater. The sweater turned out to be a pair of socks. My office 
secured two independent experts to review the work-apparently, the 
first time the defense had ever challenged his findings--and determined 
that the picture of the ``matching'' fibers was falsified. I reported 
this profound misconduct to the NOPD, which took no action. I filed a 
federal civil rights suit on behalf of Mr. Coston, which the NOPD felt 
constrained to settle. Still they took no action against the 
technician, who is still working on capital cases.
    In recent years, the Orleans Parish public defender office has been 
faced with several thousand clients, and dozens of people charged with 
capital murder every year. The office has a total budget of only $2 
million, representing a handful of dollars a case. Faced with a choice 
between paying staff salaries and the experts needed for the defense, 
the office actively opposes lawyers seeking funds for independent 
experts, and the director recently sought to fire a staff attorney for 
asking for one.
    Across the United States, there is much talk of DNA as a 
significant forensic tool. However, it is not relevant to the vast 
majority of criminal prosecutions and, even where it might prove 
helpful, it is rarely used in Louisiana. My office has been involved in 
more than 150 capital cases in the past five years, and DNA has been 
used in only one. While a DNA testing bill was passed by the state 
legislature this year, it is the same old story: No funds were 
appropriated to pay for it, and the legislature refused to include a 
provision mandating that the state preserve evidence for possible 
testing. The vast majority of those who could benefit are at the Angola 
State Penitentiary without lawyers or resources, yet they must prove to 
a judge that the evidence can demonstrate innocence before they will 
even have a right to testing.
    Another major factor, that implicates the lack of resources for a 
defense investigation, is the lack of discovery in criminal cases. To 
an average citizen, the law must seem bizarre: The contents of the 
police file are not discoverable until after the client is on death 
row, and has lost his first appeal of right--in other words, until 
after it is most needed. Unfortunately, there has been a pattern of 
abusing even these limited discovery obligations. New Orleans has a 
particularly shocking reputation in this regard. Curtis Kyles was on 
death row for several years until the United States Supreme Court 
ordered a new trial based on the suppression of evidence. Kyles v. 
Whitley, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). And yet his case is by 
no means the most extreme example. John Thompson came within days of 
execution two years ago before it came to light that the prosecutor had 
destroyed blood evidence that categorically excluded him as the 
perpetrator of the robbery that enhanced his case to one where the 
death sentence would be imposed.
    So far, six persons sentenced to death in Louisiana have 
subsequently been found innocent by the state process. Shareef Cousin 
was, at the age of sixteen, the youngest person sentenced to Death Row 
in the world. In 1995, Shareef was charged with a politically sensitive 
crime in New Orleans that ``had to be solved.'' A white tourist in the 
French Quarter was tragically killed by a group of three black youths. 
Not only did defense lawyers fail to call upwards of twenty witnesses 
who could have demonstrated beyond any doubt that a videotape of 
Shareef playing basketball in a neighborhood gym was being taped at the 
precise time of the crime; but the prosecution literally kidnaped four 
alibi witnesses and held them in the D.A.'s office until the trial was 
over.
    Our office took over his case on appeal, and for the retrial. Our 
investigation uncovered even greater misconduct on the part of the 
police and prosecutors. The authorities knew the identities of the 
actual perpetrators just days after the crime, but declined to arrest 
and prosecute them. Along with four hundred pages of information that 
led directly to the real perpetrators, the prosecution intentionally 
suppressed the sole eye-witness's statement in which she said she had 
not been wearing her glasses, and could not identify anyone. 
Shockingly, one NOPD detective apparently secured the $10,500 
Crimestoppers reward by calling in a false tip against Sharee# After we 
exposed some of this abuse, the district attorney's office was forced 
to dismiss the case.
    We were so horrified by the misconduct that permeated the local 
authorities that we felt that something had to be done on a systemic 
level. However, our research revealed that no local prosecutor had ever 
been prosecuted for these kinds of criminal acts-after all, which 
prosecutor is going to place a brother or sister prosecutor in prison? 
More surprising, no prosecutor from New Orleans has ever been 
sanctioned by the bar for such actions. Mr. Cousin's sister reported 
the prosecutor who suppressed evidence in that case to the bar 
association, and yet no action has been taken on her charges in four 
years.
    Left with only one option, we filed a federal civil rights suit 
against the prosecutors who were responsible. Recently, United States 
District Judge Sarah Vance dismissed the suit against them, holding 
that prosecutors were ``absolutely immune'' from suit for any actions 
taken in the course of the prosecution--including kidnaping witnesses, 
falsifying evidence, and acting out of racial animus. What has the 
world come to, when a prosecutor can rely on the federal courts to 
grant him immunity for the criminal offenses he committed in placing a 
child on Death Row for a crime he did not commit? This is very much a 
federal concern--the federal courts fashioned this ``immunity'' out of 
whole judicial cloth, without any input by Congress, casting a 
protective blanket over state prosecutors even when they are guilty of 
intentional criminal acts taken in bad faith. It is, with due respect, 
Congress that should take that blanket back. Those charged with 
defending capital clients in Louisiana, for one, do not have the 
resources to keep on fighting this hopeless battle against such 
misconduct.
    Indeed, there is a desperate need for federal intervention in the 
way that federal employees contribute to the imbalance in capital cases 
in Louisiana. Two weeks ago, I was conducting a postconviction hearing 
in the case of Dan Bright, who was originally sentenced to death in 
1996. At the time of the trial, the State knew that the co-defendant 
had written statements insisting that Mr. Bright was innocent, but they 
manipulated the case so the co-defendant could not be called as a 
witness. As I previously mentioned, Mr. Bright was represented by a 
lawyer who was inebriated during the capital trial, and an innocent man 
was sentenced to death. In post-conviction proceedings, we filed a 
Freedom of Information Act request, and the DOJ provided a page of 
materials that was heavily redacted. It reflected a statement by an 
informant (whose name was likewise redacted) saying:
that daniel bright, aka ``poonie'' is in jail for the murder committed 
                       by ----------------------
    The name of the true perpetrator of this murder was blacked out. 
Thus, the DOJ knew of a witness who could expose the real killer before 
Mr. Bright's state court trial. The DOJ knew Mr. Bright was on trial 
for his life, and did not bring this information to the attention of 
the state or the defense. Even worse, the United States Attorney is now 
actively opposing the defense request for either the name of the 
informant or the name of the perpetrator now. The U.S. Attorney has 
filed a motion to remove our subpoena to federal court and quash it. He 
provides no discussion of why the federal government should suppress 
evidence of the real killer, but rather seems to be saying that Might 
makes Right: ``We have the power, so therefore we will [ab]use it.''
    Indeed, the Fifth Circuit has judicially fashioned a rule of 
``sovereign immunity'' that allows any federal agency to refuse to 
honor subpoenas issued in state court. State of Louisiana v. Sparks, 
978 F. 2d 226, 232-3 (5th Cir. 1992). This is another rule fashioned 
out of judicial whole cloth; it is within the power of the federal 
government to amend it and, with all due respect, this Committee should 
get on with the task.
    Another huge factor in the conviction of the innocent in Louisiana 
is, sad to say, the number of corrupt police officers. Without meaning 
to denigrate the large numbers of fine officers on the beat, the number 
of bad apples is frightening. In various capital cases, we secured 
judicial findings that New Orleans police officers had committed 
perjury. We brought these to the attention of the NOPD hierarchy; they 
did not even bother to ask for the documentary evidence. We notified 
the NOPD that the lead detective in the Cousin case had apparently 
falsified the evidence in order to collect the $10,500 CrimeStoppers 
award; they showed no interest. In another capital case, we were 
representing a witness who had been told by an NOPD officer that they 
had the ``winning'' Crimestoppers number, and she could have it if she 
toe'd the right line; we met with representatives of the U.S. Attorney, 
with a view to setting up a sting on the officer, but was told that 
this, and all our other complaints, were matters for the state 
authorities.
    The resources in post-conviction are also pitiful. To be sure, this 
year the State of Louisiana established a post-conviction office. 
However, the legislature refused to fund the new mandate. Rather, the 
state simply did away with the fund for expert assistance that had 
previously existed, and raided some of the other limited funds that had 
been dedicated to capital litigation. Additionally, this came five 
years after the elimination of federal funding for a similar office. 
Now, then, there are three full-time lawyers for the 90 people who 
expect to be in post-conviction over the next couple of years. As a 
result, my office is trying to help in seven cases, although we are 
told that we will receive not one cent for this work next year.
    It is no fun trying to defend a capital client without resources, 
and with both hands tied behind your back. Yet the problems of the 
defense lawyer are utterly inconsequential compared to the horrors of 
facing a capital charge, or sitting on Death Row, for a crime that one 
did not commit. I have had the privilege of being involve in the 
defense of more than 50 men, women and children who faced death for 
something they patently did not do. Even as I prepare this statement 
for this Committee, I could name at least two people on Death Row who I 
think are almost definitely innocent. I could name half a dozen who are 
now serving life without parole. How can we possibly allow such 
tragedies to persist?

                                

 Statement of Charles J. Press, Director, Mississippi Post-Conviction 
                            Counsel Project

    Chairman, Members of the Committee:
    I appreciate the opportunity to address the Committee on this 
extremely important issue. As an attorney, I have been representing 
death row prisoners on direct appeal, state post-conviction, and 
federal habeas corpus proceedings for nearly 9 years, both in 
California and Mississippi. Since December of 1998, I have been the 
Director of the Mississippi Post-Conviction Counsel Project, a two-
person, non-profit office which directly represents death sentenced 
prisoners in post-conviction and federal habeas corpus proceedings, and 
assists lawyers handling capital cases in all stages of litigation. 
Having observed how the judicial system treats capital cases in both 
California and Mississippi has given me a unique perspective on how the 
amount of resources available to represent those facing the death 
penalty is perhaps the single most important factor in ensuring that 
the unfathomable never happens: the execution of an innocent person.
    Mississippi is the poorest of the 50 states, and the resources 
devoted to the defense of those facing the death penalty are a 
reflection of that. There is no state-wide public defender system in 
Mississippi. Of the 82 counties in Mississippi, only 3 counties have 
full-time public defender offices: Hinds County, which includes 
Jackson, the largest city in Mississippi; Washington County, which 
includes Greenville, the fifth largest city; and Jackson County, which 
includes Pascagoula, the ninth largest city. Not surprisingly, of the 
63 persons on Mississippi's death row, only 4 of these are from Jackson 
County, and none are from either Hinds or Washington County. This is 
despite the fact that the homicide rates in Jackson and Greenville are 
among the highest in the state, and Jackson has one of the highest 
homicide rates in the nation.
    The overwhelming majority of people in Mississippi facing the death 
penalty, nearly all of whom are indigent, are represented by court-
appointed counsel with little, or no experience in handling death 
penalty cases. Mississippi has no standards for appointment of counsel 
in capital cases. Recently, a lawyer who had been admitted to the 
Mississippi Bar for less than a year was appointed to represent a 
criminal defendant facing the death penalty. In fact, his only criminal 
experience prior to this appointment was defending HIMSELF on a charge 
of driving while intoxicated.
    Most attorneys who represent criminal defendants facing the death 
penalty have a busy private practice and take criminal appointments in 
capital cases to supplement their income. Unfortunately, the income 
these attorneys derive from capital cases is scant. In Mississippi, 
under Miss. Code Ann. Section 15-17, attorneys handling capital cases 
are only entitled to $1,000 as compensation. Furthermore, attorneys are 
only entitled to be reimbursed for actual expenses or a presumptive 
rate of $25 per hour. See Wilson v. State, 574 So. 2d 1338 (Miss. 
1990).
    The result of these meager fees is that lawyers spend very little 
time preparing for capital cases when they know, at the outset, that 
they will only be receiving a flat fee of $1,000. The livelihood of 
these attorneys is made by the hourly billing and fees they generate 
from paying clients. They simply cannot afford to take time away from 
their paying clients to represent their clients who are facing the 
death penalty. As a result, they ignore their capital clients and 
prepare little, if at all, for their trials.
    Some attorneys handling capital cases have contracts with one or 
more judicial circuits to handle ALL criminal cases from that circuit. 
These contracts are for a fixed fee per year. Many of these contracts 
are for $30,000 or less. Attorneys operating under these contracts 
often refer to themselves as ``part-time public defenders'' because 
they also represent fee-paying clients to supplement their income. 
Unfortunately, these attorneys are generally not allowed to refuse 
appointments in criminal cases under these contracts. If they do, the 
judge can rescind the entire contract. Many attorneys who have 
attempted to refuse appointments in death penalty cases because they 
were unqualified are told by judges that their contact will be 
terminated unless they accept the appointment. Having never represented 
a person facing the death penalty is not a valid reason for a refusing 
a capital case appointment under this system.
    Trial judges in Mississippi have sole discretion over appointing 
and compensating lawyers to represent capital defendants. They also 
have complete discretion regarding appointment and funding for experts, 
and other assistance. Although there are some judges who pay more than 
the $1,000 fee for capital cases, the overwhelming majority do not. 
Because trial judges are elected by a constituency that overwhelmingly 
supports capital punishment, there is extreme political pressure to 
ensure that defendants facing the death penalty receive as little money 
from the county budget as possible. The fact that many of these 
counties are among the poorest in the nation only further ensures that 
indigent capital defendants will receive the bare minimum towards their 
legal representation. In Quitman County, the County Supervisors had to 
raise property taxes on all residents simply to pay for two death 
penalty trials. Other counties have reported being unable to purchase a 
much needed new fire truck or constructing sewer systems for small 
towns where residents still use outhouses. Judges, therefore, do not 
want to be put in a position of depleting county funds to pay for a 
person charged with a capital crime.
    The result of having underpaid, unqualified lawyers representing 
capital defendants is clear: defendants facing the death penalty are 
not receiving their constitutional right to effective counsel. Capital 
trials in Mississippi, from the beginning of jury selection until 
sentencing, are usually completed within a week. By contrast, jury 
selection in a capital trial in California can often last several 
weeks. Per capita, Mississippi has the fifth largest death row in the 
nation.
    In one recent case, a lawyer handling a death penalty had not 
interviewed a single witness the weekend before the trial was to begin. 
Neither he, nor co-counsel, had ever tried a capital case before. Lead 
counsel was provided with sample motions challenging the DNA evidence, 
which was riddled with errors, as well as a motion for a continuance. 
Counsel, however, decided not to file any of these motions or ask for 
more time to prepare. Jury selection began on Monday morning. By 
Wednesday afternoon, the client had been convicted and sentenced to 
death.
    In July of 2000, Mississippi passed legislation to create a state-
funded capital trial office and authorized the Governor to appoint a 
Director. However, because the Governor has yet to appoint a Director 
to this new office, it is unclear when the office will open its doors. 
Even when it does, it will face significant obstacles. The legislation 
provides for a Director, three attorneys, and two investigators. With 
dozens of capital indictments pending statewide in Mississippi each 
year, the new office, even if it has qualified personnel, will not be 
able to provide representation to all defendants facing the death 
penalty. Moreover, the legislation did nothing toward creating 
standards for the appointment of counsel in capital cases, or raising 
the $1000 flat fee also remains. Trial judges retain the authority over 
appointment of counsel. Therefore, a trial judge has the power to 
refuse appointing the new office to a capital case. Although, on the 
surface, it would seem as if a trial judge would prefer to appoint an 
office with attorneys who would not seek compensation from the judge's 
county, qualified, experienced capital counsel will likely seek expert 
assistance, which must still be paid out of county funds. A trial judge 
can ensure that his county will not bear the cost of an expensive 
capital trial if he appoints a lawyer who does not know to ask for 
expert assistance.
    The situation regarding appeals and post-conviction for death 
sentenced prisoners is hardly better. Under Mississippi law, the SAME 
lawyer who represents a client facing the death penalty at trial MUST 
represent the defendant on direct appeal. If new counsel represents a 
death sentenced prisoner on direct appeal, counsel must raise all 
issues of ineffective assistance of counsel in the same appeal, without 
the benefit of having the resources provided to post-conviction counsel 
for discovery, investigative and expert assistance. Therefore, the 
same, unqualified attorney who represented the client at trial is now 
representing him on his primary challenge to his conviction and death 
sentence. Moreover, counsel is given the same, meager $1,000 as 
compensation.
    Until 1998, death sentenced prisoners in Mississippi were not 
afforded the right to counsel in post-conviction proceedings. However, 
under pressure from a federal law suit challenging the lack of post-
conviction counsel, the Mississippi legislature, in July of 2000, 
created the Office of Capital Post-Conviction Counsel. This new office, 
consisting of a Director, two staff attorneys, and one investigator, is 
responsible for either directly representing, or finding alternate 
counsel for all 63 prisoners. For those cases where alternate counsel 
has been appointed, most of the lawyers are from states other than 
Mississippi. While the Mississippi Supreme Court created standards that 
counsel must meet before they can be appointed to represent death 
sentenced prisoners in post-conviction proceedings, only a handful of 
lawyers in Mississippi meet these qualifications. This, of course, is 
in large part because the right to counsel did not exist prior to 1998, 
so few Mississippi lawyers have ever handed a death penalty case in 
post-conviction proceedings.
    The Mississippi Supreme Court has also allowed attorneys 
representing death sentenced prisoners in post-conviction proceedings 
to receive higher compensation than the $1,000 rate, and to seek funds 
for investigative and expert assistance. These attorneys, however, must 
request these fees from the trial courts. Although the fees are now 
being paid from a state fund, many trial judges still continue to 
withhold money for investigative and expert assistance, and some post-
conviction lawyers are still being compensated only $1,000 for their 
work. The state post-conviction fund must not only cover the funds to 
compensate private attorneys, but pay for investigative and expert 
assistance in all of these cases, including those cases being handled 
by the state office.
    There has been much discussion of the many, many prisoners who have 
been released from death rows across the country after it was later 
determined that they were innocent. One of these prisoners, Sabrina 
Butler, is from Mississippi. However, because so many death sentenced 
prisoners were represented by lawyers who were underpaid, 
inexperienced, and unqualified, there can be little confidence in the 
outcome of these trials. A three-day trial is hardly the kind of 
adversarial proceeding that is required for the judicial process to 
properly function in its truth seeking mission. Whether there are 
innocent people presently on death row in Mississippi is unclear. 
However, as innocent people have been freed from death penalty states 
where the quality of legal representation is much higher, it certainly 
cannot be assumed that all 63 prisoners on Mississippi's death row are 
guilty of the crimes for which they have been convicted.

                                

   Statement of Michael Pescetta, Assistant Federal Public Defender, 
                 Office of the Federal Public Defender

    My name is Michael Pescetta. I am an Assistant Federal Public 
Defender and I am chief of the Capital Habeas Unit in the Office of the 
Federal Public Defender for the District of Nevada. Our unit litigates 
most of the federal habeas corpus proceedings resulting from judgments 
of death in Nevada state courts, and currently we are providing 
representation in twenty-three such cases. We are therefore familiar 
with the issues that are routinely presented in these cases and with 
the problems arising in state court litigation of capital cases.
    I have been litigating capital appeals and habeas corpus cases 
since 1983, first in California (initially as an attorney for the 
California State Public Defender, and then as Director of Capital 
Litigation, overseeing all of the capital cases in that office, from 
1988 to 1992) and since 1992 in Nevada. I was the director of the death 
penalty resource center for Nevada from 1992 until 1995, when the 
resource center was de-funded. I currently litigate only capital habeas 
corpus cases.
    Nevada is in continuing crisis with respect to representation in 
capital cases. The salient factor is that Nevada has the highest death 
row population per capita of any state in the nation and the fewest 
lawyers per capital case of any state. Currently, approximately 30 
lawyers are responsible for representing all of the 85 individuals who 
are under capital sentence; and, with the exception of the 
approximately 10 to 15 capital trial lawyers in public defender 
offices, these are the same lawyers who provide representation in 
capital cases at trial. The effect of this situation on the quality of 
representation is severe: there are simply too few lawyers who are 
willing to provide representation in capital cases, particularly in 
habeas proceedings, and many of the lawyers who do provide 
representation are woefully unskilled.
    The Nevada state system is generally in a position to fund 
litigation in capital cases if it wishes to. The county public defender 
offices in Clark County (Las Vegas) and Washoe County (Reno) pay 
attorney salaries that are competitive with those paid by prosecution 
offices. While budgets for ancillary services, such as expert 
witnesses, maybe limited by the county commissions, in general public 
defender offices have been able to secure funds for such services when 
attorneys request them. When private counsel is appointed by the court, 
Nevada statutes provide for compensation of counsel at a rate of $75 
per hour in capital cases. There is a presumptive cap of $12,000 for 
attorney compensation in capital trial cases, and of $750 in capital 
habeas corpus cases, and a presumptive cap of $300 for reimbursement 
for ancillary services. Nev. Rev. Stats. Sec. Sec. 7.125, 7.135. These 
limits are generally recognized as inadequate for competent 
representation and they are normally exceeded when counsel requests 
additional funds, although the amounts actually authorized vary greatly 
among individual trial judges.
    Unfortunately, the potential availability of resources for 
litigating capital cases does not normally translate into adequate 
litigation, primarily due to the quality of counsel. In public defender 
offices, the problem is frequently that lawyers fail to recognize the 
need for adequate investigation or ancillary services--until last year, 
neither of the two county public defender offices had any organized 
training programs at all--and have often treated the litigation of 
capital cases as routine. In general, the salaries paid in the two 
largest public defender offices have contributed to a career civil 
service mentality on the part of lawyers and administrators, and a 
concomitant unwillingness to antagonize other parts of the criminal 
justice system, at the expense of vigorous advocacy on behalf of 
clients. Public defender offices also have not historically used their 
budgets to hire adequate numbers of investigators to allow them to 
conduct sufficient investigation in all capital cases, much less in all 
cases. (For instance, until the year 2000, the Clark County Public 
Defender's Office had approximately 8 investigators on staff and a 
yearly caseload of over 31,000 cases.) It appears that this situation 
does affect the vigor of defense advocacy: a recent study conducted by 
the Spangenberg Group for the Department of Justice, Bureau of Justice 
Assistance, and the American Bar Association showed that the trial rate 
for the Clark County Public Defender is under 0.6%, while the national 
urban average trial rate is 4-7%.
    While the Nevada Supreme Court has imposed experience standards for 
counsel, Nev. Sup. Ct. Rule 250(2)(b, c), there is no assessment of the 
quality of representation as a basis for appointment. There is also no 
formal mechanism for the appointment of counsel other than public 
defender offices, and individual judges recruit and select attorneys 
for appointment unilaterally. As a result, lawyers who have done 
seriously inadequate work on capital cases continue to be appointed to 
do more of them. In particular, in state habeas corpus proceedings, in 
which only private counsel are appointed, so few lawyers are willing to 
accept appointment that courts routinely appoint lawyers whose 
representation is so inadequate that subsequent federal proceedings 
require significantly greater expenditure of resources on both 
procedural and substantive issues. For instance, in over 20% of the 
capital cases currently pending in state habeas proceedings, 
representation is being provided by lawyers who have never filed a 
discovery motion or a motion for funds for ancillary services in any 
habeas proceeding. It is not uncommon for these lawyers to attempt to 
litigate claims of ineffective assistance of counsel without even 
obtaining the files of previous counsel. While these problems have been 
drawn to the attention of the Nevada Supreme Court and the state trial 
courts, they have been unwilling to intervene or to mandate closer 
scrutiny of counsel's actions in state habeas proceedings, and the 
emphasis has remained on simply processing capital cases through that 
system in any way possible.
    Fundamentally, the problem of adequate representation in capital 
cases reflects the legal culture in Nevada. Criminal defense lawyers 
who provide representation in indigent cases, as opposed to 
representing paying clients, are not held in the same respect as other 
lawyers, and criminal cases involving indigents are treated with less 
concern than others. Some defense lawyers appointed in capital cases 
often treat them as routine and simply do not have the interest in or 
dedication to this type of work that would motivate them to improve 
their skills. The Nevada Supreme Court routinely expresses concern 
about the quality of representation in capital cases, but its actions 
are often not consistent with its expressed position. For instance, the 
court has criticized defense counsel, sometimes vehemently, for not 
raising available issues at the first opportunity, see Beiarano v. 
Warden, 112 Nev. 1466, 1470, 929 P.2d 922, 925 (1996), but when 
thorough counsel attempts to raise all available constitutional claims 
on appeal the court seeks to discourage it. See Hernandez v. State, 
2001 WL 668460 (June 14, 2001.) The state trial courts act similarly: 
they normally do not demand that counsel provide quality representation 
in capital habeas cases, and (along with the state bar) routinely 
ignore complaints from clients about counsel's actions in failing to 
communicate with the client, to raise issues pointed out by the client, 
or to conduct adequate investigation.
    The low quality of defense advocacy has a pernicious systemic 
effect, because the corrective function of a vigorous defense on the 
criminal justice system as a whole normally does not occur. For 
instance, one of the commonest complaints of the defense bar in Clark 
County is the failure of the district attorney's office to comply with 
its disclosure obligations under Kyles v. Whitley, 514 U.S. 419 (1995), 
despite purportedly maintaining an ``open file'' discovery policy. In 
1998 and 1999 the Federal Public Defender conducted depositions of the 
records custodians of the district attorney's office and the Las Vegas 
Metropolitan Police Department, in a 17-year-old capital case. These 
depositions revealed that the district attorney's office has no 
institutional mechanism for ensuring that disclosable evidence in the 
possession of the police is included in the disclosure to the defense 
as required by Kyles. This revelation had no effect on the practices of 
the district attorney, which has been found in subsequent cases to have 
failed to disclose evidence in the possession of the police; and it has 
not changed the motion practice of the majority of defense counsel, who 
continue to rely upon the ``open file'' policy. Similarly, in a case 
involving a claim of actual innocence, in which evidence relating to 
other suspects was concealed by Washoe County authorities for almost 20 
years, Mazzan v. Warden, 116 Nev.--, 993 P.2d 25 (2000), the revelation 
of the failure to disclose has not had any reported effect on the 
discovery policies currently in force or in most defense counsel's 
motion practice with respect to discovery. These are only the most 
obvious instances in which an absence of vigorous defense advocacy, and 
appropriate judicial response to such advocacy, has left the state 
system as a whole functioning below acceptable constitutional 
standards.
    Providing thorough and competent representation at all stages of 
all capital cases is currently not a reality in the Nevada state 
system. That goal will be attained, if at all, only with the maturation 
of the criminal defense bar and with an insistence by the state courts 
on vigorous and thorough defense advocacy in capital cases.

                                

                                     Federal Court Division
                       Defender Association of Philadelphia
                                     Philadelphia, PA 19106
                                                       July 5, 2001

Senator Patrick Leahy
433 Russell Senate Office Building
United States Senate
Washington, D.C. 20510
Senator Orrin G. Hatch
104 Hart Senate Office Building
United States Senate
Washington, D.C. 20510

    Dear Senators Leahy and Hatch:

    I am writing in regard to S. 486 (The Innocence Protection Act). I 
am the Chief Federal Defender for the Eastern District of Pennsylvania. 
In addition to representing indigent defendants charged with federal 
crimes, my office also represents some prisoners in federal habeas 
corpus proceedings challenging death sentences imposed by the state 
courts of Pennsylvania. As such, I and my staff are familiar with 
standards for quality, and compensation, of counsel in the Commonwealth 
of Pennsylvania.
    I understand that the Innocence Protection Act seeks to insure 
minimal standards governing the competency of counsel who handle death 
penalty cases in state court. Of Pennsylvania's 67 counties, only one 
(Philadelphia) has standards governing appointment of counsel. In this 
regard, Senator Leahy quoted the 1990 Joint Task Force on Death Penalty 
Litigation in Pennsylvania, that the lack of standards has led 
Pennsylvania to having ``one of the worst systems in the country for 
providing indigent defense services,'' and has experienced ``problem 
[s] of major proportions.''
    Indeed, in some cases being handled by my office we have seen stark 
examples of inexperienced and unqualified counsel being appointed to 
these cases. Scott Blystone was represented by a part-time public 
defender who had one year's experience as a judicial law clerk and had 
been practicing law for 3\1/2\ months at the time of his appointment 
(Fayette County); Carolyn King was represented by a civil practitioner 
who specialized in family law who had tried a single criminal case, a 
one-day trial on drug charges (Lebanon County); Lawrence Christy was 
represented by two lawyers, one who had graduated from law school three 
years before trial and had asked for help from the court because he had 
never tried a capital case, and the other who had graduated from lave 
school two years earlier and had never tried any criminal case; James 
Carpenter (York County) was represented on direct appeal by an attorney 
who had one year of experience who had never represented a client in 
any appellate proceedings prior to this capital case.
    While Philadelphia County has standards, that jurisdiction is 
responsible for 55% of the Pennsylvania's capital convictions. 
According to the Pennsylvania Department of Corrections 117 of 
Pennsylvania's death row inmates (45% of the Commonwealth's death row 
of 241) are from counties that have no published standards governing 
compensation of counsel, provision of investigators and experts, and 
qualifications of counsel.
    The capital representation crisis in Pennsylvania is not a semantic 
question as to whether Pennsylvania provides standards at the county, 
rather than state-wide, level. It is that Pennsylvania has no adequate 
system for capital appointments and compensation at any level. As Chief 
Judge Becker of the United States Court of Appeals for the Third 
Circuit found, the issue of whether Pennsylvania provides adequate 
standards and resources for capital representation is not amenable to 
``county-by county or case-by-case determination.'' The Commonwealth of 
Pennsylvania itself admitted ``that Pennsylvania does not meet the 
[capital representation] requirements of [the AEDPA] as of January 31, 
1997, and that it has not met them previously.'' Death Row Prisoners of 
Pennsylvunia v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997).
    While it is true that the Philadelphia standards would prevent some 
of the more egregious examples of capital non-representation that occur 
elsewhere in Pennsylvania, the appointment system is neither neutral 
nor effective. The City courts have been sued on numerous occasions by 
appointed counsel because of non-payment and underpayment, and--as was 
the case at the time of the Task Force report in 1990--many lawyers 
have stated that they will not take cases because they cannot afford to 
do so. Even an experienced capital defense lawyer cannot be effective 
if s/he is not paid adequately for the hours required to properly 
handle a case or does not have money for experts or investigators. 
Counsel qualified for appointment on Philadelphia's list have been 
found ineffective in five recent post-conviction cases for failing to 
investigate and present mitigating evidence, and a sixth lawyer who is 
on Philadelphia's appointment list was found ineffective for failing to 
investigate and present mitigating evidence in a case tried in a 
neighboring county.
    In short, the observations of the 1990 Task Force report, cited by 
Senator Leahy during the hearing, retain their force today, 
notwithstanding any isolated suggestions to the contrary made during 
the hearing. Pennsylvania would greatly benefit from the adoption of 
uniform standards governing these important issues.
    I respectfully request that this letter be made a part of the 
record.
            Respectfully,
                                     Maureen Kearney Rowley
                                             Chief Federal Defender

                                

  Statement of Hon. Gordon H. Smith, a U.S. Senator from the State of 
                                 Oregon

    I would like to thank you, Chairman Leahy, Senator Hatch, and the 
rest of my colleagues on the committee for allowing me to speak today. 
I would also like to thank you for holding this hearing, which will 
help focus the Senate's, and the nation's, attention on importance of 
providing competent counsel in death penalty cases.
    This subject is important to me because I sit before you today as a 
proponent of the death penalty. I believe that some crimes are so 
odious, and so heinous that the death penalty is the only appropriate 
punishment. I believe further that the death penalty deters crime, and 
that it ultimately saves lives as a result. But I can only support the 
death penalty in good conscience if I am convinced, and the American 
people are convinced, that no innocent person is ever executed, and 
that people on trial for their lives have adequate legal 
representation. Competent counsel is a minimum requirement for justice 
in these cases, and I believe that federal leadership is necessary to 
ensure that every person on trial for his or her life receives 
qualified legal representation.
    Mr. Chairman, we are very lucky in Oregon to have one of the most 
progressive systems in America for ensuring adequate legal 
representation in capital cases. Defense attorneys undergo a rigorous 
state approval process. Prospective capital defense attorneys must have 
several years of experience, including experience with murder cases, 
must attend regular legal training or education programs on capital 
cases, and must be able to provide at least five letters of 
recommendation from state judges, defense attorneys, or district 
attorneys attesting to the attorney's fitness for defending death 
penalty cases. These are all minimum requirements in the state of 
Oregon.
    In addition, Mr. Chairman, Oregon spends far more defending the 
indigent than it does prosecuting them. Next year, Oregon will likely 
spend in the neighborhood of $80 million for indigent defense and 
approximately $50 million on prosecutions. Oregon has also centralized 
its indigent defense funding at the state level to ensure that the 
quality of defense will not vary with the economic fortunes of 
individual counties. I understand that legal representation cannot 
always be measured by dollar figures, but I believe that Oregon's 
commitment to competent counsel is reflected in the resources the state 
has dedicated to ensure it.
    I believe that the federal government must ensure that we, as a 
nation, are also fully committed to nationwide standards for competent 
counsel. I have been fortunate to work with the chairman of this 
committee on legislation that would lead to the development of national 
standards for legal services in capital cases. I believe that the 
federal government should study existing systems for appointing counsel 
in capital cases, determine the minimum standards that states should 
meet in providing representation, and ensure that states abide by these 
standards. By establishing these requirements, the federal government's 
leadership can help secure the nation's confidence in our application 
of the death penalty.
    Mr. Chairman, I'm not here because I believe that incompetent 
defense counsel has become the norm in courtrooms across America. But 
our system of justice simply cannot tolerate severely overworked, 
underpaid, and even unqualified attorneys representing Americans on 
trial for their lives. I want to urge this committee to do all it can 
to make our excellent system of justice even better. Helping ensure 
competent counsel nationwide is a good step in that direction. We 
cannot afford mistakes in death penalty cases, and Americans must be 
confident that defendants in capital cases are receiving adequate 
representation.

                                

           Statement of Maurie Levin, Texas Defender Service

                               Background
    My name is Maurie Levin. I am the Managing Attorney of the Austin 
office of Texas Defender Service (TDS), a private nonprofit with 
offices in Austin and Houston, Texas. Since 1995, TDS has provided 
direct representation to indigent inmates on Texas's death row, 
consulted with other lawyers litigating capital cases at the trial and 
post-conviction level, and intervened in unusual cases where expert 
legal assistance was urgently needed. Senator Leahy's office asked that 
I describe for this Committee the appointment and compensation process 
in Texas.
    Texas Defender Service is the only organization in Texas, public or 
private, that concentrates exclusively on tracking capital cases and 
representing indigent defendants charged with and/or facing a capital 
sentence. We thus serve as a primary source of information about the 
death penalty in Texas for other organizations, the public, and the 
press. In October 2000, TDS released A State of Denial, the most 
comprehensive report to date on the administration of the death penalty 
in Texas.\1\ Local, national, and international media covered its 
release. The nine chapters of the report outlined many of the 
deficiencies in the Texas system, including official misconduct, the 
use of phony experts, racism and the death penalty, the execution of 
the mentally retarded, and the inadequacies in the representation 
provided. It also underscored the fact that the deficiencies in the 
system are all exacerbated, masked, and allowed to continue when 
defense counsel fails to fulfill her role as a zealous advocate for the 
defendant and due process.
---------------------------------------------------------------------------
    \1\ The report is available on our web site at: 
www.texasdefender.org.
---------------------------------------------------------------------------
             The State of Indigent Capital Defense in Texas
    Texas is replete with the horror stories that result from the 
inadequate counsel that is provided to inmates facing a sentence of 
death. Texas, of course, is home to the now infamous sleeping lawyer 
cases--where capital trial counsel actually slept through significant 
portions of trial, and where the Texas appellate court deemed that to 
be nonetheless adequate representation. And lest we dismiss those 
stories as rare aberrations of the past, recent studies from a variety 
of sources confirm that the typical attorney appointed to represent an 
indigent capital defendant in Texas is a solo practitioner who may or 
may not have any capital experience, is eight times more likely than 
the next lawyer to have suffered some form of disciplinary action for 
ethical lapses, and will get paid an hourly rate that cannot even cover 
her office overhead, and only for a fraction of the hours necessary to 
do a competent job. In addition, she will be fully aware that zealous 
advocacy may risk future appointments from the Court that hands her the 
cases that provide her day-to-day livelihood. In short, it is a system 
that makes it a fairly safe bet that counsel cannot and will not do a 
competent job representing their capital clients.
    Despite the increased attention to these problems, and the reforms 
implemented in the last legislative session, they still exist. While 
the Fair Defense Act, courageously championed and skillfully stewarded 
through to passage by Senator Rodney Ellis, takes crucial first steps 
to improve indigent defense overall, its effect on capital cases will 
be extremely limited. Moreover, it does not affect the quality of post-
conviction representation at all--the crucial stage of the appeals 
where people are discovered to be innocent, and exonerated. In short, 
we still have a long, long way to go.
    To fully understand the nature and extent of the problem, it is 
necessary to understand how the Texas system works. In explaining the 
process, and providing examples and statistics, I rely upon TDS' 
Report, A State of Denial, the capital chapter of The Fair Defense 
Report, released this past year by Texas Appleseed,\2\ an earlier study 
by a Subcommittee of the State Bar, reflecting the results of a 
comprehensive survey of attorneys, judges, and courthouse personnel,\3\ 
and newspaper studies and articles. Each of these reports bears out the 
anecdotal evidence and describes numerous profoundly disturbing 
systemic deficiencies.
---------------------------------------------------------------------------
    \2\ A copy of The Fair Defense Report may be obtained from Texas 
Appleseed at www.appleseeds.net/tx.
    \3\ See Allan K. Butcher & Michael K. Moore, Muting Gideon's 
Trumpet: The Crisis in Indigent Criminal Defense in Texas 12 (Sept. 22, 
2000), at http://www.uta.edu/pols/moore/indigent/whitepaper.htm.

        The Texas system is marked by the following features:
         Disparity in the manner in which counsel are 
        appointed, the quality of counsel, and the compensation and 
        funding provided. Texas' appointment system is county-based. 
        There are 254 counties, and numerous courts within each county. 
        Some say that there are 800 different appointment and 
        compensation systems--a different one for each court.
         A lack of meaningful statewide standards. Up until 
        1995, there were no standards whatsoever governing the 
        appointment of counsel in capital cases. Anyone, even a tax 
        attorney, could be appointed to represent a defendant facing a 
        sentence of death--and were. In 1995, legislative revisions 
        required that each of the nine administrative regions establish 
        regional standards, but the results were minimal at best, and 
        the failure to comply with the statute bore no consequences--
        except for the defendant.
    For example, the Dallas Morning News recently found that 24 
attorneys who had been designated as qualified to represent capital 
murder defendants had been disciplined for misconduct, one having been 
suspended from practice twice. As the News observed: ``The judge who 
ordered the most recent suspension [of this attorney] . . . . delayed 
its activation so the attorney could finish a capital murder case he 
had been appointed to handle. He has since received other death penalty 
cases--as well as another reprimand from the bar.'' The same News study 
confirmed that the trial lawyers who had represented Texas death row 
inmates had been disciplined at approximately eight times the rate of 
lawyers as a whole.\4\
---------------------------------------------------------------------------
    \4\ Defense Called Lacking for Death Row Indigents, But System 
Supporters Say Most Attorneys Effective, DALLAS MORNING NEWS, Sept. 10, 
2000, at 1A.
---------------------------------------------------------------------------
    In a study conducted by the Chicago Tribune, they found that in one 
out of three of the cases examined, the trial lawyer presented no 
evidence, or only one witness at the sentencing phase of trial--the 
phase where the jury decides whether their client should live or 
dies.\5\
---------------------------------------------------------------------------
    \5\ Steve Mills and Ken Armstrong, Flawed Trial Lead to Death 
Chamber, CHICAGO TUNE, June 11, 2000, at Sec. 1, p. 1.
---------------------------------------------------------------------------
    One particularly egregious example is that of Joe Lee Guy, whose 
attorney ingested cocaine on the way to trial, consumed alcohol during 
court breaks, and had been disciplined numerous times both before and 
after Guy's capital trial.\6\ In fact, he could not complete the appeal 
of Guy's case because of a recent suspension. These facts only came to 
light after TDS intervened on the eve of Mr. Guy's scheduled execution, 
and recruited a law firm to represent Mr. Guy on a pro bono basis. It 
is worthwhile noting that Mr. Guy, the lookout, was the only one of the 
three defendants who was sentenced to death--his two co-defendants, the 
``shooters,'' were both sentenced to life after their attorneys 
presented a compelling case for life on their behalf. It is a 
particularly good example of the title of Stephen Bright's oft-quoted 
statement: ``the death sentence not for the worst crime, but for the 
worst lawyer.''
---------------------------------------------------------------------------
    \6\ Dan Malone and Steve McGonigle, Questions of Competence Arise 
in Death Row Appeal: Lawyer with History of Problems Defends Handling 
of Case, DALLAS MORNING NEWS, Sept. 11, 2000, at A1. See also Linda 
Kane, Death Row Inmate's Lubbock Attorney Used Drugs, Alcohol, LUBBOCK 
AVALANCHE-JOURNAL, Sept. 10, 2000, at 12A; A State of Denial, p. 111.
---------------------------------------------------------------------------
    While the Fair Defense Act establishes, for the first time, minimum 
statewide standards for capital trial counsel, the standards that Texas 
legislators were willing to pass are fairly minimal, requiring only 
that counsel have five years of experience in criminal litigation 
(defense or prosecution), and only ``significant'' felony experience as 
defense counsel. Moreover, without the funding necessary to enable 
qualified counsel to litigate these cases, and the concomitant support 
and independence necessary to make that possible, these standards will 
affect very little change, and will not prevent horror stories such as 
sleeping or drug-addicted capital counsel.
    Impermissible factors, irrelevant to questions of qualifications, 
affect the elected judiciary's appointing decisions and compromise the 
quality and independence of appointed counsel. According to the State 
Bar Study, nearly half the judges reported that their peers ``sometimes 
appoint counsel because they have a reputation for moving cases, 
regardless of the quality of defense they provide,'' and over half 
indicated that the ``attorney's need for income'' influenced the 
appointment decision. Significant numbers of judges reported that their 
appointment decisions were affected by whether a defense attorney was a 
personal friend (39.5%), a political supporter (35.1%), or a 
contributor to the judge's reelection campaign (30.3%).\7\
---------------------------------------------------------------------------
    \7\ BUTCHER & MOORE, MUTING GIDEON's TRUMPET 12 (Sept. 22, 2000).
---------------------------------------------------------------------------
    While the Fair Defense Act permits and encourages counties to 
establish a different, more neutral appointment system, it does not 
require them to do so, and in fact permits them to retain their current 
system. There is nothing to say that judges will not continue to 
appoint attorneys based not on their qualifications, but on the basis 
of how quickly and cheaply they move cases through the courts, or how 
much was donated to the appointing judge's reelection campaign.
    Trial courts do not provide the resources necessary to defend a 
person accused of a capital crime. Compensation varies drastically 
between the counties. In many of the more rural counties, it is not 
enough to cover overhead expenses. In others, ``fixed'' or ``flat'' fee 
structures provide incentives for attorneys to do as little work as 
possible on the case. In one county, compensation for out of court time 
is limited to 60 hours--one twentieth of the amount of time that is 
spent, on average, preparing for a federal capital trial. Until 1995, 
Texas law capped the entire amount defense counsel could request for 
investigative and expert expenses at $500, and anecdotal evidence 
indicates that many judges still apply the old limits.
    For example, the attorney who represented Paul Richard Colella in 
his 1992 Cameron County capital murder trial was not reimbursed for an 
investigator and was not paid until almost two years after the trial 
ended.\8\ When he was paid, he received only $9,000 for handling both 
the trial and the initial appeal of the case. Dividing this payment by 
the attorney's estimates of the number of hours he worked yields an 
average of approximately $20 per houror less than one-third the hourly 
overhead rate in the average Texas criminal defense attorney's 
practice.\9\
---------------------------------------------------------------------------
    \8\ Application for Writ of Habeas Corpus at 61-62 and Exh. 62, Ex 
parte Colella (CCA No. 37,418).
    \9\ BUTCHER & MOORE, MUTING GIDEON's TRUMPET 15 (Sept. 22, 2000) 
(reporting that Texas criminal defense attorneys report overhead costs 
of $71/hr).
---------------------------------------------------------------------------
    There is a lack of any centralized body of expertise upon which 
attorneys might draw for resources and assistance. The State Bar Study 
found that 66% of the appointed lawyers were solo practitioners and the 
vast majority of the remainder practiced in small firms, most of which 
were merely clusters of lawyers sharing office expenses. Most of the 
attorneys reported that only half of their practice involved criminal 
cases, while the remainder involved civil matters.\10\ Thus, most 
lawyers confronting a capital case, if they are interested in providing 
an adequate defense, must grapple alone with a body of unfamiliar and 
complex death penalty law, and direct an investigation into the 
client's background, which can require expertise far beyond the typical 
criminal case. Unlike the cadre of experienced prosecutors trying these 
cases, many attorneys appointed to capital cases must start, each time, 
learning the law from the ground up.
---------------------------------------------------------------------------
    \10\ Id.
---------------------------------------------------------------------------
    The courts do not take responsibility for correcting the egregious 
problems--such as snoozing counsel--that are clearly displayed before 
them. The judge presiding over Calvin Burdine's trial (whose lawyer 
slept through significant portions of the trial) stated that ``the 
Constitution doesn't say the lawyer has to be awake.'' The Texas Court 
of Criminal Appeals routinely denies any remedy to inmates whose court-
appointed lawyers perform poorly. Thus, that (elected) Court denied 
relief to two death row inmates whose lawyers slept through trial, and 
in the past five years have achieved one of the lowest reversal rates 
for capital cases in the entire country: three percent.
    Errors are generally not revealed in post-conviction proceedings--
the appellate proceedings which are supposed to serve as the safeguard 
to our system--because appointed counsel are profoundly inexperienced, 
inadequate, and underfunded. In fact, the post-conviction appointment 
system simply repeats the errors replete at trial, thus making it 
highly likely that we are not even aware of many of the horror stories 
regarding what occurs at trial.
    In Joe Guy's case, discussed above, the state post-conviction 
attorney appointed to represent him failed (in her nine page petition) 
to raise the fact either that trial counsel was struggling with drug 
and alcohol addiction, or that the investigator appointed to assist 
counsel had become the beneficiary of the surviving victim's estate. It 
was only by chance that TDS discovered the case, and its horrifying 
facts, shortly before Mr. Guy's scheduled execution.
    Moreover, the courts appear indifferent to the glaring inadequacies 
of the work produced. For instance, in a study of over half the post-
conviction appeals filed in Texas since 1995, we found that in 42%, 
post-conviction counsel appeared to have conducted no new 
investigation, and raised no extra-record claims--even though these are 
the only type of claims that can be considered for review at this 
stage.\11\ In many cases, appointed attorneys merely repeated, 
verbatim, claims which had already been rejected by the courts in a 
previous appeal. In almost one out of five of the cases reviewed, the 
post-conviction application was less than fifteen pages long--barely 
long enough to contain the minimal procedural formalities. In a number 
of cases where such patently inadequate applications were filed, 
subsequent investigation has revealed significant constitutional 
errors--such as that of Joe Guy, as well as a possible claim of 
innocence--that were not included, and would have remained undiscovered 
if TDS had not become involved.
---------------------------------------------------------------------------
    \11\ `` See A State of Denial, supra, pp. 104-118.
---------------------------------------------------------------------------
                               Conclusion
    The lethal consequences of the Texas capital system are concrete. 
Every year, Texas leads the country in number of executions. Last year, 
Texas set a ``record `` for the number of executions in one year: 40. 
We execute disproportionate numbers of people of color, persons who are 
mentally ill, mentally retarded, and juveniles. Because of the 
inadequacies of the system--primarily the inadequacies of trial and 
post conviction counsel--it is also highly likely that we are executing 
people who are innocent or not eligible for a sentence of death. 
Tragically, it is the hallmark of the Texas system that its most 
pervasive feature is its efficiency in burying its mistakes. The 
Innocence Protection Act is an essential step in bringing these 
problems to light, and in providing the resources and enforcement 
mechanisms necessary to provide indigent inmates facing a sentence of 
death the competent counsel to which they are constitutionally 
entitled.

                                

          Statement of Denise Young, Attorney, Tempe, Arizona

    I am an attorney licensed to practice law in Arizona since 1982. 
Since 1989, my practice has been devoted entirely to representing 
defendants under sentence of death in appeal and post-conviction 
proceedings in the state and federal courts, and assisting other 
defense counsel in representing their clients in all stages of capital 
proceedings including pre-trial, trial and post-conviction proceedings. 
I was also the former director of the Arizona Capital Representation 
Project, a capital post-conviction defender organization, from 1989 
until July, 1996.
    I have been asked to describe the manner in which the Arizona 
courts appoint and compensate counsel for indigent persons in potential 
capital trials in Arizona. The answer to that question is not an easy 
one because Arizona has no statewide capital defense office, and no 
unified system of indigent capital defense. As a result, the costs of 
capital trials are largely borne individually by each of Arizona's 
fifteen counties. Due in no small part to Arizona's failure to provide 
a statewide system of indigent defense with quality counsel and 
adequate funding for experts and resources, Arizona's reversible error 
rate is shockingly high. A comprehensive study conducted by Professor 
James Liebman recently found that Arizona's overall reversible error 
rate for capital cases is 79 per cent.
    State funds account for a very small portion of expenditures on 
indigent defense in Arizona. In 1999, the state allocated $5 million 
over two years for prosecution, indigent defense services, and the 
court system. A rough estimate suggests that of this $5 million, no 
more than $1 million, approximately one-fifth of total state funding, 
went to indigent defense.
    Compared with other states that provide funds, Arizona ranks at the 
very bottom in state assistance towards indigent defense 
representation. Twenty-three states fund indigent defense entirely at 
the state level. In about half of the remaining twenty-seven states, 
state funds account for at least 50% of the money spent on indigent 
defense. Only two states, Pennsylvania and South Dakota, provide no 
state funding. Assuming that Arizona does indeed spend at least $1 
million annually on indigent defense, it ranks last among the 48 states 
which provide some state funding, based on a per capita comparison of 
state expenditures.
    Because indigent defense services in Arizona are administered at 
the county level, each county has responsibility for establishing and 
managing its own system to find, appoint and compensate counsel to 
represent the person charged with first degree murder where the state 
is seeking a death sentence. Not surprisingly, the practices in this 
system vary widely from county to county, with no systematic statewide 
procedure for compensation, defense training or support. Capital 
representation at trial is undertaken primarily by a scattering of 
public and legal defender offices, sporadically located in some 
counties. Because these offices are typically grossly underfunded and 
overworked, contract attorneys represent a substantial number of 
capital defendants at trial. The majority of attorneys handling first 
degree murder cases at any stage do not practice exclusively in the 
highly technical and specialized area of capital defense.
    Defense procedures vary widely from county to county and there is 
no systematic procedure for ensuring adequate compensation, litigation 
expenses, training or support. Since 1996, the Arizona Rules of 
Criminal Procedure have provided some qualifications for appointment of 
attorneys. The qualifications, however, speak only to the number of 
years in criminal work, not to the quality of work done over those 
years. Arizona Rule of Criminal Procedure 6.8 (b) requires that capital 
trial counsel have ``practiced in the area of state criminal litigation 
for five years'' before appointment, and been ``lead'' counsel in nine 
felony jury trials and lead or co-counsel in one capital murder jury 
trial. It is left to individual courts and counties to determine 
whether those minimal qualifications are met. Trial co-counsel, upon 
whom major responsibility is frequently thrust, need have no prior 
legal experience. Non-mandatory provisions of the rule recommend that 
appellate and post-conviction counsel should have some appellate or 
post-conviction experience in felony cases, but the lawyer need not 
have any capital experience. Additionally, trial counsel is to 
complete, within one year before the initial appointment, six hours of 
training in ``the area of capital defense.'' After appointment, no 
further capital training is required, although ``within one year prior 
to any subsequent appointment'' in a capital case, trial counsel must 
have completed twelve hours of training ``in the area of criminal 
defense.''
    Trial defense attorneys who are handling these cases in Arizona's 
counties do not receive adequate resources or assistance, including 
necessary investigative and expert assistance to competently handle the 
guilt and penalty phases of the capital case. For example, in Pima 
County (the second most populous county), private contract attorneys 
represent about 83% of the county's capital defendants. As is 
characteristic of defense attorneys statewide, most of these attorneys 
do not practice exclusively in capital defense. Pursuant to these 
contracts, an attorney is paid $3000 for providing representation in a 
serious felony case, and $800 for other felonies. In first-degree 
murder cases, lead defense counsel is paid $75 per hour up to a maximum 
of $15,000, compensating about 200 hours of work, and co-counsel 
receives $60 per hour up to a limit of $7,500, compensating about 183 
hours of work.\1\ In stark comparison to Arizona's estimation, the New 
York State Defender's Association has estimated an attorney's time for 
a death penalty trial at 800 to 900 billable hours. Even if one 
aggregates lead counsel and cocounsel's time, totaling 383 hours, the 
ceiling on this compensation in Arizona is grossly inadequate to permit 
competent representation.
---------------------------------------------------------------------------
    \1\ The contract does provide that more funds might be available if 
``special circumstances'' are present. What constitutes ``special 
circumstances,'' however, is unknown.
---------------------------------------------------------------------------
    In Maricopa County, Arizona's most populous county, attorneys are 
appointed from one of four public defender offices, unless a conflict 
arises. In those cases, attorneys who have contracted with the county 
to accept court-appointed criminal cases are appointed. Contracts are 
based on a flat fee. For example, under the major felony contract, 
which includes first degree murder cases in which the state is seeking 
death, attorneys are paid $72,000 over a twelve month period to 
represent nine defendants regardless of the number of hours involved in 
the case and the number of pending criminal cases each defendant may 
have. If any of those cases end in a mistrial, or result in a new 
trial, the contracting attorney receives no additional compensation to 
retry the case. The contract also obligates the attorney to undertake 
representation of three more defendants for an additional $8,000 each. 
If any one of these potential twelve cases is a first degree murder 
case where the state is seeking death, the attorney is paid ``an 
additional $8,000 when the jury is empaneled.'' State v. Rivas, No. CR 
1995011272, pp. 6-7 (Mar.Cty.Sup.Ct. Jan, 29, 2001).
    In a recent capital case, a Maricopa County criminal defense 
attorney operating under this contract in a capital case spent 220 
hours preparing for the trial. Although these hours are far below those 
competent counsel must spend to adequately prepare for a capital trial, 
the county paid the attorney only $16,000.00. Following the client's 
conviction of first degree murder, the attorney requested additional 
compensation to prepare for the sentencing phase which he estimated 
would require an additional 100 hours.\2\ The request was refused by 
the contracting agency. It was also refused by the judge to whom the 
case had been assigned. Eventually, another judge took over the case, 
and upon counsel's motion for reconsideration, ordered the contracting 
agency to meet with the attorney to negotiate reasonable additional 
compensation for the completion of the work. Id., p. 13. That matter is 
still pending.\3\
---------------------------------------------------------------------------
    \2\ This estimate, too, is excessively low. Competent investigation 
for the penalty phase of a capital case begins long before the capital 
trial begins and generally consumes hundreds of hours.
    \3\ Another rural county, Yavapai County, also requires counsel to 
enter into a contract which pays a flat fee for representation in a set 
number of cases, usually for $70,000. Rural Graham County also uses 
contract attorneys who are paid $80,000 to provide representation in 
100 cases.
---------------------------------------------------------------------------
    In rural Yuma County, capital cases that cannot be handled by the 
public defender offices are given to the lowest bidder. In one such 
case, the ``winning'' bid was a contingency fee with an ugly twist: the 
lawyer was to receive one lump sum payment up front and a second lump 
sum if the case went to trial. The client did not want to go to trial 
and informed his lawyer on numerous occasions that he would accept any 
plea that did not include a death sentence. The lawyer, however, stood 
to make a tidy sum if he spent little time on the case and took it to 
trial. The lawyer did nothing to try to settle the case, and no plea 
was offered.
    Although this case had been remanded for a new trial following 
postconviction proceedings based on previous trial counsel's failure to 
present a viable defense that was available to the client, the new 
trial lawyer failed to even review the postconviction file in the case. 
He failed to consult with an available expert, already appointed by the 
court, regarding this defense and he failed to present this defense at 
trial.
    The lawyer failed to communicate with the client in any form for 
stretches of six months at a time before trial, and again before 
sentencing. During one of the very few visits between the lawyer and 
client, both the client and second counsel observed evidence that the 
lawyer had been consuming alcohol before the visit. In an unrelated 
case, a different client listened to this same lawyer describe Yuma as 
a place where the only thing to do at the end of each trial day was get 
drunk in the hotel bar. The lawyer also said, in public, that his Yuma 
client was ``guilty from the beginning'' and the whole trial was a 
waste of the lawyer's time.
    Before trial began, second counsel on this case (who had never 
tried a capital case before) moved to withdraw, informing the court 
that it would be unethical for her to continue when it was clear that 
the client was not receiving adequate representation. In spite of 
second counsel's sworn testimony that she did not believe the client's 
attorney was performing effectively-because he failed to conduct any 
investigation, failed to file necessary motions, failed to communicate 
with the client or second counsel, and failed to review the file in the 
case--the court refused to appoint a new lawyer, and instead removed 
second counsel from the case.
    Also before the trial began, the client was subpoenaed as a witness 
against the lawyer in a criminal case involving another defendant and 
was asked to testify about the incompetent representation he was 
receiving and the complete breakdown of his relationship with the 
lawyer. In spite of the obvious conflict of interest this created, the 
lawyer failed to withdraw from representation, and the trial court 
refused to appoint new counsel.
    During a recent hearing, the client again requested, and was 
denied, new counsel. Since his conviction almost one year ago, his 
attorneys have had almost no communication with him, regularly refusing 
his collect telephone calls and ignoring his requests for meetings. 
They have failed to participate in any way in the mitigation 
investigation in the case, or prepare in any way for the upcoming 
penalty phase hearing. Shortly after the recent hearing on the motion 
for new counsel, the mitigation specialist on the case was replaced by 
a new mitigation specialist.
    In another case from a rural county, the client was granted a new 
sentencing based on counsel's ineffectiveness in failing to present 
meaningful evidence in mitigation when there was much available which 
should have been investigated and presented. The lawyer appointed to 
handle the case at the resentencing failed to hire a mitigation 
specialist, and conducted very little of his own investigation into 
mitigation evidence. The lawyer presented only a few witnesses at the 
resentencing, including a mental health expert who had recently been 
arrested on domesticrelated charges. The lawyer communicated with the 
client only a few times in the two years leading up to the 
resentencing. The client was recently sentenced to death again.
    The number of death sentences originating from certain counties is 
extraordinarily high per capita. Two of Arizona's counties (Maricopa 
and Pima) are densely populated and contain the state's two largest 
cities from which the greatest number of death sentences originate. 
However, eight other counties which are sparsely populated and 
presumably should account for a small portion of first degree murders 
state-wide actually contribute over a quarter of all of the inmates on 
death row.
    Arizona has no thorough, unified system of review to determine 
whether counsel is conducting work in a professional manner. Thus far, 
as noted above, the quality of representation has been poor. Indigent 
defendants are frequently appointed counsel who fail to object to 
constitutional violations, to preserve the objection by properly 
raising the supporting facts and appropriate provisions of the state 
and federal constitutions, to investigate, or to request funds needed 
to investigate and hire necessary experts to identify all the 
constitutional violations in the case. In this last year, counsel have 
allowed their clients to plead guilty to first degree murder with no 
agreement as to sentence, and the defendants were ultimately sentenced 
to death. A vast number of meritorious claims are barred from later 
consideration by rulings of waiver, preclusion, and procedural default 
due to the attorney's failure to raise issues properly, or at all. In 
Arizona, courts are routinely procedurally barred from hearing the 
constitutional violations alleged in the cases of numerous capital 
defendants who have been executed such as Don Harding, whose appointed 
public defender advised him to represent himself in the hope that the 
client might create some reversible error, and Luis Mata, whose 
appointed counsel presented no defense, and little mitigation despite 
overwhelming evidence that Mr. Mata was brain-damaged and functionally 
mentally retarded. Those who are facing execution include Ramon 
MartinezVillareal, a severely mentally ill and mentally retarded 
Mexican national whose attorney failed to present any evidence 
concerning his multiple disabilities at his capital trial and 
sentencing. Although his death sentence was set aside by the federal 
district court based on his trial counsel's ineffectiveness, that 
ruling was vacated by the Ninth Circuit Court of Appeals when it 
concluded that the issue was waived because trial counsel, who 
continued representing Mr. MartinezVillareal in state and federal 
postconviction proceedings, failed to raise his own incompetence.
    If counsel does attempt to investigate, testing and expert 
consultation are exceedingly difficult to obtain, whereas prosecution 
funding is nearly unlimited. The Arizona Supreme Court recently 
recognized this pervasive inequality: ``Superior resources for 
prosecutors and the constant battle for funds faced by indigent 
defendants and their counsel, especially in our rural counties, will 
perpetuate or perhaps even exacerbate the disparity that already exists 
between rich and poor.'' State v. Hoskins, 14 P.3d 997 (Ariz. 2000) 
(Zlaket, C.J., dissenting). In one small county where a defendant 
actually was afforded competent counsel, the trial court refused to 
approve payment for even one mental health expert, appointment of whom 
was crucial in presentation of the client's mental health defense. 
Counsel was forced to file a special action to the Arizona Supreme 
Court two times to gain the bare resources necessary to protect his 
client's constitutional right to present a defense. Other defendants, 
without diligent and ethical counsel, have not been so lucky.
    Unlike other states, Arizona's legislators have done little to fill 
the funding void. Senate Bill 1486 was introduced in the legislature 
this year to create a capital defense trial office for the rural 
counties, despite the fact that the vast majority of capital cases are 
initiated in Maricopa and Pima counties and that nearly 80% of the 
capital cases in which ineffective counsel claims were granted derived 
from Maricopa and Pima counties. The proposed office was also grossly 
underfunded, allocating only $981,250.00 for nine full-time employees 
and expenses ``necessary to carry out the duties of the office.'' It 
did not allow the office to undertake representation until ``the state 
has served notice of intent to seek death,'' although it is well-
recognized that some of the most important work that can be done in a 
potential capital case is early investigation that will convince the 
prosecutor not to seek a death sentence in a particular case. The bill, 
however, had a short life, and like other initiatives to improve 
indigent defense for capital defenders in Arizona, died in a 
legislative appropriations committee because the appropriations 
chairperson believed that attempting to provide competent counsel 
through a statewide office was not a state issue.
    In sum, is no reliable system of indigent defense for defendants 
charged with capital murder exists in Arizona. Quality of counsel is 
not ensured and investigative and expert resources are scarce. Although 
the magnitude of these problems as they impact capital defendants is 
widely recognized, as recent debate and resulting proposals from the 
Attorney General's Capital Case Commission demonstrate, there is no 
mechanism in place capable of addressing these problems, and no funding 
available to create such a mechanism.

                                   - 
