[Senate Hearing 107-917]
[From the U.S. Government Publishing Office]



                                                  S. Hrg. 107-917
 
     PROTECTING THE INNOCENT: PROPOSALS TO REFORM THE DEATH PENALTY
=======================================================================



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 18, 2002

                               __________

                          Serial No. J-107-86

                               __________

         Printed for the use of the Committee on the Judiciary












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                       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
JOHN EDWARDS, North Carolina         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

                                                                   Page

Cantwell, Hon. Maria, a U.S. Senator from the State of 
  Washington, prepared statement.................................    61
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    22
    prepared statement...........................................   116
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   126
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   144
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    25
    prepared statement...........................................   234
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................    18
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................   239

                               WITNESSES

Delahunt, Hon. William D., a Representative in Congress from the 
  State of Massachusetts.........................................     3
LaHood, Hon. Ray, a Representative in Congress from the State of 
  Illinois.......................................................     5
Liebman, James S., Simon H. Rifkind Professor of Law, Columbia 
  University School of Law, New York, New York...................    10
Logli, Paul A., State's Attorney, Winnebago County, Illinois, 
  Rockford, Illinois, on behalf of the National District 
  Attorneys Association..........................................    13
Otis, William G., Adjunct Professor of Law, George Mason 
  University, Falls Church, Virginia.............................    16
Scheck, Barry, Co-Director, Innocence Project, Benjamin N. 
  Cardozo School of Law, New York, New York......................     7
Yackle, Larry, Professor of Law, Boston University School of Law, 
  Boston, Massachusetts..........................................    12

                          QUESTION AND ANSWER

Response of Mr. Liebman to a question submitted by Senator 
  Sessions.......................................................    37

                       SUBMISSIONS FOR THE RECORD

Accuracy in Media, Reed Irvine, Editor, Washington, D.C., report.    38
Amnesty International, Washington, D.C., statement...............    47
Barlyn, Bennett A., Deputy Attorney General, Division of Criminal 
  Justice, Appellate Bureau, Trenton, New Jersey, statement......    49
Cassell, Paul G., Wall Street Journal, June 16, 2000, article....    63
Crenshaw, Clay, Assistant Attorney General, State of Alabama, 
  Montgomery, Alabama, letter....................................    65
Criminal Justice Legal Foundation, Michael Rushford, President, 
  Sacramento, California, press release..........................    66
Current and former prosecutors, law enforcement officers and 
  Department of Justice officials, joint statement...............    70
Delahunt, Hon. William D., a Representative in Congress from the 
  State of Massachusetts, prepared statement.....................    72
Del Papa, Frankie Sue, Attorney General, State of Nevada, Carson 
  City, Nevada, statement........................................    74
Department of Justice:
    Bureau of Justice, report....................................    76
    supplementary data...........................................    88
Eisenberg, Ronald, Deputy District Attorney, Philadelphia, 
  Pennsylvania:
    capital litigation report....................................   111
    comment......................................................   114
Graci, Robert A., Assistant Executive Deputy Attorney General for 
  Law and Appeals, Criminal Law Division, Pennsylvania Office of 
  Attorney General, Philadelphia, Pennsylvania, statement........   119
Hoffmann, Joseph L., Indiana Law Journal, Fall, 2001, lecture....   128
Kenny, Hugh, Senior Assistant Attorney General, Office of the 
  Attorney General, State of Wyoming, Cheyenne, Wyoming, letter..   140
LaHood, Hon. Ray, a Representative in Congress from the State of 
  Illinois, prepared statement...................................   142
Liebman, James S., Simon H. Rifkind Professor of Law, Columbia 
  University School of Law, New York, New York, prepared 
  statement......................................................   146
Logli, Paul A., State's Attorney, Winnebago County, Illinois, 
  Rockford, Illinois, on behalf of the National District 
  Attorneys Association, prepared statement and attachment.......   164
Mangino, Matthew T., District Attorney of Lawrence County, 
  Pennsylvania, York Sunday News, June 9, 2002, article..........   185
New York Times, June 18, 2002, editorial.........................   188
Otis, William G., Adjunct Professor of Law, George Mason 
  University, Falls Church, Virginia, prepared statement.........   189
Pryor, Bill, Attorney General, State of Alabama, Montgomery, 
  Alabama, letter and attachments................................   201
Rubin, Paul H., Atlanta Journal-Constitution, March 13, 2002, 
  article........................................................   219
Scheck, Barry, Co-Director, Innocence Project, Benjamin N. 
  Cardozo School of Law, New York, New York, prepared statement..   220
Schulze, Victor-Hugo, II, Deputy Attorney General, Office of the 
  Attorney General, State of Nevada, Las Vegas, Nevada, letter...   231
Sneider, Jaime, Columbia Daily Spectator (Columbia University), 
  article........................................................   236
Tucker, William, Wall Street Journal, June 21, 2002, article.....   245
Twist, Steve, Arizona Attorney, November, 2000, article..........   248
Victim and survivor support for the Innocence Protection Act, 
  joint statement................................................   251
Voices of support, Innocence Protection Act, list and attachments   255
Washington Post, June 18, 2002, editorial........................   262
Willing, Richard, USA Today, June 18, 2002, article..............   263
Wilson, James Q., Deseret News, July 11, 2000, article...........   268
Yackle, Larry, Professor of Law, Boston University School of Law, 
  Boston, Massachusetts, prepared statement......................   271




















     PROTECTING THE INNOCENT: PROPOSALS TO REFORM THE DEATH PENALTY

                              ----------                              


                         TUESDAY, JUNE 18, 2002

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:17 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feingold, Specter, and Sessions.

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

    Chairman Leahy. Good morning, and I apologize for the 
delay, but we were having a vote and thought there was going to 
be a second one on the floor. I hate to be holding up 
Congressman LaHood and Congressman Delahunt, who are not only 
two of the best members of the other body, but two close 
friends.
    It has been a year since our full Committee held a hearing 
to examine the need for reform of the capital punishment 
system. Since then, like waves piling sand on the shore, more 
and more evidence has accumulated, exposing a death penalty 
system that is broken. A year's time has also exposed more of 
the toll that this broken system is taking on the lives of 
those wrongfully convicted.
    A year ago, I spoke of 96 exonerated capital prisoners. 
Now, we have reached 101. I was just introduced to Ray Krone, 
the 100th capital prisoner to be exonerated. He is here today. 
He served 10 years in prison, 3 of them spent on death row. 
Then Ray Krone was proven innocent. I don't think any of us can 
even imagine what one day on death row would be like, knowing 
we had not committed the crime.
    In fact, DNA evidence pointed squarely to the real killer 
in that case. Because they had locked up the wrong person, 
police stopped looking for the man who had committed the crime. 
But while they had the wrong person locked up, the man who 
committed the crime went out to sexually assault another woman.
    On its front page today, USA Today tells Ray Krone's story 
and reports how shabbily our Federal and State laws often treat 
exonerees like Ray for the time lost behind bars. After more 
than a decade in State prison for a crime he did not commit, 
Ray Krone got an apology from the prosecutor and $50, and he 
was sent on his way. In case those who are taking notes didn't 
hear that, after spending 10 years, 3 months and 9 1/2 days in 
prison, he was given $50 and told to start his life over again.
    Governor Ryan of Illinois, who showed great courage two 
years ago by announcing a moratorium on executions in his 
State, recently announced the results of the commission he 
appointed to study problems in the Illinois system of capital 
punishment. The commission recommended 85 changes and 
improvements. Incidentally, this was a commission whose members 
represented many points of view across the political and 
ideological spectrum.
    A significant number of those 85 recommendations have been 
embraced by even those who steadfastly support the death 
penalty. Senator Feingold chaired a hearing on the Ryan 
commission report just last week, and I commend him for the 
excellent work he has done on that.
    In May, the State of Maryland announced a moratorium on 
executions to investigate concerns about racial and geographic 
disparities in that State's capital punishment system.
    Just two weeks ago, the Supreme Court let stand the Fifth 
Circuit Court of Appeals decision in the ``sleeping lawyer'' 
case. This was the case in which the Texas Court of Criminal 
Appeals said it didn't violate a defendant's right to counsel 
when his lawyer slept all the way through the trial. The Texas 
Court said basically that the Constitution said only that you 
were entitled to a lawyer; it didn't say you were entitled to 
have the lawyer stay awake. The Fifth Circuit Court of Appeals 
said that unconscious counsel equates to no counsel at all, and 
the U.S. Supreme Court has let that stand.
    So all of these are reasons are why we must have 
legislative action. For more than two years, I have been 
working to pass a bill called the Innocence Protection Act. I 
introduced it in February of 2000. Around the same time 
Congressman Bill Delahunt, of Massachusetts, and Congressman 
Ray LaHood, of Illinois, introduced the Innocence Protection 
Act in the House of Representatives.
    We have 26 cosponsors in the Senate, and I thought there 
were 233 in the House, but Congressman LaHood tells me it is 
236 now. That is Democrats and Republicans, and I think it is 
safe to say they go across the spectrum from those who support 
the death penalty to those who oppose it.
    It is hard to get 236 cosponsors for Love Your Puppy Day, 
let alone on a third-rail issue like death penalty reform. I 
think the whole country should thank the Congressmen for what 
they have done. Reflecting the strong and growing interest in 
these reforms, House Judiciary Chairman Sensenbrenner and Crime 
Subcommittee Chairman Smith have scheduled a hearing on this 
bill this afternoon.
    It is incredible momentum generated in support of reform, 
but that doesn't mean that all the reformers speak with the 
same voice. Among the members of this Committee, four of us--
Senators Specter, Feinstein, Feingold, and myself--have drafted 
legislation proposing different types of changes to the system.
    What is most significant is not the differences between 
these bills, but the fact that each of us knows, and all of our 
cosponsors agree, that reform is needed before more innocent 
defendants are wrongfully convicted and sent to death row.
    Today, in addition to having Ray Krone here, sitting right 
beside him is Kirk Bloodsworth. I have gotten to know the 
Bloodsworths and they are fine people. Kirk was wrongfully 
convicted of the rape and murder of a young girl, a heinous 
crime, one that calls out for punishment of the person who did 
it. But the problem was they had the wrong person, and the 
wrong person was convicted and spent nine years trying to prove 
his innocence. Both of these cases were ultimately solved by 
DNA evidence, so we need to provide access to testing, where 
available.
    What causes innocent people to be convicted in the first 
place? In June of 2000, Professor Jim Liebman, who is going to 
testify today, and his colleagues at the Columbia Law School 
released the most comprehensive statistical study ever 
undertaken of modern American capital appeals. They found 
serious errors in two-thirds of all capital cases, mostly 
commonly because of grossly incompetent defense lawyers.
    We owe it to exonerees like Kirk Bloodsworth and Ray Krone 
to ensure that more innocent defendants are not convicted and 
sentenced to death for crimes they did not commit. As a U.S. 
Senator and as a former prosecutor, I can say we owe it to the 
American people to find the real killers and keep them off the 
streets, instead of resting easy and thinking we have solved 
the problem by locking up the wrong person. The real killer is 
still on the street, still looking for new victims. We owe it 
to our democratic system of Government and to the way of life 
we cherish to prevent the erosion of public confidence in our 
criminal justice system.
    So I thank our first witnesses. I am especially grateful to 
them for taking the time to come here this morning, especially 
when they have got to hold a hearing this afternoon.
    Gentlemen, the last thing in the world I am going to do is 
determine who goes first in the other body, so I will leave it 
to you guys.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]

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

    Representative Delahunt. I will proceed, Mr. Chairman. On 
behalf of our other colleagues, some 236 in the House who have 
cosponsored the Innocence Protection Act, let me thank you for 
convening this hearing today and inviting Ray and myself to 
testify.
    I also want to offer our gratitude for your leadership. It 
has been truly remarkable, Senator, and it is a wonderful 
legacy that I know once this proposal is signed into law, you 
can look back on with profound pride.
    I also am aware that you have been working with Senator 
Specter and Senator Feinstein and other members of the 
Committee to develop a consensus, and I am pleased to report to 
you that we are pursuing a similar effort in the House. As you 
indicated, this afternoon we will be having a hearing before 
the Crime Subcommittee and I am hopeful that our efforts in the 
House will result in an end product that we can all embrace.
    Let me suggest that this bill is much more than simply 
preventing wrongful convictions and giving justice to the 
wrongfully convicted. It is also about restoring confidence in 
the integrity of our entire justice system, a system that is 
the backbone of a healthy, vibrant democracy and really 
separates us from other nations, but whose success depends on 
its ability to maintain the confidence of the American people.
    As you have indicated, that confidence has been profoundly 
shaken by recent findings about the rate of serious reversible 
error in death penalty cases, as well as a growing number of 
cases reported in the national press in which innocent people 
have been exonerated. You mentioned Kirk Bloodsworth, who spent 
9 years in prison in Maryland, including 2 on death row, and 
Ray Krone, who spent 10 years in prison in Arizona, 3 of them 
on death row, and Marvin Anderson, who is also with us today.
    By the way, Senator, I think we should note that our bill 
and our House version, which is a mirror image of the bill that 
you filed, would increase that compensation at the Federal 
level from $5,000 per year served in cases of those convicted 
of capital crimes to $100,000 on an annual basis, and I truly 
wonder if that is sufficient, Mr. Chairman.
    DNA really provided us with a great opportunity to examine 
the frailties of the system. It was DNA that revealed the 
frailties in the system, and it also provided us with insights 
in how to address those deficiencies, how to correct them. DNA 
testing taught us that the best safeguard against wrongful 
convictions is a qualified lawyer with the resources necessary 
to present a vigorous defense in capital cases. That is what we 
have learned because of DNA.
    It is cases like Marvin Anderson and Ray Krone and Kirk 
Bloodsworth that I believe caused respected judges, judges like 
Sandra Day O'Connor, to express concern publicly that the 
system, and I am quoting Justice O'Connor, ``may well be 
allowing some innocent defendants to be executed.''
    Well, as he will shortly testify, Professor Liebman 
examined over 4,500 capital sentences handed down since 1976 
and discovered that the courts had found serious reversible 
error in 68 percent of those cases. That is an error rate of 
almost 7 out of 10, and I think we can all concur that is 
simply unacceptable.
    Now, some have suggested that the high rate of reversals 
demonstrates that the system is working. Well, I would suggest 
that is nonsense. We cannot know whether the appeals process is 
catching all the errors or not. We just simply can't determine 
that. We can't make that assessment. But what we do know is 
that the errors are not being caught at trial and innocent 
people are being convicted, while the guilty, as you indicated, 
remain free to prey on our communities.
    The Act before us focuses on the two most effective steps 
that we can take to ensure greater fairness and accuracy in the 
administration of justice--access to post-conviction DNA 
testing and the right to adequate legal services in death 
penalty cases.
    DNA has exonerated 12 of those who have been freed from 
death row, and another 96 who were wrongfully convicted of 
serious crimes. In at least 16 of those cases, the same test 
that exonerated an innocent person has led to the arrest and 
prosecution of those that actually perpetrated the crime. This 
is as much about public safety as it is about preventing 
wrongful convictions.
    Yet, DNA testing is often opposed by prosecutors and must 
be litigated sometimes for years. Evidence that might have 
established innocence has been misplaced or destroyed. Our bill 
would help ensure that biological material is preserved and DNA 
testing is made available in every appropriate case, but DNA is 
not a magic bullet that will eliminate the problem of wrongful 
convictions.
    We must take steps to prevent those convictions from 
happening in the first place, and the single most important 
step is to ensure that every indigent defendant in a capital 
case has a competent attorney. The Innocence Protection Act 
would encourage States to develop minimum standards for capital 
representation, and most importantly would provide them with 
the resources to help ensure that lawyers are available to meet 
those standards.
    As you indicated, Senator, you were a prosecutor. I was 
also an elected prosecutor for more than 20 years, and I am 
fully cognizant of the fact that the adversarial process can 
find the truth only when both lawyers are up to the job.
    Some have suggested that our society cannot afford to pay 
for qualified counsel in every capital case. The truth, and I 
know you share this, is that we cannot afford to do otherwise 
if our system of justice is to have the confidence of the 
American people.
    So with that, Mr. Chairman, thank you again. I look forward 
to working with you and Senator Feingold and other members of 
the Committee and my fellow puppy and good pal, Ray LaHood, in 
making this a reality.
    [The prepared statement of Mr. Delahunt appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, and I think of the 
days when both you and I were prosecutors in adjoining States. 
I think we both came to the same conclusion that it is a lot 
easier to prosecute cases if you knew there was competent 
counsel on the other side. Among other things, you don't have 
to try the case again ten years down the road.
    Congressman Lahood, you have been such a strong and 
consistent voice in this and I appreciate it because, like 
Congressman Delahunt, you carry a great deal of respect in your 
party and among both Republicans and Democrats on both sides of 
the aisle. So I am delighted to have you here, sir.

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

    Represenative Lahood. Thank you, Senator. Thank you, Mr. 
Chairman. I want to express my thanks to you for the 
extraordinary leadership you have provided, and also to Senator 
Feingold.
    I know, Senator, you had a hearing recently about this and 
about the commission that Governor Ryan established in 
Illinois, and that really highlights some good work that went 
on in Illinois and we appreciate your leadership on this issue, 
also.
    I will be brief, Mr. Chairman, because I think you and 
Congressman Delahunt have really captured the essence of the 
legislation. The one thing that I would say is that Bill and I 
were on C-SPAN this morning touting your leadership and the 
hearing today, and I know it is being broadcast on C-SPAN III.
    One of the things that I really believe is that we have a 
flawed system, and I think your legislation here and our 
legislation in the House will correct a flawed system. These 
two gentlemen sitting behind us and sitting in front of you are 
an example of a flawed system, a system that went wrong, a 
system that really did not prosecute people who committed a 
crime, but prosecuted innocent people, and they served the 
penalty for having to sit on death row for an enormous amount 
of their own personal life.
    That flawed system needs to be fixed. In my opinion, we are 
about 60 percent to the goal line. When you look at where we 
were a couple of years ago when the three of us were standing 
up talking about this bill, and now we have 236 cosponsors in 
the House, we have come a long way. But we need to cross the 
goal line, and the goal line is really to pass legislation and 
have the President sign it.
    What will take place in the House today is a hearing by the 
Crime Subcommittee of Judiciary. Bill will be there to hear 
testimony, and what will happen here today is an important 
further step in our goal. I hope that through the leadership of 
you and Senator Feingold and others, and Governor Ryan and 
Governor Glendening, the momentum is really moving, and the 
front-page story, the banner story in USA Today.
    So we have made a lot of progress, but we need to finish 
the other 40 percent and pass this legislation and have it 
signed into law to fix a flawed system, a system that does not 
allow currently for people to be wrongfully convicted and have 
to serve on death row. I think once we do that, we will have 
achieved an awful lot in really improving the criminal justice 
system and making sure that the correct people are convicted 
and put behind bars, and wrongfully people will not have to 
serve on death row.
    Thank you for your leadership, and we will continue to keep 
on doing what we are doing in the House. Our goal is to really 
try and get a bill marked up and passed in the House, and I 
know that is your goal, and I hope we can really finish this 
important legislation this year and get it signed into law. 
That is our goal and we are going to keep working on it until 
we achieve that.
    Thank you very much.
    [The prepared statement of Mr. LaHood appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you. It is my goal, also, and 
again looking at the list of your 236 cosponsors, there is not 
a common thread ideologically and politically around those 236, 
except for the fact of wanting to have justice done. I feel 
that way and a lot of prosecutors I know feel that way, and I 
appreciate you being here.
    Senator they both have to attend to matters back on the 
other side. Do you have any comments?
    Senator Feingold. I just want to compliment both of you on 
your terrific bipartisan leadership on this issue. It is a 
pleasure to be working with both of you on this issue.
    Thank you, Mr. Chairman.
    Represenative Lahood. Senator, I assume our statements will 
be put in the record.
    Chairman Leahy. Yes, the full statements will be put in the 
record.
    Represenative Lahood. Thank you.
    Chairman Leahy. I appreciate both of you coming over. It is 
good to see you both.
    Represenative Lahood. Thank you very much.
    Representative Delahunt. Thank you, Senator. Thank you, 
Senator Feingold.
    Chairman Leahy. When I started, I mentioned Kirk 
Bloodsworth and Ray Krone in my opening statement, but I have 
also met Marvin Anderson here today. Mr. Anderson was convicted 
of robbery and rape and kidnapping, all crimes he did not 
commit. He spent a lot of years protesting his innocence.
    I must say, Mr. Anderson, you also had some extraordinary 
help from your family. I know you have mentioned your 
appreciation to them before, and I do so, too.
    Mr. Anderson proved his innocence. As in Mr. Krone's case, 
the DNA evidence pointed to the actual perpetrator. Again this 
was at a time when everybody thought the books were closed and 
we had somebody in jail. But the actual perpetrator was out 
free, while an innocent man was behind bars.
    Our next witnesses will be a panel of Barry Scheck, the Co-
Founder of the Innocence Project at the Benjamin N. Cardozo 
School of Law; Professor James Liebman, the Simon Rifkind 
Professor of Law at Columbia Law School, in New York; Mr. Larry 
Yackle, Professor of Law at Boston University Law School, in 
Boston, Massachusetts; State's Attorney Paul Logli, from 
Winnebago County, Illinois, and Professor William Otis, Adjunct 
Professor of Law at George Mason University Law School.
    We will take a moment to get all your gentlemen lined up 
here, and I will mention Mr. Scheck is Professor of Law at the 
Benjamin N. Cardozo School of Law. He is the Co-Founder of the 
Innocence Project, which has either represented or assisted in 
the representation of more than half of the 108 men exonerated 
through post-conviction DNA testing. Some of them had also been 
sentenced to death.
    Mr. Scheck, we will start with you and then I will 
introduce Professor Liebman. Go ahead, sir.

STATEMENT OF BARRY SCHECK, CO-DIRECTOR, THE INNOCENCE PROJECT, 
     BENJAMIN N. CARDOZO SCHOOL OF LAW, NEW YORK, NEW YORK

    Mr. Scheck. Thank you very much, Mr. Chairman.
    Chairman Leahy. Welcome back.
    Mr. Scheck. It is good to be here.
    I think that when you introduced this legislation two years 
ago, there were 67 individuals who had been exonerated with 
post-conviction DNA tests, and we are now up to 108. I think 
that the main reason that the pace of these exonerations has 
accelerated is the passage of something like 25 statutes now in 
different States that in some form authorize post-conviction 
DNA testing, as well as the growth now of innocence projects at 
35 different law schools across this country.
    This is a small but very important class of people to whom 
attention must be paid, and I have no doubt that if the 
legislation before this Committee now is passed that within two 
or three years we can double the number of people that are 
exonerated. But we are in a race against time because as we sit 
here today, 75 percent of the time the biological evidence in 
these cases is lost or destroyed or literally being degraded by 
bacterial contamination and it is disappearing.
    As was noted by you in your introduction and by Congressmen 
Delahunt and LaHood, this is a profound pro-law enforcement 
piece of legislation, because every time an innocent person is 
arrested, convicted, sentenced, and executed, God forbid, the 
real assailant is out there committing more crimes.
    If you take a look at Ray Krone's case and think about some 
of the issues that have been dividing members of the Committee 
on what the standard should be for getting access to the 
evidence for purposes of a DNA test, whether it should be the 
one that is in the Innocence Protection Act dealing with non-
cumulative material evidence that could show innocence or a 
higher standard, think about Ray Krone's case.
    Here, after his conviction, there was some blood and some 
saliva on the tank top of the victim. It would not be 
immediately apparent, frankly, to prosecutors or anyone else 
that even if you did DNA testing, which wasn't done in the 
initial trials, one of which resulted in him being sentenced to 
death--even if you did it and you excluded him as being the 
source of the blood or the saliva, that wouldn't necessary 
prove his actual innocence. But the truth is, when you extract 
the DNA profile and you put it in a databank, you can get a hit 
on a convicted offender, which is exactly what happened in his 
case.
    Just speaking on a totally practical level as one who is 
out there in the trenches trying to get access to the evidence 
for people in Ray's position, it is sometimes hard, 
unfortunately, for law enforcement officials to imagine the 
different things you can do with pieces of evidence and the use 
of this databank.
    So if you set that initial standard too high, frankly, as 
some are proposing, the Ray Krones of this world frankly are 
going to rot away and may never see the light of day, nor will 
the person who really committed the crime be apprehended. That 
is what is so different about this kind of post-conviction 
legislation.
    What I think divides some of the Senators here in terms of 
the competing versions of this legislation that is before the 
body is one issue of time limits. Time limits for those of us 
who are really working these cases are of critical importance. 
The idea that there will be a sunset provision in these cases 
is a serious problem.
    The truth of the matter is it is very, very hard when you 
are looking at these old cases to even find the lawyers who 
represented these defendants, the lawyers on appeal, the 
lawyers at trial. Many of them are disbarred. They have 
disappeared or they have died.
    It is impossible very often to get transcripts. In order to 
make a proper motion to get access to the evidence, you have to 
have the transcripts of the trial, and many times they are 
incomplete. Certainly, these inmates, who are indigent, who 
have no representation in a post-conviction phase, can't access 
to them.
    It, of course, is most difficult to find the evidence. Take 
the case of Marvin Anderson. Marvin Anderson was a young man in 
1982, a model student, a volunteer fireman, who was convicted 
in Hanover, Virginia, because a woman who was kidnapped and 
raped remembered the assailant as saying something about he, a 
black man, had a white girlfriend.
    The only person in Hanover that they really knew that fit 
the age range that had a white girlfriend was Marvin Anderson. 
Even though he really didn't fit the description, he was 
brought in and eventually identified. The police literally had 
in their files some information about a man on a bicycle who 
was a very good suspect for this crime.
    Marvin was convicted wrongly and sentenced to prison. As 
late as 1988, evidence as to who the real assailant was was 
brought before Governor Wilder. It failed in an effort to get 
him a pardon at that stage. Years passed. Marvin went before 
parole boards. This is true of so many of our clients. They 
said, well, if you admit to this crime and show remorse, we 
will let you out early. Marvin said ``I didn't commit this 
crime.''
    Eventually, he was released on parole, but he and his 
mother, who is here with us today, did not give us this fight. 
We at the Innocence Project in New York and our Capital Region 
Innocence Project in the D.C.-Virginia area couldn't close this 
case because we knew what kind of a man he was.
    Believe it or not, the swabs in this case were stapled to 
the underlying paper that were found by accident that resulted 
in a DNA test that proved Marvin innocent and identified the 
person who really committed the crime. So it is unrealistic to 
have time limits in these cases.
    [The prepared statement of Mr. Scheck appears as a 
submission for the record.]
    Chairman Leahy. I think it also underscores again what we 
have been all saying. It is not just the case, as important as 
that should be, of freeing the innocent, but allowing those in 
law enforcement to go after the person who is the real 
perpetrators who are still out there and are still a danger to 
society.
    Professor Liebman is the Simon Rifkind Professor of Law at 
Columbia Law School. He has taught since 1985 and is the 
coauthor of A Broken System: Error Rates in Capital Cases, and 
the follow-on Broken System II: Why Is There So Much Error in 
Capital Cases and What Can Be Done About It?
    I believe you are also assistant counsel to the NAACP Legal 
Defense and Education Fund. Am I correct, Professor?
    Mr. Liebman. Yes.
    Chairman Leahy. We are always happy to have you here, and 
please go ahead, sir.
    Incidentally, we are hurrying it along because I am not 
sure when the voting will start again on the floor and we may 
have to cut out. All statements will be put in the record in 
full. The importance of this hearing is to make a record, so 
that when you get back to your statements, if you see things in 
there and think I wish I had added this point or that point, or 
answered this question more fully--this isn't a ``gotcha'' kind 
of hearing--just add that in and it will be part of the full 
record.
    Professor Liebman, go ahead, sir.

 STATEMENT OF JAMES S. LIEBMAN, SIMON H. RIFKIND PROFESSOR OF 
   LAW, COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK

    Mr. Liebman. Thank you, Mr. Chairman. I am going to focus 
my testimony today on the need to improve the quality of legal 
representation in State capital trials.
    My testimony is based, as you mentioned, Mr. Chairman, on a 
comprehensive study by a team of Columbia University 
researchers. We looked at three things: the amount of error in 
capital cases, the causes of that error, and what can be done 
to avoid it.
    We began this study 11 years ago following a request from 
Senator Biden, who was then Chair of this Committee. Senator 
Biden asked us to do some research, and that got us on our way. 
I am pleased to be back here, 11 years later, to provide some 
additional findings.
    Five findings are particularly pertinent today. First, 
State death penalty verdicts are fraught with reversible error. 
Of nearly 5,000 State capital verdicts reviewed for error 
during our 23-year study period, 68 percent were found to 
contain reversible error and had to be sent back for re-trial.
    Second, reversible error is serious error. We know this for 
a number of reasons. For one thing, 90 percent of those errors 
were found by elected State judges, who can be voted out of 
office if they reverse cases for no good reason.
    Where we have data, nearly 80 percent of the reversals were 
because of four clearly serious errors: egregiously incompetent 
defense lawyers, prosecutorial suppression of evidence of 
innocence or mitigation; misinstruction of juries; and biased 
judges and juries.
    These errors are so serious that curing them changes the 
outcome on retrial 82 percent of the time where we have data, 
including 9 percent that resulted in acquittals on re-trial.
    Third, the review process is so overwhelmed by serious 
capital mistakes that it cannot catch all of those mistakes. We 
conducted case studies on four individuals who were convicted 
and given a death sentence, though they were innocent. In all 
four of those cases, the State and Federal courts had upheld 
their verdicts and approved the defendants for execution.
    It fell to college students in one case and posthumous DNA 
testing in another case to prove that these defendants whom the 
courts had approved for execution were innocent. In each case, 
the courts actually recognized that the evidence was weak and 
noted it. The courts also saw that there were errors in the 
case and noted that. Yet, in each case, the courts upheld the 
verdicts and sent the innocent defendant on to be executed 
because of very strict prejudice rules and very strict 
procedural default rules that the courts have had to adopt in 
order to enable them to cope with the amount of error they find 
in these cases. So reviewing courts do not catch all of the 
error in the cases.
    Fourth, the result of so much error is that it causes the 
system to be unable to achieve its important law enforcement 
goals. Over the 23-year period, barely 5 percent of the death 
verdicts that were imposed were carried out.
    As a result, the usual, normal outcome of a capital verdict 
as the system works today is that it will be reversed, and when 
it goes back for re-trial it will be replaced with a non-
capital sentence.
    When add up the costs of all those reversals and retrials 
that end in non-capital verdicts, the cost per execution, on 
the best available estimate is $23 million. The cost in anguish 
to frustrated victims in these cases is immeasurable.
    Fifth, at the core of all of these errors and costs is a 
single problem: the absence at many State capital trials of 
adequately trained and compensated lawyers. The single most 
common reason for reversals at the State post-conviction and 
habeas level is egregiously incompetent lawyers. That problem 
accounts for one-third of all of those reversals. States that 
spend the least on their capital trials and tend to spend the 
least on capital defense have the highest error rates.
    Most crucially, those States and counties that impose death 
sentences more often per 1,000 homicides, the ones that reach 
out and grab the weak and marginal cases as well as the strong 
cases, have much higher error rates, and they also have much 
higher innocence rates. Baltimore County, which wrongfully 
sentenced Kirk Bloodsworth to die despite his innocence, is one 
of those high death sentencing counties. Phoenix, Arizona, 
which wrongfully sentenced Ray Krone to die despite his 
innocence, is another high death sentencing county.
    The most important way to keep the system from imposing 
death verdicts in weak cases--the best way to confine the death 
penalty to the worst of the worst cases--is to have serious, 
careful adversarial testing at the trial phase so the weak 
cases and the innocence cases don't get through.
    If states invest in competent, careful screening of cases 
by well-compensated lawyers at the front end of the system, 
that will pay for itself many times over in saved reversals, 
saved delay, and saved anguish to victims at the back end of 
the process.
    These findings support many of the provisions of the bills 
before the Committee, and I am prepared to talk about those if 
there is time. But I commend the Committee, Mr. Chairman, for 
its efforts to address this very crucial cause of the breakdown 
in the States' death penalty systems.
    [The prepared statement of Mr. Liebman appears as a 
submission for the record.]
    Chairman Leahy. Thank you, and thank you again for taking 
the time to be here.
    Professor Yackle is Professor of Law at Boston University 
Law School. He teaches courses on constitutional law and the 
Federal courts. He has written more than two dozen amicus 
curiae briefs in the U.S. Supreme Court. He is the author of 
four books and a number of articles on constitutional law and 
the jurisdiction of the Federal courts.
    So, Professor Yackle, I am delighted to have you here and I 
appreciate you taking the time. I feel like I am going back to 
law school here today, which is a good feeling, I must admit. I 
kind of miss those days.

STATEMENT OF LARRY YACKLE, PROFESSOR OF LAW, BOSTON UNIVERSITY 
              SCHOOL OF LAW, BOSTON, MASSACHUSETTS

    Mr. Yackle. You are one of the few.
    Chairman Leahy. Well, you don't miss it in your last year. 
I find after I had been out, first in private practice, and 
then I spent a number of years as a prosecutor, I was wishing I 
could go back for at least one semester so I could say, wait a 
minute, let me tell you how it really is. That would have been 
nice, but I feel I get these tutorials every few days here.
    Please go ahead, sir.
    Mr. Yackle. Thank you, Senator. I have to say that I am 
getting a tutorial myself this morning. I had thought until I 
came today that only members of Congress could change history 
by revising and extending their remarks, and now I find that 
the rest of us can do that.
    Chairman Leahy. Well, it varies Committee by Committee, but 
this is a Committee where we try to get as much information as 
we can.
    Mr. Yackle. I am pleased to be here to be associated with 
these hearings. I know the Committee is considering a number of 
bills, all of them important, and in my view laudatory bills to 
reform the criminal justice system, particularly in capital 
cases. I think all of these bills are extraordinarily important 
and I am just privileged to be here to be associated with your 
efforts.
    My assignment is very narrow. I want to address only one 
title in one of the bills, the bill authored by Senator 
Specter. This is Title I of his bill, 2446. It addresses a 
glaring problem in the capital justice system in the United 
States.
    Under current law, it is possible that men and women can be 
executed before the courts have decided whether their 
convictions and sentences are valid. It sounds incredible, but 
it is quite possible that this can happen. The purpose of Title 
I in Senator Specter's bill is to prevent that happening.
    That goal in itself is sufficient to justify Title I, but 
there are other purposes as well. The idea in this title is to 
ensure that there are stays of execution in all death penalty 
cases while the courts are doing their work, and until the 
courts are finished with their work, and only at that time, 
would a stay be lifted such that an execution could be carried 
out.
    Today, of course, courts have power to issue stays of 
execution, but it requires a good deal of litigation in order 
to determine whether a stay will issue in a particular case. 
This litigation often is conducted late at night, in the 11th 
hour, sometimes requiring telephone conversations. It keeps 
judges and lawyers, including Supreme Court Justices, up 
through the night laboring to determine whether a stay should 
issue. All of this is wasted effort. In all of these cases, a 
stay should already be in place in order that this kind of 
frenzied, hectic litigation over stays is eliminated.
    In addition, today, under current law, when a stay is 
issued it tends to be short-lived, so that the adjudication 
that occurs in the wake of a stay tends to be on a very short 
fuse. Judges do their work then with their eye on the clock, 
racing the clock in order to get their work done before a stay 
expires.
    That is not adjudication that is likely to be thorough and 
careful and effective, and that is the kind of adjudication we 
need in capital cases. There ought to be a stay in place that 
relieves courts of that kind of anxiety over time.
    Finally, that sort of litigation that is required today 
over stays of execution generates mistakes. All of us know if 
we work faster than we really can, we are likely to make 
mistakes. In these capital cases, when serious mistakes are 
made, only two things can happen.
    One, we need further wasteful litigation later in order to 
correct those mistakes. Or, two, what is worse, mistakes may 
never be corrected at all and men and women may be put to death 
even though they had valid claims, but the courts were unable, 
for want of time, to determine the validity of those claims.
    Over ten years ago, the Judicial Conference of the United 
States, through a Committee chaired by former Justice Powell, 
proposed something in the nature of what Senator Specter's 
Title I would do. What we need is a system in which there are 
stays of execution early on in every case, stays that carry 
through all stages of adjudication and are lifted only at the 
end, when Federal courts have determined whether claims are 
valid or not.
    [The prepared statement of Mr. Yackle appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much. That is helpful.
    We will go to Paul Logli, the State's Attorney in Winnebago 
County, Illinois. He has been a prosecutor for 18 years, the 
last 16 as State's Attorney--twice the amount of time I served 
as State's Attorney in Vermont.
    Before that, you were a judge on a local circuit court. Am 
I correct on that?
    Mr. Logli. That is correct, Mr. Chairman.
    Chairman Leahy. Well, I am always delighted to have State's 
Attorneys before us. Your State and my State and Maryland and a 
couple of others use the term ``State's Attorney.''
    Mr. Logli. That is correct.
    Chairman Leahy. I appreciate having you here. Go ahead, 
sir.

STATEMENT OF PAUL A. LOGLI, STATE'S ATTORNEY, WINNEBAGO COUNTY, 
    ILLINOIS, ON BEHALF OF THE NATIONAL DISTRICT ATTORNEYS 
              ASSOCIATION, FALLS CHURCH, VIRGINIA

    Mr. Logli. Thank you, Mr. Chairman. Like you, I am a Vice 
President of the National District Attorneys Association, 
which, in searching our records, I know that you served as a 
vice president of our Association.
    Chairman Leahy. You are showing some good history. I was 
that, and I was about to become President-elect of the National 
DAs Association. I gave up the glory of that for what turned 
out to be a number of years of anonymity in the U.S. Senate. I 
enjoyed both.
    Mr. Logli. We appreciate you being here.
    Like you, Senator, I want to emphasize to this Committee 
that, as a prosecutor, we represent the only trial attorneys in 
the country whose primary ethical obligation is to seek the 
truth wherever it takes us.
    We would ask that a copy of the National District Attorneys 
Association's policy on DNA be added to this record.
    Chairman Leahy. It will be.
    Mr. Logli. Thank you.
    Our Association has consistently embraced DNA technology as 
a scientific breakthrough in the search for truth. Since the 
mid-1980s, when DNA evidence was first introduced, we have 
fought for its admission in criminal trials and we have been 
instrumental in providing training to prosecutors on using DNA 
evidence. We have been using DNA evidence to convict the guilty 
and free the innocent for over 20 years.
    We have always supported the use of DNA testing where such 
testing will prove the actual innocence of a previously 
convicted individual and not serve as a diversionary attack on 
a conviction.
    The issue of post-conviction DNA testing such as 
contemplated by your Act, Senator, involves only cases 
prosecuted before adequate DNA technology existed. In the 
future, as we use DNA testing in the investigations and 
prosecutions currently pending, the need for this post-
conviction DNA testing will actually cease, hopefully, as we go 
through the cases where DNA testing can be used to show actual 
innocence.
    We need to emphasize that post-conviction testing should be 
employed only in those cases in which a result favorable to the 
defendant establishes proof of the defendant's actual 
innocence. We feel that requiring only that the results be 
material, non-cumulative evidence and not specifically prove 
innocence could waste valuable resources, unnecessarily burden 
the courts, and further frustrate victims. The resources for 
DNA testing are finite and they should be used wisely.
    The National District Attorneys Association believes that 
post-conviction relief remedies must protect against potential 
abuse and that such remedies must respect the importance of 
finality in the criminal justice system.
    Now, moving on to competency of counsel, no one, especially 
prosecutors, wants incompetent defense lawyers on the other 
side of the counsel table, especially in a murder case. We 
don't want to have to re-try cases again. Victims don't want to 
have to go through the trauma of a trial again. It benefits no 
one, especially victims, to have to re-try a major case.
    Having said that, we believe that federally-mandated or 
coerced competency standards for State court defense counsel 
are difficult, not very workable, and may be unnecessary, as 
the system is starting to show in the various States.
    Our system of criminal law is inherently a State system. 
Some 95 percent of all criminal trials are at the local level 
of government, and because of that, the State judiciary is 
entrusted with serving as the arbitrator for all facets of the 
court system, including who can practice in the trial courts.
    Of the 38 States that currently allow a death sentence to 
be imposed as a criminal penalty, 22 of those States already 
have either a statute or a court rule that establishes 
standards for competency of counsel at the trial, appellate, or 
post-conviction level.
    Now, I recognize that not all States have competency 
standards and there are some things that Congress can do to 
motivate that. In many States, the criminal justice system is 
strapped for cash, both on the defense side and the prosecution 
side. We are having a difficult time attracting and retaining 
young lawyers to be prosecutors or defenders. When we can't 
attract and retain them, then we truly have competency 
problems.
    We have spoken with other members of this Committee and 
other members of Congress about programs to enhance the ability 
of young lawyers to stay in the system, such as student loan 
forgiveness, and we know that the Senators are familiar with 
that. You are doing it for some of your staff attorneys. The 
military does a bonus to encourage lawyers to stay on.
    We believe that to truly motivate competency, it would be 
most helpful for the Congress to allow student loan forgiveness 
and to encourage training, especially ethics training at 
national centers such as the National Advocacy Center for 
prosecutors, State and Federal, in Columbia, South Carolina. We 
want to provide incentives to young people to come into the 
system and stay in the system, and we believe that that, more 
than federally-mandated standards, would ensure competency of 
counsel on both sides, prosecution and defense.
    Chairman Leahy. Why not do both?
    Mr. Logli. Well, I think that we can do that. I think that 
if you want to have some type of universal standard, the way to 
encourage that is to provide that type of loan forgiveness 
money or training money to the States as an incentive. But to 
take money away from the States, from already cash-strapped 
systems, would be self-defeating, in our opinion.
    We really want to work together with the Senate in getting 
a form of this bill through. We think it is workable. We 
embrace the use of DNA technology, we embrace counsel 
competency, and I believe that we are not really that far apart 
on a successful bill.
    [The prepared statement of Mr. Logli appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you. The student loan area I 
find appealing. We do this in some regards with teachers, and 
sometimes with doctors in rural underserved areas. For example, 
I know Senator Durbin has a bill for public defenders.
    On a personal level, my oldest son, who is recognized as a 
very, very good trial lawyer in our State, has been actively 
recruited by a number of prosecutors, both in Vermont and here 
in this area. He has had to turn those offers down because he 
couldn't have paid his student loans had he gone there.
    Professor Otis is an Adjunct Professor of Law at George 
Mason University. In 1992, he was Special White House Counsel 
to then-President Bush. He spent most of his career in the 
Department of Justice, in the Office of the U.S. Attorney for 
the Eastern District of Virginia, where he was chief of the 
Appellate Division.
    We are glad to have you here, Professor Otis. Please go 
ahead, sir.

STATEMENT OF WILLIAM G. OTIS, ADJUNCT PROFESSOR OF LAW, GEORGE 
            MASON UNIVERSITY, FALLS CHURCH, VIRGINIA

    Mr. Otis. Thank you, Mr. Chairman, Senator Specter, Senator 
Feingold, Senator Sessions. Innocent citizens are being killed 
because of deficiencies in our law, but not, I am afraid, 
deficiencies some of the proposals before you will rectify. 
Instead, they risk compounding these deficiencies by creating 
unnecessary costs to carrying out the punishment our most 
brutal killers have earned.
    It is said that the system is broken. It is not broken. To 
the contrary, the administration of the death penalty is more 
fair and accurate today than at any time in our country's 
history, and seldom have its benefits been more evident than 
they are now: as we have had more executions in the last 
decade, the murder rate has gone down every single year.
    No one doubts that every reasonable precaution should be 
taken to ensure that only the guilty are executed. To the 
extent the movement for reform seeks to advance that goal, all 
will applaud its intent. But in its present form, I 
respectfully believe that the movement is misdirected. It aims 
at the occasional problem, while ignoring the epidemic danger 
to the innocent, namely that thousands of them are murdered 
every year.
    The innocents who most deserve this Committee's attention 
are not convicts who want what will often turn out to be just 
another means to string things out and game the system. The 
real innocents are ordinary citizens gunned down by unrepentant 
killers we should execute, but because of the multitude of 
hurdles already built into the system so often we don't.
    Almost 1 in 10 of the roughly 3,700 inmates on death row 
has at least one prior conviction for murder. This teaches a 
startling lesson: that just in recent years, more than 300 
innocent people have been killed, not by legal error, but by 
criminals we knew had done it before.
    This emphatically does not mean that all those repeat 
killers deserved execution after their first murder, although 
one must wonder if the death penalty should have been imposed 
on at least some of them. It does highlight, however, that the 
most glaring deficiency in our system is neither excessive use 
of capital punishment, what with only one execution for every 
200 murders, nor insufficient scrutiny of death penalty cases, 
what with post-conviction review already averaging more than 
ten years.
    It is that we don't carry out the death penalty with the 
assurance needed to fully realize two of its principal 
benefits: general deterrence and incapacitation of those like 
Ted Bundy or John Wayne Gacy, for whom killing was a sport. As 
a result of our hesitation, the real protection of innocence 
our Government owes its citizens is not nearly what it should 
be.
    What this suggests is that we must consider whether capital 
punishment is underutilized. Although Professor Liebman's study 
purports to find an error rate of 68 percent in death penalty 
cases, that is a misleading number sometimes used to imply that 
68 percent of those sentenced to death have been 
``exonerated.'' But nothing approaching that is true.
    By far the more telling statistic is that over 90 percent 
of those who faced re-trial after appellate reversal were again 
convicted. And the most telling statistic of the Liebman study 
is this: zero. Zero is the number of factually innocent persons 
Professor Liebman or any other serious scholar has claimed to 
be able to demonstrate were executed in at least the last 40 
years--zero.
    The great majority of our citizens support capital 
punishment, and it could scarcely be otherwise, what with the 
memory of Timothy McVeigh still fresh, and Osama awaiting the 
only justice that will fit him. The minority seeking to abolish 
the death penalty understands this, and thus that a 
straightforward attack on it cannot work.
    A more subtle strategy has been devised: ``stealth 
abolition'', abolition in which capital punishment technically 
remains on the books, but is never actually imposed because the 
practical barriers to its imposition will be made prohibitive.
    Like any mechanism in the law, no matter how just or how 
fitting, the death penalty can be effectively repealed simply 
by putting it in the concrete boots of excessive cost and 
unending delay. This sort of stealth abolition is the unstated 
agenda of some of the groups supporting the proposals before 
you. If they want outright abolition, let them say so directly 
and win their case with the public.
    No just person wants a judiciary where innocent people are 
being railroaded or just fumbled into the death chamber. That 
is the picture the stealth abolitionists paint: that, for 
example, defense lawyers have the resources of a church mouse, 
the brains of a pumpkin, and the system the overall reliability 
of an airline schedule.
    Having worked in the courts for almost a quarter of a 
century, I can tell you that it is nothing like that. Of course 
it is possible to discover some poster boy blunderer among the 
thousands of cases each year, but the sleeping defense lawyer 
is essentially an urban myth.
    Certainly, we can improve. In my judgment, more targeted 
reforms for DNA testing and improved performance by counsel 
would be welcome, and I will be happy to discuss those with you 
if you are interested. We should protect the innocent people in 
our country. We just need to remember who they really are.
    [The prepared statement of Mr. Otis appears as a submission 
for the record.]
    Chairman Leahy. Well, Professor Otis, I think that perhaps 
Congressman LaHood would be surprised to be considered a 
stealth abolitionist. I think he is as strong an advocate of 
the death penalty as anybody I know and he is the chief 
Republican sponsor in the other body on this legislation.
    I would think that you would agree, and we all agree on the 
need to protect society. I wore a shield for eight years to do 
just that. But I think you would agree that society is not 
protected when the wrong person is locked up and the person who 
committed the crime is out free.
    I should note that the Columbia University death penalty 
study came about as a result of a request from this Committee 
for evidence about capital punishment reversal rates. It has 
been widely acclaimed. It recently won the 2002 prize of the 
Law and Society Association. Of course, Professor Liebman can 
speak for himself.
    Senator Specter--like me, a former prosecutor, and he in a 
much larger venue--has one of the pieces of legislation before 
us, referred to earlier in reference to the question of when 
stays of execution are given. Senator Specter, like most 
members of this Committee, is juggling about three different 
places he is supposed to be. So before I begin my own 
questions, I will yield to Senator Specter for any statement he 
wishes to make.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you very much, Mr. Chairman. I would 
like to make an opening statement and shall be relatively 
brief.
    I commend you for your leadership on this important subject 
and the others who have brought forth legislation, and I thank 
you for convening these hearings and join in urging that we 
move ahead on a markup and trying to get some legislation 
enacted.
    There is no doubt, with the modern scientific evidence on 
DNA, that we could exonerate many people who are in custody if 
they had access to DNA treatment. The risk is always present 
that the innocent may be executed and those executions might be 
avoided if individuals have access to DNA material.
    I believe that the best remedy is to legislate a 
constitutional right under the fifth section of the Due Process 
Clause of the 14th Amendment. One Federal district judge has 
made that holding. We know that the Congress has been very, 
very slow to act, really inactive, leaving the issue to the 
courts.
    The whole change in constitutional law in criminal cases 
has been made by the courts--Mapp v. Ohio on search and seizure 
in 1961; Gideon v. Wainwright, right to counsel, in 1963; 
Miranda in 1966, Escobito in 1964, and so on. It is really a 
legislative responsibility, and we have the authority under 
Article 5 of the 14th Amendment and I think we ought to move 
ahead to make it a constitutional right.
    The second aspect that the legislation touches is the issue 
on adequacy of counsel. There have been many, many examples to 
show that the requirements for counsel have to be changed very 
substantially to provide for adequacy of counsel.
    The legislation that I have introduced touches one more 
area on a case that very much surprised me when I found it, 
called Alzine Hamilton, a U.S. Supreme Court decision in 1990 
where four Justices had voted for certiorari in a capital case. 
For some technical reason, certiorari was not granted and the 
defendant was executed. That is a consequence too horrendous to 
be characterized.
    So this is a subject which requires our immediate attention 
and we can legislate to stay the execution where four Justices 
have voted for cert. Why cert was not granted is not 
discernible from the Supreme Court records.
    In making these arguments, I do so in the context of 
fairness to the accused, and also in the context of fairness to 
society. I believe that the death penalty is a deterrent, and I 
think we will not be able to maintain it unless we do it 
fairly.
    When I was district attorney of Philadelphia, there were 
about 500 homicides a year and I would not permit the death 
penalty to be requested without my own personal review and 
limited it to three, four, five, six cases a year at the most.
    But without getting into the rationale of why I do believe 
it is a deterrent, I do think it is an effective deterrent. But 
to maintain it, we are going to have to very, very materially 
change the procedures for the application of the death penalty.
    Mr. Chairman, I am going to leave, but I am going to come 
back for a round of questioning. Thank you.
    Chairman Leahy. Thank you, and I will work with you on 
that. I have been reviewing, actually, some of your 
recommendations this weekend and I will look at it.
    We will take about a three-minute break and then begin the 
questions.
    [The Committee stood in recess from 11:23 a.m. to 11:28 
a.m.]
    Chairman Leahy. Thank you all very much.
    Professor Scheck, the Innocence Protection Act, as you 
know, permits DNA testing if it establishes new, non-cumulative 
evidence that is material to a claim of innocence. Ironically 
enough, we know that in some of these cases where DNA evidence 
is tested, it has conclusively proven the guilt of the person 
asking for it. So it cuts both ways.
    Under the Innocence Protection Act, testing, it would be 
allowed if it established new, non-cumulative, material 
evidence. Mr. Logli has suggested that testing should only be 
permitted if it proved an inmate's actual innocence. Which 
standard do you think is most appropriate, and why, based on 
the cases you have handled?
    Mr. Scheck. Well, I think the standard of new, non-
cumulative evidence would be the better standard. It is funny 
that Mr. Logli and I were talking before the hearing started 
because Illinois and New York were the first two States that 
had post-conviction DNA statutes and the standard in Illinois 
is similar to the one in your bill, Mr. Chairman, and in New 
York as well.
    The one thing that I think we can agree upon is that there 
has not been a vast flood gate of cases of people coming 
forward and choking the system with requests. The real hard 
work here, frankly, is vetting the cases and, in accordance 
with the standards, finding the transcripts, finding the 
evidence. That is the real issue in these cases.
    So I think the lower standard is appropriate. Particularly 
in our experience, those prosecutors who are willing to look at 
a case and say, well, this could an instance where somebody was 
wrongfully convicted, a DNA test could show it, we might find 
the right person--they will agree.
    Those who are looking for whatever reason not to agree will 
never see a case where they think that--if you raise it to a 
standard like actual innocence, it is just not going to happen, 
and the three men that are behind me over here may very well 
not have seen the light of day.
    So I think that standard works, and it has been working in 
now what I think is many States. As many as I think 18 have a 
standard that reflects the one enunciated in the Innocence 
Protection Act.
    Chairman Leahy. Well, if you have 18 States doing it 
already, why do we have to act?
    Mr. Scheck. Well, we really have to act because the time 
limit question, I think, is the most important one. For 
example, in the State of Idaho, on July 1 the time limit is 
going to run. So the theory is everybody in Idaho that could 
prove their innocence with a post-conviction DNA test had to do 
it within one year. In Florida, it is two years. The time limit 
is running in Delaware; it is running in Louisiana and 
Michigan.
    There is no way in the world that these applications are 
going to be researched adequately. It takes our office between 
3 and 5 years to perfect an adequate claim that Mr. Logli and 
his colleagues would say, yes, this is a case where we ought to 
go forward, because it is so hard to find the transcripts and 
it is so hard to find the evidence. So the time limit, in my 
judgment, is really terrible.
    Take Kentucky. Actually, this is an issue that really goes 
toward Senator Specter's view, which I thoroughly agree with, 
of establishing this as a constitutional right. In Kentucky 
last week, a student from the Innocence Project found blood 
stain evidence in an old murder case that was found by a window 
where there had been a sign of forced entry.
    The police and the prosecutors at the time of the trial 
said, well, this comes from the assailant, but it wasn't typed. 
So they asked the prosecutor to type it. The prosecutor went 
into court and said, ``type it? I want to destroy it,'' and 
asked the judge to destroy the evidence. The more frightening 
development is that the judge granted the motion.
    So then we had to go to the Kentucky appellate courts, and 
just last week they issued an order prohibiting the destruction 
of the evidence. But because the Kentucky post-conviction DNA 
statute is only available for people that are on death row, 
Michael Elliot, who is serving a life sentence--according to 
the appellate court, they couldn't order the evidence preserved 
or the DNA testing.
    So we had to go to Federal court pursuing the 
constitutional right theory, seeking through a 1983 action to 
enjoin the destruction of the evidence and to get access for 
purposes of DNA testing. Now, I have no idea whether Michael 
Elliot is guilty or innocent, but I can tell you, and the Wall 
Street Journal confirms, that when we finally get an 
appropriate case and we get the evidence to the laboratory, 
about half the time these people who are insisting on their 
innocence, the results come out in their favor.
    Chairman Leahy. Come out in their favor?
    Mr. Scheck. Come out in their favor.
    Chairman Leahy. Professor Liebman, your study was done 
following a request from this Committee, with both Republicans 
and Democrats requesting it. In the time I have left, and then 
we will go to Senator Feingold and Senator Sessions, do you 
want to respond to the criticisms voiced by Mr. Otis?
    Of course, at some point here we are also going to make 
sure, Mr. Otis, you get a chance.
    Mr. Liebman. Yes, thank you, Mr. Chairman. I would like to 
make three points.
    First, Mr. Otis talks about stealth abolition. I will tell 
you what is bringing about stealth abolition in this country. 
It is high rates of serous error in the capital system. All of 
those capital verdicts that don't belong there because they 
have error in them, because the defendants are innocent, are 
clogging the system. That allows the worst of the worst 
offenders to hang back behind all of the undeserving cases that 
are there because of serious errors.
    If you didn't have all of these seriously flawed cases 
clogging the system, you could move the worst of the worst 
cases up to the front of the line and get the system working 
the way it is supposed to and the way Americans expect the 
capital system to work. Americans do not expect a system that 
can only execute 1 \1/2\ percent of the people on death row 
every year, 5 percent over 23 years. That is stealth abolition, 
and it is because there is so much error in these cases.
    The way to solve the problem is get competent counsel at 
trial so that only the valid cases involving the worst of the 
worst offenders get through. The weak cases should be screened 
out at that stage, as our adversarial system is supposed to do. 
That would go along way towards making the system work 
appropriately.
    Indiana adopted standards a few years ago very much like 
those in Senator Specter's bill. The result is that they have 
had fewer of these really weak cases get through, much more 
reliable verdicts, and the system is saving money.
    Mr. Otis's second claim is that zero innocent people have 
been proved to have been executed. As Mr. Otis knows, that is 
very difficult to prove. When there is a train wreck, the first 
thing you do is you go count the people who were killed and 
then you say, my gosh, what are we going to do about this?
    In the capital system, you can't do that. You can't tell 
the innocent executed from the others, for a reason I will get 
to in a second. What do you do in a situation like that? You 
study risk. In fact, even when we can count the dead innocent, 
we study risk so that we can avoid innocent people dying.
    If Ford Motor Company said we're going to wait until 
somebody dies and then we will try and figure out if our cars 
are safe, people would say that is crazy. You have got to study 
and avoid risk, before tragedies occur. That is what our study 
did. I agree with Justice O'Connor who looked at the evidence 
of risk, and found a likelihood that innocent people have been 
executed and will continue to be executed unless things like 
the Innocence Protection Act are passed. One reason you can't 
study how many innocent people are executed is the point 
Professor Scheck mentioned. A lot of the evidence is destroyed 
that you would need to study it. In a number of cases, 
prosecutors with DNA samples that could have proved an innocent 
person was executed have refused to turn over the evidence for 
testing and instead have destroyed the evidence.
    Finally, sleeping lawyers are not a myth. They happen. Many 
people have been executed in this country, despite the fact 
that their lawyers slept through their trials.
    Chairman Leahy. Burdine v. Johnson.
    Mr. Liebman. Burdine. He was the lucky one, though. He got 
relief. But a number of the cases we counted as having no 
errors in fact involved defendants represented by sleeping 
lawyers. But the courts let it pass. They approved the case for 
execution. The same is true of defendants represented by 
lawyers on drugs, or abusing alcohol during the trial.
    The disbarment rate among defense lawyers in capital cases 
is about 40, 50, 60 percent in some States. Luckily for 
everybody else, it is about 1 or 2 percent of all lawyers. But 
when you are a capital defendant, the disbarment rate goes way 
up in many States. So this is not an urban myth. This is a real 
problem and there are real solutions for it in these bills.
    Chairman Leahy. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. Let me first 
commend you for all your leadership on this issue and for 
holding this hearing. I have a full statement I would like to 
submit for the record, if I could.
    Chairman Leahy. It will be included.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Leahy. We will also submit for the record 
statements from any other Senators, but also a number of items, 
including the editorial in the Washington Post today and 
articles from the New York Times, and so forth.

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

    Senator Feingold. Thank you, Mr. Chairman.
    I would like to first make a brief comment about the 
competing proposals for reform of the death penalty system. Mr. 
Chairman, I am very proud to be an original cosponsor of your 
bill, the Innocence Protection Act. Whether my colleagues 
support your bill or have their own approach to the problem, 
like Senators Specter and Feinstein do, I am very pleased that 
there is obviously a growing consensus on the Committee, and I 
think in the whole Congress, as was demonstrated by the 
testimony of the House members, that the current death penalty 
system is broken.
    I was almost amused by the reference to stealth abolition 
because I am an abolitionist, but I can say for sure, and you 
can put it on the record, that the people who are working on 
these issues are not necessarily abolitionists. Some of them 
clearly are for the death penalty, but they simply can't 
justify a system that may have innocent people on death row and 
that may have already executed innocent people.
    I can't prove it, Professor Otis, but my instincts tell me 
there is no question that we have executed innocent people, and 
that we will do it again unless we do something about this 
awful system.
    I am somewhat comforted by the almost shrill tone that is 
being adopted by those who don't think we should even be 
inquiring into these things. This is an embarrassment for our 
country and we are literally whistling past the graveyard if we 
think this system isn't broken and doesn't have to be changed. 
It has to be changed.
    Yes, Congress should enact the Innocence Protection Act 
without delay. But during the last two years since you first 
introduced your bill, Mr. Chairman, the States and the Federal 
Government have executed more than 140 people, and during this 
same time period more than a dozen death row inmates have been 
found innocent and released from death row.
    With each execution, our Nation runs a real risk of 
executing an innocent person, as I indicated, if we have not 
already done so. How many more innocent people must bear the 
ultimate nightmare of being sentenced to death for a crime they 
did not commit before Congress acts?
    Yes, as we have indicated, Governor George Ryan certainly 
did the right thing, I think a courageous thing, when he 
suspended executions over two years ago to allow time for a 
thorough review of the death penalty system in Illinois and for 
reform proposals to be considered.
    I also think we should here in Congress heed the wise 
example also set by Maryland Governor Paris Glendening, who is 
a governor who recently put into effect a moratorium in the 
State of Maryland.
    I have introduced a bill that would apply the Illinois 
model to the rest of the Nation. The National Death Penalty 
Moratorium Act would place a moratorium on Federal executions 
and urge the States to do the same while a national commission 
on the death penalty examines the fairness of the 
administration of the death penalty at the Federal and State 
levels.
    Professor Liebman, it is good to see you again. The study 
conducted by you and released in June 2000 concluded that there 
was a disturbingly high rate of reversible error in capital 
cases, and that rate is 68 percent. The study found that the 
two primary reasons for this high error rate were inadequate 
counsel and police or prosecutorial misconduct.
    The Innocence Protection Act, as well as the Specter and 
Feinstein proposals, of course, address access to DNA testing 
and competent counsel, but these bills are silent on the issue 
of police or prosecutorial conduct. We also know that troubling 
racial and geographic disparities plague the Federal system, as 
well the State systems. In fact, concerns about racial and 
geographic disparities resulted in Governor Glendening's 
decision last month to put the moratorium on in Maryland.
    Let me ask you two questions. What percentage of the cases 
reversed for serious error involved access to DNA testing or 
competent counsel?
    And, second, if you could make only two or three additional 
reforms, what are the two or three reforms to address police or 
prosecutorial misconduct you would like to see?
    Mr. Liebman. Senator Feingold, it is good to see you. The 
last time I saw you was at Columbia when you gave a fine 
speech.
    Let me go to the second question, which is what can be done 
about this. I do think that the problem of prosecutorial 
misconduct is a serious one, and we have some recommendations 
about that in our study. One of those recommendations is that 
there ought to be open files in these cases.
    Many prosecutors use open files policies, but many do not. 
If somebody's life is on the line, it would seem elementary, 
and I think most citizens in the country assume, that 
everything that the prosecutor should be available to the jury 
when it makes its decision. But in many jurisdictions in this 
country, evidence is not turned over.
    What happens in those places is that it takes 10 or 15 
years of court proceedings fighting over that record. Finally, 
the defendant gets the record, the case to be overturned, and 
then you have got to what's in it requires back and re-try it 
15 years later. Think of all of the time, money, expense and 
frustration that would have been avoided by simply turning over 
the evidence in the first instance right at trial.
    The second thing that we would propose is a number of steps 
on the part of prosecutors to try to limit the capital 
prosecutions that they bring to reach only the worst of the 
worst cases, without sweeping in the weaker and more marginal 
cases that impose so much of the burden of error in these 
cases.
    I think the Illinois proposal to limit the number of 
aggravating circumstances in that statute is a very good one. 
Let's get rid of the broad factors that sweep in so many of the 
weak cases that cause so much error and cost, and instead focus 
only on the very worst of the worst.
    I think those are two very good proposals.
    You asked how many DNA cases there are. The most crucial 
thing about DNA is it provides a kind of window into the 
system. But most capital cases do not have biological evidence 
in them. They are not rape murders. They are murders in the 
course of robbery or burglary.
    But there is no reason to think that the miscarriages of 
justice that lead people to get convicted when they are 
innocent and that DNA reveals are not also occurring in other 
cases. It's just that we don't have a window into those cases, 
and that is why we need the other reforms that we have 
discussed.
    Senator Feingold. Thank you, Professor.
    Let me ask Mr. Scheck and then Professor Liebman again, 
given the number and complexity of problems plaguing the 
current administration of the death penalty, isn't it unjust 
and unconscionable for executions to proceed while these 
problems go unaddressed or proposals for reform are being 
debated?
    In other words, isn't there a need for at least a 
moratorium, Professor Scheck?
    Mr. Scheck. I certainly think so. When you look at public 
opinion polling, I think that is where really now a majority of 
the American people are, even those who in principle as a moral 
matter would support capital punishment as a morally 
appropriate response to the most heinous of crimes.
    This is a difficult situation for now four years or more 
the American Bar Association has been in favor of a moratorium 
on capital punishment, and more and more people that study this 
system carefully have come up with these conclusions and come 
up with all these issues, all these recommendations that your 
hearing covered last week, which are win-win propositions for 
the criminal justice system.
    A thoroughgoing moratorium effort that considers all the 
problems of mistaken eyewitness identification, junk forensic 
science, ways to reform the interrogation procedure by 
videotaping interrogations, which is both an improvement in the 
form of the evidence for the prosecutors as well as protection 
for the accused--all these things, I think, are going to be a 
net plus for the system.
    It is an improvement of law enforcement that will benefit 
everyone in society. So there is a profound good that comes 
from this moratorium effort for the whole system, including, of 
course, the capital punishment system.
    Senator Feingold. Thank you, Professor.
    Professor Liebman, would you just respond to that?
    Mr. Liebman. Senator Feingold, the overriding proposal and 
recommendation that we made after 11 years of study and a 
number of comprehensive statistical analyses was that more 
study is needed at the local level, at the county level, at the 
State level, and at the national level.
    The Illinois study is a wonderful example. A lot of people 
thought they knew the problem with the Illinois statute. But 
they didn't. It took the study commission's comprehensive 
analysis to discover that the problem was Illinois's overbroad 
death penalty statute. But that is not what people were talking 
about before they conducted that study.
    We need to know more than a single study at a university 
with limited funds can produce. The studies that have been 
conducted in a few States around the country have revealed that 
a lot more can be learned. And more needs to be done 
nationally. I commend the Senator because the definition of the 
study that needs to be conducted to really figure out what is 
happening and figure out what needs to be done to fix the death 
penalty is comprehensively laid out in your bill.
    Senator Feingold. Thank you.
    My time is up, Mr. Chairman, but just let me say I 
appreciate the chance to pursue these questions, but I want to 
be very clear that I think your Innocence Protection Act is an 
extremely important piece of legislation. If we are able to 
move it or any other version that the chairman believes would 
be acceptable in this Congress, it would be an enormous step 
forward on this issue, and I thank him for his leadership 
again.
    Chairman Leahy. I thank you for that, and it is my intent 
to try to get enough consensus so we can move a bill this year. 
I understand from Congressman Delahunt and Congressman LaHood 
they want to do that in the House.
    Senator Sessions, also a former prosecutor, has waited here 
patiently. Please go ahead.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    All of us want the highest standards in our courts of law. 
There is no one that has a greater feeling for that than I do. 
You stand in court as a Federal prosecutor or a State 
prosecutor and you announce that you represent the United 
States of America. You are an officer of the court.
    I know Mr. Logli and Mr. Otis have done that and feel the 
honor of that calling, and you want justice. There are plenty 
of guilty people. Why would anyone want to prosecute or pursue 
someone who is innocent?
    Can there be errors? Yes, there can be errors. We want to 
make sure our system works effectively to eliminate that, but I 
do not believe our system is broken. I agree with Mr. Otis that 
the system has never been better. A death penalty case for a 
prosecutor is a tremendous mine field to negotiate. There are 
so many possibilities and so many parts of the system designed 
to make it provide the ultimate protection for the defendant 
that it is very difficult to proceed successfully through a 
prosecution when you seek the death penalty. The jury has to 
agree, and a judge in Alabama has to agree, and then you go 
through the appellate process.
    The routine appeals in my State are like those in most 
States. You get a direct appeal from the trial court verdict of 
guilty.
    Mr. Yackle, I guess you could say you want an automatic 
stay here, but the stays occur. You get an automatic appeal to 
the Court of Criminal Appeals in Alabama, then to the Alabama 
Supreme Court. Then the defendants take their next step, which 
is a State habeas review. Then they go to the trial court, then 
the Court of Criminal Appeals, and then the Alabama Supreme 
Court.
    Then if the death penalty is still in place and has not 
been reversed through those six levels of review, then they 
file in Federal court seeking Federal habeas corpus review and 
go from the Federal trial court, to the Federal appellate 
court, to the U.S. Supreme Court.
    Sometimes the U.S. Supreme Court does not hear the case. 
Well, they shouldn't. They don't hear most of the appeals that 
come up, and just because they don't hear a case does not mean 
that the defendant is wrongly accused. Indeed, overwhelmingly 
most of these cases don't deal with guilt or innocence; they 
deal with some procedural objection to the system.
    My best judgment is that the death penalty is a deterrent, 
that it does save lives, that it is effectively carried out 
throughout our country, and if someone can come up with 
specific ways to make it better, I am willing to listen to 
that.
    The Emory University study says that there are 18 murders 
deterred by one execution. Whether those numbers are accurate 
or not I don't know, but I believe there is a deterrent effect. 
Whether it is 1, 5, 10, 18, or more, I don't know, but my best 
judgment is it does deter.
    So what we want to create is a system that works. We do not 
need to panic. We do not need to be telling the American people 
that there is not justice in our courts in America, and I feel 
very strongly about that.
    Mr. Liebman, your study covering the years 1973 to 1995 
were the years in which all those retroactive Supreme Court 
opinions came down. You had Gregg v. Georgia in 1976, 
Strickland v. Washington, Batson v. Kentucky, Beck v. Alabama. 
That is when retroactively the Supreme Court said things you 
have been doing, States, that have been legal and consistent 
with the law, we don't agree anymore that they are legal, we 
reverse those, resulting in hundreds of reversals of cases--
virtually all cases reversed around the country that had to be 
re-tried again, convince another jury, oftentimes unanimous 
verdicts required.
    So I don't think this system is nearly as bad as you would 
say. Indeed, my attorney general in Alabama, Bill Pryor, notes 
that in the last 5 years error rates in Alabama would be less 
than 5 percent. So I think we need to get this thing straight.
    Mr. Logli, have you supervised the trial of death penalty 
cases?
    Mr. Logli. Yes, Senator. My office has engaged in capital 
prosecution on at least 6 occasions in the 16 years that I have 
been the State's Attorney.
    Senator Sessions. So it is not that often, really.
    Mr. Logli. No, and I think I represent most local 
prosecutors. It is a rare prosecution indeed. My jurisdiction 
has between 20 and 45 murders a year, and to seek it in only 6 
cases in 16 years, I think, speaks that we conduct very serious 
reviews and seek it only when the evidence is overwhelming and 
when the aggravating factor is apparent.
    Senator Sessions. Do you have an appellate system there 
that is similar to what I described for Alabama, multiple 
appeals?
    Mr. Logli. Yes, sir.
    Senator Sessions. And, secondly, does the trial judge, in 
your opinion and your experience, tend to be more alert to 
protect the rights of the defendant in a death penalty case 
than in a non-death penalty case?
    Mr. Logli. No question about it, Senator.
    Senator Sessions. They bend over backwards, don't they?
    Mr. Logli. Absolutely.
    Senator Sessions. Thank you, Mr. Chairman.
    Chairman Leahy. If you want to take more time, please feel 
free. You have sat here patiently and I have been trying to be 
pretty flexible in giving time to members.
    Senator Sessions. Well, I thank you for that.
    Mr. Otis, the appeals of many of these cases that result in 
reversals deal with the types of evidence that could be 
introduced at sentencing or maybe the jury selection 
procedures, maybe the charge the judge gave to the jury.
    Isn't it true that overwhelmingly the cases that are 
reversed are for these kinds of errors and not relating to 
guilt or innocence of the defendant?
    Mr. Otis. Yes, that is correct, Senator Sessions. As a 
matter of fact, in my experience as an appellate lawyer factual 
innocence was very seldom litigated in the court of appeals. 
Almost always it would be a procedural question.
    But beyond that, in the death penalty context, even in the 
relatively rare case in which there is an error at the trial 
phase that might be interpreted as affecting the determination 
of guilt, that itself does not establish exoneration. I talk 
about that in my written statement in a case that the Committee 
might know about it.
    It was a case in Maryland, the Trevor Horn murder, where a 
hit man was hired to kill a quadriplegic 8-year-old so that his 
father could get the kid's trust fund. Now, the arrangement 
that the father made with the hit man was in part undertaken in 
a series of telephone conversations that were recorded on a 
telephone answering machine tape.
    In Maryland, it happens that there is a two-party consent 
rule; that is, a conversation cannot be recorded without the 
consent of both parties to it. That is relatively unusual. Most 
States have one-party consent.
    Because this series of telephone conversations negotiating 
a $5,000 fee to kill the child--because they had not been 
undertaken with two-party consent, the court of appeals in 
Maryland threw out the conviction, but it didn't have anything 
to do with the truthfulness or authenticity of the evidence in 
that case.
    Nonetheless, this is exactly the kind of case that would 
show up in Professor Liebman's study as an ``illegal 
conviction'' that the court of appeals had to overturn to 
``save a wrongly convicted man from death row.'' In fact, 
because there was no question about the truthfulness or 
authenticity of the tape or the identity of the killer, most of 
us would think that it was not the convict who was deprived of 
justice. It was Trevor Horn's family and all the rest of us who 
were deprived of justice.
    Senator Sessions. Mr. Logli and Mr. Scheck, just on DNA, 
that can be a very clarifying scientific test. It is not always 
conclusive. There may be a lot of arguments to be made that it 
is not absolutely dispositive of whether or not an individual 
committed a crime, but fundamentally it can put somebody there 
or suggest somebody was not there.
    Mr. Scheck, I have got a letter from the attorney general 
of Alabama complaining about the Innocence Project in the 
State, in which he offered a DNA test. The sentencing group 
didn't agree to take it, didn't follow up on it, and then after 
the death penalty order was issued, then you rush in at the 
last minute and demand the DNA test, delaying the execution.
    So I guess I will let both of you discuss this. Sometimes, 
I think those who desperately want to defeat the death penalty 
sentence, in my experience, use every procedural advantage they 
can get to and often blame the system. Sometimes, it is their 
own fault.
    Would you comment on that? And, Mr. Scheck, I will give you 
a chance to respond.
    Mr. Logli. Well, I believe that if DNA testing can reveal 
the truth, can reveal actual innocence, then it should be 
sought, whether it is asked for by the State or by the defense. 
That is why our belief is that the standard here should be that 
if the test is ordered and if the results are exculpatory that 
they prove actual innocence.
    It would be inappropriate to allow DNA testing that doesn't 
go to actual innocence. What is the point? Yet, that standard 
would not deter any appropriate DNA testing in those cases 
where there is an assertion of actual innocence.
    As Professor Otis has pointed out, in most of our appeals 
there is no assertion of actual or factual innocence. In very 
few cases, there is that assertion. It is technical or 
procedural. But in those cases where there is that assertion 
and where the tests can show that, then by all means do the 
test, but not just based on materiality toward a claim of the 
defendant.
    Senator Sessions. Mr. Scheck?
    Mr. Scheck. Well, first, before I respond specifically to 
the Alabama case, very frequently DNA testing now on a blood 
stain or a saliva stain or even a hair at a crime scene may not 
in and of itself prove actual innocence right away. What it can 
do is provide significant and material proof that, in 
conjunction with additional evidence, can establish that a 
person did not commit the crime and that another person did.
    It is really, I think, self-defeating for law enforcement 
to use as a threshold for getting the initial DNA test actual 
innocence as a standard instead of the lower standard, because 
what is going to happen, as has been demonstrated in case after 
case out of these 108 exonerations, is you are not only going 
to lose the opportunity to get a DNA result that is highly 
exculpatory that does lead to other evidence that exonerates 
the individual, but that same evidentiary chain is also going 
to lead to the apprehension of the real assailant.
    Now, Senator Sessions, in that case at issue there, Danny 
Joe Bradley was a man on death row, still is on death row in 
the State of Alabama. Students from the Innocence Project years 
ago asked to do DNA testing on vaginal swabs from the victim, a 
step-daughter that had been taken from the home where Mr. 
Bradley was and found in a riverbed.
    I don't think anybody contested that the best evidence, the 
one that Mr. Logli would insist that we test, would be the 
vaginal swabs from the victim of this rape murder. The problem 
was and the difficulty is that the only evidence that could be 
found by the Alabama authorities was semen stains on a 
bedspread and sheet in the home where the young women slept.
    So they offered to do the testing on that, which was not 
the best evidence, instead of going forward with an evidentiary 
hearing, which still hasn't taken place incidentally, on 
tracking down the vaginal swabs.
    The biggest problem, Senator Sessions, that we have in all 
of these cases is going back and finding the evidence in these 
old cases. And it is not just in these post-conviction 
exoneration cases, but it is in the cases where I have been 
working with prosecutors all across the country on old, 
unsolved murder cases. Where is the evidence? Is it in the 
police department? Is it in the property room? They are old 
cases. They have moved them. Is it with the court reporter? Is 
it at the crime lab? It is in all kinds of different places and 
you have to find it.
    So in that Alabama case, the problem was to this day they 
have never found the vaginal swabs. Now, we ultimately went 
back to the trial judge and persuaded him, an Alabama State 
court judge, and he gave us some testing on the bedspread. It 
did not come out in Mr. Bradley's favor, but there is still an 
effort to find those vaginal swabs which would be the 
determinative test.
    Senator Sessions. The only point I would just say is they 
offered that. You could have had it earlier had you asked for 
it, and the people didn't ask for it until the last minute, 
thereby delaying the execution and going through a pretty 
prolonged procedure. That is just the life of a prosecutor in 
these cases. This is not unusual.
    Chairman Leahy. The life of the prosecutor was never an 
easy one, as you know and Senator Specter knows and I know and 
as State's Attorney Logli knows. It is never an easy one, but 
it is not supposed to be.
    Senator Sessions. Well, defense lawyers are officers of the 
court. If they need evidence, they ought to ask for it 
promptly.
    Chairman Leahy. Senator Specter.
    Senator Specter. I concur that the life of a prosecutor is 
not an easy life, but it is a fascinating life.
    Senator Sessions. Yes, it is.
    Chairman Leahy. The best job I ever had.
    Senator Specter. Senator Sessions was a U.S. Attorney and 
Senator Leahy was district attorney in Burlington, Vermont. 
People ask me if district attorney was the best job I have ever 
had and I tell them no. Assistant D.A. was the best job I had. 
I didn't have to administer an office, just take the files in 
and try the cases.
    I am going to propound a series of questions. The hour is 
late and the chairman and others have been here for a long time 
and I have had other commitments. In the course of a five-
minute round, there is not much that can be asked and answered, 
but what I am going to do is propound a number of questions and 
to the extent they can be answered orally, fine. To the extent 
they can't be, I would like to have your written answers.
    On the issue of the stay, I did not know about the case of 
Alzine Hamilton as Natural Mother and Ex-Friend to James Edward 
Smith v. Texas until I read about it in Professor Derschowitz' 
book, Supreme Injustice, and had a hard time accepting that 
there could be a case where four Justices had voted for 
certiorari, certiorari was not granted, and the man was 
executed. There is another case, Herrera v. Collins, where 
certiorari was granted, with the Court not ordering a stay, but 
in this case the courts of Texas ordered a stay.
    One of the questions which I would like you to respond to 
is do you see any problem with the Congress of the United 
States giving direction to stay executions where four Justices 
have voted for a writ of certiorari?
    This Committee has taken on some interesting questions. One 
of them tangentially related is the television issue, where 
Senator Biden and I have introduced legislation to televise the 
Court. We tried to get it televised specially in Bush v. Gore.
    I would be interested in your observations as to whether 
there is any separation of powers or any reason why Congress 
shouldn't step into that and make sure that people are not 
executed where four Justices have ordered a stay.
    On the adequacy of counsel issue, you have the traditional 
problem of States' rights. What standing does the Congress of 
the United States have to set standards for defense lawyers?
    The Supreme Court, as we all know, in Miranda has 
conditioned the death penalty on--Miranda was the warnings 
case. I am thinking of the 1972 case involving Georgia. Help me 
out.
    Mr. Liebman. Furman v. Georgia.
    Senator Specter. Furman v. Georgia. So the Supreme Court of 
the United States said in Furman v. Georgia that you can't 
impose the death penalty unless you have an itemization of 
aggravating and mitigating circumstances. What is the route to 
exercise congressional authority to require that States have a 
standard for counsel in death penalty cases? I think the States 
have a lot of motivation here to keep the death penalty. It is 
very popular in the States which disregard the issue of 
adequacy of counsel.
    The third question relates to the issue of DNA and the 
unwillingness of the legislative branches to act. Of course, 
the most famous case is Brown v. Board of Education, where 
there should have been action by the legislatures, by the 
Congress, state legislatures, and the executive branch, but it 
was left to the Court. Obviously, the Court has been a great 
institution.
    It took a long time for the Federal Government to intervene 
in State criminal proceedings. Brown v. Mississippi was the 
first case in 1938, where they took an African American and 
brought him over into Alabama and had a mock lynching and then 
they brought him back. Finally, the Supreme Court of the United 
States said ``too far. We are going to step in on due process 
grounds.''
    But how do we motivate legislatures to move on items like 
DNA, where the evidence is so conclusive that innocent people 
are being detained, and doubtless some innocent are being 
executed, where really shouldn't have to wait for the Supreme 
Court of the United States to take that action? Really, in my 
opinion, they should have taken it by this time, and this 
Committee, I think, Chairman Leahy and others, are going to 
take the lead and try to move ahead.
    Well, my red light is on.
    Chairman Leahy. No, no, please go ahead. We have been 
trying to be very flexible with people's time, and I appreciate 
the panel being willing to take time. So feel free to continue.
    Senator Specter. Well, let me start with a basic question, 
Professor Liebman. What is the best approach to try to get 
legislatures like the Congress to act on due process 
constitutional rights when they are as glaring as the DNA right 
ought to be? That may be a little loaded, but go ahead.
    Mr. Liebman. I agree, Senator Specter, that there is a lot 
that needs to be done and it is not happening on its own, and 
so there needs to be some, as you put it, motivation to make it 
happen.
    I also believe that the Congress probably has a pretty 
broad, often unexercised, power to try to do things under 
Section 5 of the 14th Amendment. But that view is controversial 
and it treads on territory that the Supreme Court doesn't like 
to have tread on.
    Senator Specter. Why is it controversial, Professor 
Liebman?
    Mr. Liebman. Because every institution guards most 
carefully what is most sacred to it, and the Court's ability to 
say what the Constitution means is what it considers to be its 
most important function.
    Now, my view is that that is an important function of all 
members of the Government and they all ought to exercise it. 
But I would suggest that damages and habeas corpus rights and 
procedures are statutory matters that everyone agrees are 
within Congress' power, and that the necessary motivation can 
be created through those mechanisms. Congress undoubtedly can 
say that if States want to continue to have the protection of 
the exhaustion rule that federal habeas review is not available 
until the case has gone through the State courts, then those 
States have to provide adequate counsel and other kinds of 
protections. Congress clearly can say that if states don't 
provid those protections, then cases do not have to be 
exhausted in the State courts and can go straight to Federal 
court.
    That would give the States a very strong motivation to say, 
well, we are going to provide the right to truly adequate 
counsel, because if we don't, we are going to cede our power to 
resolve cases in the first instance. You could also do this 
through mechanisms allowing capital defendants denied statutory 
rights damages, or as a condition that states need to meet to 
qualifty for Federal money to obtain.
    Senator Specter. Professor Scheck, do you have a problem 
with having the Congress legislate to stay an execute where 
four Justices have voted to grant cert?
    Mr. Scheck. No, I don't, but I would like to go back to the 
DNA question for a second, Senator, because I think the 
provision of your bill with respect to using Section 5 of the 
14th Amendment, not just for inmates on death row but for all 
State inmates, is exactly the right approach.
    Indeed, we are not going to have any problems as in the 
City of Boerne case with the Religious Reformation Act with 
this kind of legislation for a constitutional right of access 
to DNA testing that could prove actual innocence. Indeed, I 
included in my testimony and I commend to your attention the 
opinion of Judge Luttig from the Fourth Circuit in the Harvey 
case.
    We have been litigating--and I think you averted to it in 
your opening remarks--Section 1983 actions for injunctive 
relief to get access to DNA evidence. Judge Charles Wiener, in 
Philadelphia, a Federal judge, granted access in the Godschalk 
case because we don't have a State statute yet for post-
conviction DNA testing in Pennsylvania.
    It was the case of a man with no criminal record who was 
brought in. He confessed, supposedly, to two rapes in 
Montgomery County, Pennsylvania. It took years, until Judge 
Wiener gave us access to the evidence on the constitutional 
theory that your bill embodies. He spent nine years trying to 
get the evidence. We got the evidence. The DNA tests were 
performed. They showed that he didn't commit the two rapes. 
They were committed by somebody else and he was exonerated.
    Now, Judge Luttig's decision in the Fourth Circuit--and 
Judge Luttig is, I think, a jurist whom everybody regards as 
very conservative. I think he produces more clerks for Judges 
Scalia and Thomas than any other Federal judge in the system. 
He thoroughly supports this constitutional right of access for 
purposes of DNA testing in his opinion. It is very 
comprehensive and well-thought-out, and I think speaks directly 
to the proposal you have made.
    Senator Specter. Professor Yackle, take up the question of 
mandating adequacy of counsel. Can the Congress do that, and if 
so, how, without creating a hue and cry and States' rights.
    Mr. Yackle. I do think there are ways to do that, Senator, 
without raising any problematic constitutional questions. The 
Innocence Protection Act includes a scheme that I think is 
perfectly valid in that respect.
    There are ways to do things that raise constitutional 
questions and ways to do them that invite constitutional 
objection. I think generally this body ought to do what the 
Court does. When there is a way to do something without raising 
a constitutional objection, that is the way to do it. I think 
in the case of counsel standards, there are perfectly 
straightforward ways to set about doing it.
    Senator Specter. Well, I agree with you. If there is a way 
to do it without raising constitutional objections, we ought to 
do it that way. But we ought to do something and we do precious 
little on these subjects.
    Mr. Yackle. You and I are in perfect agreement.
    Senator Specter. Mr. Logli, what is the best argument for 
congressional assertion of authority in these areas which have 
been traditionally reserved to the States?
    Mr. Logli. I believe there is a role for Congress. I 
believe that when we look at counsel competency standards--and 
keep in mind Illinois has adopted counsel competency standards 
not only for defense counsel, but also for prosecutors, and 
that has not been challenged by Illinois prosecutors.
    Now, those standards don't apply to the elected State's 
attorneys, but my assistants have to have a certain amount of 
experience, a certain amount of trials under their belt, a 
certain amount of training. They have to be certified as 
capital litigation counsel.
    Now, if the Congress wants that to occur in all the States, 
I think they can do that through legislation that combines with 
other methods we talked about previously. I am not sure you 
were at the hearing at that particular time. You may have been 
called away. But when we talk about longevity of public 
defenders, longevity of assistant prosecutors, I think we have 
to look at incentives to keep them there. Student loan 
forgiveness would help.
    So let's say you put together a list of universal 
standards, recommendations, what people should have under their 
belt to try a capital case, and tie that into student loan 
forgiveness for prosecutors and defenders, tie it into training 
funds for prosecutors and defenders.
    We have a tremendous facility for prosecutors, both State 
and local, at the National Advocacy Center in Columbia, South 
Carolina. Let's keep the funding there and increase that 
funding. Let's set up a similar establishment for defense 
counsel. I would like to use Federal funds in that way as a 
carrot and not as a stick to encourage States.
    Many of them already have those standards. Twenty-two 
States that have the death penalty have counsel competency 
standards, out of the 38 States. So I think there is a role for 
Congress, more than just a bully pulpit, but it should be put 
together as part of an entire package to encourage good lawyers 
to come into the system and stay.
    You talk about the best job in the world. I do believe I 
have the best job in the world. I believe I work with some of 
the finest people, lawyers, in the world, but it is getting 
increasingly difficult to attract and retain them, and that is 
a real competency issue on both sides of counsel table.
    Senator Specter. Professor Otis, I will give you the last 
word. What is your view on making DNA evidence, both in capital 
cases and other cases, a constitutional right to have access to 
it?
    Mr. Otis. Senator Specter, I learned early on in my career 
as an Assistant U.S. Attorney--the best job in the world--not 
to give seat-of-the-pants answers to difficult and problematic 
constitutional questions.
    Senator Specter. Well, you tried all those cases as an 
Assistant U.S. Attorney. You got a sufficiently long recess to 
be able to research all the issues that came up and get 
consultation and come back with a formulated judgment?
    Mr. Otis. I would be happy to do that. Having said that, I 
will say that I am not familiar with any case that would 
provide an analogy for it; that is, I do not know of any 
instance in which Congress has required by legislation the 
States to examine and process, much less to put in evidence, a 
particular kind of factual material.
    I guess the closest analogy would be fingerprints. Now, 
fingerprints are probably the best we have right now insofar as 
conclusive scientific evidence. DNA is a powerful tool, but I 
am not aware of any move in Congress, and there is certainly no 
statute you have passed to require the submission of 
fingerprint evidence.
    I think the way that these things are best done, and the 
way that they have been done in the past is, for example, for 
the Congress to legislate standards to be used in Federal 
cases, which Congress can plainly do. Then, as we have so often 
seen, States will model their own statutes after that. Largely, 
that happened with the Federal Sentencing Guidelines, you may 
remember.
    Senator Specter. Do you think Congress should have 
legislated to bar the introduction of coerced confessions in 
State criminal proceedings?
    Mr. Otis. I don't think Congress needed to do that because 
the Fifth Amendment to the United States Constitution forbids 
compelled testimony against oneself.
    Senator Specter. Well, they were using coerced confessions 
all over the country before Brown v. Mississippi, including in 
Pennsylvania in the Treetop Turner case, all over the country, 
not just in the South.
    Mr. Otis. I think the Supreme Court is the organ of the 
Federal Government that has the authority to enforce the United 
States Constitution.
    Senator Specter. Well, I agree they have the authority, but 
doesn't Congress have authority to enforce the Constitution?
    Mr. Otis. It has the authority to enforce the Constitution 
over those matters that are reserved to its power. 
Traditionally, the operation of State governments, and 
certainly something as detailed as the specific kinds of 
evidence that may be introduced or must be introduced in State 
proceedings, is beyond anything with which I am familiar that 
Congress has ever required.
    Senator Specter. Well, I think you are right. Congress 
hasn't, but they should have. It is just a first cousin, but 
shouldn't Congress have barred segregation in schools before 
Brown v. Board of Education?
    Mr. Otis. Well, it seems to me the Supreme Court did what 
needed to be done. The Supreme Court saw that----
    Senator Specter. What took them so long after Plessy v. 
Ferguson?
    Mr. Otis. Well, I don't know. I guess it is the Senate that 
advises and consents to who sits on the Supreme Court, not law 
professors.
    Senator Specter. We have a share in that. We have had some 
pretty lusty debates on this question, with nominees coming 
before us and saying the Due Process Clause is meaningless, 
there is no Due Process Clause, it is only original intent.
    Mr. Otis. Once the Supreme Court had acted, of course, 
President Eisenhower federalized the National Guard and 
enforced the Supreme Court's order that took root in the United 
States Constitution. I think all of us believe that that was 
exactly the right thing to do.
    Senator Specter. Well, President Truman took some action in 
the executive branch without waiting for the Supreme Court to 
act. I am just giving you one person's opinion and I don't 
think we ought to wait for the Supreme Court. I think we ought 
to make a determination as to what is a constitutional right.
    When you have people who are incarcerated, and especially 
with the death penalty, and DNA may establish their innocence, 
that to my way of thinking rises to the level of a 
constitutional right.
    I had a unique opportunity--and this will be my concluding 
statement, Mr. Chairman--to be an assistant D.A. at a time of 
the revolution of Mapp v. Ohio, and argued the first cases in 
the State appellate courts as chief of the appeals division and 
saw what the Court did. And it was the Warren Court; it was the 
Court after Brown v. Board, and there they went--Mapp v. Ohio--
and they changed the law, overruled Wolf v. Colorado. Then 
Gideon comes up two years later, and then Escobito and Miranda.
    That kind of seeing the Constitution formulated everyday in 
the criminal courts by order of the Supreme Court made me 
wonder why somebody else didn't do it first. So I am glad 
Senator Leahy and some of the rest of us are going to try to do 
that.
    Thank you, Mr. Chairman. Thank you very much, gentlemen.
    Chairman Leahy. I thank the senior Senator from 
Pennsylvania for coming back. I know you had about 12 other 
things going on and I appreciate it.
    Professor Liebman, when Senator Sessions raised the 
question whether your study took account of changes in the 
Supreme Court case law in the late 1970s, did you take account 
of those? I wasn't quite sure.
    Mr. Liebman. Absolutely, Mr. Chairman. I am glad you gave 
me a chance to respond to that. There were, as Senator Sessions 
pointed out, cases where hundreds of death sentences were 
overturned at once. He suggests, and this suggestion has been 
made repeatedly, that our study counted those reversals. It did 
not count those reversals. It says clearly that it did not 
count those reversals. But some people who don't like all the 
error our study revealed continue to say that we did count 
those wholesale reversals.
    We waited until there was a presumptively constitutional 
statute in each State and then we started counting error and 
calculating error rates under the modern system. Senator 
Sessions referred to a statement by the Alabama Attorney 
General that there is a 5-percent error rate in Alabama. The 
way the State's attorney general got that 5 percent error rate 
for Alabama is to assume that cases that are stuck in the 
courts and have not been reviewed are cases where the sentence 
or the verdict or the conviction is valid.
    What we did was to wait and only count those cases that 
have actually been reviewed. When you only count the cases that 
have actually been reviewed in Alabama, without making 
assumptions about what you don't yet know because cases have 
not been reviewed, you get a reversal rate of about 70 percent 
in Alabama.
    So I appreciate the opportunity to point out that we were 
very careful to avoid those obvious problems when we conducted 
our analyses.
    Chairman Leahy. Thank you very much, Professor Otis, 
State's Attorney Logli, Professor Yackle, Professor Scheck, 
Professor Liebman. Thank you very much.
    The record will stay open for both questions and statements 
not only of the Senators, but any additions any of you wish to 
make. Thank you.
    The Committee stands adjourned.
    [Whereupon, at 12:20 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]




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