[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
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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
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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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