[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




                   STREAMLINED PROCEDURES ACT OF 2005

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 3035

                               __________

                           NOVEMBER 10, 2005

                               __________

                           Serial No. 109-82

                               __________

         Printed for the use of the Committee on the Judiciary


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

                                 _____

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel

                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                  Michael Volkov, Acting Chief Counsel

           Elizabeth Sokul, Special Counsel for Intelligence

                         and Homeland Security

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                           NOVEMBER 10, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2
The Honorable William D. Delahunt, a Representative in Congress 
  from the State of Massachusetts, and Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     4
The Honorable Daniel E. Lungren, a Representative in Congress 
  from the State of California, and Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     6

                               WITNESSES

Mr. Tom Dolgenos, Chief, Federal Litigation Unit, Philadelphia 
  District Attorney's Office, Philadelphia, PA
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Mr. Kent Cattani, Chief Counsel, Capital Litigation Section, 
  Arizona Attorney General's Office, Phoenix, AZ
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Mrs. Mary Ann Hughes, Chino Hills, CA
  Oral Testimony.................................................    46
  Prepared Statement.............................................    48
Ms. Ruth Friedman, Solo Practitioner, Washington, DC
  Oral Testimony.................................................    54
  Prepared Statement.............................................    57

                                APPENDIX
               Material Submitted for the Hearing Record

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........    99

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

Kristen Gelineau, ``Old DNA clears two more men, including one in 
  Norfolk case,'' Associated Press, (December 14, 2005)..........   101
Letter submitted by Leonidas Mecham, Secretary, Judicial 
  Conference of the United States, to the Honorable F. James 
  Sensenbrenner, Jr., Chairman, House Committee on the Judiciary 
  (July 22, 2005)................................................   104
Letter submitted by Leonidas Mecham, Secretary, Judicial 
  Conference of the United States, to the Honorable F. James 
  Sensenbrenner, Jr., Chairman, House Committee on the Judiciary 
  (September 26, 2005)...........................................   112
Letter submitted by Ronald M. George, Chief Justice of 
  California, Supreme Court of California to Chief Judge Mary M. 
  Schroeder......................................................   139
Joint Resolution 16 of the Conference of Chief Justices and 
  Conference of the State Court Administrators...................   142
Joint Resolution 18 of the Conference of Chief Justices and 
  Conference of the State Court Administrators...................   144
``Sample List of Innocent People on Death Row Granted Relief in 
  Federal Court Who Would Have Been Executed had the Streamlined 
  Procedures Act of 2005 Been in Effect,'' excerpted from the 
  testimony of Barry Scheck, Co-Founder of the Innocence Project 
  at Cardozo Law School in New York to the Senate Judiciary 
  Committee......................................................   146
Letter submitted by Thomas W. Hillier, II, Federal Public 
  Defender, Western District of Washington to the Subcommittee...   157
List of organizations and individuals opposing the Streamlined 
  Procedures Act.................................................   223
Letter submitted by former Federal and State prosecutors and law 
  enforcement officers to the Honorable Arlen Specter, Chairman, 
  Senate Judiciary Committee.....................................   227
Letter from the Honorable Timothy K. Lewis, former Judge, U.S. 
  Court of Appeals for the 3rd Circuit to the Honorable Arlen 
  Specter, Chairman, Senate Judiciary Committee and the Honorable 
  Patrick J. Leahy, Ranking Minority Member, Senate Judiciary 
  Committee......................................................   237
Letter submitted by Bob Barr, former Member of Congress, the 
  American Conservative Union....................................   245
Various Editorials submitted in opposition to H.R. 3035, the 
  ``Streamlined Procedures Act''.................................   247
Letter submitted by the Most Reverend Nicholas DiMarzio, 
  Chairman, Domestic Policy Committee, U.S. Conference of 
  Catholic Bishops (USCCB).......................................   286
Statement of Seth P. Waxman, ``Hearing on S. 1088 before the 
  Committee on Judiciary,'' United States Senate, July 13, 2005..   288
Letter submitted by Robert D. Evans, Governmental Affairs Office, 
  the American Bar Association (ABA) to the Senate Judiciary 
  Committee......................................................   297
Letter submitted by Paul A. Renne, former Assistant U.S. Attorney 
  to the Subcommittee (October 31, 2005).........................   299
Letter submitted by Paul A. Renne, former Assistant U.S. Attorney 
  to the Subcommittee (July 20, 2005)............................   301
``Judicial Conference Action Regarding the `Streamlined 
  Procedures Act of 2005''' submitted by Karen Kremer, Office of 
  Legislative Affairs, Administrative Office of the U.S. Courts 
  to the Subcommittee............................................   309
``Rebuttal to Claims From the Office of the District Attorney of 
  Philadelphia County, Pennsylvania''............................   312

 
                   STREAMLINED PROCEDURES ACT OF 2005

                              ----------                              


                      THURSDAY, NOVEMBER 10, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. I want to 
welcome you all to the important legislative hearing on habeas 
corpus procedures for review of State death penalty 
convictions. This is the second hearing on this legislation. 
And for the benefit of all involved, I need to let you know we 
need to vacate this room on or before 12. We are having our 
PATRIOT Act conference in this room. So we have to set up for 
that. So keep that in mind. We need to hit the road at 12.
    I have stated on numerous occasions that I support the 
death penalty for the most heinous crime. But I've also made 
clear that the death penalty must be clear, fair and must be 
accurate with appropriate balance between victims and analyst 
litigation and appropriate consideration of crimes of error and 
legitimate claims of actual innocence.
    I am a strong supporter of the Justice For All Act, a far-
reaching measure which provides additional safeguards in our 
death penalty system for post-conviction DNA testing of 
evidence and improvements in our capital counsel system.
    Today, we are reexamining representative Lungren's 
proposal, H.R. 3035, the ``Streamlined Procedures Act of 
2005,'' which reforms Federal habeas corpus review of State 
court convictions.
    Mr. Coble. The Subcommittee in the judicial security 
hearing and in examining child crimes and even last Congress 
during consideration of the Justice For All Act has gathered a 
substantial amount of evidence showing that the Federal Court, 
that the Federal Court habeas review, particularly in the death 
penalty area, has suffered from extraordinary delays, some as 
long as 15 years for pending habeas petition to be resolved by 
a single Federal judge and misguided application of precedent 
to frustrate the ends of justice.
    State provides significant habeas review. And applicants 
are now using the Federal review in some instances to frustrate 
justice which at once calls for reform aimed at ensuring that 
justice delayed does not turn into justice denied.
    Currently, many Federal habeas corpus cases require 10, 15, 
even 20 years to complete. These delays burden the courts and 
deny justice to defendants with meritorious claims. They are 
also deeply unfair to victims of serious violent crimes. A 
parent whose child has been murdered or someone who has been a 
victim of a violent assault cannot be expected to move on with 
their lives without knowing how the case against the attacker 
has been resolved.
    Endless litigation and the uncertainty that it brings is 
unnecessarily cruel to these victims and their families. As 
President Clinton noted of the 1996 habeas corpus reforms, ``It 
should not take 8 or 9 years and three trips to the Supreme 
Court to finalize when a person, in fact, was properly 
convicted or not.'' For the sake of all parties, we should 
minimize these delays.
    The 1996 habeas corpus reforms were supposed to prevent 
delays in Federal collateral review. Unfortunately, as the 
Justice Department noted in testimony before the House Crime 
Subcommittee in March 2003, there still are significant gaps in 
the habeas corpus statutes which can result in highly 
protracted litigation, and some of the reforms that Congress 
did adopt in 1996 have been substantially undermined in 
judicial application.
    In a recent letter sent by the Judicial Conference, they 
provided data which demonstrates that delay is increasing and 
that some steps are needed to address the problem.
    The median time for disposing of habeas petitions for State 
capital convictions has nearly doubled from 1998 to 2004, from 
13 months to 25.3 months.
    The number of habeas petitions pending for over 3 years 
doubled from 1998 to 2004, from 20 percent to 46 percent.
    Similarly, the percent of habeas petitions pending in the 
Federal Court of Appeals increased sevenfold from 1998 to 2004, 
from 5 percent to 36 percent.
    I want to commend representative Lungren for his work in 
this area and look forward to working with him on this 
important issue.
    I am now pleased to recognize the distinguish gentleman 
from Virginia, the Ranking Member, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman, for holding this 
hearing on H.R. 3035, the ``Streamlined Procedures Act of 
2005.'' And Mr. Chairman, I want to thank you for your 
excellent representation of the Sixth District of North 
Carolina, the State of North Carolina and the Nation. You're 
one of the most respected leaders of the House. It is an honor 
to serve on this Committee with you. And I think the entire 
House could benefit from the kind of leadership that you 
provide.
    We have a lot of disagreement on issues, but you're one 
that can disagree without being disagreeable. And we would have 
a much better House if we had more Members like you. So thank 
you for your service and leadership.
    Mr. Coble. If the gentleman will suspend, I will give the 
gentleman from Virginia all the time he wants.
    I thank you for that, Bobby. I appreciate that.
    Mr. Scott. Well, the next thing I was going to say is 
because of your admonition that time was of the essence--but 
the title of the bill, Mr. Chairman, suggests that it would 
streamline the processing of habeas cases. In fact, it would 
actually strip the courts of jurisdiction to determine many 
Federal issues and undercut the Supreme Court's efforts to 
clean up uncertainties regarding reforms that Congress enacted 
in 1996 with the Anti-terrorism and Effective Death Penalty 
Act.
    The bill would virtually eliminate the ability of Federal 
courts to determine Federal constitutional issues in cases 
involving prisoners either facing the death sentence or serving 
prison terms. In short, the bill would greatly increase the 
prospects of an innocent person being put to death or 
languishing in prison with no help of correcting an 
unconstitutional conviction.
    In general, the bill will overturn a series of Supreme 
Court decisions adopted since 1996, increase the number of 
habeas corpus petitions filed, complicate and delay litigation 
in this area, disregard traditional principles of federalism 
and invite constitutional challenge on the theory that it 
impairs the independence of Federal courts.
    Ironically, many of the supporters of this bill are the 
same people who in the Terry Schiavo case advocated for the 
elimination for that case of the very kinds of hurdles that 
this bill promotes.
    Federal habeas corpus is a modern day reflection of the 
great writ which was the foundation for much of our criminal 
law principles. A right without a remedy is no right at all. 
What good is it to have a constitutional right that cannot be 
enforced? This bill would eliminate the Federal court's role as 
courts of last resort for citizens of this country. It would 
restrict citizens to State courts where prosecutors seeking to 
protect their convictions--it would restrict them to courts 
where prosecutors are seeking to protect their convictions when 
the State prosecutors were the cause of the problem to begin 
with.
    Those prosecutors are the only ones who have anything to 
gain from having innocent people languish in prison or even put 
to death because they were unable to get the proper relief from 
the courts.
    Crime victims and their families will face even greater 
delays and frustration as courts struggle to resolve 
constitutional challenges to a new law, and they nor the 
society in general will benefit from having people locked up or 
put to death while the true perpetrators remain free to prey on 
others. And there are other examples of innocent people being 
released in recent years who could not have been released if 
this bill had been law.
    I would like to offer for the record, Mr. Chairman, two of 
these cases, one involving release from death row, the other 
will be identified. And we are going to add other cases as well 
as an article, recent article in my hometown newspaper which 
indicates that several people were released from prison after 
they had served a substantial portion of their time for crimes 
that they did not commit.
    Mr. Coble. Without objection, it will be received.
    [The information referred to follows in the Appendix]
    Mr. Scott. Thank you, Mr. Chairman. A host of organizations 
and individuals, including prosecutors and judges, liberals and 
conservatives, have expressed concerns about the bill becoming 
law; 49 of 50 chief justices have asked Congress to carefully 
study the need for and impact of this legislation before any 
new law is passed. And I would like to offer their resolutions 
at this point for the record.
    Mr. Coble. Without objection.
    [The information referred to follows in the Appendix]
    Mr. Scott. I also have read letters of letters and 
resolutions from the Federal Judicial Conference, Federal 
public prosecutors, Federal public defenders, a prosecutor in 
California expressing concern about the legislation, and I 
would like to offer these for the record as well.
    Mr. Coble. Without objection, they will be received.
    [The information referred to follows in the Appendix]
    Mr. Scott. In this latter submission is a memo developed by 
a former prosecutor and a letter from a current chief justice 
of the California Supreme Court which explains why most of the 
time period necessary to complete habeas petitions occurs at 
the State level, not at the Federal level.
    So, Mr. Chairman, in some way, while there are not--where 
there are, no doubt, instances in which non meritorious 
prisoner claims get more attention than they deserve, it is not 
a heavy price to pay to ensure that we don't execute an 
innocent person or have innocent people languishing in prison 
with no hope. We already have streamlined the habeas process in 
1996. Now, only those who have, quote, clear and convincing 
evidence of actual innocence even get a hearing under the 
traditional habeas process.
    Those who can establish that they are only probably 
innocent, that is, 51 percent chance that they are innocent but 
more probably innocent than not, they don't even get a hearing 
under the present restrictions.
    Apparently, Mr. Chairman, under the Anti-terrorism and 
Effective Death Penalty Act, having the courts clogged up with 
all these people who are probably innocent is contrary to the 
goals of an effective death penalty.
    So, Mr. Chairman, in the context of where it is clear that 
innocent people have been released in recent years who could 
not have been released under the provisions of the bill, we 
should not further jeopardize the prospects of cases like that 
by proceeding with this bill.
    Again, it benefits no one, that Congress should assist in 
having innocent people languishing in prison or executed while 
real perpetrators roam free. A single case of that happening is 
a tragedy, and we shouldn't create a situation where more of 
that might occur. Thank you.
    Mr. Coble. Thank you, I thank the gentleman from Virginia. 
Normally we restrict opening statements to the Chairman and the 
Ranking Member, but the distinguished gentleman from 
Massachusetts asked to be heard.
    Mr. Delahunt. Yes, thank you, Mr. Chairman, let me echo the 
kudos of the Ranking Member for you and your leadership.
    Mr. Coble. I thank you for that, sir.
    Mr. Delahunt. I think you have heard me say that before. It 
is sincere, and it is an honest sentiment. And we are 
definitely fortunate to have you.
    Mr. Coble. I appreciate very much the generous comments 
from Mr. Scott and you. I hope you are not lulling me into a 
sense of false security this morning.
    Mr. Delahunt. Let me proceed. And I probably will have to 
leave the hearing for another hearing. So that will eliminate 
some of the questions I would ask. But I think it is--I wanted 
to be here because I was one of the authors of the Justice For 
All Act.
    You know, the core of our justice system is a search for 
the truth. That is the purpose of the criminal justice system 
in this country. And in that system, we should take every 
opportunity to maximize our capacity in our efforts to secure 
the truth because often it is illusive. Often it is not 
available to those accused of crimes. It is a system that is 
fallible and fragile and susceptible to error.
    I served as the chief prosecutor--the elected prosecutor--
in the Metropolitan Boston area for almost 22 years. I know 
mistakes. I have been there. I have made them. One of my 
constant concerns was making a mistake that resulted in the 
conviction of someone that was innocent. I almost did that 
twice.
    This bill is about maximizing the power of the State to 
limit our search for the truth.
    There have been many cases where information was developed 
decades after the conviction that clearly exonerated innocent 
individuals that served on death row. The Ranking Member has 
referenced some of them. I could stay here and recite two or 
three cases where individuals were convicted and the truth did 
not surface for 30 years.
    I want to recognize someone who is in the hearing room 
today. Her name is Gloria Killian, she won't be testifying, 
obviously, but I think her case is reflective of what I just 
said. She was a former law student who had no criminal record. 
She is sitting in the front row. She has the gray hair.
    She had no criminal record when she was convicted in 1986 
of being the mastermind of a 1981 burglary, robbery and murder 
of an elderly couple in California. She was sentenced to 32 
years in prison. Her conviction was based on the testimony of 
one of the actual killers who had been convicted for the crime 
and sentenced to life without parole. And any prosecutor knows 
that informant testimony, testimony that is subject to a deal, 
really needs to be scrutinized.
    Despite the fact that his codefendant testified at his own 
trial that he had never met Ms. Killian, shortly after his 
conviction, Gary Masse wrote to the Sheriff's Department 
offering to lie for the Government in exchange for a sentence 
reduction.
    Mr. Masse testified at Killion's trial that he made no deal 
with the prosecution. Shortly after Killion's trial, Masse 
further wrote to the prosecutor again admitting that he had 
lied. The prosecution failed to disclose this letter and two 
others, both of which made clear that Masse was offered and 
expected benefits in return for his testimony.
    Gloria Killion's appeal was denied. And her State petition 
was rejected without an evidentiary hearing. If I could have 
just 2 additional minutes, Mr. Chairman.
    Mr. Coble. Without objection.
    Mr. Delahunt. She petitioned for habeas corpus relief in 
Federal Court. A hearing was held in which evidence of Masse's 
perjury finally came to light in part because his codefendant's 
attorneys--his codefendant's attorneys--discovered the letters 
Masse had written and brought the information to Killian. The 
Federal district Court nonetheless denied her petition.
    On appeal, however, the Ninth Circuit found clear error in 
the District Court's decision and vacated the conviction. The 
Circuit Court concluded that there is a reasonable probability 
that, without all the perjury, the result of the proceeding 
would have been different.
    It also held the cumulative effect of Masse's perjury, the 
prosecution's failure to disclose impeachment evidence and 
prosecutorial conduct at trial were sufficient to justify 
relief, even if each claim individually was not.
    She was released in 2002 after spending 16 years in prison. 
She founded and became executive director of the Action 
Committee for Women in Prison.
    The bottom line is that had this proposal been in effect, 
Gloria Killian would never have had the opportunity to prove 
her innocence. And she sits here today.
    This proposal, with all due respect to my good friend and 
another individual for whom I have great respect, Mr. Lungren, 
this proposal erodes the integrity of that effort to search for 
the truth that is incorporated in our jurisprudence. Thank you, 
Mr. Chairman.
    Mr. Coble. I thank the gentleman. We have been joined by 
the distinguished gentlemen from California, Ohio and Arizona; 
Mr. Lungren, Mr. Chabot and Mr. Flake.
    Mr. Lungren, did you want to be heard? This is your bill 
and very briefly for an opening statement and then----
    Mr. Lungren. Thank you, Mr. Chairman. Mr. Chairman, I am 
sorry I was late. I had one of my periodic flare-ups with my 
back so it was a little while getting here.
    I appreciate the opportunity once again and consider the 
proper role of the Federal collateral review in the context of 
the larger criminal justice system, along with the hearings 
which have taken place in the other body and time for 
opportunity for additional input we are better able to craft 
legislation to address abuses of the habeas corpus process in 
light of the Federal courts.
    I welcome all the witnesses here this morning. We have 
heard from many who have criticized our original proposal. We 
have made changes in the proposal that we are now considering. 
We will consider others.
    I would just like to mention, however, the gentleman 
referred to the pursuit of truth. That is what the jury system 
is supposed to be all about.
    As the late Chief Justice Rehnquist said at a time when he 
was on the bench but not chief justice, our system is 
predicated on the assumption that the main event is that jury 
trial. And the habeas corpus collateral review is the most 
distant from the jury trial. And one should not mistake the 
two.
    On habeas corpus, you don't have the opportunity to eyeball 
the witnesses. You don't have a chance to see their demeanor. 
You do not have a chance to judge what juries have to judge.
    And while there certainly is a place for habeas corpus--
remember, we are not talking about the great writ, despite what 
some editorialists have said. We are talking about a statutory 
writ which the Congress has every right to expand or contract 
or eliminate altogether. Although I wouldn't suggest that we 
eliminate it altogether in any event. But let's just remember 
what it is we are talking about.
    The pursuit of truth is not just given to those who happen 
to be Federal judges looking at it long after the events have 
taken place. The pursuit of truth begins with the jury trial.
    I would like to acknowledge the participation of Mary Ann 
Hughes. It was because of the comments made to me by crime 
victims and their families that I agreed to introduce this bill 
in the first instance.
    I noted in the prepared statements of one of the witnesses 
the suggestion was that even those for whom this was intended 
to benefit, the State judges do not support this bill.
    I never introduced this for the purpose of helping the 
State judges. I did this in response to victims' family members 
who came to me and said, how can you justify, 25 years after a 
crime is committed, the Federal Court is still trying to 
question what the truth is? A case in my home State of 
California where a convicted murderer sitting at Folsom State 
Prison under a sentence of life without possibility of parole, 
directs murders against two of the witnesses who had testified 
in his original trial. The Supreme Court finally turned down 
the latest collateral appeal on that case 25 years after the 
second set of murders. The fellow sitting on death row is 75 
years of age. All his victims never had a chance to reach 
anywhere close to that time.
    So the responsibility of Congress to monitor the operation 
of the statutory habeas procedures, a fundamental access of 
this responsibility is to ensure that those who have been 
victimized by crime are not then again victimized by the 
criminal justice system itself.
    It is for that reason and that reason alone I introduced 
this legislation. And I will work to refine it and to see that 
it is ultimately passed and signed into law. I thank you again 
and look forward to hearing from our distinguished panel.
    Mr. Coble. I thank the gentleman from California. For the 
benefit of those who came in late, I want to reiterate, we must 
vacate this room by 12 because the PATRIOT Act conference will 
be conducted in this room subsequently.
    For the benefit of the panelists, it is the practice of the 
Subcommittee to swear in all witnesses appearing before it. So 
if you all would please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative. You may be seated.
    We have a distinguished panel before us today, I say to the 
Members of the Subcommittee. Our first witness is Mr. Tom--Tom, 
help me with that surname--Dolgenos, chief of the Federal 
Litigation Unit at the Philadelphia District Attorney's Office. 
Mr. Dolgenos previously worked as an associate in the Deckert 
firm in Philadelphia. Following law school, he clerked for the 
Honorable Rya Zobel of the U.S. District Court of the District 
of Massachusetts and the Honorable Walter Stapleton of the U.S. 
Court of Appeals for the Third Circuit. Mr. Dolgenos was 
awarded his undergraduate degree from Brown University and his 
law degree from the Yale School of Law.
    Our second witness today is Mr. Ken Cattani--is that right, 
Ken--chief counsel of the Capital Litigation Section in the 
Arizona Attorney General's Office. Mr. Cattani currently serves 
on the Attorney General's DNA Task Force, the Attorney General 
Citizen Advisory Committee and is a member of the National 
Association of Government Attorneys in Capital Litigation Board 
of Directors. Mr. Cattani received his JD degree from the 
University of California at Berkeley.
    Our third witness today is Mrs. Mary Ann Hughes who was 
previously recognized by Mr. Lungren. In 1983, Mrs. Hughes' 11-
year-old son, Christopher, was brutally murdered at the hands 
of an escaped convict. The escaped convict not only bludgeoned 
Christopher to death but brutally murdered three others and 
severely wounded a fourth. Although extensive evidence, 
including DNA, pointed to Kevin Cooper as an assailant, he has 
eluded justice after committing those heinous crimes nearly 23 
years. We look forward to hearing Mrs. Hughes' compelling 
testimony as well.
    Our final witness is Mrs. Ruth Friedman, a solo 
practitioner under contract with the Office of Defender 
Services of the Administrative Office of the United States 
Courts. She has devoted her entire career to representing poor 
people sentenced to death and has more than 17 years of 
litigation in State and Federal courts. Previously, Mrs. 
Friedman was senior counsel at the Equal Justice Initiative in 
Montgomery, Alabama, where she worked at all levels of civil 
litigation. Mrs. Friedman is a graduate of Harvard University 
and received her law degree from the Yale School of Law.
    We are indeed pleased to have you all with us today.
    Now folks, we operate under the 5-minute rule. Your written 
testimony has been examined and will be re-examined. But when 
you see the red light on the panel before you, that is your 
warning that the ice upon which you are skating has became very 
thin.
    We, Mr. Scott and I, will not haul you into custody at that 
point, but we would ask you to wrap up on or before that red 
light illuminates.
    Mr. Dolgenos, we will start with you sir.

  TESTIMONY OF TOM DOLGENOS, CHIEF, FEDERAL LITIGATION UNIT, 
   PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, PA

    Mr. Dolgenos. Thank you, Mr. Chairman, and Members of the 
Committee. I am an assistant district attorney in Philadelphia. 
It is my job and the job of the other lawyers in my unit to 
respond to hundreds of habeas corpus petitions each year. We 
are on the front lines. And I believe there are some real 
problems in the habeas system that have recently grown worse, 
not merely in death penalty cases--and I want to emphasis 
this--but across the board in all types of habeas cases, 
despite the enactment of habeas reforms in 1996.
    I also believe, however, that the proposed Streamlined 
Procedures Act contains some commonsense solutions to some of 
the worst abuses that we face. Now, it is important to 
emphasize that the stakes here are very high, not merely for 
those convicted of the crimes but for the stability and 
reliability of the criminal justice system itself.
    Every time a convicted prisoner files a habeas petition, he 
invites the Federal court to overturn a State court judgment. 
Most of the time, that means throwing out a unanimous jury 
verdict. It means subjecting victims and their families to more 
pain. It means reversing the considered judgment of State court 
appellate judges despite their good faith attempts to apply the 
very same Constitution that the Federal judges apply. And it 
also means that State and local governments, if they want to 
keep this person in jail, must allocate the resources to do it 
all over again.
    Now, in most legal contexts, this kind of Federal 
interference with State government would be unthinkable. But 
criminal cases are different. And we all agree that they are so 
important that we have got to do everything we can to avoid 
mistakes.
    That is why it is so important to ensure that every 
criminal defendant has adequate representation up front and the 
funds to present the best possible defense at trial.
    But at some point, more review by yet another different set 
of judges no longer makes the process more fair or trustworthy. 
And the SPA aims to strike an appropriate balance.
    Perhaps the most familiar problem in habeas litigation is 
that it robs the system of finality. This is no abstract issue 
for the victims who are dragged along in an endless process or 
for local governments that must pay for prosecutions that never 
really end. To take a small example, in the past 5 years, the 
number of attorneys in my office who are assigned as full-time 
habeas attorneys has increased by 400 percent.
    I want to emphasize one other point. The truth itself is a 
casualty of delay. As years pass, memories fade. Evidence is 
lost. Witnesses who were once sure can't remember everything. 
Other witnesses disappear.
    Some witnesses who never wanted to get involved in the 
first place are extremely reluctant to testify again years 
later. In fact, the longer the process goes on, the more 
opportunities exist for witness tampering and intimidation. 
After all, police and judges can't protect witnesses forever. 
And too often, a recantation or other new evidence is simply 
the product of coercion or foul play.
    One recent example from our office makes the point. The 
prisoner had repeatedly molested and raped a girl when she was 
only 5 and 6 years old. About 15 years later, he presented to 
Federal court with the victim's alleged recantation, but it was 
ambiguously worded. When we investigated, the victim, now a 
young woman, told us the defense investigator had misled her. 
The investigator had not clearly identified herself as a member 
of the defense team. She had urged the victim to sign the 
statement while assuring her that the assailant would remain in 
prison, and the statement, which was written by the defense, 
had been worded just ambiguously enough to make it sound as if 
her attacker had not committed rape when, in fact, he had.
    Now the victim was mortified when we told her that she had 
signed a defense-prepared affidavit that was designed to get 
this man out of prison. The prisoner's strategy had been to 
make evidence to convince the Federal court that he was 
innocent. That way he believed he could sweep away all of the 
bars and the rules that should prevent him from raising new 
claims many years later. As of now, this matter is still 
ongoing.
    The point is, the passage of time, repetitive hearings and 
relitigation of guilt do not increase reliability. They can 
discourage witnesses from coming forward in the first place. 
And they can punish those who do. And because Federal habeas 
courts are so far removed in space and in time from the crime, 
from the subtleties and the rules of State proceedings and from 
the victims, it is all too easy to create claims as the years 
pass.
    The only way to restore balance is by Federal statute, a 
statute that makes deadlines meaningful and prevents the 
litigation of new claims except in extraordinary situations. 
And that is why I support the reforms contained in this 
Streamlined Procedures Act. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dolgenos follows:]
                 Prepared Statement of Thomas Dolgenos




















































    Mr. Coble. Thank you, sir.
    Mr. Cattani, you are recognized for 5 minutes.

 TESTIMONY OF KENT CATTANI, CHIEF COUNSEL, CAPITAL LITIGATION 
    SECTION, ARIZONA ATTORNEY GENERAL'S OFFICE, PHOENIX, AZ

    Mr. Cattani. Thank you.
    Thank you, Mr. Chairman, Members of the Committee.
    The AEDPA has not solved the problem of excessive delay in 
Federal habeas proceedings, particularly in capital cases in 
Arizona. We have had 9 years under the AEDPA. Delay in capital 
cases has increased rather than decreased. The chart that is 
attached to my written statement shows how long Arizona's 
capital cases have been pending in Federal Court; 63 Arizona 
capital cases have been filed and remain pending since the 
effective date of the AEDPA. Of those cases, only one has 
advanced to the Ninth Circuit where it has remained pending for 
the past 9.5 years. The case that moved on to the Ninth Circuit 
was filed in 1996. Ten cases were filed in 1997. They were all 
awaiting rulings in District Court. 16 more were filed in 1998, 
and all of them have yet to be resolved.
    Some of our pre-AEDPA cases have remained pending for over 
19 years in Federal Court. We have one case that is still 
pending in the Ninth Circuit in which the defendant, Robert 
Comer requested over 5 years ago that his Federal appeal be 
withdrawn. Comer, who committed murder and rape in 1987, has 
acknowledged responsibility for his crimes and has repeatedly 
indicated a desire to waive his Ninth Circuit appeal.
    The Ninth Circuit ordered an evidentiary hearing at which 
Comer's habeas attorneys argued, over Comer's objection, that 
he was incompetent. Additional counsel, a highly respected 
defense attorney in Phoenix, was appointed to represent Comer's 
interests. After an evidentiary hearing in District Court, 
Comer was found to be competent. The appeal of the District 
Court ruling that Comer is competent nevertheless remains 
pending in the Ninth Circuit. Again, it has been more than 5 
years since Comer's initial request that he be permitted to 
withdraw his appeal.
    The delay that we encounter in Arizona capital cases is 
particularly frustrating given the system that we have set up 
in Arizona to protect the rights of criminal defendants. We 
have no interest in executing or even incarcerating an innocent 
person. We take very seriously our role as prosecutors, and we 
have created a system that provides multiple opportunities to 
establish claims of innocence.
    In capital cases, since 1993, we appoint two highly 
qualified attorneys to represent the defendant at the trial 
stage. We appoint yet another highly qualified attorney to 
represent the defendant on appeal. We appoint another qualified 
attorney to represent the defendant at the post-conviction 
stage. The State appellate process includes an automatic appeal 
to the Arizona Supreme Court with the option to appeal that 
ruling to the United States Supreme Court. The post-conviction 
relief process similarly provides an opportunity to appeal to 
the Arizona supreme court as well as the United States Supreme 
Court.
    Additionally, a defendant can pursue successive post-
conviction proceedings to raise claims that the law has changed 
or that there is newly discovered evidence that would have 
affected his trial or sentence. State funds are made available 
for DNA testing whenever it is warranted, including for 
retesting when DNA technology improves.
    We even have a free-standing actual innocence provision in 
our post-conviction rules. That is rule 32.1(h) of the Arizona 
rules of criminal procedure which authorizes a successive post-
conviction proceeding to raise claims of actual innocence even 
if the claim could have been raised earlier if the defendant 
had been diligent.
    The fact that there is a free-standing actual innocence 
provision for Arizona defendants in State courts is 
particularly significant in my view because its availability 
shows that the Federal habeas process involving Arizona cases 
is about something other than guilt or innocence. Federal 
habeas review may serve a purpose, but that purpose is not to 
provide a forum for asserting claims of actual innocence for 
Arizona defendants.
    One of the key provisions of the AEDPA is what is known as 
the opt-in provision. That provision was designed to accelerate 
Federal habeas review in capital cases on the condition that a 
State establish a mechanism to provide for the appointment of 
competent counsel at the post-conviction stage. We anticipated 
that if those provisions were applied in Arizona, the Federal 
process would be shortened to approximately 3 years. The theory 
underlying the opt-in provisions was that if you ensure 
competent representation in State courts, there is less of a 
need for lengthy Federal habeas proceedings.
    Arizona responded to the AEDPA by enacting new standards 
for the appointment of counsel in post-conviction proceedings. 
Attorneys have to meet specific criteria to be eligible to be 
on a list of qualified counsel that is maintained by the 
Arizona Supreme Court. In 21 cases in which counsel have been 
appointed from the list maintained by the Arizona Supreme 
Court, the State has thus far expended over $1 million to 
represent these defendants in capital post-conviction 
proceedings. In some cases, the State has paid in excess of 
$100,000 in attorney's fees and costs for these post-conviction 
proceedings.
    Nevertheless, we have not been able to opt-in. And there 
are no States who have opted in under the AEDPA. Why haven't we 
opted in? We attempted to do that in the Anthony Spears case 
several years ago. The Ninth Circuit ruled that the standards 
that we have adopted for the qualification levels for attorneys 
who handle post-conviction proceedings are satisfactory. The 
court refused to allow us to opt-in however because there had 
been a 20-month delay in appointing counsel to represent Spears 
in the post-conviction proceeding. The delay was caused 
primarily because defense lawyers initially boycotted the 
process.
    We argued in Federal Court that the 20-month delay did not 
prejudice Mr. Spears, and in fact, in the State proceeding, Mr. 
Spears' counsel never asserted that the delay had created any 
kind of impediment to raising claims in that proceeding. In our 
view, Spears received the benefit of the opt-in provisions, but 
the State was denied the corresponding benefit.
    We do not claim to have a perfect system in Arizona. I see 
my time is up. I just have maybe 1 minute. We do not claim to 
have a perfect system in Arizona. We have, in fact, had two DNA 
exonerations in Arizona. Significantly, however, those 
exonerations were a result of State court proceedings. Neither 
of the defendants who were exonerated had ever set foot in 
Federal Court. Our frustration with the Federal habeas process 
is that it does not recognize the improvements that have been 
made to the criminal justice system.
    The people in Arizona and particularly the victims of 
violent murders deserve a better Federal review process. The 
current review process is not working. I urge your careful 
consideration of the proposed amendments to the habeas statute. 
Thank you.
    [The prepared statement of Mr. Cattani follows:]
                 Prepared Statement of Kent E. Cattani
    In 1996, Congress enacted the Antiterrorism and Effective Death 
Penalty Act of 1996 (``AEDPA''), which was intended to restrict the 
scope of federal habeas review and limit delay in federal habeas 
proceedings. After 9 years under the AEDPA, it is clear that the Act 
did not reduce the problem of delay. As evidenced by Attachment A, a 
chart of Arizona capital cases currently pending in federal court, 63 
Arizona capital cases have been filed and remain pending since the 
effective date of the AEDPA. Of those cases, only one has advanced to 
the Ninth Circuit, where it has remained pending for the past 5\1/2\ 
years. Thirteen pre-AEDPA cases remain pending in federal court; five 
of those cases have been in federal court longer than 15 years; the 
others range in time from 9.33 years to 14.08 years.
    The AEDPA contained provisions intended to restrict federal court 
consideration of claims not properly raised in state court. 
Additionally, the AEDPA included a provision--specific to capital 
cases--designed to accelerate the federal habeas process on the 
condition that states opt-in by enacting procedures to ensure effective 
representation of indigent defendants in state post-conviction relief 
(PCR) proceedings. Under the opt-in provision, the federal habeas 
process would be reduced to approximately three years by virtue of 
accelerated briefing schedules and a requirement that the federal 
courts rule on the claims raised within specified periods of time. The 
rationale underlying the opt-in provisions is that when more 
experienced attorneys represent death row inmates throughout the state 
court process, there is less need for a lengthy federal review.
    After the AEDPA was enacted, the Arizona Legislature and the 
Arizona Supreme Court amended Arizona's system for appointing and 
compensating PCR counsel to meet the opt-in requirements. Arizona 
previously provided PCR counsel to all indigent capital defendants, and 
under the amended system, that provision remains and requires the 
appointment of an attorney who did not represent the defendant at trial 
or sentencing. Arizona enacted mandatory competency standards for 
attorneys who apply to be placed on a list of available counsel for 
capital PCR proceedings. There is an objective measure relating to bar 
status, continuing legal education, and years of experience as a lawyer 
and in practicing in the area of criminal appeals or post-conviction 
proceedings. There is also a subjective requirement that the attorney 
have ``demonstrated the necessary proficiency and commitment which 
exemplify the quality of representation appropriate to capital cases.''
    In addition to provisions to ensure qualified counsel for PCR 
proceedings, Arizona already had in place a system to try to ensure 
qualified counsel at the trial stage. Since 1993, Arizona has required 
the appointment of two highly qualified attorneys in every case in 
which the State notices its intent to seek the death penalty. The 
requirements for lead trial counsel include practice in the area of 
state criminal litigation for 5 years immediately preceding the 
appointment, having been lead counsel in at least 9 felony jury trials 
tried to completion; and having been lead counsel or co-counsel in at 
least one capital-murder jury trial. There are additional legal 
education requirements and the same subjective requirement mandated for 
PCR counsel--that counsel shall have demonstrated the necessary 
proficiency and commitment which exemplify the quality of 
representation appropriate to capital case. Additionally, Arizona 
provides extensive funding for mitigation specialists and expert 
witnesses at both the trial and post-conviction stages. Multiple expert 
witnesses and intensive mitigation investigation are routinely utilized 
in capital cases throughout the state.
    Since 2002, Arizona has spent more than 1 million dollars for PCR 
representation in 21 cases. Many of those cases are in the early stages 
of the post-conviction process, and will result in significantly higher 
expenditures by the state and local government. Of the cases that have 
completed the post-conviction process, the expenditures have ranged 
between $25,000 and $138,000 for each case, with the median figure of 
approximately $64,000.
    Prior to the clarification regarding compensation, there were only 
6 attorneys on the list of qualified PCR counsel and a backlog formed 
of about 15 capital defendants who were ready to pursue PCR proceedings 
and were awaiting appointment of qualified counsel. In those cases, it 
took between one to two years to appoint counsel. More attorneys 
eventually applied for the list, and there are currently 4 Arizona 
cases pending at the PCR stage where the attorney was appointed without 
delay.
    The first case that went through the state post-conviction process 
with an attorney appointed under the opt-in provision requirements was 
that of Anthony Spears, who was sentenced to death in 1992. In Spears 
v. Stewart, the district court denied Arizona's request that the case 
be treated as an opt-in case, and certified the opt-in issue to the 
Ninth Circuit for an interlocutory appeal. The Ninth Circuit held that 
Arizona's mechanism for appointment of counsel for indigent capital 
defendants in post-conviction proceedings meets the requirements of the 
AEDPA and qualifies for opt-in status. 283 F.3d 992 (9th Cir. 2002). 
However, the court held that the opt-in procedures could not be invoked 
in Spears because there had been a 20-month delay before counsel had 
been appointed in the state post-conviction proceeding. Id.
    The ruling that the opt-in mechanism will not be applied in the 
Spears case or in any other case in which there has been a delay in 
appointing post-conviction counsel is frustrating. The delay in 
appointing counsel did not prejudice Spears. His post-conviction 
counsel never argued that the 20-month delay in appointment affected 
his ability to pursue the claims Spears raised in his post-conviction 
proceeding. Although Spears was given every advantage contemplated 
under the AEDPA opt-in provisions, the State has been denied the 
corresponding benefits to which it is entitled.
    The holding in Spears places undue emphasis on what is essentially 
an arbitrary date. There is no set time line for any criminal case. 
Sometimes there is a delay between the date of the crime and the date 
of the arrest. Sometimes there is delay prior to trial, or delay during 
the trial or state appellate process. If, for example, there had been a 
delay in preparing transcripts for the appeal, or if the Arizona 
Supreme Court had taken additional time to resolve Spears' direct 
appeal, the PCR proceeding might have commenced on or about the same 
date even without delay in appointing counsel. Again, there was no 
suggestion that the delay in appointment of counsel prejudiced Spears' 
case. In my view, Arizona should have been deemed to have opted in to 
the accelerated provisions for capital cases.
    That fact that Arizona has attempted to opt-in to the accelerated 
provisions of the AEDPA for capital cases does not signify an intent to 
foreclose a defendant's efforts to establish innocence. We have no 
interest in executing or even incarcerating an innocent person. We 
believe, however, that our state court system provides the necessary 
means to address claims of innocence, and that the federal habeas 
process does not measurably increase the likelihood that innocent 
persons will be vindicated.
    The Arizona Rules of Criminal Procedure place no limitation on a 
defendant's ability to raise claims relating to newly discovered 
evidence or retroactive application of new substantive rules, and we 
permit DNA testing and retesting (as technology improves) at state 
expense any time there is evidence that may establish innocence. We 
have a specific rule of criminal procedure that exempts from the rules 
of preclusion any evidence that would establish that the defendant did 
not commit the crime or should not have been subjected to the death 
penalty. Thus, it is hard to fathom a claim of innocence for which an 
Arizona defendant would not be granted relief in state court, but which 
would entitle the defendant to federal habeas relief.
    The best way to improve our criminal justice system is to ensure 
that quality representation and adequate resources are made available 
for the main event--the trial and sentencing proceedings. We are trying 
to do that in Arizona, and we have a system that provides defendants in 
capital cases with two highly qualified attorneys at trial, another 
highly qualified attorney to handle a direct appeal, and yet another 
highly qualified attorney to handle state post-conviction proceedings. 
The direct appeal process includes review by the Arizona Supreme Court 
(whose members are appointed through a merit selection process) and the 
United States Supreme Court, and the post-conviction process permits 
review not only by the original trial court, but again by the Arizona 
Supreme Court and the United States Supreme Court. That same type of 
review is also available for successive post-conviction relief 
proceedings, where a defendant seeks to raise claims of newly-
discovered evidence, change in the law, or freestanding claims of 
innocence.
    Providing this level of review at the state court level should 
decrease the number of meritorious claims that are presented in federal 
court (since federal habeas review permits only claims that have first 
been presented in state court). Nevertheless, during the past 10 years, 
we have seen an increase in the number of claims that are being raised 
in federal court and an increase in delay in federal court. That delay 
has prejudiced the state's and crime victims' interest in fairness and 
the finality of state court judgments, and has decreased public 
confidence in the criminal justice system.
    An Arizona capital case, Smith v. Stewart, 241 F.3d 1191 (2001), 
provides an example of why habeas reform is needed. In Smith, the state 
courts rejected a claim of ineffective assistance of sentencing counsel 
(raised in Smith's third post-conviction proceeding) on the basis of a 
state procedural bar. The federal district court rejected the claim on 
the basis of procedural default, but the Ninth Circuit reversed, 
holding that the state procedural default ruling was intertwined with a 
merits ruling. The Ninth Circuit reasoned that, because a Comment to 
Arizona's procedural rules noted that for some issues of significant 
constitutional magnitude, the state must show a knowing, voluntary, and 
intelligent waiver by the defendant, Arizona's procedural default rule 
necessarily required a merits ruling on every defaulted claim. Arizona 
argued that the comment suggested only the need for an on-the-record 
waiver of certain types of claims, including the right to counsel or 
the right to a jury trial. The Ninth Circuit rejected the State's 
argument, as well as its request that the court certify a question to 
the Arizona Supreme Court to clarify whether a procedural default 
ruling necessarily encompassed a merits ruling. Arizona filed a 
certiorari petition in the United States Supreme Court, which reversed 
the Ninth Circuit's ruling.
    Although the State ultimately prevailed in the United States 
Supreme Court, the victory simply returned the parties to where they 
were two years earlier. In the meantime, every other case involving a 
procedural bar imposed by an Arizona court was similarly delayed 
pending resolution of Smith in the United States Supreme Court.
    Smith's federal habeas proceeding has been pending since 1994. The 
district court denied relief in 1996, and the case has been in the 
Ninth Circuit since then. Most recently, the Ninth Circuit ordered a 
stay to allow Smith to pursue a jury trial in state court on the issue 
of mental retardation, even though Smith had never raised a claim of 
mental retardation in state court or in the federal district court. 
Arizona filed a certiorari petition in the United States Supreme Court 
challenging that ruling. In October of this year, the United States 
Supreme Court again reversed the Ninth Circuit. In the meantime, 
proceedings had been initiated in state court to assess whether Smith 
is mentally retarded, and a court-appointed psychologist administered 
an IQ test on which Smith scored in the average range, which precludes 
a finding of mental retardation. The case, involving a 1982 conviction 
of first-degree murder, kidnapping, and sexual assault, remains pending 
in the Ninth Circuit.
    In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005) (a non-capital 
case), the federal courts recently added another impediment to 
resolution of procedurally defaulted claims. Cassett never raised the 
claim at issue in state court (an alleged due process violation 
unrelated to guilt or innocence), and the district court found the 
claim to be precluded in a federal habeas proceeding. The Ninth Circuit 
reversed, however, ruling that because there has not been a ruling of 
preclusion by a state court, the case should not be dismissed and 
Cassett should be given an opportunity to return to state court to 
raise the claim. If the rule in Cassett is applied in capital cases, an 
already delayed process will be delayed even further to allow 
defendants to return to state court to try to litigate procedurally 
defaulted claims never raised in state court. As with the Smith case, 
Arizona is seeking further review of Cassett by the United States 
Supreme Court.
    In addition to Smith, there are several other examples of capital 
cases that demonstrate extensive delay in the federal habeas process:
Joseph Lambright
    Lambright was Smith's co-defendant, and was similarly convicted and 
sentenced to death in state court in 1982. In 2004, the Ninth Circuit 
ordered an evidentiary hearing on a procedurally defaulted claim that 
Lambright's counsel had failed to investigate as possible mitigation 
the possibility that Lambright suffered from post-traumatic stress 
disorder based on his combat experiences in Viet Nam.
    At the evidentiary hearing held last year in federal district 
court, the State established that Lambright was never in combat in Viet 
Nam; he was a mechanic who was never involved in a combat situation. 
The friend who Lambright claimed to have held in his arms after the 
friend was sawed in half by enemy fire, is in fact alive and well in 
Florida. The case remains pending in the Ninth Circuit; the only issue 
now before it is the propriety of the district court's ruling that 
Lambright did not establish that his counsel was ineffective for 
failing to assert post-traumatic stress disorder as a mitigating 
circumstance.
Michael Corrrell
    Correll was convicted in 1984 of first degree murder in a triple 
homicide case. The trial court sentenced Correll to death after finding 
four aggravating factors beyond a reasonable doubt: that Correll 
committed the offense in expectation of pecuniary gain, that the 
murders were committed in an especially cruel, heinous or depraved 
manner and multiple homicides. Correll's federal habeas proceeding has 
been pending since 1987. The district court denied habeas relief in 
1995. However, the Ninth Circuit ordered an evidentiary hearing 
regarding whether counsel was ineffective at sentencing.
    At the evidentiary hearing held in 2003, Correll called fourteen 
witnesses during the hearing including the original trial attorney, a 
mitigation specialist, a neuropsychologist, a psychiatrist and 
addictionologist, a toxicologist, and several of Correll's family 
members and friends. The State responded that if Correll had provided 
this alleged mitigation evidence to the trial court, it would have 
opened the door for the State to present powerful rebuttal evidence, 
including evidence of Correll's rape of a female psychiatric patient 
while he was undergoing treatment for his antisocial personality 
disorder, Correll's repeated sexual assaults against his sister while 
living at home, Correll's numerous escape attempts from mental health 
facilities, and Correll's participation in a number of armed robberies 
with this thirteen year old brother and fifteen year old girlfriend.
    In March 2003, the district court denied Correll his requested 
relief, finding that Correll did not suffer any prejudice as a result 
of his counsel's deficient performance. The district court held that, 
``after all of the evidence that [trial counsel] could have obtained 
and presented has been reviewed, it is clear that the rebuttal and non-
mitigating aspects of such evidence overwhelms any slight mitigation 
evidence.''
    Correll immediately appealed that ruling to the Ninth Circuit, and 
the case has remained pending in that court since then. Thus, the case 
has been pending in federal court for 18 years.
Jasper McMurtrey
    The federal district court ordered an evidentiary hearing regarding 
whether the state trial court should have conducted a competency 
evaluation of capital defendant McMurtrey. The state court held an 
evidentiary hearing in 1994, after which the trial judge, who had 
presided over McMurtrey's trial, found that McMurtrey had been 
competent during trial. The district court nevertheless granted federal 
habeas relief, finding that there was not enough evidence from which 
the trial judge could reach the conclusion that McMurtrey was competent 
during trial, even though the evidence included the trial judge's own 
recollection of what happened. Arizona is seeking further review of 
that ruling.
    The common thread in these cases is not only excessive delay in 
federal court, but an absence of any allegation of factual innocence. 
The federal habeas process is not accomplishing its intended purpose in 
these and many other cases and is in fact undermining public respect 
for the criminal justice system.

                               ATTACHMENT






    Mr. Coble. I thank you, Mr. Cattani.
    Ms. Killian, even though you are not a witness, the 
Subcommittee is pleased to welcome you at this hearing. It is 
good to have you here.
    Ms. Hughes you are recognized for 5 minutes.

         TESTIMONY OF MARY ANN HUGHES, CHINO HILLS, CA

    Ms. Hughes. Thank you, Mr. Chairman and Members of the 
Subcommittee.
    I have come here today to talk to you about the tragedy 
that my family has gone through for the last 22 years. The last 
time that I saw my son Christopher, he had asked permission to 
spend the night at a friend's house, and he and Josh Ryen were 
on their bikes riding up the road turning around waving, 
laughing. I'll forever blame myself for sending my son to that 
house. The next time I saw him was an autopsy picture at a 16-
week preliminary hearing.
    The next day, when Chris didn't come home in time for 
church, I sent my husband out to the horror that he has to live 
with the rest of his life, the nightmares that he has to have. 
He found Doug and Peg Ryen dead in their bedroom, 10-year-old 
Jessica dead in the hallway with multiple stabs and hack marks. 
The killer had actually pulled up her nightgown and carved on 
her chest after she was dead. He found 8-year-old Josh in his 
parents' bedroom, his throat slit from ear to ear, his fingers 
at his throat to keep himself from bleeding to death, and he 
had laid there for over 12 hours staring at the naked dead body 
of his mother.
    Last of all, he found our son Christopher only 11 years 
old, our oldest child, dead on the floor in the master bedroom 
by a door, obviously trying to get out, away from the killer. 
He had more than 25 wounds made by a hatchet and a knife. Many 
of them were defensive wounds to his hands. He had tried to 
fight off his killer but to no avail.
    The person arrested for these crimes was a man who had 
escaped from the Chino prison under the name of David Trautman. 
It was found afterwards that they had mishandled the 
outstanding warrants and who they actually had there was 
someone wanted back east by the name of Kevin Cooper for a 
robbery and for a rape.
    He raped a young girl who happened to interrupt him when he 
was robbing a house, someone who was at the wrong place at the 
wrong time. He raped her with a screw driver to her throat. He 
was caught in the Channel Islands near off Santa Barbara raping 
a woman on a boat. Two years later, we had a guilty verdict, 
and we had a death penalty.
    We waited for the system of justice to work for us, our son 
and for the Ryen family. Mostly, we were silent as almost every 
year it came up in the papers, on the TV, on the radio, that it 
always seemed that these would coincide with special dates, 
Christmas, my son's birthday in December, Father's Day, 
Mother's Day.
    Finally, in 2004, we were told that an execution date had 
been set, February 10, ironically another date, my birthday.
    We were naive to think at that time that the system was 
finally going to work for us and for our son and for the Ryens.
    It didn't really matter that Kevin Cooper was guilty. The 
defense saw fit to weave another fantasy. We were now going to 
blame the police and the district attorneys. They planted all 
the evidence. Kevin Cooper wasn't guilty. He was just framed.
    He became the poster child for a group of celebrities, 
religious leaders, political--politicians. The object was to 
stop the death penalty in California. Where was someone 
speaking out for our son and for the Ryens? We had no 
celebrity, no politician, no religious leader. No one was there 
for us, and we quickly realized that if Christopher was going 
to have a voice, it was going to have to be us.
    We proceeded to talk to any newspaper, radio, television 
program, anyone who would hear us cry out for justice for our 
son. This, evidently, was unusual. Evidently, victims don't 
fight. Evidently, we are quiet. We are beat down, and we don't 
speak up for ourselves. We went up to San Quentin on the day 
before the execution was supposed to take place. A three-judge 
panel from the Ninth Circuit Court that was totally familiar 
with the case had sent the case forward for execution. However, 
this wasn't good enough for them. Instead, they called an 11-
judge en banc panel who had no knowledge of the case, who, to 
my knowledge, had never even read the transcript of the case. 
The defense weaved their fairytale fantasy, and the court 
bought into it. Four hours from the execution, they stopped it.
    The Ninth Circuit said a few simple, definitive tests 
needed to be done to prove that Kevin Cooper was really guilty. 
Well, almost 2 years later, we had been through the courts in 
San Diego once again. Kevin Cooper is still guilty. There has 
been no new evidence presented whatsoever. And now we are 
appealing again.
    Recently, the defense has put forward to the Ninth Circuit 
Court an appeal that I am told is 6,000 pages long, 6,000 pages 
after 22 years.
    My family's story is probably just one of many in this 
country whose victims need help from you people.
    My son's death affected a lot of people. Maybe they weren't 
the politicians or the celebrities or the religious leaders. 
Maybe they weren't the people in the news. But we had hundreds 
of thousands of calls from the everyday people, the type of 
people that put you in the positions that you are in now, the 
voters in this country who were appalled by what the justice 
system was doing and the time that it was taking.
    We had calls from classmates of Christopher, calls from 
mothers who, at night, go in and look at their children, who 
are afraid to let them spend the night, other people who have 
nightmares.
    You have a chance to help fix a system that is broken. I 
have listened to your statements in spite of what you have--
frankly, if you haven't been there, you don't have a clue what 
it is like to be a victim and to have a child, of all people, 
murdered. They say no parent should have to bury a child. You 
are right. No child should have to die in the type of horror 
that my son knew.
    The Federal system is totally being abused and mishandled. 
And you have got a chance with this Streamlined Procedures Act 
to do something positive to make this system work for other 
parents and to finally let us have justice for our son and for 
the Ryen family and maybe bring peace to Josh Ryen, the young 
boy that was only 8 years old when his throat was slit and who 
is now 30 years old and lives in horror. I urge you to 
seriously pass this bill. Thank you very much.
    [The prepared statement of Ms. Hughes follows:]
                 Prepared Statement of Mary Ann Hughes
    My husband and I are the parents of Christopher Hughes. Chris was 
senselessly and brutally murdered at the age of 11 by Kevin Cooper, an 
escaped convict with a lengthy criminal record. The legal proceedings 
against Cooper have now taken twice as long as the time our young son 
was alive. Before I talk about how the Streamline Procedures Act would 
have affected this case, I want to share with you who our son was and 
how he died at the hands of Cooper. I want you to be able to understand 
what the delays in this case have meant to us. It is our hope that our 
story will serve to bring about changes so that other families will not 
have to endure what we have been through.
    Christopher was a beautiful little boy. He had just completed the 
fifth grade at a local Catholic school. His classmates later planted a 
tree in his memory at the school. Chris swam on the swim team and 
dreamed of swimming for the University of Southern California and being 
in the Olympics. He loved his younger brother, and in typical brotherly 
fashion would tease him one minute and be his best friend the next. 
Chris' younger brother is now 28 years-old. He has missed Chris every 
day since he was murdered. Our younger son was not yet born when Chris 
was murdered. I was pregnant during part of Cooper's trial with our 
third son. When he was born we gave him the middle name Christopher 
after the brother he never knew. Both boys have only in the last few 
years been able to face what happened to their brother. As the years 
have passed, we are reminded that Chris never got to finish grammar 
school, go to a prom, marry, have children of his own, or pursue his 
dreams.
    On Saturday, June 4, 1983, Chris asked me for permission to spend 
the night at the home of his friend, Josh Ryen. We lived in what was 
then a very rural neighborhood. Josh was the only boy nearby who was 
really close to Chris' age and so they formed a bond. We were good 
friends with Josh's parents, Doug and Peggy Ryen. The Ryens lived just 
up the road from our home with their 10-year-old daughter Jessica and 
eight-year-old Josh. The last time I saw Chris alive he and Josh were 
riding off on their bicycles toward Josh's house. They were excitedly 
waving because they were so happy I had given Chris permission to spend 
that night with Josh. The only thing Chris had to remember was to be 
home Sunday in time for church. The next time I saw Chris was in a 
photograph on an autopsy table during Cooper's preliminary hearing.
    Unbeknownst to anyone, Cooper had been hiding in a house in Chino 
Hills just 126 yards from the Ryen's home. He had escaped two days 
earlier from a minimum security facility at a nearby prison. When 
Cooper was arrested for burglary in Los Angeles he used a false 
identity. His identity and criminal past should have caught up with him 
before he was wrongly assigned to the minimum security portion of the 
prison. The prison, however, mishandled the processing of an 
outstanding warrant for Cooper for escape from custody in Pennsylvania. 
He was being held pending trial for the kidnap and rape of a teenage 
girl who interrupted him while he was burglarizing a home. While 
staying at the hide-out house near the Ryens, Cooper had been calling 
former girlfriends, trying to get them to help him get out of the area. 
A manhunt was under way for Cooper, but the rural community surrounding 
the prison was never notified of the escape.
    The failure of the California prison-system to protect the 
surrounding community from a dangerous felon marked the beginning of 
our family and community's being let down by our government. Within a 
few hours of Cooper's escape, prison officials realized who Cooper was 
and how dangerous he was. Nevertheless, they still failed to alert the 
community that he was at large. Our frustration and disappointment with 
our government's failings has only grown since that time as Cooper's 
case continues to wind its way down a seemingly endless path through 
our judicial system.
    The morning following the murders, I remember being mad at Chris 
because he had not arrived home on time as promised so we could attend 
church. Then my anger turned to worry. I sent my husband Bill up to the 
Ryen home. He saw that the horses had not been fed, and that the Ryen 
station wagon was gone. Uncharacteristically, the kitchen door was 
locked, so my husband walked around the house. He looked inside the 
sliding glass door of the Ryen's master bedroom. He saw blood 
everywhere. Peggy and Chris were lying on the ground and Josh was lying 
next to them, showing signs of life but unable to move. My husband 
could not open the sliding glass door, so he ran and kicked open the 
kitchen door. As he went into the master bedroom, he found 10-year-old 
Jessica lying on the floor in fetal position in the doorway, dead. He 
saw Doug and Peggy nude, bloodied, and lifeless. When he went to our 
son Chris, he was cold to the touch. Bill then knew that Christopher 
was dead.
    My husband then forced himself to have enough presence of mind to 
get help for Josh, who miraculously survived despite having his throat 
slit from ear to ear. Josh, only eight years-old, lay next to his dead, 
naked mother throughout the night, knowing from the silence and from 
the smell of blood that everyone else was dead. He placed his fingers 
into his throat, which kept him from bleeding to death during the 12 
hours before my husband rescued him.
    Everyone inside the home had been repeatedly struck by a hatchet 
and attacked with a knife. Christopher had 25 identifiable wounds made 
by a hatchet and a knife. Many of them were on his hands, which he must 
have put against his head to protect himself from Kevin Cooper's blows. 
Some were made after he was already dead. No one should know this kind 
of horror. That it happened to a child makes it even worse.
    The killer had lifted Jessica's nightgown and carved on her chest 
after she died. The killer also helped himself to a beer from the 
Ryen's refrigerator. We wondered what kind of monster would attack a 
father, mother, and three children with a hatchet, and then go have a 
beer. That question has long since been answered, but 22 years later we 
are still waiting for justice.
    One way that things could have been different in our case under the 
Streamlined Procedures Act is that victims would have the same rights 
in federal habeas proceedings as victims have in criminal cases in the 
federal courts. In other words, victims or their surviving family 
members would be heard from by the federal courts. There was no 
indication that the en banc Ninth Circuit majority ever gave even a 
moment's consideration to the impact upon the victims and their 
families when they granted yet another stay in the case in 2004. In 
this way, the bill would have made a difference. It would have 
prevented federal courts from making decisions in federal habeas 
litigation that affect people without ever knowing or thinking about 
them. Judge Huff recently afforded us an opportunity to address her at 
the end of 14 months of proceedings in her courtroom. My husband and I 
spoke to the court, as did Josh, who is now 30 years old.
    While I know that Cooper is the one who murdered my son, I will 
always bear the guilt of having given Chris permission to spend the 
night at the Ryen's house. I will always feel responsible for sending 
my husband to find the bodies of our son and the Ryen family. It is a 
guilt similar to the guilt that Josh feels to this day because he had 
begged me to let Chris spend the night. He thinks that Chris would 
still be alive if he had not spent the night. Of course, Cooper is 
responsible for all the pain and suffering that he inflicted that night 
and the continued pain that has followed, but it does not help stop the 
pain and guilt. Kevin Cooper is still here over 22 years later--still 
proclaiming his innocence and complaining about our judicial system.
    As Josh explained when he finally got a chance to speak to the 
Judge about how he has been affected by Cooper's crimes: Cooper never 
shuts up. We continually get to hear more bogus claims and more 
comments from Cooper and his attorneys. Over the years I have learned 
to know when something has happened in Cooper's never-ending legal 
case: the calls from the media start up again, or, at times, the media 
trucks just park in front of our house. We have no opportunity to put 
this behind us--to heal or to try to find peace--because everything is 
about Cooper. Our system is so grotesquely skewed to Cooper's benefit 
and seemingly incapable of letting California carry out its judgment 
against him.
    It is important to understand how obvious it has been for over two 
decades that Cooper committed these horrible, senseless, and brutal 
crimes. This has never been a ``who done it'' case by any stretch of 
the imagination, despite all the publicity and antics by Cooper and his 
attorneys. The California Supreme Court understandably characterized 
the volume and consistency of evidence proving Cooper guilty as 
``overwhelming.''
    The Ryen family and Chris returned to the Ryen home from a 
neighbor's barbecue about 9:30 that Saturday night. None except for 
Josh were ever seen alive again. Cooper could observe the Ryen home 
from the hideout house next door. He knew it was a home and a family 
lived there because he had been watching the Ryen home for the two days 
since his escape. Cooper also had a motive for the crimes. The phone 
records from the hideout house, combined with statements Cooper's 
former girlfriends gave to police, showed Cooper was trying to get help 
to get out of the area. Cooper found out just before the Ryens and 
Chris returned to the Ryen home that night that no money and no help 
was coming his way, despite his numerous phone calls to former 
girlfriends. Forensic evidence established Cooper's presence in the 
hideout house (footprints, fingerprints, and semen). The murder weapons 
came from the hideout house, and other evidence showed that the killer 
returned to the hideout house after the murders to wash up.
    Cooper told the jury that he simply walked out of the hideout house 
the same night as the murders. He said he never went inside the Ryen 
home, a mere 126 yards away. He claimed he was never inside the Ryen 
station wagon that was stolen the night of the murders. Not 
surprisingly, the jury did not believe him. Cooper was asking the jury 
to believe that some hypothetical killer entered Cooper's hideout house 
within a short period of time of his vacating it, selected a hatchet 
and other weapons, went and attacked an innocent family 126 yards away, 
returned to the hideout house to wash up, and then stole the Ryen 
family car and drove it in the same direction that Cooper admittedly 
traveled to Mexico.
    A single drop of blood inconsistent with the victims' blood was 
found inside the Ryen home on the hallway wall immediately adjacent to 
the entrance to the master bedroom. Cooper's own expert excluded anyone 
other than an African-American as the source of the drop of blood. (The 
Ryens were white.) A serology analysis showed that the drop of blood 
was a rare type and Cooper had that same rare blood type. The 
distinctive prison-issued tobacco that Cooper admitted having when he 
escaped from prison was found in the hideout house and in the Ryen 
station wagon. A butt from a hand-rolled cigarette found in the station 
wagon with the distinctive prison-issued tobacco had saliva from a non-
secretor. Only 20 percent of the population, including Cooper, are non-
secretors. Another cigarette butt found in the car was a manufactured 
cigarette matching the brand of cigarettes taken from the hideout 
house; it also had saliva from a non-secretor. A pubic hair consistent 
with Cooper's hair was found in the Ryen station wagon. Plant burrs 
found in the station wagon were from vegetation that grew between the 
hideout house and the Ryen home. The burrs were also found in the 
hideout house and underneath Jessica's Ryen's nightgown. Jessica's 
killer had pulled up her nightgown to carve on her chest after she died 
and then lowered her nightgown. A button similar to those on the 
prison-issued jacket Cooper was wearing when he escaped was found with 
blood on it on the floor of the hideout house. A shoe print made by a 
particular make and model of shoe that was issued by the prison to 
Cooper, and that he admitted at trial to wearing at the time of his 
escape, made a partial print in blood on a sheet on the floor of the 
Ryen master bedroom, and another print on the cover to the spa outside 
the sliding glass door leading into the Ryen master bedroom, and a 
third shoe print inside the hideout house.
    In other words, Cooper's defense has always asked that we believe 
the utterly ridiculous scenario that a hypothetical killer coincidently 
entered the same house where an escaped convict had just been hiding 
shortly after the convict departed, selected a hatchet and other 
weapons, committed a brutal murder of a family, returned to clean up 
before stealing their car, and that the hypothetical killer was 
African-American and had Cooper's rare blood type, wore a prison-issued 
jacket and the same make and model of prison-issued shoes that Cooper 
wore, had the same shoe size as Cooper, had hair like Cooper's, and was 
a smoker and a non-secretor like Cooper, used distinctive prison-issued 
tobacco, and fled in the Ryen station wagon in the same direction that 
Cooper traveled.
    In 2001, after years of Cooper contending that he was innocent and 
his highly publicized demand for DNA testing, the State agreed to post-
conviction testing. The evidence to be tested was identified by 
Cooper's own nationally recognized expert as the most significant 
pieces of evidence in the case in terms of determining guilt or 
innocence. The results confirmed Cooper's guilt. The single drop of 
blood that had been identified through serology analysis at the time of 
trial as belonging to a person of African-American ancestry with the 
same rare blood type as Cooper was consistent with Cooper's DNA 
profile; the probability of a random match with the population was a 
staggering one in 310 billion. The saliva on the cigarette butts in the 
Ryen station wagon also matched Cooper's DNA; the odds of a random 
match with the general population was one in 19 billion for the hand 
rolled cigarette and one in 110 million for the manufactured cigarette 
butt. At trial, Cooper claimed that a t-shirt that had been recovered 
from along side the road nearby the Canyon Corral Bar belonged to the 
``real killer.'' The post-conviction DNA testing confirmed that the T-
shirt had smears of blood belonging to the victims as well as Cooper's 
blood. The probability of a match in the general population to Cooper's 
DNA profile on the t-shirt is one in 110 million, and the random 
occurrence within the general population of a match to the victim's 
blood would be one in 1.3 trillion. The t-shirt, which was never used 
against Cooper at trial, was new damning evidence of his guilt: his 
blood was present on the same item of clothing as the victims' blood.
    The fact that the overwhelming evidence of Cooper's guilt presented 
at trial was now bolstered by undeniable scientific evidence evoked a 
predictably absurd response from Cooper. Cooper now claimed that his 
blood had been planted on the shirt by police and the drop of blood 
found at the crime scene had been tampered with. Of course, Cooper 
could not explain how or why police would plant a minute amount of 
blood on the t-shirt only to never use it as evidence against him at 
trial. Moreover, this evidence had been in police custody since 1984. 
Apparently, these supposed rogue police officers also anticipated the 
development of the Nobel Prize-winning science that would enable Cooper 
to have the blood tested for DNA. Cooper also could not explain how the 
police could have planted his blood at the crime scene within a few 
hours of discovering the bodies, while he was still at large.
    The fact that Cooper's claims were patently absurd, however, did 
not prevent him from receiving yet another round of appeals from the 
federal courts. In February 2004, the Ninth Circuit authorized Cooper 
file another full round of habeas corpus appeals on the ground that he 
showed ``clear and convincing'' evidence that he could be ``actually 
innocent.'' I simply do not see how the judges could have reached such 
a conclusion.
    Our story is one of a judicial system so out of balance in favor of 
the convicted that it literally enables them to victimize their victims 
and their families all over again through the federal judicial system. 
We understood the rights of an accused and that Cooper's rights took 
precedence over ours as he stood trial. His trial was moved to another 
County because of the publicity surrounding the horrendous crimes. I 
had to drive a long distance to another County to watch the trial as it 
could not take place in our County. Cooper's defense attorney spent an 
entire year preparing to defend Cooper at trial. Everything was about 
Cooper's rights and none of our sensibilities or concerns could be 
dignified because Cooper had to have a fair trial. We understood and we 
waited for justice. In California, Cooper's appeal was automatic 
because he had received the death penalty for his crimes. The appeal 
took six years to conclude. We understood the need for a thorough 
appeal and we waited for justice.
    By 1991, Cooper had received a fair trial and his appeal had been 
concluded. The California Supreme Court aptly observed that the 
evidence against Cooper, both in volume and consistency, was 
``overwhelming''. Since then, we have waited and watched as the United 
States Supreme Court has denied Cooper's eight petitions for writ of 
certiorari and two petitions for writ of habeas corpus, and the 
California Supreme Court has denied Cooper's seven habeas corpus 
petitions and three motions to reopen Cooper's appeal. The Ninth 
Circuit affirmed the denial of Cooper's first federal habeas petition, 
and denied him permission to file a successive petition in 2001, and 
again in 2003. But then, on Friday night, February 6, 2004, Cooper's 
attorneys filed an application with the Ninth Circuit requesting 
permission to file a successive habeas petition.
    A three-judge panel of the Ninth Circuit denied Cooper's 
application to file a successive petition on Sunday February 8, 2004. 
Cooper was scheduled to be executed at one minute after midnight on 
Tuesday February 10, 2004. On Monday February 9, 2004, my husband and I 
made the trip to Northern California from our home in Southern 
California. Relatives of the extended Ryen family flew in from all over 
the Country. Josh Ryen, now 30, left for dead at the age of eight, his 
entire immediate family murdered, drove hundreds of miles to reach the 
prison to witness the execution of Cooper. We all expected that 
finally, this case would be brought to a close.
    Since the murder of Chris, holidays and special days are never 
totally joyful. They serve as a painful reminder that Chris is not with 
us, and of how he was taken from us. Otherwise happy occasions with our 
surviving children often are overshadowed by what Chris should have 
been able to experience in his life but for Cooper's choices and 
actions. When I learned from the prosecutor that Cooper's execution was 
going to be set for February 10, 2004, I asked to have it changed 
because February 10th is my birthday. The prosecutor explained that it 
was not possible to accommodate my request because the date had been 
chosen in order to coordinate the staffing of the hundreds of people 
who must be on duty when an execution is scheduled to be carried out, 
i.e. the personnel at the prison, at the appropriate state and federal 
courts, and at the California Attorney General's Office. With that 
explanation, I at least hoped the date would be one that would be 
remembered for justice being served at long last. Sadly, that date is 
now identified with yet another example of a judicial system gone 
wrong.
    If the Streamlined Procedures Act had been law in February 2004, 
Cooper would have been executed as scheduled. My birthday would not 
forever be a reminder of how it felt to believe that this case would 
finally end--only to have it begin again, 21 years after it first 
began. Today, my family and Josh Ryen are left to wonder if there will 
ever be justice for my son and the Ryens.
    The reason that Cooper would have been executed as scheduled under 
the SPA was because a three-judge panel that was familiar with his 
crimes and the lengthy procedural history of his case already had 
rejected Cooper's request to pursue yet another habeas petition in the 
federal District Court. Unfortunately, since the Streamline Procedures 
Act was not the law, the Ninth Circuit was left free to decide that 
Congress' prior habeas reforms, which provided that a three-judge panel 
has the final word on whether a successive federal habeas petition will 
be allowed, did not really mean what they said. While Congress 
specified that there would be no petitioning for rehearing of the 
three-judge panel's decision, the Ninth Circuit decided that what 
Congress really meant was that a rehearing would be just fine if it was 
the appellate court's idea to have a rehearing as opposed to one of the 
parties.
    Of course, the problem with the Ninth Circuit's logic is that it 
resulted in judges who had absolutely no familiarity with Kevin 
Cooper's crimes or the history of his case making a last-minute 
decision about it. Only hours before Cooper's scheduled execution, 
these judges would decide whether he would get yet another round of 
federal habeas review. Not surprisingly, having the decision made by 
the en banc panel that did not include a single judge with any 
familiarity with Cooper's case did not improve the quality of justice. 
Cooper's application for a successive petition and supporting exhibits 
was deliberately presented late in the process and was over 1,000 pages 
long. It contained nothing meritorious or worthy of review. The outcome 
was a gross miscarriage of justice.
    The Ninth Circuit's authorization for the filing of a successive 
habeas petition resulted in
    further proceedings in the federal District Court which served to 
reveal exactly how wrong it was to give Cooper yet another round of 
federal review. After 14 months of proceedings in the District Court, 
we now know that the entire premise of the Ninth Circuit's decision to 
grant Cooper the opportunity to file yet another federal habeas 
petition was predicated on false assumptions and mistaken impressions. 
The en banc majority of the Ninth Circuit decided in a matter of a few 
hours that two ``quick and definitive scientific'' tests could be 
conducted with respect to Cooper's continuing claim of actual 
innocence. The subsequent proceedings in the District Court showed the 
tests were anything but quick. After considerable time and expense, 
both tests were conducted and neither supported Cooper's claim of 
innocence. So here we are, 17 months after this case should have been 
put behind us, and law enforcement, prosecution and judicial resources 
continue to be wasted on a guilty man whose crimes were committed over 
22 years ago. The same judge who decided Cooper's first federal habeas 
petition just issued a 160 page decision explaining in detail why he is 
not innocent and why he is not entitled to relief on any of the claims 
that the Ninth Circuit allowed him to file. Cooper is now asking for 
his numerous baseless federal habeas claims to be certified for appeal 
to the Ninth Circuit. His attorneys apparently envision many more years 
of appeals.
    The claim that the majority of the en banc panel identified as 
satisfying the ``actual innocence'' test enacted by Congress in 1996 
that enabled Cooper to return for yet another round of federal habeas 
review was his claim that the prosecution withheld exculpatory evidence 
relating to the shoe prints in the Ryen house. Cooper left a partial 
print in blood on the Ryen's bedsheet, a print in dust on the spa cover 
outside the sliding glass door leading into the Ryen masterbedroom, and 
another shoe print in the hideout house. The shoe that Cooper wore when 
he left the damning shoe print evidence was a make and model that was 
issued to him by the prison. He also admitted at trial that he was 
wearing these shoes at the time of his escape from the prison, just 
days before he murdered our son and the Ryens. The fact that Cooper 
admitted to wearing the particular make and model of shoe did not 
prevent the en banc majority of the Ninth Circuit from deciding that 
``information'' from the former Warden, if believed by the jury, would 
mean the jury ``would have known that Cooper was almost certainly not 
wearing'' the same brand and model of shoe responsible for the 
distinctive shoe prints inculpating him in the brutal murders. Of 
course, nothing in Cooper's papers supported that conclusion. Not even 
Cooper's attorneys argued that the former Warden's ``information'' 
would have meant the shoes could not have been issued by the prison, 
yet this is the conclusion that caused the en banc majority of the 
Ninth Circuit to let Cooper file yet another habeas petition in the 
District Court.
    Cooper's attorneys' contention was, of course, completely false 
but, the Ninth Circuit en banc panel, unfamiliar with the details of 
the case, managed to buy into the version of events conjured up by 
Cooper's counsel. The Ninth Circuit could not have gotten everything so 
wrong had they not undertaken to decide such an important matter over a 
span of just a few hours, rather than leaving matters to the three-
judge panel that was actually familiar with Cooper's case.
    What Cooper's attorneys actually argued in their eleventh hour 
filing was that the murder shoes had been purchased by the prison at 
Sears and were readily available to the public in retail stores. They 
based this allegation on the former Warden's ``personal inquiry,'' 
which she supposedly had conducted and conveyed to the San Bernardino 
County Sheriff's Department before trial. Of course, as the former 
Warden testified later in front of Judge Huff, she did not conduct a 
``personal inquiry.'' Instead, she just asked someone and they told her 
information that was inaccurate. The corporate records and prison 
purchase records introduced at trial clearly showed the prison bought 
the shoes directly from the manufacturer, and the sales records of the 
corporation showed sales only to state and federal institutions such as 
the military, forestry service, and prisons such as that from which 
Cooper had escaped before the murders.
    A greater familiarity with the evidence in the case would have 
enabled the judges on the en banc panel to understand that Cooper 
admitted to having been issued the make and model of shoe that left the 
incriminating foot prints, and he admitted to wearing the shoes when he 
escaped only days before the murders. Those facts, combined with the 
fact that the prints were consistent with Cooper's shoe size, along 
with all the other evidence incriminating him, is what made the shoe 
prints damning--not whether the prison bought the shoes at Sears or 
whether anyone else could buy the shoes at Sears. As if missing this 
point were not infuriating enough, it also turns out that everything 
the former Warden said to Cooper's attorneys is absolutely wrong, and 
that the defense as well as the trial jury knew all along where the 
prison had purchased the shoes and who else had purchased those kinds 
of shoes. Imagine this scenario: everything is stopped just hours 
before an execution, after two decades of litigation, because of 
inaccurate hearsay offered by the same warden who put a violent 
offender in the minimum security portion of the prison, allowing Cooper 
to escape and commit the murders in the first place.
    Not only was the entire claim misunderstood and false, the Ninth 
Circuit also was misled as to how long the defense knew about the 
``facts'' supporting the claim. The time frame in which the defense 
learns something is a critical fact to be considered when something is 
asserted at the last minute after years of litigation. The importance 
of when something is discovered in the context of an application to 
file a successive petition is evident from the decision of the en banc 
majority, which expressly states when it believed Cooper's defense 
learned of the ``new'' information. The decision expressly noted that a 
sworn declaration by Cooper's counsel showed that the Cooper defense 
did not become aware of former Warden Carroll's ``information'' until 
the date on her declaration, which was January 30, 2004. If we were not 
already completely disgusted with our judicial system, we certainly 
were when we sat in Judge Huff's courtroom while a Cooper defense 
investigator testified that he had discovered Warden Carroll's 
``information'' years earlier, and that Cooper's attorneys had had that 
information for years and knew that it was worthless because, as 
everyone had known since trial, the shoes had not been purchased from 
Sears and were not readily available in retail stores. In other words, 
the whole appeal was based on a lie. It was based on worthless evidence 
that Cooper's lawyers held back until the last minute, so that they 
trick the en banc Ninth Circuit into grant a second-appeal application 
that it never should have been considering in the first place.
    The decision of the en banc majority also shows a lack of 
understanding of the evidence against Cooper in other ways as well. The 
hastily crafted opinion noted: ``[t]here was, of course, evidence 
pointing to Cooper's guilt at trial.'' The opinion then references a 
spot of blood on the hallway wall of the Ryen house, the bloody T-
shirt, and hand-rolled cigarettes from the Ryen car.'' But the so-
called bloody T-shirt was never used as evidence against Cooper at 
trial. Instead, it was Cooper's defense attorney who had waived it 
around and argued that it belonged to the ``real killer'' as he tried 
unsuccessfully to cast suspicion on three unknown patrons who visited a 
local bar on the night of the murders. Remarkably, the en banc panel 
that decided to grant Cooper more appeals thought the T-shirt was used 
as evidence against him at trial. Hours before Cooper's execution, the 
Ninth Circuit en banc panel majority wanted a ``quick and definitive 
scientific'' test conducted to determine whether Cooper's blood was 
planted on evidence that was never used against him at trial. This 
error was magnified when the test turned out to be neither quick, 
definitive, or even scientific--or helpful to the defense.
    The other scientific test that the en banc Ninth Circuit panel 
ordered for Cooper was mitochondrial DNA testing of hair that Jessica 
supposedly was ``clutching'' in her hand at the time she died. Cooper 
argued it could identify the real killer. It came as no surprise, after 
spending $2,500 per hair, that the victims could not be eliminated as 
the donors of the hairs selected by Cooper's own expert. Common sense 
suggests that when a person is attacked with a hatchet and multiple 
blows are struck to the head, clumps of cut hair will adhere to the 
victims' bloodied hands. Cooper's expert from trial and post-conviction 
testing himself explained that the theory that young Jessica clutched 
her killer's hair in her hands was absurd because a dead person cannot 
clutch anything. Also, how would a little girl, attacked in the dark by 
a hatchet-wielding assailant, ever manage to pluck hairs from her 
assailant's head? The whole argument that Jessica was ``clutching'' her 
killer's hair is absurd. The only thing that it accomplishes is to 
force her family and my family to once again focus on the horrific 
manner in which the Ryens and my son died.
    The Streamlined Procedures Act also would have changed the course 
of Cooper's case by limiting the amendments that he filed to his first 
federal habeas petition. Cooper first asked the federal court for a 
stay of execution in March of 1992. In August of 1994, he finally filed 
his first habeas petition. He was allowed to amend his petition in 
April of 1996. Then Cooper was again allowed to amend his petition in 
June of 1997. The Streamlined Procedures Act would allow one amendment 
as a matter of right before the answer is filed, and any amendment 
after that would have to present meaningful evidence that the 
petitioner did not commit the crime. Obviously, under these standards, 
Cooper would not have been allowed to amend his petition twice over a 
three year period. Years of delay could have been avoided.
    The Streamlined Procedures Act also would not have permitted 
Cooper's appeal from the denial of his first federal habeas petition to 
take as long as it did. Cooper's appeal of the 1997 denial of his first 
federal habeas petition was not completed until 2001--over three and a 
half years. The SPA would have required that the matter be resolved 
within 300 days of the completion of briefing by the parties, and would 
require a rehearing decision to be made within 90 days, a rehearing by 
a three-judge panel to be completed within 120 days, and a rehearing en 
banc to be completed within 180 days. Years of delay in Cooper' appeal 
in the federal court could have been avoided.
    Every state and federal court has repeatedly and consistently 
upheld the judgment against Kevin Cooper, yet 22 years later he still 
has not answered for his horrific crimes. My husband and I urge you to 
reform the federal habeas system so the profound abuses and 
manipulations that have allowed the murderer of our son to evade 
justice for over 22 years will finally be brought to an end.

    Mr. Chabot. Thank you Mrs. Hughes.
    Ms. Friedman.

 TESTIMONY OF RUTH FRIEDMAN, SOLO PRACTITIONER, WASHINGTON, DC

    Ms. Friedman. First of all, I would like to thank you, Mr. 
Chairman, for holding this hearing.
    Punishment of crime, particularly in death penalty cases, 
is a highly charged subject. Confronting the minutia of the 
laws and actual practice can be very challenging. Some people 
tell me sometimes boring.
    Habeas corpus is a very, very complicated subject and has 
become even more so over the last decade with the procedural 
rules and technical requirements often referred to as 
Byzantine. But we should make no mistake about it. This is a 
very radical bill. It proposes to gut years of Supreme Court 
case law, most of it by the Rehnquist court. In many places, it 
would amount to a virtual repeal of the writ of habeas corpus.
    Hearings like this one, a careful examination of the actual 
effects of this bill across the country, are critical. My 
understanding, Mr. Chairman, is that some of the most drastic 
provisions of this bill are being attached piecemeal to other 
legislation without the debate undertaken today and without 
even the consideration by the Subcommittee.
    I hope these issues are not resolved in that way.
    Hearings such as this one, where there can be open and 
public debate on the merits of the legislation, are essential. 
I thank you for the privilege of submitting my remarks and 
appearing before you today.
    I say that this bill is radical not only because it would 
fundamentally change the time-honored American remedy of habeas 
corpus in an unprecedented fashion, it would also destroy the 
last and often the only chance of fairness for thousands of 
State prisoners. For many, particularly those on death row, 
Federal Court is the first place one has access to a paid and 
competent lawyer, any resources to prove the case and an 
unbiased decision maker not facing re-election pressure in the 
community where a terrible crime occurred.
    Where I practice in Alabama, almost three-quarters of the 
current death row population was represented at trial by an 
attorney who got paid $1,000 for all the work he or she did, 
out of court, preparing the case.
    There is no public defender system in Alabama, no 
institution comparable to district attorneys or attorneys 
general who gain expertise in handling capital litigation. 
There is no right of access to forensics or DNA labs or even 
investigators who could prove the accused's defense or even his 
innocence, trials where first guilt and then life is at stake. 
That is two trials, and sometimes jury selection as well have 
been known to last less than 3 days in Alabama. The situation 
of State post-conviction, which if this bill were to become law 
would be the last place to look for justice, is worse.
    Alabama death row inmates are not entitled to an attorney 
at all until after they file their petition for relief. This is 
after their Federal statute of limitations may even have run 
out. The State of Alabama does nothing to provide these inmates 
with counsel at this juncture, though this is when the prisoner 
must file a pleading that will withstand all of the procedural 
defenses that the State lawyer immediately and always asserts. 
Indeed, the Alabama Attorney General has watched the statute of 
limitations clock run out on an unrepresented death row inmate 
and then contacted them to let them know they would be seeking 
an execution date because the deadline was missed. If a 
prisoner does manage to get a lawyer, that attorney will lose 
money doing the case. He or she will be paid a total of $1,000 
for however long it takes to prepare, research, litigate, 
defend and present the case.
    The State typically will oppose every attempt made for 
discovery, for experts or even for investigative help. The case 
will usually be decided by the same elected judge who imposed 
the death sentence originally. Even often over the express 
wishes of the jury, even though that jury was comprised of 
people in favor of the death penalty, even when they determined 
that the defendant's life should be spared, Alabama law permits 
judicial override. And about a quarter of the people currently 
on the row got there even after jury verdicts of life without 
parole.
    As it stands now, the habeas law is completely unforgiving 
of any mistakes that post-conviction lawyers, unpaid, coming in 
late, without help, without access to discovery, any mistakes 
that he or she made or any claim he or she neglected to raise. 
There is no constitutional right to post-conviction attorneys, 
much less to competent or paid lawyers. Thus when lawyers miss 
their clients' deadlines, under the habeas law as it stands 
today, those clients will die without Federal habeas review. 
This has already happened a number of times. Under the AEDPA, 
it is likely to happen more times more.
    As I noted more extensively in my written remarks, it is 
important to recognize and consider just how strict habeas law 
has already become. All habeas petitioners are now subject to a 
statute of limitations. There is no right anymore to a Federal 
evidentiary hearing. Claims subject to legitimate State 
procedural defaults are barred forever from Federal review. 
There is only one shot at a habeas petition. Federal judges 
must generally defer to all State court fact findings, and 
relief cannot be granted, even if a State court decision maker 
got it wrong, unless he or she also got it unreasonably wrong. 
To put it mildly, it is not easy for a petitioner to get past 
the hurdles erected by the AEDPA. But it is still possible.
    For example, the prosecution at Bo Cochran's Alabama trial 
intentionally removed nearly every qualified black juror from 
that case. The State courts found the claim defaulted. The 
Federal Court said the State courts didn't apply it fairly. Bo 
Cochran was acquitted at his retrial.
    I see my time is up. I will end quickly. At the Delma 
Banks' Texas trial, the State lied throughout about what it did 
to its witnesses. It paid them. It coached them. It lied 
throughout. When the case was taken by the U.S. Supreme Court, 
the main defense by the State was that defense didn't catch the 
lie soon enough. The Supreme Court overturned the case.
    Had this bill been law, Delma Banks would have been 
executed. As I mentioned in my remarks, Arkansas' death row 
inmate Ledell Lee was represented by a drunk lawyer. In post-
conviction, the State judge, the State lawyer knew that, but 
the State courts approved it anyway. Under this law, he would 
have gotten no relief.
    I could go on and on. I will not. Let me just add, the 
Senate has looked at this bill several times. It has held 
hearings. It has met and conferred. I have spoken with staff 
members on both sides of the aisle. It has changed that bill 
twice, offered two new substitutes. It has eliminated section 6 
altogether, gotten rid of the appeal effects of section 9, 
changed the tolling revisions and done other things. I urge 
this Committee to please do the same.
    [The prepared statement of Ms. Friedman follows:]
                 Prepared Statement of Ruth E. Friedman








































    Mr. Coble. Thank you Ms. Friedman. We impose the 5-minute 
rule against ourselves as well so we will commence the 
examination now.
    Mr.--pronounce your surname for me again, please.
    Mr. Dolgenos. Dolgenos, Mr. Chairman.
    Mr. Coble. Mr. Dolgenos, one issue which surrounds this 
subject matter is the cost of relitigating. Comment on that, 
for me, if you will.
    Mr. Dolgenos. Well, Mr. Chairman, as I said in my remarks 
earlier, in my little office in Philadelphia--it is not that 
little, but it is small compared to some of the agencies we see 
around this city. We have had to increase the number of lawyers 
who work full time on habeas by 400 percent. And the reason 
that is, as far as I can see, is that when a prisoner files a 
habeas petition, it doesn't, despite the existence of a statute 
of limitations, despite the existence of various default 
provisions, it does not go away easily, even if it is patently 
frivolous.
    The fact is, we have far more evidentiary hearings now than 
we ever did before, evidentiary hearings about whether the time 
bar should be applied in a particular case, evidentiary 
hearings about whether the State court proceedings were fair, 
far more evidentiary hearings than we used to have before the 
passage of AEDPA. In fact, last year, I think we had something 
like 20 Third Circuit appeals in my unit. Before AEDPA was 
passed, before the last 5 years, we had hardly any. And I think 
it is not because AEDPA is so complicated. I think it is 
because there are so many judicial exceptions, judicially 
carved exceptions to each and every bar in AEDPA, that 
litigation snowballs every time habeas petition is filed.
    And that means that those of us in State and local 
governments have to take money away from the investigation of 
crime, away from the prosecution of crime, and put it into the 
habeas unit where, frankly, I think it's better spent 
elsewhere.
    Mr. Coble. Thank you, sir.
    Mr. Cattani, in the 1996 act, Congress created a special 
expedited habeas corpus procedure into which States can opt-in 
by creating a mechanism for providing high-quality counsel to 
defendant's own State post-conviction matters.
    Tell us what your State has done to that end.
    Mr. Cattani. After the AEDPA was enacted, we enacted 
heightened standards for attorneys who would represent 
defendants in post-conviction proceedings. The standards 
require extensive experience to be qualified to act as lead 
counsel in a post-conviction proceeding.
    We've ensured that there is adequate funding for defense 
attorneys to handle these post-conviction proceedings, as I 
indicated. In some cases, more than $100,000 has been spent for 
post-conviction proceedings; and in those post-conviction 
proceedings, what we generally see--the post-conviction 
proceeding is the primary opportunity to raise claims such as 
ineffective assistance of counsel. And the claim that we 
routinely see is counsel should have developed additional 
mitigation.
    So notwithstanding the fact that the initial--our trial 
attorneys are well-funded and conduct a mitigation 
investigation at trial, we repeat the mitigation investigation 
during the post-conviction proceedings. Notwithstanding the 
fact that we've then had that type of a hearing in post-
conviction proceedings, we move to Federal court, and we still 
get claims of ineffective assistance of counsel for not 
developing additional mitigation.
    But the point--going to the question that you raise, we 
have implemented a system that provides highly qualified 
attorneys to represent defendants in post-conviction 
proceedings, but we haven't been able to take advantage of the 
opt-in requirements.
    Mr. Coble. Ms. Hughes, you've mentioned in your testimony 
that you're not--you're not alone in this situation. Do you 
know other families that have experienced similar difficulties 
in finalizing the problems that plague them?
    Ms. Hughes. All I can say to answer that is, I live in a 
State where the death penalty is seldom ever carried out. If 
you're the family of a victim and the murderer of your family 
member is on death row and he's been there for a long time, 
they're in the same boat that I am.
    We've seen recently in California--and it was tragic that 
the parents, Doug and Peg, were killed, but I'm coming here as 
a mother, I'm talking about someone who kills a child.
    We've had a lot of very high-profile child murders in 
California. We've got cases that have been tried, are waiting 
to be tried; and I know that these parents--and I see some of 
them when they've had the verdict and they go, ``Thank God it's 
all over,'' and I go, ``You'd better pray because you're just--
you're just beginning to see what the system is like and how 
it's not going to work for you.'' Twenty-two years is too long.
    Mr. Coble. Well, I see my red light has appeared.
    My aunt, Ms. Hughes, recently lost a child, natural death, 
but she said to me, as you have told us, that the saddest day 
in a parent's life is burying a child because it's supposed to 
be the reverse.
    The gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Dolgenos, I assume it's your position that most of 
these petitions are without merit; is that true?
    Mr. Dolgenos. I would say so, yes.
    Mr. Scott. And some have merit?
    Mr. Dolgenos. That's correct.
    Mr. Scott. Is it important to have finality if you're 
dealing with someone that happens to be innocent?
    Mr. Dolgenos. I think it's legally untenable to imprison or 
execute someone who's innocent; it's important not to punish 
the innocent.
    Mr. Scott. Okay. Well, exactly what happens now if you have 
someone who's probably innocent?
    Mr. Dolgenos. Well, what we have, sir, are claims of 
innocence that reasonable people can disagree about; and the 
question is whether or not we need to channel that to a jury 
or----
    Mr. Scott. The jury has found them guilty. Now you've got 
evidence that shows they're probably innocent.
    Mr. Dolgenos. If I believed, sir, that someone----
    Mr. Scott. What is their right, not what you believe. They 
can convince you--because you've already prosecuted them. Do 
they have an independent shot at a judge to show they're 
probably innocent?
    Mr. Dolgenos. Yes, they do. It depends----
    Mr. Scott. Well, now you have to show clear and convincing 
evidence that they're guilty. That's a higher standard than 
probability; is that not right?
    Mr. Dolgenos. That's correct, sir.
    Mr. Scott. Ms. Friedman, what happens if you've got 
somebody that's probably innocent?
    Ms. Friedman. Through this bill?
    Mr. Scott. Yes.
    Ms. Friedman. They would not be able to make it through 
under this bill. These innocence provisions are not fail-safes 
for the innocent by any measure for many reasons. One of them 
is that there is no provision here for even presenting any 
evidence. The court wouldn't even have jurisdiction under this 
bill; it's a jurisdiction-stripping bill.
    Mr. Scott. Well, suppose a lawyer prematurely files an 
unexhausted claim on page 3, lines 1 through 3 of the bill. If 
you file an unexhausted claim that is, for procedural reasons, 
thrown out, what does ``dismissed with prejudice'' mean?
    Ms. Friedman. That claim is gone forever, you can never 
litigate that.
    Mr. Scott. So if it's prematurely filed and you get 
yourself together and you have a valid claim, but you messed up 
and prematurely filed it, it's dismissed with prejudice so that 
when you get it together it can't be brought back?
    Ms. Friedman. That's absolutely right, unless you can prove 
not only innocence to a clear and convincing--there's many 
things wrong with that standard. It's got to be tied to the 
claim. It's innocence-plus. It's not even enough if you're 
innocent.
    Mr. Scott. Clear and convincing is a higher standard than 
probability, so if all you've got to show is that you're 
probably innocent, the court doesn't have jurisdiction to hear 
the case?
    Ms. Friedman. That's correct. And it's even beyond that. 
You have to show that that evidence wasn't available before, so 
that if you had a bad lawyer, who never put it on, you're out 
of luck as well.
    Mr. Scott. On page 7, line 10, it shows that, unless 
determination that the error is not structural is contrary to 
clearly established Federal law.
    Mr. Cattani, what's the difference between clearly 
established Federal law and Federal law?
    Mr. Cattani. Clearly established Federal law is law as 
determined by the United States Supreme Court. There has to be 
a decision from the United States Supreme Court.
    Mr. Scott. What do the words ``clearly established'' do? I 
mean, if it's contrary to Federal law, what does ``clearly 
established'' do to that sentence?
    Mr. Cattani. It suggests that there's no reasonable dispute 
among jurists.
    Mr. Scott. So if the court decides that it's contrary to 
Federal law, it's not clearly established, then you can't be 
heard; is that the deal?
    Mr. Cattani. I'm not familiar with the specific provision 
that you're looking at.
    Mr. Scott. Page 7, line 10.
    Mr. Cattani. I guess--the important point, I guess, for me 
is that----
    Mr. Scott. Those words aren't in there by accident. What do 
they mean?
    Mr. Cattani. This is collateral review, and as 
Representative Lungren pointed out, if, for example, you commit 
a Federal crime, you have a trial, an appeal, a post-conviction 
proceeding.
    We have those same provisions in State court, and then this 
is another layer of review on top of that. And I think it's 
appropriate to have a higher standard--greater requirements to 
pursue your appeal in that setting in a Federal collateral 
review----
    Mr. Scott. So if a State court has decided, then the 
Federal court doesn't second-guess the State court; is that the 
deal?
    Mr. Cattani. That is correct.
    Mr. Scott. Okay. Is a guilty person entitled to a fair 
trial?
    Mr. Cattani. Yes.
    Mr. Scott. Suppose everybody agrees you didn't have a fair 
trial, but you're not claiming innocence?
    Mr. Cattani. I guess I have more confidence in our State 
court system----
    Mr. Scott. So a guilty person is not entitled to a fair 
trial. If everybody up there agrees that the trial was not 
fair, but the person was guilty, is a guilty person entitled to 
a fair trial?
    Mr. Cattani. Certainly a guilty person is entitled to a 
fair trial.
    Mr. Scott. And what is his remedy if it's no fair trial?
    Mr. Cattani. If it's not a fair trial, he certainly has all 
of these avenues of appeal that I've outlined.
    Mr. Scott. How do you get in if you're not claiming 
innocence?
    Mr. Cattani. Well, you get in by raising your Federal 
constitutional claims in State court, and then you get to raise 
those claims again in Federal court.
    Mr. Scott. Without a claim of innocence?
    Mr. Cattani. Even without a claim of innocence, yes.
    Mr. Scott. Ms. Friedman, can you get into Federal court 
under these without a claim of innocence?
    Ms. Friedman. Not for any claim that has been in any way 
defaulted, unexhausted, unamended. So if you didn't have proper 
counsel or if the State withheld evidence--and that's one of 
the problems with this bill, it does nothing if the State lies, 
it withholds evidence and denies access to discovery, it's 
going to be too late when you get to Federal court to raise 
that claim.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    The gentleman from California, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Ms. Friedman, in your testimony on page 2 you talk about 
the Federal forum being available for habeas petitions for 
centuries, and that after the 1970's the implementation of the 
habeas remedy generally focused on whether the petitioner had 
been deprived of a fair trial. Yet the Supreme Court, in Felker 
v. Turpin doesn't seem to agree with you.
    The Supreme Court said that, in these words, the first 
Congress made the writ of habeas corpus available only to 
prisoners confined under the authority of the United States, 
not under State authority. Again, the Supreme Court said it was 
not until 1867 that Congress made the writ generally available 
in all cases where any person may be restrained of his or her 
liberty in violation of Federal law.
    The Supreme Court goes on to say, and it was not until well 
into this century--that is, the 1900's--that this court 
interpreted that provision to allow a final judgment of 
conviction to be collaterally attacked on habeas.
    I view that as suggesting there's a great distinction 
between the great writ and the statutory writ that we are 
talking about here today.
    Do you still stand by your statement that the right to 
litigate in a Federal forum a habeas petition has existed for 
centuries?
    Ms. Friedman. Yes, Congressman Lungren.
    Mr. Lungren. Okay, that's fine. You can disagree with the 
Supreme Court here. Many of us do, as well.
    Talking about the ``actual innocence'' test, people have to 
understand under this bill, procedural default, if the claim 
goes to the innocence, the Federal court can still consider, 
under the ``safe harbor,'' the claim even if not exhausted. If 
it doesn't relate to innocence, then the claim would be 
dismissed.
    Again, that goes to Mr. Cattani's suggestion that there 
ought to be a higher standard in this subsequent, subsequent, 
subsequent review by the Federal courts.
    Ms. Friedman, you state in your testimony on page 18 that 
we should not be misled into believing that the bill's 
exceptions to sections 2, 3, 4 and 9 will identify the 
innocent. The exception that these sections illustrate is that 
codified in 28 U.S.C. 2254E2, which requires that the evidence 
of innocence be new or previously undiscoverable, and that the 
evidence clearly shows innocence.
    This standard was enacted in 1996, the same standard to 
limit the right of habeas petitioners to file a second or 
successive habeas petition, as was also enacted in 1996. Both 
of these standards have now been around for 9 years and have 
been used to bar hundreds if not thousands of claims from going 
forward.
    Can you give me one actual case, not a hypothetical case or 
a case that you think would have been affected had this section 
applied--can you name one actual case where either 2254E2 or 
2244E2 was applied to the actual case out of the many cases 
where the sections have been applied and where this test has 
denied relief to a prisoner who reasonable people would agree 
was actually innocent?
    Ms. Friedman. I'm glad you brought up those sections.
    Those sections were a part of a bill, and they apply in the 
AEDPA in two places. One is to limit repetitive filings, and 
the other is to limit evidentiary hearings when the petitioner 
is not at fault. So those are both standards that are very 
different from what's in this bill. This bill would limit--
would use those same standards to limit any ability to get into 
Federal court at all. So it's a very, very different situation.
    Mr. Lungren. The standard is the same, but it's applied in 
a different manner?
    Ms. Friedman. It's applied in a wholly different manner. 
These are applied in the ability ever to get Federal habeas 
review of a claim. Those were used to limit repetitive filings, 
and have halted repetitive filings of habeas petitions for all 
intents and purposes; or to limit Federal evidentiary hearings 
when the petitioner himself was at fault for not presenting the 
evidence. Those are not what this is about here.
    Mr. Lungren. Let me ask you this: Do you think there is any 
need to reform habeas petitions at all, given, in fact, that we 
have these instances, such as Mrs. Hughes' case, of what appear 
to be interminable delays?
    Ms. Friedman. My heart, of course, goes out to Mrs. 
Hughes----
    Mr. Lungren. That's not the question I asked.
    Ms. Friedman. But I would like to say that, thank you.
    Yes. If cases are going on and on, that is a problem. And 
there are lots of problems that I think should be looked at in 
this bill and not just those. But it seems to me, that is about 
timing and the length of time something takes in Federal court, 
not the ability to go to Federal court at all, which is what 
this bill says.
    Mr. Lungren. Okay. Well, let me ask you that, then.
    In one specific part of the bill we allow expeditious 
review if a State--if a State follows the outline that we've 
established actually in the 1996 bill, which would improve the 
kind of representation that those defendants would get. Would 
you support that?
    Ms. Friedman. I think having incentives for States to 
improve their counsel is a terrific idea.
    What happened in 1996 is that it was put into the bill and 
very few States attempted to meet it. Some did, without 
changing their systems at all, and then gave up; some said they 
didn't need it at all.
    Mr. Lungren. Which States have been approved by the Federal 
courts thus far?
    Ms. Friedman. Arizona will meet it. It did not meet it----
    Mr. Lungren. No, no. I asked which have thus far, since 
1996?
    Ms. Friedman. None have.
    Mr. Lungren. By the action of the Federal courts?
    Ms. Friedman. No, by their own actions, they have not 
improved their systems, and this bill rewards them for not 
improving their systems.
    Mr. Lungren. Well, since my office wrote the 1996 law, and 
we wrote it to pattern after the practice in California, it 
seems rather strange that the very law that we wrote that was 
patterned after what we had done to improve the situation in 
California has not been deigned by the Ninth Circuit to meet 
those standards.
    And what I would ask you is, why can't we have some 
authority that has no interest in this whatsoever; that is, the 
Attorney General of the United States--these are State cases--
he has no real interest in it; there's no conflict there in the 
Circuit for the District of Columbia to do that rather than 
have what we have now, which--where there is a conflict? 
Because what you're asking the courts to do is to say, Okay, 
you'll have expedited procedure, we'll have less chance to look 
at this, as we have imposed upon you in the past. So really 
there's no incentive for us to actually say that your State 
qualifies.
    Ms. Friedman. Three quick answers to that. One is that the 
Attorney General----
    Mr. Coble. Ms. Friedman, if you will answer tersely 
because----
    Ms. Friedman. Okay. The Attorney General is not----
    Mr. Coble. But it is Mr. Lungren's bill, so we'll be 
generous with him. Go ahead.
    Ms. Friedman. Thank you.
    The Attorney General of the United States comes in on the 
side of States in habeas cases against petitioners often; it 
has never, to my knowledge, come in on the side of a 
petitioner.
    I think what this bill also does is, it doesn't just speed 
up the process, which is what the original AEDPA contemplated; 
it repeals jurisdiction entirely for any State that meets the 
opt-in, and I think that is an enormous problem.
    Mr. Lungren. I will just mention, the Attorney General does 
at times sue States in the Union, prosecutes officials of 
States when they find that they violate civil rights acts--
civil rights laws, for instance, so they're not always on the 
side of the States.
    Ms. Friedman. I don't believe they have ever come in on the 
side of a habeas petitioner.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from Massachusetts, Mr. 
Delahunt.
    Mr. Delahunt. I thought we had a very informative exchange 
between my friend from California and Ms. Friedman. If Mr. 
Lungren--and I can see he's in discomfort with his back, but if 
he would wish to continue the dialogue that you're having with 
Ms. Friedman----
    Mr. Lungren. Well, I thank the gentleman for yielding. I 
appreciate it.
    Mr. Delahunt. I yield whatever time you might have. I find 
this very informative.
    Mr. Coble. Mr. Delahunt controls the time and Mr. Lungren 
is recognized.
    Mr. Lungren. This is the confusing thing that I find in the 
whole process, the way it works now, and we have it in 
California with the Ninth Circuit. We have a situation where 
the procedural default exceptions that the State courts impose 
on themselves to serve the interest of justice, where they find 
that if they actually impose their procedural default rule in a 
particular case, they find that it would be inappropriate, that 
there is a case of innocence there that ought to be looked at.
    So the courts impose this on themselves; the California 
State court would do that in, as what we call it, the interest 
of justice. And then, subsequently, the Federal courts don't 
recognize our procedural default rules because they say they're 
inconsistently applied.
    Now, that seems strange to me. You have procedural default 
rules that you believe make good sense. In a very, very few 
cases you make an exception in the interest of justice at the 
State level. Then that very exception that you utilize is used 
against your whole State system by the Ninth Circuit that says, 
because you don't apply it in every single case, we won't apply 
these rules now.
    Does that make sense?
    Ms. Friedman. I think it's a very different situation when 
you have a couple of times where the court may say, we're going 
beyond our rule for some reason.
    Mr. Lungren. That's what I'm saying.
    Ms. Friedman. What this bill does is, it goes way beyond 
that, it gets rid of any defense whatsoever to a default. So it 
would encourage and it would allow any State that makes up a 
default after the fact, as in Ford v. Georgia, about objecting 
to striking black people from juries----
    Mr. Lungren. You don't recognize any safe harbor that we 
have in here for actual innocence?
    Ms. Friedman. The actual innocence exceptions to this bill 
are impossible to meet.
    Mr. Lungren. Impossible to meet?
    Ms. Friedman. I think they are. But in terms of procedural 
default, it not only deals with inconsistent application, but 
with defaults that don't serve legitimate purpose, that are 
announced after any time for applying the default has already 
passed, that are based on a State's withholding of evidence, 
like in Delma Banks' case.
    Mr. Lungren. Well, all I know is that the standard that we 
use in our bill, as you suggest, is used in other circumstances 
right now for successive petitions; and unfortunately, I would 
have to advise Ms. Hughes that that standard was used by the 
Ninth Circuit to allow successive petition to the convicted 
murderer in the case involving her child.
    So to suggest that that would never happen, when we had it 
in, I think, outrageous circumstances, at least undercuts your 
argument that it could never happen and that we provide no safe 
harbor whatsoever.
    Ms. Friedman. You know, I think one very big problem with 
this bill is, most of it has been based on anecdote and not on 
data. And I think it would be very important to know what, 
exactly, the data is around the country, and not just in one or 
two jurisdictions in the country, about how the AEDPA is being 
applied.
    Mr. Lungren. Well, you can call it anecdotal, I spent 8 
years with the Ninth Circuit. My office wrote the law that was 
adopted by the Congress in 1996, expecting to see some change, 
and we actually see even greater delay.
    And the argument we hear from some of the judges now is--
and you suggest in your final comments of your written 
statement that, even the presumed beneficiaries of this, the 
State courts, oppose it. And again, I would just say to you, my 
presumed beneficiaries were not the State courts, but they were 
people like Mrs. Hughes.
    But if you read what they have said, they are worried that 
if we put new law in there, the Federal courts will once again 
take so much time to interpret it, we will have uncertainty, 
which is sort of like a war of attrition. If the Ninth Circuit 
is obstinate in its effort to try and avoid the direction it 
was given by the Congress, by statute, we therefore can't go 
back and try and change that statutorily because we're told it 
will give us more uncertainty, because they will just do the 
same thing, times X, in the future.
    And you say it's anecdotal. I spent 8 years dealing with 
it, dealt with people like Mrs. Hughes and many others who have 
seen that.
    If you examine the case involving Mr. Cooper, you will see 
that they have raised claims based on DNA. You will see that 
Mr. Cooper stated that if the forensic experts would conduct 
new DNA tests, he would drop his appeals. So they had the DNA 
tests, the DNA of Doug and Peggy Ryen, on a T-shirt, never 
presented at trial.
    The DNA tests firmly placed Cooper in the Ryen home, where 
he said he had never been; in the Ryen car, which he said he 
had never driven. But rather than drop appeal, they concocted 
another story that he was framed. And now his lawyers demanded 
a new test for a preservative on the T-shirt, never presented 
at trial, that would show that Cooper's blood was planted, as 
well as hairs that police already knew were not Cooper's, so 
the question of Cooper's innocence could be answered once and 
for all.
    So they did the new test and found no extra preservative on 
the T-shirt blood. The district court judge ruled the tested 
hairs presented no proof of another assailant. And now they're 
off on another journey to see if they can do it again.
    That may be anecdotal, but it's actually what was presented 
to the court. And it's that kind of thing that I think is 
indefensible.
    Ms. Friedman. I think----
    Mr. Coble. The gentleman's time again has expired.
    Folks, I think we will probably have time for another 
round. I appreciate your yielding, Mr. Delahunt.
    The gentleman from Arizona.
    Mr. Flake. I thank the Chairman, and I appreciate this 
hearing. And I appreciate the gentleman from California for 
bringing up this bill.
    I would like to thank Mr. Cattani, in particular, for 
coming in from Arizona. This is an issue that obviously Arizona 
has been involved with for a long time, trying to get at a 
place where we can actually take advantage of law passed by the 
Federal Government in 1996.
    Mr. Cattani, is it true there are over 100 prisoners in 
Arizona on death row that have exhausted all State habeas 
claims?
    Mr. Cattani. There are 106; I think some of them--those 
have not all exhausted. The chart that I have attached to my 
written statement details all of the defendants who are in 
Federal court.
    And the evidence regarding delay in Arizona is not 
anecdotal. You can look at the chart and it's there, and it's 
there notwithstanding the fact that the provisions that we have 
in Arizona for establishing innocence are more generous than 
anything that has been proposed in the Federal process. And 
again, what I want to reiterate, that suggests to me that 
what's happening in Federal court in Arizona cases is not about 
innocence.
    And we have this delay--and you can look at the chart--
there have been cases that have been there for 19.58 years; 
we've had 61 cases since the enactment of the AEDPA that are 
still pending, none of them have moved on past--we've only had 
one that's even made it to the Ninth Circuit.
    Mr. Flake. I believe you mentioned in your written 
testimony you spend an average of $64,000 per case in order to 
comply with the provisions of the `96 law?
    Mr. Cattani. I'm not sure of the exact average, but 
certainly funds are made available, and we haven't had any 
examples where defendants have said, I don't have enough money 
to pursue my claims and post-conviction relief. Funds are made 
available, funds are made available for defense counsel, for 
highly qualified defense counsel; funds are made available for 
investigators, for mitigation specialists and for expert 
witnesses. And notwithstanding that, we still haven't been able 
to opt-in.
    Mr. Flake. The assumption with this legislation that--as 
proffered by Mr. Lungren, is that the Ninth Circuit has 
conflict of interest here, since they're the ones that will be 
hearing these appeals and they're involved in the process.
    Is that your feeling as well? Do we need a third party, a 
U.S. Attorney General or something else to look at it?
    Mr. Cattani. I'm not sure it's necessarily a conflict. All 
I know is that it seems to me we have made a good-faith effort 
to opt-in, and we haven't been able to opt-in, and it seems to 
me the mechanism should be changed.
    Mr. Flake. And, Ms. Friedman, your contention is that 
Arizona has not made a good-faith effort or hasn't fully 
completed it. Where has Arizona gone wrong here?
    Ms. Friedman. That's actually not my contention. My 
understanding is, it was just in the case that was before it, 
they didn't appoint--didn't follow their own rules is my 
understanding in appointing Mr. Spears a lawyer in a timely 
fashion.
    My understanding is that Arizona will be deemed to be opted 
in when they have done that in the next case in front of them.
    I also think it's an example of the problem of doing 
something that's so sweeping in the nature of a bill to cover 
the entire country, when the circumstances are so different in 
different places. I think some of these are regional issues 
we're talking about, and a lot of the anecdotes, et cetera, are 
about the Ninth Circuit. My practice is very, very different.
    Mr. Flake. Mr. Dolgenos, what is your feeling with regard 
to the need for an outside party or group to certify?
    Mr. Dolgenos. I think that particular problem is uniform 
across the country because every circuit--the decision that 
every circuit has to make is whether to limit their own power, 
and I think that is inherently a conflict. And I think it's 
best placed in a third party, with meaningful review by the 3rd 
Circuit.
    Mr. Flake. Thank you.
    I thank the Chairman.
    Mr. Coble. I thank the gentleman.
    The distinguished lady from Texas. The gentlelady is 
recognized for 5 minutes.
    Ms. Jackson Lee. I thank the distinguished gentleman for 
yielding, and for the Ranking Member.
    I think, Mr. Chairman, I'm going to do something that is 
sort of the talent of the early ages of our origins, when we 
were just 13 colonies, and a few Representatives were able to 
pontificate and stand in the well or to be able to talk at 
length about this, if you will, emerging country and what its 
principles should be and not be.
    Isn't it interesting that the habeas corpus was grounded in 
some of the early thoughts of the Founding Fathers? I don't 
pretend to document all of the citations, but I'm reminded that 
Georgia was founded by released prisoners, as our history will 
tell us. And there was a great sensitivity, I believe, in the 
Founding Fathers; and might I just suggest that I obviously was 
not a whole person at that time, obviously being represented by 
my slave ancestors, but there was a great sensitivity to being 
detained or incarcerated with no relief because, as we know, 
the early courts or the court systems in our European neighbors 
were the kind of systems to a certain extent that would have 
those penalties for the impoverished or the debtor, if you 
will, the debtor prisons. So we were without the relief that 
this habeas corpus procedure was to allow.
    So the idea of a concept of streamlining and habeas, to me, 
is incongruous and just completely against the grain, because 
what they suggest--and I know the underpinnings of this--the 
underpinnings, of course, is to be tough on criminals and to be 
empathetic to victims, and none of us want to be victims and 
none of us want to take advantage of victims. But frankly, I 
think that when you begin to tamper with a system that allows a 
great deal of democracy or justice to be rendered, then you are 
trampling on the very values of the Founding Fathers and their 
dedicated commitment to the Bill of Rights, the fifth 
amendment, the due process concept.
    And as a trained lawyer and someone who has encountered a 
number of more conspicuous death penalty cases in the State of 
Texas, that has the highest number of death penalty cases and 
death row cases, knowing that I have seen where courts without 
a habeas corpus would have simply, if you will, moved against a 
prisoner; and then in the backdrop of the last decade, the 
`90's and the early 21st century, we have found a number of 
innocents out of the Innocence Project, and a number of other 
cases, a number of other efforts, to suggest that how many were 
sitting on death row and were ultimately found, because of the 
new DNA, that did not exist in 1990 or 1989 to be used as it 
has been used, and they are innocent.
    So we know that victims have, in many instances, been 
stressed and strained. And it may be quite conflicted to 
suggest that you are someone who is very sensitive to victims' 
rights. I have supported a number of victim-support legislation 
and believe that victims should have their day in court, 
believe that victim's testimony is particularly important in 
the sentencing process.
    But, Ms. Friedman, let me ask you this: What good comes out 
of streamlining habeas corpus? And of course the backdrop to 
your answer should be, people are there 8, 9 years before they 
are, if you will, ultimately finalized in the judgment and then 
sentenced, if you will, or they're sentenced and therefore it 
is finalized. What good does this kind of legislation bring to 
a system, a criminal justice--a judicial system that is so far 
exceeding the importance of a habeas that was defined and 
designed by our early Founding Fathers?
    Ms. Friedman. I don't think this bill, as written, brings 
any good. I think it is a very, very radical proposal.
    It's really not about streamlining, it's not about moving 
cases forward to resolution; it's about cutting out the 
jurisdiction of the Federal court to ensure that fundamental 
rights are ensured. So there are some people who--there are 
many people, I think, who, had this law been in effect, would 
never have seen--been exonerated, they would never have had 
that opportunity because they would have lost out under one or 
another of these provisions. And I think it is a very dangerous 
bill in its effect.
    Some of the effect I think was even unintended. There were 
provisions that may have been drafted somewhat hastily, such as 
the tolling provision. It's also not about the comity that is 
supposed to exist between State and Federal courts.
    For example, just quickly, the tolling provision, as it's 
written in here, doesn't allow for the Federal clock to stop in 
between parts of the State post-conviction process----
    Mr. Coble. The gentlelady's time has expired. I think we're 
going to have time for another round.
    Sheila, we have to be out of here by 12 o'clock for the 
conference.
    Ms. Jackson Lee. You will finish later. Thank you, Mr. 
Chairman.
    Mr. Coble. You're welcome.
    I want to put one question to Mr. Dolgenos or Mr. Cattani, 
and then I want to yield the balance of my time to Mr. 
Delahunt, so if you all could give me a terse response, 
gentlemen----
    One way the Congress sought to limit endless delays of 
habeas litigation under the 1996 act was by limiting so-called 
``successive petitions.'' The `96 Act sets a limit standard--a 
limited standard for filing successive petitions and requires a 
petitioner to first apply to a three-judge panel and persuade 
the panel that he meets the standard. If the panel rejects the 
application to file a successive petition, the `96 Act bars the 
petitioner from seeking rehearing in the court of appeals.
    Have the courts of appeal undermined this bar; and if so, 
what would this bill do to address that problem?
    Mr. Dolgenos. I think this has been sort of a Ninth Circuit 
problem.
    Mr. Cattani. The problem in Arizona has not been so much 
successive petitions, but rather consideration of procedurally 
defaulted claims. And I think--there really isn't very much of 
a difference between a procedurally defaulted claim and a 
successive petition.
    Generally, a procedurally defaulted claim means it was not 
raised in State court, and if it's not raised in State court, 
you're not supposed to be able to raise it in Federal court; 
and that's the same thing that would happen if you decide you 
want to file a successive petition. And we've been unsuccessful 
in enforcing procedural bars in the initial petition where a 
claim was not raised, was not presented in State court, yet the 
Federal courts allow evidentiary hearings on that issue. And I 
think that's what would happen in a successive petition.
    Again, we're not seeing that many successive petitions, but 
they make an end run around having to file a successive 
petition by simply filing procedurally defaulted claims with 
the first petition.
    Mr. Coble. Thank you, sir.
    I have 3 minutes remaining, and I will yield to Mr. 
Delahunt.
    Mr. Delahunt. I thank my friend. And this has, I think, 
been a very good panel.
    I think it was Thomas Paine who made that quote about, you 
know, ``It's the patriot that protects the citizen from the 
Government.''
    Now, you're both prosecutors. How many cases have you run 
across where you never--have you both tried cases? I mean, I 
know your duty now obviously is at the appellate level, but 
you, I presume, have had extensive trial experience?
    Mr. Cattani. Mine is primarily appellate.
    Mr. Dolgenos. Mine, as well, sir.
    Mr. Delahunt. Okay. Well, I've got to tell you, all right, 
there are a lot of mistakes being made every day in the 
criminal justice system. It's replete. Any prosecutor who's in 
the trenches, who's trying cases, hopefully will catch a 
significant proportion of them. Informant testimony, newly 
discovered evidence, evidence that is withheld. You know, as I 
listen to this, we keep coming back to the Ninth Circuit. Maybe 
we should have a bill just for the Ninth Circuit.
    You know, I have to concur with Ms. Friedman. I mean, I 
would like to see some data, I would like to see a 
questionnaire that was done that was a survey of really the 
magnitude of the problem.
    Now, we have legislation and bills before this Committee 
dealing with the Ninth Circuit all the time. I'm not that 
familiar myself with the Ninth Circuit; but it seems maybe to 
have a particular bent, at least it's perceived that way by 
some. But we constantly come back here and deal with issues 
that are provoked by some action of the Ninth Circuit. I mean, 
we can't have just those kind of policies.
    Ms. Friedman, let me give you what's left of my time to 
liberate yourself of some concerns or observations you want to 
make.
    Ms. Friedman. I just want to make a point about--there is a 
concern here about the Ninth Circuit's inconsistent application 
of rules, somehow not being fair to the Ninth Circuit. I just 
wanted to read a short quote:
    ``If inconsistently applied procedural rules suffice 
adequate grounds of decisions, they could provide a convenient 
pretext for State courts to scuttle Federal claims without 
Federal review. The requirement of regular application ensures 
that review is foreclosed by what may honestly be called 
'rules,' directions of general operability rather than by 
prejudice against a claim or claimant.'' That was written by 
Judge Leo on the 3rd circuit.
    These are serious rules that have be taken seriously.
    I disagree entirely that a successive petition is the same 
thing as a procedurally defaulted rule. Claims come into 
Federal court. They don't come--people aren't able to bring 
these claims into Federal court most often because they had 
inadequate counsel or because the State withheld the basis for 
the claim. And again, I point you----
    Mr. Delahunt. Mr. Cattani, I think you mentioned, Arizona 
changed its system in what, 2003?
    Mr. Cattani. I think it was `90--I believe it was 1993.
    Mr. Delahunt. I mean, I would like to think that, you 
know----
    Mr. Cattani. It wasn't a drastic change, though; it was 
simply to make certain that the attorneys handling the post-
conviction proceedings----
    Mr. Delahunt. Would you agree with me that it's a system 
that has an abundance of imperfections to it, and it, in 
essence, is to secure the truth?
    We're talking about people who are incarcerated by the way; 
you know, they're not out wreaking havoc and violence in the 
community.
    Mr. Cattani. I would agree with that. But when you consider 
the fact that when we have this actual innocence exception that 
is more generous than anything that's ever been proposed as 
part of Federal legislation, and yet we still have no finality 
with these cases, I think there is a frustration that is 
justified.
    I think the resources should be put in up front at the 
trial and at the post-conviction stage. And having done that, 
there should be some finality in Federal court.
    Mr. Delahunt. I applaud that idea of investing in--and I'm 
impressed with what you're saying about the qualifications and 
two attorneys in capital cases, plus investigative resources; 
that's all good.
    Mr. Coble. I will reclaim my time.
    Folks, keep in mind we have got to vacate this ship at 12 
o'clock.
    The gentlelady from California is recognized for 5 minutes.
    Ms. Waters. Thank you very much, Mr. Chairman.
    I don't know if this question has been raised or this 
discussion has been had here, but you know, I am very much 
concerned about the death penalty. And I, too, believe that we 
must make sure that people who are imprisoned and who have been 
sentenced to death have the opportunity to go before the court 
with emerging evidence.
    It is noted that recently--in at least eight recent cases, 
the Federal courts have ordered new trials, after which 
defendants have been exonerated; and in each case, the 
exonerated defendant would have been executed if the bills 
before us now had--if this bill had been law.
    I would like to know if there is anyone who would disagree 
with the statement, or this observation or this assessment: 
Does this bill trivialize a person's right to life and liberty?
    Mr. Dolgenos. If I may, ma'am, I don't think it does. I 
think the key to remember is that by the time someone gets to 
the Federal courts, if the system is working right and if 
defense counsel are funded, they've had a jury look at their 
claims, they've had a State court look at their legal claims, 
they've had time and they've had resources.
    That is not to say that Federal review is unnecessary; it's 
a good thing. But the question is, if we are 15, 20 years after 
the crime relitigating guilt again, I believe that doesn't lead 
to reliability; I believe that leads away from reliability. And 
I think it asks too much of habeas corpus and ultimately 
undermines the system of justice when assessments of guilt and 
innocence are made regularly so long after the crime.
    Ms. Waters. Anyone else feel differently?
    Mr. Cattani. I would just like to point out--I'm not 
certain of the specifics.
    I believe--I have seen the list of eight cases, I think, 
that was proffered in the Senate; and the fundamental premise 
is wrong in some of those cases. The premise is that if this 
had been an opt-in case, these defendants would not have been 
entitled to relief in Federal court.
    Well, the point of this was, those were not opt-in cases; 
the States did not provide that level of post-conviction 
review. So it really doesn't make sense to say that these 
defendants would not have obtained relief in Federal court. 
Well, presumably, if we had established a good system to 
address these claims in State court at the post-conviction 
stage, there wouldn't be a need for Federal relief.
    So I don't think it's fair to say that if these cases had 
been opt-in cases we wouldn't get relief, because it's based on 
an incorrect premise--if it's a situation where a State does 
not provide an attorney or only pays $1,000 for an attorney to 
handle the trial or the post-conviction process, then it's not 
an opt-in case.
    Ms. Waters. Any other opinions?
    Ms. Friedman. I thought the whole purpose of the bill in 
trying to move it to the Attorney General was to ensure that 
some States would get the opt-in status much more easily. And 
so I think--yeah, there's a problem looking back at a case, but 
people are going to be in exactly the same situation.
    I think beyond opt-in, you've got people who have 
procedurally barred claims, procedurally barred claims that are 
barred because of a State committed misconduct. Nowhere in this 
bill is there a safe harbor for people in that situation. And I 
think this bill encourages that; it encourages States to 
withhold evidence, it encourages States to make harmlessness 
findings to avoid Federal review, it encourages default 
findings. And there is no way around that the way this bill is 
written.
    Ms. Waters. Thank you very much. I will yield back the 
balance of my time.
    Mr. Coble. I thank the gentlelady.
    The distinguished gentleman from California.
    Mr. Lungren. How could you discover it using due diligence 
if the State were hiding it?
    Ms. Friedman. I think that's right in terms of getting past 
the due diligence part of it. There is a problem, of course, 
for people who come with their claims already--the claims of 
innocence, for example.
    I assume you're talking about the innocence provision, 
Congressman.
    Mr. Lungren. Right.
    Because you keep talking about the fact that the State 
would hide this evidence. If they had the evidence, obviously 
you couldn't have found it by due diligence. And it goes to 
innocence----
    Ms. Friedman. That's only one part of the innocence 
provision. The innocence provision also requires that the 
evidence of innocence be tied to the claim itself and that a 
person doesn't seek relief on a different claim, which has 
happened many times and innocence is proved. It requires that 
there be absolutely no connection to the offense whatsoever.
    It requires due diligence such that in cases where there 
are examples--it happened in the State of Texas where people 
put their evidence on in front of the State court. So you can't 
say in Federal court that they couldn't have found it by the 
exercise of due diligence and the State court rejected it. 
Under this bill, I don't know how you would----
    Mr. Lungren. But if it's hidden by the State, if they 
intentionally hide it, you think a Federal court is going to 
have difficulty making a finding that due diligence wouldn't 
have revealed it?
    Ms. Friedman. There is no way--absolutely, there is no way 
in this bill that people who have defaulted claims, who come in 
and want to say, I need to even find out if I can get evidence 
of innocence in front of this court, there is no way they're 
going to be get past this. A case like Banks is a very good 
example of that.
    They are not raised in State court because the State 
withholds the evidence in State court. What happened in Banks 
is that basically the State got up and said--and it may have 
been Justice O'Connor----
    Mr. Lungren. If they successfully hide it in State court, 
you're not going to be successful in hiding it in Federal 
court? I mean, I appreciate your work, and I understand your 
sincerity, but I have not found all wisdom and objectivity in 
the Federal courts as opposed to the State courts.
    We had a situation in which we had a district court judge, 
Federal district court judge in California who was named to be 
the chief justice of the California Supreme Court, so he took 
off the Federal robe and put on the State robe. Now is the 
assumption that he is less dedicated to the Constitution 
because he's the chief justice of the California Supreme Court 
than he was when he was the district court judge on the Federal 
bench?
    I just--I find difficulty with that.
    Let me ask, Ms. Hughes--you've been very good to be sitting 
there and listening to this, but I can't let a comment go by 
without asking your response to it. And I wish Mr. Delahunt was 
still here. But almost as an aside to one of the questions he 
asked of the two prosecutors there, he said, ``Remember, these 
people are in custody,'' and I'm sure you've heard that before.
    Why should you be so concerned about the fact that the 
murderer of your son is having a few more years to go through 
the courts because he's not going to get out, he's still being 
punished? It's like life without possibility of parole. Why 
would you be concerned?
    Ms. Hughes. I almost jumped out of my seat when that 
statement was made.
    Mr. Lungren. We need to hear that.
    Ms. Hughes. This is a constant emotional upheaval for my 
family.
    And you say he's not going to get out. Last week a death 
penalty inmate walked out in Texas. Granted, he wasn't on death 
row at that time, but what's to stop Kevin Cooper from having 
some kind of medical problem, be transferred to some hospital 
and escape? He's an escape artist.
    The truth of the fact is, all right, so he's incarcerated, 
he's still living and breathing. He has a TV, he has a radio, 
he has his own Web site, he has his own little bit of groupees.
    My child was 11 years old, 11 years old in the fifth grade. 
He never got to go to high school, to go to a prom, to 
graduate, to fall in love, to have a family of his own. He 
would be 33 years old today, and Kevin Cooper robbed him of all 
this. And I am horrified that Kevin Cooper still exists on the 
face of this Earth.
    The California Supreme Court said the evidence against 
Kevin Cooper was overwhelming, that was in 1991; this is 2005 
and we are still at it. And I don't know when the end is going 
to ever take place. Are we going to still be alive when the 
person who murdered my son is finally put to death?
    That's how I feel.
    Mr. Coble. The gentleman's time has expired.
    We have time for one more questioning, and the gentleman 
from Virginia will do the honors.
    Mr. Scott. Thank you, Mr. Chairman.
    You know, the problem with these kinds of cases is that the 
guilty and innocent are being stuck with the same process. If 
we know the person is guilty, then there is no problem with the 
streamlined stuff. If we knew the person was innocent, then we 
could have a more complicated process; but unfortunately, we 
don't know. And so we have the same process; whatever we do for 
the guilty we've got to do for the innocent.
    Now the gentleman from California went to great lengths to 
show how a person who got evidence, who was able to subpoena 
evidence, in fact, wasted the court's time because he was 
guilty. What if the evidence had come back that he was, in 
fact, innocent? The question, I guess, is, should he have had 
the right to get the evidence?
    Ms. Friedman, if you present evidence of clear and 
convincing evidence of innocence, do you have a right to 
discovery, to subpoena?
    Ms. Friedman. There is nothing in this bill that suggests 
that one does. And I have actually seen this in a case recently 
in Alabama where somebody missed the statute of limitations and 
attempted to make an innocence argument, a compelling innocence 
argument, the person who had seen the person leaving the scene 
of the crime had described somebody looking very different from 
the person on death row. And he tried to meet the same kind of 
standard, and the district court said, no, you don't get any 
discovery to do that. So there is no provision here.
    Mr. Scott. So you have to have your clear and convincing 
evidence all lined up going in. You cannot make--under this 
bill, you can't even make the case where if I can get the 
evidence, I can show that by clear and convincing evidence, 
DNA--you don't have a right to the DNA test, is that right, 
unless you're coming in with clear and convincing evidence 
already?
    Ms. Friedman. You don't have a right to anything. This is a 
jurisdiction-stripping bill. You don't have a right to get into 
court.
    Mr. Scott. So unless you have evidence already lined up, 
you can't even get into court?
    Ms. Friedman. I think that's right.
    Mr. Scott. Okay. Now----
    Mr. Lungren. Would the gentleman yield?
    Mr. Scott. So if your allegation is that if I can get the 
DNA evidence, I can prove my innocence by clear and convincing 
evidence, and first Ms. Friedman is saying I can't even get to 
court to subpoena the evidence. I will yield.
    Mr. Lungren. Is the gentleman suggesting that there ought 
to be a broad scale allowance of any individual post-
conviction, that they could make any claim whatsoever without 
any evidence, because they have an opportunity at a fourth bite 
at the apple?
    Mr. Scott. Well, that's a hard question. I would say to the 
gentleman, that's a hard question. Suppose somebody is 
innocent, and if I can just subpoena the evidence, I can show 
I'm innocent. What do you say to that?
    Mr. Lungren. We have an actual innocence exception in this.
    Mr. Scott. Wait a minute. I don't have any evidence, I need 
to get the evidence. I'm alleging I'm innocent, and if I can 
get the evidence, I can show it.
    Mr. Lungren. In other words, I know I'm innocent, but I 
have nothing other than my statement that I'm innocent after 
being found guilty by a jury of my peers and after going 
through an appeal to my State Supreme Court, a collateral 
appeal to my State court----
    Mr. Scott. But if you give me subpoena power----
    Mr. Lungren.--and directly to the U.S. Supreme Court.
    Mr. Scott. If you give me subpoena power, I can show that 
I'm actually innocent.
    Do I have subpoena power to show it?
    Mr. Lungren. I don't believe you do under this or any other 
procedure.
    Mr. Scott. Well, that's a problem. And see--you know, 
unfortunately the innocent and the guilty are stuck with the 
same process. And so somebody saying they're innocent that's 
actually guilty, well, they shouldn't have it; but if they are 
innocent, well----
    Mr. Lungren. We don't change that part of the law the way 
it is already.
    Mr. Scott. How do you--you can't get into court to get a 
subpoena unless you've already got the evidence lined up, 
which--suppose you have seen--you've got a catch-22. If I can 
get the DNA evidence, I can show I'm innocent. I don't have 
subpoena power until I get in court.
    And you show up in court, Your Honor, well, I don't have 
any evidence now, but so what? You get thrown out and you never 
get an opportunity to show.
    Let me ask another question, Mr. Dolgenos. Tell me what 
happens if you--considering everything that's before you, you 
conclude that somebody's probably innocent?
    Mr. Dolgenos. Well, sir, first of all, presumably the 
prosecutors who have gone before me have had the same choice, 
and it often happens in State court that we take steps. If it 
comes to me and if I have evidence in front of me that I 
believe someone is probably innocent----
    Mr. Scott. Are you talking about as a judge or as a 
prosecutor?
    Mr. Dolgenos. As a prosecutor. Is that the question you're 
asking me? If I believe someone is probably innocent----
    Mr. Scott. Actually, I'm asking what right does a defendant 
have in an adversary process? After all is said and done, you 
look at the case, and an independent trier of fact would 
conclude--not what the advocates say, but an independent trier 
of fact would conclude that the defendant is probably innocent.
    Mr. Dolgenos. Well, if he's in court, in State court or 
Federal court, the judge can find----
    Mr. Scott. How do you get into Federal court without clear 
and convincing? Just kind of probable----
    Mr. Dolgenos. If you've exhausted your claims in State 
court, you're in court in Federal court under this bill. It's 
only when you haven't brought our State claims----
    Mr. Scott. After all is said and done, you've got all these 
defaulted claims and everything, and you're trying to get in, 
and it requires clear and convincing evidence of innocence, you 
don't have it, all you have is probably innocent, should the 
person be put to death or not under those circumstances?
    Mr. Dolgenos. And there is all default, they haven't done 
anything in State court?
    Mr. Scott. No, no. They've gone through and they've had a 
fair trial; they've had all their endless--their eternal 
appeals and all of what people are complaining about----
    Mr. Dolgenos. And the judges have disagreed about the 
innocence claim?
    Mr. Scott. And you are now in a situation where, after you 
have discovered evidence and the totality of the circumstances, 
the conclusion that an objective trier of fact is that the 
person is probably innocent, should they be put to death or 
not?
    Mr. Dolgenos. I think what this bill says is that the hunch 
of one judge as opposed to a system of State court judges is 
not enough.
    Mr. Scott. So if the person in the totality of 
circumstances can show that they're probably innocent, the 
effectiveness of the death penalty is in jeopardy? We've got to 
put him to death?
    Mr. Dolgenos. If everyone agrees that he's probably 
innocent, that would lead to a different result.
    But I think----
    Mr. Scott. You can't get into court.
    Mr. Dolgenos. Well, if it was in court in State court----
    Mr. Scott. This is after all the discovered evidence and 
everything else he can show that he's probably innocent.
    Mr. Dolgenos. And he didn't show that to anyone else?
    Mr. Scott. That's right, that's right. He finally put his 
little case together after this thing had been thrown out 
procedurally with prejudice on page 3, line 3----
    Mr. Dolgenos. After 15 years, he put it together and he 
didn't do anything in State court, he never put this evidence 
together before?
    Mr. Scott. That's right.
    Mr. Dolgenos. Well, I think that's going to be a case that 
won't ever happen. I can't imagine why someone wouldn't put 
together his evidence.
    Mr. Scott. Could Ms. Friedman----
    Mr. Coble. Ms. Friedman, the noon hour is upon us. Ms. 
Sheila Jackson Lee wants 2 minutes, but Ms. Friedman, can you 
wrap it up in a minute or less?
    Ms. Friedman. In less. It can absolutely happen. There is 
no right to counsel in post-conviction. You might not get 
counsel in time. There is no right to expert services; there is 
no right to investigation. And it may be that the State was 
withholding that evidence for a long time.
    Mr. Coble. The gentleman's time is up.
    The gentlelady from Texas is recognized for 2 minutes.
    Ms. Jackson Lee. I thank you very much, Mr. Chairman.
    And I want to say to the victim's mother, coming from 
Texas, there was absolutely no excuse for that ridiculous 
incident that occurred in Harris County. All of the local 
officials need to be held accountable. And it's those kinds of 
episodes, unfortunately, that do further harm to those that 
have been victimized.
    And I want to build on what Congressman Scott did, that 
unfortunately there is a mix between the innocent and the 
guilty and, of course, the taking advantage--when you're 
talking about 10 and 20 years on death row, and the procedures 
are used frivolously. And, of course, we have to make that 
determination.
    But, Ms. Friedman, you were finishing, but let me get to 
this point and see how we can fix this problem. ``Streamline,'' 
to me, does not equal justice, but it does seem that we need to 
find a way to move the so-called ``delaying'' in Federal review 
of death penalty cases, habeas cases, in a much more 
responsible way.
    What would be your suggestion, as you sit alongside of Ms. 
Hughes, as to how we balance that so that there is, in fact, 
the real justice that we want to have.
    Ms. Friedman. I think in talking about California, which is 
very different from where I practice, I think you can talk 
about moving things under time lines in the Federal courts. 
That's what moving things quickly is about, timing, it's not 
about repealing one's ability ever to get a case heard.
    I think for other States outside of California, I think it 
would be very good to have real incentives for people to have 
decent, adequate counsel and adequate access to resources so 
that the State process really is a process that can be 
supported and would allow things to move more quickly in 
Federal court.
    Ms. Jackson Lee. Mr. Chairman, I think Ms. Friedman, in her 
brief answer to my brief question, has given us the real type 
of fix. Because if we take a problem in California and make it 
the general product of the Nation, we're doing great disservice 
to those early musings of the Founding Fathers about what 
justice, what the habeas means, what due process means. And I 
don't think that is worthy of our Committee, and I yield back.
    Mr. Coble. I thank the gentlelady,
    Folks, this has been a very good hearing. I appreciate 
that.
    And Ms. Hughes, in particular, your courageous effort here 
is very much appreciated, as is the case with the others. We 
thank you for your testimony, and this Subcommittee is very 
much appreciative to you.
    In order to ensure a full record and adequate consideration 
of this very important issue, the record will remain open for 
additional submissions for 7 days. Any written questions that a 
Member wants to submit should be submitted within that same 7-
day period.
    Mr. Coble. This concludes the legislative hearing of H.R. 
3035, the ``Streamlined Procedures Act of 2005.'' Thank you for 
your cooperation, and the Subcommittee stands adjourned.
    [Whereupon, at 12:07 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Thank you, Mr. Chairman, for holding this hearing on H.R. 3035, the 
``Streamline Procedures Act of 2005''. The title of this bill suggests 
that it would streamline the processing of habeas corpus cases. In 
fact, it would strip federal courts of jurisdiction to determine many 
federal issues and undercut the Supreme Court's efforts to clear up 
uncertainties regarding the reforms Congress enacted in 1996 
(Antiterrorism and Effective Death Penalty Act, AEDPA).
    The bill would virtually eliminate the ability of federal courts to 
determine federal constitutional issues in cases involving prisoners 
either facing death sentences or serving prison terms. In short, this 
bill would greatly increase the prospects of an innocent person being 
put to death, or languishing in prison with no hope of correcting an 
unconstitutional conviction. In general, the bill would overturn a 
whole series of Supreme Court decisions adopted since AEDPA, increase 
the number of habeas corpus petitions filed, complicate and delay 
litigation in this area, disregard traditional principles of 
federalism, and invite constitutional challenge on the theory that it 
impairs the independence of the federal courts. Ironically, supporters 
of this bill are some of the same folks who, in the Teri Schiavo case, 
advocated for elimination, for that case, of the very kinds of hurdles 
this bill promotes.
    Federal Habeas Corpus is the modern day reflection of the ``Great 
Writ'' which was the foundation for much of our criminal law 
principals. A right without a remedy is not a meaningful right, and is 
worse than no right at all. What good is it to have constitutional 
rights that cannot be enforced?
    Ths bill will eliminate the federal courts role as a courts of last 
resort for the citizens of this country, and relegate citizens to ``Jim 
Crow-like'' state's rights where prosecutors seeking to protect their 
wins wield all the power. They are the only people who have anything to 
gain from having innocent people languish in prison, or even be put to 
death, because they are unable to seek meaningful relief from 
unconstitutional convictions. Crime victims and their families will 
face even greater delays and frustration as the courts struggle to 
resolve constitutional challenges to a new law, and they, nor society 
in general, will not benefit from having innocent people locked up or 
put to death as the true perpetrators remain free to prey on others. 
And there are a number examples of innocent people being released in 
recent years who could not have been released if this bill had been 
law. I would like to offer these 2 for the record, Mr. Chairman, one 
involving a release from death row, and more will be identified and 
added before the record closes.
    A host of organizations and individuals, including prosecutors and 
judges, liberals and conservatives, have expressed concerns about this 
bill becoming law. Forty nine of the 50 Chief justices have asked the 
Congress to carefully study the need for, and impact of, this 
legislation, and I would like to offer their resolutions on the point 
for the record. I also have letters and a resolution from the federal 
Judicial Conference, the federal public defenders, and a former 
prosecutor in the California system expressing their concern about the 
legislation, and I would like to offer these for the record, as well. 
In this later submission is a memo developed by the former prosecutor, 
and letter from the current Chief Justice of the California Supreme 
Court, which explains why most of the time period necessary to complete 
habeas petitions occurs at the state court level.
    In summary, Mr. Chairman, while there are, not doubt, instances in 
which non meritorious prisoner claims get more attention than they 
deserve, that is not a heavy price to pay to ensure that we don't 
execute an innocent person, or have innocent people languishing in 
prison with no hope. We already greatly streamlined habeas claims in 
AEDPA. Now, only those who have ``clear and convincing evidence of 
actual innocence even get a hearing under traditional habeas processes. 
Those who can establish that they are innocent only by a preponderance 
of the evidence, that is by 51% or more, or that they are only probably 
innocent, that is that it is more likely than not that they are 
innocent--they don't even get a hearing under current habeas procedures 
pursuant to AEDPA restrictions. So, Mr. Chairman, in a context where it 
is clear that innocent people who have been released in recent years 
could not be released under the provisions of this bill, we should not 
proceed with further jeopardizing the prospects for like cases. Again, 
it benefits no one that Congress should assist to have an innocent 
person languishing in prison or executed while the real perpetrators 
roam free. A single case of that happening is a tragedy worth all we 
are doing now, and more, to avoid. Thank you.

                              ----------                              

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







                               __________

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

















                               __________

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























































                               __________

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







                               __________

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





                               __________

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





                               __________

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























                               __________

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





































































































































                               __________

    List of organizations and individuals opposing the Streamlined 
                             Procedures Act









                               __________

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





















                               __________

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

















                               __________

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





                               __________

     Various Editorials submitted in opposition to H.R. 3035, the 
                     ``Streamlined Procedures Act''















































































                               __________

  Letter submitted by the Most Reverend Nicholas DiMarzio, Chairman, 
 Domestic Policy Committee, U.S. Conference of Catholic Bishops (USCCB)





                               __________

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



















                               __________

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





                               __________

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





                               __________

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

















                               __________

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







                               __________

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

































                                 
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