[Senate Hearing 109-1038]
[From the U.S. Government Publishing Office]




                                                       S. Hrg. 109-1038
 
        HABEAS CORPUS PROCEEDINGS AND ISSUES OF ACTUAL INNOCENCE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             JULY 13, 2005

                               ----------                              

                          Serial No. J-109-29

                               ----------                              

         Printed for the use of the Committee on the Judiciary

        HABEAS CORPUS PROCEEDINGS AND ISSUES OF ACTUAL INNOCENCE

                                                       S. Hrg. 109-1038

        HABEAS CORPUS PROCEEDINGS AND ISSUES OF ACTUAL INNOCENCE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 13, 2005

                               __________

                          Serial No. J-109-29

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........     6
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   249
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     6
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........     4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     2
    prepared statement...........................................   281
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Cattani, Kent E. Chief Counsel, Capital Litigation Section, 
  Arizona Attorney Gerneral's Office, Phoenix Arizona............    11
Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia 
  District Attorney's Office, Philadelphia, Pennsylvania.........     7
Scheck, Barry C., Co-Director, Innocence Project and Professor of 
  Law, Cardozo Law School, Yeshiva University, New York, New York     8
Stevenson, Bryan A., Director, Equal Justice Initiative of 
  Alabama, and Professor of Clinical Law, New York University 
  School of Law, New York, New York..............................    15
Todd, John Pressley, Assistant Attorney General Arizona Attorney 
  General's Office, Phoenix, Arizona.............................    18
Waxman, Seth P., Former Solicitor General of The United States, 
  and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, 
  Washington, D.C................................................    13

                         QUESTIONS AND ANSWERS

Responses of Kent Cattani and Seth Waxman to questions submitted 
  by Senators Specter and DeWine.................................    36
Responses of Thomas Dolgenos to questions submitted by Senators 
  Specter, Leahy and DeWine......................................    52
Responses of Barry Scheck to questions submitted by Senators 
  Specter, Leahy and DeWine......................................    67
Responses of Bryan Stevenson to questions submitted by Senators 
  Specter, Leahy and DeWine......................................    82
Responses of John Presley Todd to questions submitted by Senators 
  Specter, Leahy and DeWine......................................   124
Responses of Seth Waxman to questions submitted by Senators 
  Specter, Leahy and DeWine......................................   172

                       SUBMISSIONS FOR THE RECORD

Atlas, Scott J., Vinson & Elkins, L.L.P., Houston, Texas, 
  statement......................................................   186
Arizona Daily Star, July 19, 2005, article.......................   188
Butler, A. Bates, III, Fennemore Craig, P.C., Law Office, Tucson, 
  Arizona, letter................................................   189
Campbell, Ward A., Supervising Deputy Attorney General Criminal 
  Division-AWT, Department of Justice, Sacramento, California, 
  Memorandum.....................................................   192
Cattani, Kent E. Chief Counsel, Capital Litigation Section, 
  Arizona Attorney Gerneral's Office, Phoenix Arizona, statement.   206
CNN, St. Louis Missouri, article.................................   214
DiMarzio, Most Reverend Nicholas, Diocese of Brooklyn, Chairman, 
  Domestic Policy Committee, United States Conference of Catholic 
  Bishops, Department of Social Development and World Peace, 
  Washington, D.C., letter.......................................   216
Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia 
  District Attorney's Office, Philadelphia, Pennsylvania, 
  statement......................................................   217
Federal Judges Association, Irene M. Keeley, President, 
  Clarksburg, West Virginia, letter..............................   240
Federal Public Defender, Western District of Washington, Thomas 
  W. Hillier, II, Federal Public Defender, Seattle, Washington, 
  statement......................................................   242
Gallo, John N., Sidley Austin Brown & Wood LLP, Oak Park, 
  Illinois, letter...............................................   251
Hemmersbaugh, Paul A., Potomac, Maryland, letter.................   253
Hughes, Mary Ann, Southern California, statement.................   256
Kantra, Andrew E., Andrew R. Rogoff, Pepper Hamilton LLP, 
  Attorneys at Law, Philadelphia, Pennsylvania, letter...........   274
Los Angeles Times, July 13, 2005, article........................   276
Former Prosecutors, Law Enforcement Officers, and Justice 
  Department Officials, letter...................................   277
Lewis, Timonthy K., and Other Judges, Washington, D.C., letter...   283
Marshall, Prentice H., Jr., Partner, Sidley Austin Brown & Wood 
  LLP, Oak Brook, Illinois, letter...............................   287
Mascherin, Terri L., Parnter, Jenner & Block, LLP, Chicago, 
  Illinois, letter...............................................   289
Mecham, Leonidas Ralph, Secretary, Judicial Conference of the 
  United States, Washington, D.C., letter........................   291
NAACP Legal Defense and Educational Fund, Inc, Theodore M. Shaw, 
  Director-Counsel, Washington, D.C., statement and letter.......   299
New York Times, July 14, 2005, article...........................   313
Perlmutrer, Willa B., Patton Boggs, LLP, Attorneys at Law, 
  Washington, D.C., letter.......................................   315
Rainson, Tara A., American Law Division, Congressional Research 
  Service, Washington, D.C., Memorandum..........................   317
Renne, Paul A., former Assistant U.S. Attorney, District of 
  Columbia, San Francisco, California, letter....................   335
Scheck, Barry C., Co-Director, Innocence Project and Professor of 
  Law, Cardozo Law School, Yeshiva University, New York, New York   343
Stevenson, Bryan A., Director, Equal Justice Initiative of 
  Alabama, and Professor of Clinical Law, New York University 
  School of Law, New York, New York, statement...................   355
Todd, John Pressley, Assistant Attorney General, Arizona Attorney 
  General's Office, Phoenix, Arizona, statement..................   384
Tarver, Julia, Paul, Weiss, Rifkind, Wharton & Carrison, LLP, New 
  York, New York, letter.........................................   401
Washingtonpost.com, Washington, D.C., July 10, 2005, article.....   404
Waxman, Seth P., Former Solicitor General of The United States, 
  and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, 
  Washington, D.C., statement....................................   405
White & Case LLP, Vincent R. FitzPatrick, Jr., and Heather K. 
  McDevitt, New York, New York, letter...........................   414


        HABEAS CORPUS PROCEEDINGS AND ISSUES OF ACTUAL INNOCENCE

                              ----------                              


                        WEDNESDAY, JULY 13, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Kyl, DeWine, Sessions, Leahy, 
and Feinstein.

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

    Chairman Specter. Good morning, ladies and gentlemen. We 
will proceed with the Judiciary Committee hearing on habeas 
corpus proceedings and issues of actual innocence. We are going 
to be taking up a variety of subjects today on the very 
important question of the death penalty. Legislation has been 
introduced by Senator Kyl, jointly with Senators Hatch, 
Grassley, Chambliss, and Cornyn, which would tighten the time 
requirements, something that has been done back in 1996, but 
there is a concern about the very, very lengthy delays in the 
habeas corpus proceedings, which run as long as 10, 15, or even 
20 years of litigation. And at the same time, the Committee 
will be taking up the issues of actual innocence cases, where 
the Supreme Court has granted cert on a case which will test 
whether a claim of actual innocence will warrant review in 
House v. Bell.
    The whole issue of the death penalty is obviously a very 
complex one which our society has been struggling with for a 
very, very long time. I personally believe the death penalty is 
a deterrent, but to hear articulated the proposition of law 
that it is not unconstitutional to execute an innocent person 
so long as procedural due process has been followed candidly 
shocks me. I think that is an unacceptable articulation of law.
    I do not have any magic formula as to how we will eliminate 
all error, but we ought to be working at it a lot harder than 
we are at the present time. When I was District Attorney of 
Philadelphia--and I do not want to tell too many old war 
stories--we had 500 homicides a year, and I would not permit 
any of my assistants to ask for the death penalty in a homicide 
case without my personal review. And my own experience suggests 
to me that there are cases which are being prosecuted where the 
death penalty is requested where the prosecutors are really not 
sure of their case, really not sure of the conclusion of guilt. 
And I think if there is any lingering issue as to the issue of 
guilt, that is something the prosecutor has the duty to pull 
back on to be absolutely sure or as sure as he can be without 
going into the kinds of evidence which is tenuous and 
difficult.
    So here we have a very complex issue where there are 
problems on both sides of the equation, enormous delays which 
ought to be precluded, but still at the same time to protect 
the innocence of people. And it is a little surprising to me, 
candidly, that the Supreme Court has not dealt with the DNA 
issue long ago. And Congress has the authority to deal with it, 
and we intend to do so.
    Senator Leahy.

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

    Senator Leahy. Thank you, Mr. Chairman. You know, it has 
been less than a decade since the Congress overhauled the 
Federal habeas corpus laws prior to the Antiterrorism and 
Effective Death Penalty Act of 1996, or AEDPA. That was a 
bipartisan compromise, but it severely narrowed the scope of 
habeas jurisdiction. For example, it imposed strict new time 
limits, procedural bar rules. I thought that AEDPA went too far 
at that time. It increased the risk that people were wrongfully 
convicted, could be left to rot in jail, and the nightmare 
scenario of an innocent person being executed could come to 
pass. Of course, others thought that it did not go far enough. 
Naturally, that is the nature of a compromise. We brought that 
compromise bill to the floor.
    Now, during the floor debate on it, the distinguished 
Senator from Arizona offered an amendment to eliminate Federal 
habeas except in circumstances where the State's justice system 
had proved incapable of enforcing Federal constitutional 
rights. That position was rejected. In fact, several Republican 
members of this Committee voted against it. It was rejected by 
a heavy margin in the Senate.
    Now, the habeas bill that is before the Committee, the so-
called Streamlined Procedures Act, actually goes much further 
than the bipartisan compromise of AEDPA did. I will say more 
about that when we come to a markup, but I do not know what has 
happened that would justify unraveling that compromise made in 
the Senate. We will hear some anecdotal evidence about a case 
in which habeas proceedings have dragged on long after 
conviction, and I would urge consideration first and caution 
against any rash judgments. We should ask some questions before 
we legislate based on these stories, depending on what caused 
the delay. Is Federal habeas being abused, or most of the time 
was it taken up by State habeas or matters attributable to the 
individual States? And we should ask whether they are isolated 
instances or a systemic problem.
    Habeas corpus has protected the constitutional rights and 
freedoms of all Americans throughout our history. It really is 
the Great Writ. It is a vital protection that we all rely upon.
    Last October, after we took a closer look, last October, 
President Bush signed into law the Innocence Protection Act of 
2004. We passed that with overwhelming bipartisan support, 
including Chairman Specter, former Chairman Hatch, Senator 
DeWine, and others. We joined together on it, and we have to 
continue to work together to ensure that its funding promises 
do not go unfilled. It reflects what we learned about the 
administration of the death penalty over years of hearings in 
this Committee.
    We learned that there is an unconscionably high rate of 
error in capital cases, errors so serious that it not only 
denies defendants their constitutional rights, it undermines 
the reliability of the verdict. We learned of sleeping lawyers, 
drunk lawyers, suspended lawyers, lawyers too overworked, 
underpaid, inexperienced, or indifferent to even meet with 
their clients. And they were defending in death penalty cases.
    We learned that more than 100 people had been released from 
death row when it turned out they had the wrong person there. 
The modern miracle of DNA has helped, but that is only the tip 
of the iceberg. We have a number of those people who were 
wrongfully convicted here in the audience today. Kirk 
Bloodsworth is here. He and his wife are friends of my wife and 
me. But he was a young man who was just out of the Marines. He 
was arrested, convicted, and sentenced to death for a heinous 
crime, a terrible crime. The only thing is he did not commit 
it. DNA evidence ultimately freed him and identified the real 
killer. So I am proud to have come to know him and his wife, 
Brenda, through our work together on the Innocence Protection 
Act, which includes a program named in his honor.
    Dennis Fritz spent 12 years serving a life sentence until 
he was finally able to prove his innocence through DNA testing. 
He testified before this Committee 5 years ago, and I am glad 
to see him back in the audience today.
    Dell Hunt of North Carolina was convicted in 1984 for a 
murder he did not commit. He was freed 19 years later, in 2003, 
after DNA evidence ruled him out as a killer and, just as 
importantly, identified the true perpetrator of the crime, who 
then confessed.
    I mention this because, you know, a lot of times we take a 
sense of comfort that we have locked somebody up. There has 
been a heinous crime, we have arrested somebody, we have locked 
him up, even convicted him, and we have a sense of safety. But 
if you have got the wrong person, that means that killer is 
still out there and could kill again. It is especially 
important in matters of serial murders or serial rapes, things 
like this.
    Brandon Moon, convicted of rape in 1987, a law student at 
the University of Texas at El Paso, DNA testing cleared him of 
the crime just a few months ago, almost 20 years later, and 
then he was released with the apology of the district attorney. 
That does not give him back those 20 years of his life, but at 
least he has been released.
    Thomas Goldstein, Gloria Killian, Joseph Estrich--all of 
them were granted Federal habeas relief after presenting 
substantial evidence of actual innocence. If S. 1088 were the 
law, they would still be wrongfully in prison.
    So let there be no misunderstanding. If S. 1088 were the 
law, exonerees such as these who are in the audience today 
would still be wrongfully imprisoned or worse. That is what we 
have learned since AEDPA, and that lesson has involved saving 
innocent lives. It is what apparently convinced President 
Reagan's first appointee to the Supreme Court, one of the 
strongest advocates of States rights in the history of the 
Court, that left without Federal scrutiny, State criminal 
justice systems may pose unacceptable risks.
    In July of 2001, Justice O'Connor acknowledged in a widely 
reported speech the serious questions being raised about the 
administration of the death penalty. Her conclusion was 
chilling in its common-sense candor. The system may well be 
allowing some innocent defendants to be executed.
    This week in St. Louis, they reopened a murder 
investigation, of course, 10 years after the man was executed 
for the crime.
    You know, the bill before us would greatly increase the 
risk, as well as the risk of lesser but, nonetheless, life-
shattering injustices. It would do so without any real 
evidence, anything beyond anecdotal evidence, that the new 
regime we enacted less than a decade ago to limit Federal 
habeas is not doing the job. AEDPA put together a large 
majority in the Congress as a result of a bipartisan compromise 
that is not broken, certainly not in the way this bill would 
presuppose. And there is no need to fix Federal habeas corpus 
by destroying it. That does not fix it.
    If you want to do anything, let the administrative arm of 
the courts look at this and report back to us if they think 
there is a problem. But let's not rush through and remove the 
historic protection of habeas corpus based on some anecdotes or 
some concerns.
    Thank you, Mr. Chairman. I know I went over time, but this 
is a matter of great importance, and I appreciate you letting 
me do that.
    Chairman Specter. Your timing is fine, Senator Leahy. Thank 
you.
    Customarily, it is just the Chairman and Ranking who open, 
but Senator Kyl is the author of the bill, and I will yield to 
you for an opening statement, Senator Kyl.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you very much, Mr. Chairman.
    Let me make it clear that we are not going to fix habeas 
corpus by destroying it. I think the question that the 
distinguished Ranking Member raises is the appropriate 
question. What has changed in the last 9 years to cause us to 
revisit the statute? The answer is a lot has changed. Let me 
cite some statistics that I think reveal why we need to look at 
this now, 9 years later.
    In the context of something that President Clinton said 
when he commented with regard to the 1996 Act, it should not 
take 8 or 9 years and three trips to the Supreme Court to 
finalize whether a person, in fact, was properly convicted or 
not. The sad fact is that after 9 years of this Act, we still 
have that situation pertaining in far too many cases.
    Let's look at some of the backlog statistics, and these are 
from the Administrative Office of the Courts.
    In fiscal year 1994, there were 13,359 Federal habeas 
petitions pending before the U.S. district courts, a condition 
that we decided required us to look into this to see if we 
could--to relieve the courts from that kind of burden, 13,300. 
But by fiscal year 2003, the last year for which data are 
available, that number had gone up by nearly 10,000 petitions 
to 23,218 petitions pending. So today there are almost twice as 
many as there were just 9 years ago when we felt that we had a 
problem that we needed to deal with.
    How about the courts of appeals? Same facts. Fiscal year 
1994, 3,799 habeas petitions pending before U.S. courts of 
appeal. By 2003, that number, again, has nearly doubled to 
7,025 petitions pending before the courts of appeals.
    These delays and backlogs have had a dramatic impact on the 
administration of justice. Consider a comment before the June 
30th hearing in the House Crime Subcommittee by Ronald 
Eisenberg, a deputy district attorney for Philadelphia. He 
testified, ``In the last decade, the number of lawyers employed 
exclusively on habeas work in the Philadelphia D.A.'s office 
has increased 400 percent. It is very difficult for us to do 
our job if we have this many habeas petitions.''
    Now, I am not going to get into anecdotal evidence at this 
point. I will later. Suffice it to say that there are a lot of 
examples, and one that I am going to be talking about is 
Christy Ann Fornoff, who was murdered in Arizona. Her parents 
are still waiting for a final conclusion to the case 21 years 
after her death. The Congress has the authority to deal with 
this subject. Habeas corpus is a guarantee against being held 
without trial, against executive detention. But the United 
States courts of appeals and other courts have repeatedly held 
that Congress has the authority to put limitations on habeas 
corpus.
    The Seventh Circuit concluded in the case of Lynn v. 
Murphy, ``Any suggestion that the Constitution forbids every 
contraction of the Federal habeas power bestowed by Congress in 
1885 and expanded by the 1948 and 1966 amendments is 
untenable.''
    Mr. Chairman, everybody agrees that it is important to 
protect innocents, and that is why in this legislation, at 
every point, this bill creates an exception for actual 
innocence claims to all procedural barriers, allowing these 
claims to go forward. There is no exception to that principle. 
Innocence claims always trump the procedural barriers. We want 
to make sure that an innocent person is not executed. And I 
would also note that the cases of actual innocence on death row 
are exceedingly rare. I would just note that of all of the 
cases that were analyzed in the hearing in the House of 
Representatives, only 36 were actual innocence cases on death 
row. And my office has further analyzed those and found that 30 
of those cases were resolved in State court proceedings. So 
only six of those cases even reached habeas review, and none of 
those would have been obviated by the legislation that we 
propose now. And I would note that of the anecdotes cited by 
the distinguished Ranking Member, none of those would have been 
adversely affected by our legislation today.
    So I urge my colleagues in considering this legislation to 
connect up any concerns you have with the actual provisions of 
our bill. See how it works. It does not work the way some 
people have alleged that it works. We always provide the 
innocence claim, and I believe that as a result of the 
tightening up of some loopholes that have evolved over the 
years since the 1996 law was adopted, we can try to get back to 
a manageable case load of habeas petitions without doing any 
injustices whatsoever. And I am hoping that our hearing today 
will enlighten us further on that process.
    Again, Mr. Chairman, thank you very much for holding this 
hearing so promptly.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Feinstein or Senator DeWine, would either of you 
like to make an opening comment?

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. The only thing I would like to say, Mr. 
Chairman, is I think this is a very big bill, and I was on the 
Committee when we did the prior habeas bill. And I did not 
realize that the numbers, the pendings, had gone up as they 
are. I had been under the impression that there was a decline. 
There is a letter that we have received from the Federal Public 
Defender which so states. So I think there are a lot of things 
that I need to reconcile. I am particularly interested to hear 
the witnesses on this point.
    My own view is that an individual should have a timely 
habeas appeal and that the State appeal should be exhausted 
before there is the Federal appeal, but that should all be 
carried out within a given period of time.
    I listened with interest to what the Ranking Member had to 
say, and I think whatever we do, we have to make it available, 
particularly for the innocent or some unusual claim.
    So I would be very interested to hear what the witnesses 
have to say here today.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator DeWine.
    Senator Kyl. Mr. Chairman, might I just ask unanimous 
consent to put two things in the record: my full statement and 
a statement from Congressional Research that has the exact 
statistics which Senator Feinstein just--
    Chairman Specter. Without objection, they will be made a 
part of the record.
    [The prepared statement of Senator Kyl appears as a 
submission for the record.]
    Chairman Specter. Senator DeWine.

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Mr. Chairman, I just thank you for holding 
the hearing, and I am looking forward to hearing our witnesses.
    Senator Leahy. Mr. Chairman, if I might note, Senator 
Feingold wanted to be here, but he is, of course, out in 
Wisconsin for the funeral of our former colleague, Senator 
Gaylord Nelson of Wisconsin. He will have a statement later to 
be included in the record with your permission.
    Chairman Specter. Thank you, Senator Leahy. It might also 
be worth noting that Senator Feingold was one of those 
requesting the hearing today, and the bill had been on--it will 
be the third time on Thursday. First we did not have a quorum, 
and next it was carried over. And it is a complicated subject, 
and we will give it due consideration in Committee.
    Our first witness is Mr. Tom Dolgenos, Assistant District 
Attorney in Philadelphia. He has been there since 1994. That is 
a good career prosecutor. Magna cum laude from Brown, 1984, and 
J.D. from Yale in 1990. When I was D.A. of Philadelphia, we did 
not have many people with your credentials. I am glad to see 
you there, and I am glad to see you there for such a long time.
    Just a 20-second personal aside, people frequently ask me--
they probably ask Senator Leahy, too--``What was your best job? 
Was it D.A., Senator?'' I say, ``No; Assistant D.A.'' So enjoy 
it while you have it, Tom.
    Thank you for joining us, and we look forward to your 
testimony.

 STATEMENT OF THOMAS DOLGENOS, CHIEF, FEDERAL LITIGATION UNIT, 
    PHILADELPHIA DISTRICT ATTORNEY'S OFFICE, PHILADELPHIA, 
                          PENNSYLVANIA

    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, 
despite the enactment of habeas reforms in 1996. I also 
believe, however, that the proposed Streamlined Procedures Act 
contains carefully crafted, common-sense responses to some of 
the worst abuses we commonly face.
    I also want to emphasize that these problems are not 
limited to death penalty cases. On the contrary, they apply 
across the board, to all of the convictions that reach the 
Federal habeas stage--murder, rape, robberies, and other 
violent crimes. Only a small percentage of these cases involve 
the death penalty, and the Act would help protect the rights of 
victims and encourage the fair and effective use of the 
criminal justice system in all of these cases.
    Perhaps the most familiar problem in habeas litigation is 
delay. We see this every day. Criminals who were convicted 5, 
10, or 20 years ago continue to complain about their trials and 
raise new claims. The facts are endlessly re-litigated, and the 
process goes on and on.
    Now, there are many costs associated with delay. The 
victims pay a heavy emotional cost, of course, because they and 
their families must relive the crimes again and again, without 
any closure or sense of justice. The States also bear the cost 
of delay because we have to pay for prosecutions that never 
really end. To take a small example--and Senator Kyl mentioned 
this statistic before--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.
    The public also bears the cost of delay, both because it is 
expensive to support drawn-out litigation and because time 
itself dilutes the effectiveness of the criminal justice 
system. Deterrence works best when punishment is swift and 
sure; and when the process is open-ended and nothing ever seems 
final, the system breaks down.
    I want to emphasize one other important point: The truth 
itself is a casualty of delay. As years pass, memories fade. 
Evidence is lost. Witnesses who were once sure cannot 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 cannot 
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. This 
prisoner had repeatedly molested and raped a girl when she was 
only 5 and 6 years old, and about 15 years later, he presented 
the Federal district court with the victim's alleged 
recantation, but it was ambiguously worded. When we 
investigated, the victim, now a young woman, told us that the 
defense investigator had misled her. This 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, 
written by the defense team, had been worded just ambiguously 
enough to make it sound as if her attacker had not committed 
rape, when, in fact, he had. 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 create evidence to qualify under the 
actual innocence standard; otherwise, his claims were barred.
    Now, we were finally able to convince the district court in 
that case that this new evidence should at least be examined 
first by the State court, and the habeas petition is now stayed 
pending a State court hearing. But in the meantime, the victim 
has been dragged back into this case. And the point is that the 
passage of time, repetitive hearings, and re-litigation 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 time from the crime, from the 
subtleties 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. And that is why I support the reforms 
contained in the Streamlined Procedures Act.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dolgenos appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Dolgenos.
    Our next witness is Professor Barry Scheck, Clinical 
Professor of Law at Cardozo School of Law, co-founder and the 
current Director of the Innocence Project, started in 1991, 
which has exonerated, according to the information provided to 
me, some 150 people since its creation, recognized as a DNA 
expert on the O.J. Simpson defense team, and has been in 
various other high-profile cases.
    Thank you for coming in, Professor Scheck, and we look 
forward to your testimony.

 STATEMENT OF BARRY C. SCHECK, CO-DIRECTOR, INNOCENCE PROJECT, 
 AND PROFESSOR OF LAW, CARDOZO LAW SCHOOL, YESHIVA UNIVERSITY, 
                       NEW YORK, NEW YORK

    Mr. Scheck. Thank you very much, Senator Specter.
    In an epilogue to his 1995 decision vacating the conviction 
and death sentence of Ron Williamson of Oklahoma, United States 
District Court Judge Frank Seay wrote:
    ``While considering my decision in this case I told a 
friend, a layman, I believed the facts and law dictated that I 
must grant a new trial to a defendant who had been convicted 
and sentenced to death. My friend asked, `Is he a murderer?' I 
replied simply, `We won't know until he receives a fair trial.' 
''
    ``God help us, if ever in this great country we turn our 
heads while people who have not had fair trials are executed. 
That almost happened in this case. Accordingly, the Writ of 
Habeas Corpus shall issue...''
    Now, Senator Kyl, this is a case cited by Senator Leahy in 
his opening remarks, and Ron Williamson's sister, Annette 
Hudson, is here today. She measured his coffin 5 days before 
the execution. And Dennis Fritz, who testified with respect to 
the Innocence Protection Act, who was sentenced for life, is 
here today. I want you to know that on remand of that case, 
both Ron Williamson, who came within 5 days of execution, and 
Dennis Fritz, who served 12 years of his life sentence, proved 
their innocence through a series of DNA tests which also 
identified the real murderer, Glen Gore. Gore was the chief 
witness against Williamson and Fritz, and Judge Seay found in 
his opinion that Williamson's lawyer was grossly ineffective on 
a number of grounds, including the failure to investigate Gore 
as a possible suspect. He also ruled that suppressed Brady 
material and refusal by the trial court to appoint an expert, 
an Ake error, were material due process violations. All these 
contentions were rejected by the Oklahoma Criminal Court of 
Appeals as procedurally defaulted and without merit such that, 
under this bill--there is no question about it--Judge Seay 
would have been stripped of jurisdiction to hear this case and 
reach the merits. If S. 1088 had been the law in 1995, Ron 
Williamson would have surely been executed, an innocent man; 
Dennis Fritz would still be in prison; Glen Gore would have had 
an opportunity to commit more crimes--he was eligible for 
imminent release. And, needless to say, a civil rights suit 
that we later filed in this case that exposed stunning 
misconduct would have never come to light.
    The take-home lesson from the Williamson and Fritz case is 
that the wrongly convicted cannot prove their innocence until 
they have competent counsel, appropriate experts, access to 
exculpatory evidence, and, most important of all, a full and 
fair hearing on the merits of their procedural due process 
claims.
    The reason we care about procedural due process, after all, 
is that it leads to accurate results, and its opposite leads to 
the opposite. That is why so many innocence cases do not start 
out presenting innocence claims at all but, rather, procedural 
due process violations, and proof of innocence only emerges 
once the rubble of these other legal errors are swept aside. So 
any habeas bill that tries to restrict claims that start off 
with fully developed showings of actual innocence will make 
sure that these innocence claims will never come to light, it 
will bury them. And that is exactly what this bill will do.
    I want to make it very, very clear because, Senator, you 
have been talking about the House case, which is now before the 
United States Supreme Court, where six judges in the Sixth 
Circuit said that House, as far as they are concerned, was 
actually innocent based on a DNA test. One judge said, ``I 
think he gets a new trial.'' And eight judges said, ``Well, we 
do not think he passes through the innocence as a gateway 
exception,'' which is a standard that is lower than the clear 
and convincing evidence standard that this bill, Senator Kyl, 
you say uses as a protection in every provision to protect the 
innocent.
    But let's be very clear about this. In the Williamson and 
Fritz case, there was definitely an ineffective lawyer; there 
was definitely exculpatory evidence; but they did not have at 
that point in time enough evidence to get even close to this 
standard. House does not have evidence to get close to the 
standard in the sense that if this bill were passed, the 
Supreme Court may very well have to dismiss that writ as 
improvidently granted and never reach this issue in theory, 
because House's lawyers procedurally defaulted these claims in 
the State courts.
    What I must emphasize is this bill says that the innocent, 
even if you have clear and convincing evidence of innocence, 
which is a high standard, could not present it unless the facts 
underlying the claim--if the facts underlying the claim could 
have been found with the exercise of due diligence. And that is 
what happens all across this country. There are lawyers that do 
not get--you could look at almost every case and say there is 
no due diligence in terms of perfecting these claims.
    One last point before I close. I see my time is about to 
end. This is not a problem that DNA solves. We have 159 post-
conviction DNA exonerations. We have found in 44 instances the 
real perpetrator. This is a different list, Senator Kyl, than 
the death penalty ones you were talking about. Somebody go look 
at this list. There is no question these people are innocent. 
But only 20 percent of cases, I must emphasize, have any 
biological evidence that you can perform a DNA test on. Eighty 
percent of the cases, there is no DNA. But what we have learned 
from these DNA exonerations is that the ineffective lawyers, 
the suppressed Brady material, the prosecutorial misconduct, 
the mistaken IDs, the false confessions, there is so much of 
that out there on other cases that we can only get if lawyers 
have an opportunity for a full and fair litigation in the cases 
of innocence. There are many, many more of them out there than 
anyone ever expected. That is what we have learned in the last 
10 years.
    There are ways of speeding up these procedures, Senator 
Feinstein, and you pointed to them. We can create limits. I 
would suggest this is a very simple matter. If you want to 
speed up the Federal habeas system, when you get into Federal 
court you can pass a bill that says there is a time limit, but 
just like in North Carolina and some other cases recently, the 
prosecutor's entire file--the entire file--should be turned 
over to the Federal district court judge so we can look at it 
and find any suppressed material and any other errors. That is 
the kind of direction we should be going instead of creating 
all these procedural bars which are going to lead to more 
litigation; and as Mr. Waxman is going to tell you, I do not 
think the statistics support that there really is a systemic 
problem.
    [The prepared statement of Mr. Scheck appears as a 
submission for the record.]
    Chairman Specter. Thank you, Professor Scheck.
    Our next witness is the Chief Counsel of the Capital 
Litigation Section of the Arizona Attorney General's Office, 
Mr. Kent Cattani, a law degree from the University of 
California-Berkeley in 1986, and he has been with the AG since 
1991, represents and supervises attorneys in State and direct 
appeals, post-conviction proceedings, and Federal habeas corpus 
proceedings in Arizona capital cases.
    Just a brief aside, do you work at all with Barnett 
Lotstein in Arizona?
    Mr. Cattani. I do not personally, but I do know of him.
    Chairman Specter. He is an ex-patriot of the Philadelphia 
D.A.'s office. We are practically everywhere.
    Thank you for joining us, Mr. Cattani, and we look forward 
to your testimony.

STATEMENT OF KENT E. CATTANI, CHIEF COUNSEL, CAPITAL LITIGATION 
  SECTION, ARIZONA ATTORNEY GENERAL'S OFFICE, PHOENIX, ARIZONA

    Mr. Cattani. Thank you, Mr. Chairman.
    I disagree that there is not a problem with Federal habeas. 
The AEDPA has not solved the problem of excessive delay in 
Federal habeas proceedings, particularly in capital cases in 
Arizona. Although the AEDPA made several changes that have 
improved the process, in the final analysis delay has increased 
rather than decreased since the enactment of the AEDPA. I am 
not suggesting that the AEDPA has created the increased delay, 
but the AEDPA has not operated to decrease the amount of delay 
that we face in capital cases in Arizona.
    We have no interest in executing or even incarcerating an 
innocent person in Arizona. We take very seriously our role as 
prosecutors, and we have helped to create a system in Arizona 
that provides multiple opportunities to establish claims of 
innocence. There is no time bar in Arizona to raising a claim 
of actual innocence of a crime or innocence of the death 
penalty. Since 1993, we appoint two highly qualified attorneys 
in every capital case at the trial stage. We appoint yet 
another highly qualified attorney to represent defendants at 
the direct appeal stage. And then we appoint yet another 
attorney, another highly qualified attorney to represent the 
defendant in post-conviction relief proceedings stage. Funds 
are made available for investigation, and for expert witnesses. 
Having created this type of system, we are frustrated by the 
seemingly endless round of Federal habeas review in the Federal 
district court and in the Ninth Circuit.
    One of the key provisions of the AEDPA was what is known as 
the opt-in provision. The opt-in provision was designed to 
accelerate Federal habeas review in capital cases on the 
condition that States 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 length of the Federal habeas process would be 
reduced to approximately 3 years. The theory underlying the 
opt-in provisions was that if you ensure competent 
representation in State court, there is less of a need for 
lengthy Federal 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 of qualified counsel, the State has 
thus far expended over $1 million to represent these indigent 
defendants in capital post-conviction proceedings. In some 
cases, the State has paid in excess of $100,000 in attorneys' 
fees and costs in a post-conviction proceeding.
    Nevertheless, we have not opted in, and I believe there are 
no States that have opted in under the AEDPA. Why haven't we 
opted in? After we enacted these provisions to provide for 
compensation for counsel in the post-conviction stage, defense 
attorneys temporarily boycotted the system, some out of a 
concern that it would facilitate expediting review. Others 
boycotted because they were concerned about whether there would 
be adequate compensation.
    The Arizona legislature clarified that there is no cap on 
attorneys' fees. Attorneys are paid $100 an hour for up to 200 
hours of work, even if a post-conviction petition is not filed, 
and additional compensation is paid upon a showing of good 
cause.
    Attorneys have in fact been compensated well in excess of 
$20,000 for handling capital post-conviction proceedings.
    In any event, because of these concerns, there was a delay 
in the appointment of counsel in these first cases after the 
new standards were enacted.
    The first case in which we attempted to take advantage of 
the opt-in provisions was in the Anthony Spears case. The Ninth 
Circuit ruled that the standards that we have adopted for the 
qualification levels for the attorneys who represent defendants 
in post-conviction are satisfactory. The court refused to allow 
us to opt in, however, because there had been a delay in 
appointing counsel. In Spears' case, there had been a 20-month 
delay before he was appointed to represent Spears. We argued 
that the 20-month delay did not prejudice Spears, and, in fact, 
Spears' post-conviction counsel never argued in State court 
that this 20-month delay had created any kind of an impediment 
to raising claims in the post-conviction process.
    In our view, Spears received the benefit of the opt-in 
provisions. The State has created an opt-in mechanism to 
appoint competent counsel. Spears received counsel appointed 
under that system.
    It is important to note that our attempt to opt in is not 
just a belated effort for technical compliance. Again, we take 
very seriously the need to protect the innocent, and in my 
view, the proposed bill takes that into account. There are 
provisions to ensure that people who are actually innocent of 
the crime will get Federal review.
    I see my time has run out. Thank you, Mr. Chairman.
    Chairman Specter. If you need a little more time, go ahead, 
Mr. Cattani.
    Mr. Cattani. I would just note that to evidence our concern 
for innocence, the Arizona Attorney General's Office has worked 
with the Arizona Supreme Court and the American Judicature 
Society to study cases in which there has been an exoneration. 
There have been two such cases in Arizona. Significantly, the 
exonerations were the result of State court proceedings. 
Neither of the defendants had ever filed anything in Federal 
court. And we certainly try to learn any lessons that we can 
from an exoneration, but I think it is important to note that 
these exonerations were the result of State court proceedings. 
We have a mechanism that allows for the development of newly 
discovered evidence at any time, and I think in all of the 
cases that we have seen in Arizona, the provision for newly 
discovered evidence allows a defendant to pursue this claim of 
innocence. In addition, our rules provide for a free-standing 
claim of innocence; this allows an opportunity to present 
claims of innocence at any time.
    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 of Arizona, in particular, 
the victims of violent murders, deserve a better system. Our 
current Federal habeas process is not working, and I urge your 
careful consideration of the proposed amendments.
    [The prepared statement of Mr. Cattani appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Cattani.
    Our next witness is the Honorable Seth Waxman, Solicitor 
General for 4 years from 1997 to 2001, summa cum laude from 
Harvard, Yale Law School, Rockefeller Fellow, American College 
of Trial Lawyers, very distinguished record, currently heads 
the appellate practice at Wilmer, Cutler. Thank you for coming 
in today, Mr. Waxman, and we welcome your testimony.

 STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE 
UNITED STATES, AND PARTNER, WILMER, CUTLER, PICKERING, HALE AND 
                     DORR, WASHINGTON, D.C.

    Mr. Waxman. Thank you very much, Mr. Chairman, and thank 
you for the opportunity to speak today. It is a great honor and 
a pleasure to be on the panel and to be surrounded by--
    Senator Feinstein. Turn on your mike, please. Thank you.
    Mr. Waxman. To be surrounded by prosecutors from the State 
of Arizona, which, in my experience, is a particularly and, I 
would have to say, uniquely forward-looking State for reasons 
that Mr. Cattani has expressed--the only State, to my 
knowledge, that has attempted in the 10 years since AEDPA was 
enacted to opt in to the system that this Congress created 10 
years ago.
    Mr. Chairman, I have been a litigator my entire 
professional life, which, as my children remind me every week, 
has been very long. I have been a trial lawyer and an appellate 
lawyer. I practice in State and Federal courts, in civil and 
criminal and post-conviction cases. And I have done so in 
private practice and on behalf of the United States Government. 
I am not philosophically, morally, or ideologically opposed to 
the death penalty. To the contrary, while I was in the Justice 
Department, I served for years on a committee that recommended 
to the Attorney General of the United States cases in which the 
Government should affirmatively seek the death penalty, and we 
did so successfully.
    I have no patience in my personal or professional life, as 
colleagues and family members will tell you, for delay for its 
own sake, procedural games, and maneuvering that gets in the 
way of answering substantive questions and moving on. I 
understand, I think, the sentiment that lays behind this bill 
that Senator Kyl introduced and that Representative Lungren has 
introduced in the House. I cannot support it. I must and I do 
oppose it, and I urge the Senate to reject it--not because I 
think the sentiments are misguided, but for four reasons which 
I would like to tick off in the horribly short remaining time.
    I have a written statement that I submitted that I hope the 
Committee will take a look at.
    Chairman Specter. It will be made a part of the record.
    Mr. Waxman. I like to keep abreast of what is going on, but 
I must say that I only learned of this legislation late last 
week, and I am struggling to try and understand how all of its 
interrelated provisions apply. But let me just make four points 
very briefly, which I would be happy to elaborate on in 
response to any questions.
    I have four reasons for opposing this legislation as 
drafted. Two of them relate to AEDPA, which is legislation that 
I think every member of the Committee who spoke referred to and 
for which I had fairly substantial personal involvement in 
drafting and analysis. Two are more fundamental.
    My AEDPA points are as follows:
    First, I was quite interested to hear the statistics that 
Senator Kyl cited this morning. I had not seen them before. I 
was also really very interested in reviewing the statistics 
from the Administrative Office to which Senator Feinstein 
referred, which are reported in a letter to the Committee from 
Thomas Hillyer. But my bottom-line point with respect to AEDPA 
is I am not aware of any study, systematic or otherwise, or any 
collection of data that looks at the effectiveness or 
ineffectiveness in AEDPA in reducing the particular targeted 
problems that the Congress of the United States legislated to 
fix. There may be more post-conviction cases now filed, but 
what AEDPA was designed to address is how readily they get 
adjudicated, particularly in Federal courts. And the statistics 
that I saw in Mr. Hillyer's letter actually suggest, if 
anything, that AEDPA has been quite effective. I urge the 
Committee to enlist the Administrative Office or the Federal 
Judicial Center, and let's see how the specific provisions of 
AEDPA have worked out--to identify where there continue to be 
frustrating and unconscionable and indefensible delays in 
getting to the merits of constitutional claims.
    My second AEDPA-related concern is that any time the 
Congress legislates in a wholesale fashion to substantially 
revise procedures--particularly in the criminal area, and most 
particularly in the post-conviction area--a wave of litigation 
is generated, raising statutory interpretive questions and 
constitutional questions. We are now only emerging from that 
wave of litigation with respect to AEDPA. And I fear--I think 
it is a certainty--that this legislation will generate a new 
wave of litigation, both interpretive and constitutional, that 
will take the Federal courts years to adjudicate rather than 
streamlining these proceedings.
    If I may just have one minute to mention my two more 
fundamental objections, I will simply tick them off.
    Chairman Specter. You may proceed, Mr. Waxman, for a little 
more time.
    Mr. Waxman. Thank you. I am totally in favor of 
streamlining procedures where procedures are not, in fact, 
streamlined and where that can be done without sacrificing 
fairness to both sides concerned. But many, I would say most, 
of the substantive provisions of this bill are, in fact, 
jurisdiction-stripping provisions. I referred in my written 
testimony to Sections 2, 4, 6, and 9, which do not establish 
tighter timetables or different standards. They deprive Federal 
courts of jurisdiction to hear categories of cases. And that 
is, I think, fundamentally inconsistent with long-standing 
statutory and constitutional traditions. I do not think that 
stripping Federal courts of jurisdiction in categories of these 
cases is the appropriate way to achieve a streamlining 
function. And I am very concerned--and this is really my 
principal concern here--with the number of cases in which 
substantial majorities of this Supreme Court have concluded 
that fundamental constitutional rights, many going to guilt-
innocence, were violated and violated in such a way that even 
under AEDPA standards, the writ of habeas corpus must issue--
and yet which would not even make it into Federal court under 
the provisions of this bill. And I have listed and described 
four of them, one each from the past four terms in the Supreme 
Court, in my legislation.
    Thank you for your patience.
    [The prepared statement of Mr. Waxman appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. Waxman.
    Our next witness is the Executive Director of Equal Justice 
Initiative and Professor of Clinical Law at New York University 
School of Law, Professor Bryan Stevenson, nationally acclaimed 
for his work challenging bias against the poor and people of 
color in the criminal justice system; Harvard Law School and 
Harvard School of Government; has an extensive record in 
assisting the poor.
    Thank you for coming in, Professor Stevenson, and we look 
forward to your testimony.

   STATEMENT OF BRYAN A. STEVENSON, DIRECTOR, EQUAL JUSTICE 
INITIATIVE OF ALABAMA, AND PROFESSOR OF CLINICAL LAW, NEW YORK 
          UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK

    Mr. Stevenson. Thank you, Senator Specter.
    I would like to first just put in context some of what we 
have been talking about today. We should all be mindful of the 
fact that over the last 30 years, the number of people in jail 
and prison has increased dramatically. In 1972, there were 
200,000 people in jails and prisons. Today there are 2.1 
million.
    Since the passage of AEDPA, we have actually added some 
700,000 people to jails and prisons, and anything we talk about 
with reference to the numbers of habeas filings has to be seen 
in that context. It would be very misguided for this Committee 
or anyone to look at the number of filings without looking at 
the number of people being sent to jail and prison.
    We talk a lot in this legislation about finality, but one 
threshold point I think needs to be clarified. This bill 
applies to all prisoners. It does not focus or expressly limit 
itself to death penalty cases. The reality is that in non-
capital cases, which are the overwhelming majority of these 
filings, there is finality. None of these people are out on 
probation or bail or parole. They are not avoiding punishment. 
If they have a 20-year sentence, whether they have a habeas 
pending for 5 years or 8 years or 12 years does nothing to the 
finality of that judgment.
    So what we are effectively talking about are death penalty 
cases. And when we talk about death penalty cases in this 
country, we have to look at the death penalty States. And with, 
you know, obviously appropriate deference to my colleagues from 
Arizona, the overwhelming number of death penalties in this 
country are being applied in the Deep South. It is Texas and 
Florida alone that outnumbers the rest of the death row 
population in the country by themselves, Mississippi, Alabama, 
Georgia, Virginia, and in these States we have had serious 
problems and continue to have serious problems with indigent 
defense.
    All over the country, there are problems with innocence. I 
believe they start at the trial level, but we have still not 
done enough to make indigent defense appropriate. When you 
increase the numbers this way and you do not increase the 
resources for giving people aid, you are going to have wrongful 
convictions. In my State, 72 percent of the people who were 
sentenced to death were represented by lawyers whose 
compensation was capped at $1,000. In Texas, $800 caps on 
cases; Virginia, $13 an hour. These kinds of statutory schemes 
increase the likelihood of wrongful convictions, and I do not 
think we should be in any way confused about the fact there are 
people on death row, in jails and prisons, who are innocent.
    This bill, I think, wants to kind of speed the process up, 
but is not really focused on where the problems are. The 
problems, in my judgment, begin in State court. Again, Deep 
South States. We do not have a public defender system. The 
State of Alabama does nothing to provide people lawyers when 
their case is affirmed on direct appeal, even in death penalty 
cases. Our statute says that if you can find a lawyer and that 
lawyer comes to the court, the court will appoint that lawyer, 
but the compensation cap for death penalty post-conviction 
appeal is $1,000. We have had 95 cases filed in the last 75 
years. In none of those cases did the State do anything to 
provide people with lawyers. That means the cases do not get 
investigated. The cases do not get developed. There is no 
opportunity to explore issues of innocence or fairness until 
you get to Federal court, and this bill would, in fact, 
insulate many wrongful convictions.
    I have got a client who is innocent. He has been on death 
row for 19 years. He has never filed a Federal habeas petition 
because he has been languishing in the State trial court for 
the last 15 years. He could not find a lawyer. He could not 
force the judge to rule. We have an elected judiciary. These 
problems are the real problems of delay. In many States, the 
length of time in State court triples the amount of time people 
spend in Federal court. And we have got to understand that as 
it relates to these issues, this bill would do a lot of very, I 
think, unfortunate things to insulate wrongful convictions and 
innocence. The counsel problem that I am talking about is not 
addressed here. It in no way limits the application of these 
provisions to States that are doing the things that make State 
court review meaningful. And what that does is essentially 
protect States that are unwilling to protect the accused.
    We have seen this in a number of ways. The exhaustion 
provision, for example, would prevent my client, who has been 
languishing on death row for 15 years, from getting to Federal 
court if the State courts never address his claims.
    I did a case not too long ago where a death row prisoner 
had been convicted and was mentally ill. The State used an 
expert who testified that this man was not mentally ill, that 
he was faking his mental symptoms at the trial. He was denied 
relief, came within 7 days of execution, filed a habeas 
petition in Federal court. Months later, it was discovered that 
the expert who testified against him was a fraud, never 
graduated from high school, had no college degree, had been 
masquerading as a clinical psychologist for 7 years in a State 
mental institution.
    This bill would strip away the opportunity for filing an 
amended petition to get to that claim, which did not go to 
factual innocence, at least at that stage. And we see this all 
the time. These issues, as Professor Scheck talked about, 
oftentimes start as due process claims.
    I was a young lawyer at the Southern Center for Human 
Rights--if I could just have one more minute to complete.
    Chairman Specter. Go ahead, Professor Stevenson.
    Mr. Stevenson. Thank you, sir. I was a young lawyer at the 
Southern Center for Human Rights when we got a case in our 
office that went to the United States Supreme Court where a 
prosecutor had basically sent a memo to the clerk to kind of 
teach the clerk how to under represent black people in jury 
pools. This racial bias that was detailed in this memo was 
hidden, and it was only years after that this memo was 
discovered, it was challenged, and the State court said the 
claim is procedurally barred. And that happens a lot. We have 
had 25 cases in my State where prosecutors have been proved to 
use preemptory strikes in a racially biased manner. Many of 
those cases, the State courts say they are procedurally barred.
    The case went to the United States Supreme Court, and the 
Rehnquist Court said unanimously, 9-0, this kind of bigotry 
cannot be insulated, cannot be tolerated. And it used language 
that this bill would eliminate to address the merits of that 
claim. And it is those kinds of claims that I think are very 
much at stake, those kinds of concerns. The integrity of our 
criminal justice system is critical, in my view. And there is 
simply no one in this country who wants fair and efficient 
adjudication of their claims more than innocent people who are 
sitting in jails and prisons today. They desperately need that. 
But what this bill will do is actually make it infinitely 
harder for them to ever see the kind of justice that many of 
the people in this room have seen and witnessed and 
experienced.
    I will end with one last case. We were involved in a case 
that a firm and some lawyers in Birmingham did years ago of a 
man who spent 17 years on death row. Claims were procedurally 
barred in State court. It got to Federal court, and the court 
granted relief, not on factual innocence, because those claims 
could not be developed, but on ineffective assistance of 
counsel at the penalty phase, something that would be barred 
from this bill, and a race bias claim at the trial, something, 
again, that would be barred. He was given a new trial, and at 
his new trial he was acquitted. He spent 17 years on death row. 
I dare say he would have been executed if this bill were law. 
And I think those kinds of concerns have got to urge this 
Committee to turn this legislation around and please give it 
deeper and more careful consideration.
    Thank you, Senator.
    [The prepared statement of Mr. Stevenson appears as a 
submission for the record.]
    Chairman Specter. Thank you, Professor Stevenson.
    Our final witness on the panel is Mr. John Pressley Todd, 
Assistant Attorney General in Arizona, a law degree from 
Arizona State University, 30 years' experience as a prosecutor, 
trial lawyer, and appellate lawyer in the Arizona Attorney 
General's Office. A real career prosecutor, Mr. Todd. Thank you 
for coming.

 STATEMENT OF JOHN PRESSLEY TODD, ASSISTANT ATTORNEY GENERAL, 
      ARIZONA ATTORNEY GENERAL'S OFFICE, PHOENIX, ARIZONA

    Mr. Todd. Thank you, Mr. Chairman. It is a great privilege 
to be here. I also had the--
    Senator Leahy. Is your microphone on, Mr. Todd?
    Mr. Todd. I am sorry. I also had the privilege of serving 
15 years with Barnett, investigating and litigating trial 
cases, frauds and so forth. And I spent my first 15 years in 
the first segment of the criminal justice system. I have spent 
my second 15 years in the second segment of the criminal 
justice system. And Federal habeas affects just a small portion 
of the second segment. If there is a problem of innocence, 
those cases can really only be addressed in the States.
    As Senator Kyl mentioned, there are like 23,000 pending 
habeas petitions currently in the whole Federal court system. 
In one county, in Maricopa, in Arizona, there is double that 
amount of cases tried. The Federal courts cannot simply retry 
all the State cases. It cannot work.
    The system that is in place and that we are asking to be 
made better is a logical, reasonable system. What is good about 
this bill is it undercuts the procedural delay and focuses the 
Federal courts on--if there is any legitimate question of 
innocence, it focuses the courts on that question.
    In any criminal case, there are only two types of errors. 
There is the error where an innocent person is convicted, and 
there is the error when a guilty person goes free. Now, the way 
we have created our system is, at the time when the evidence is 
most reliable, when the evidence is most fresh, we have a 
trial, and we provided all sorts of procedural safeguards at 
that trial to be sure that if there is an error, it errs on 
letting the guilty person go free.
    Since common law starting with the Magna Carta, 800 years 
ago, we have left to the jurors the fact-finding process. By 
the time we get to Federal court, factual issues are years and 
years removed. As the first speaker indicated, memories fade, 
witnesses become uncooperative. And to create a system that 
relies on retrying many cases in Federal court, you cannot. It 
is just physically not possible.
    The problem in Federal court is that instead of raising 
legitimate issues of constitutional merit which have been 
presented in State court, particularly in death penalty cases, 
individuals feel that they have to try and raise a multitude of 
claims that are without merit. And all this does is build delay 
into the system. The only persons who benefit by delay are 
those who are under a sentence of death who are guilty. A 
person who is under a sentence of death who is innocent 
certainly does not benefit by delay, and no non-capital 
defendant benefits by delay.
    So this bill has the safeguard of truly innocent people 
getting into Federal court. It does away with the ability of 
people who are simply trying to create delay to postpone the 
State's judgment. It undercuts this procedural delay.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Todd appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Todd.
    Mr. Waxman, I will begin with you. You have had an 
extraordinary record as an appellate lawyer, Solicitor General, 
head of a big firm's appellate practice. You object to delay. 
You oppose the bill. What is the answer to these very, very 
long delays which have become epidemic?
    Mr. Waxman. I would very much like to work with the 
Committee of the administrative office or the Justice 
Department, or whoever it is would look at the extent to which 
delays remain in the system and where and why. Before I can 
answer the question, Mr. Chairman, I would need to know.
    I have been involved in cases in which the State courts, 
for whatever reason, have simply not decided meritorious 
constitutional claims for many years, and no--
    Chairman Specter. Mr. Waxman, we will accept your offer, 
just so long as you will not utilize your customary hourly 
rate.
    [Laughter.]
    Mr. Waxman. Mr. Chairman, I will charge the Committee 
exactly what I am charging the Committee today, which is--this 
is a public service--
    Chairman Specter. Well, we can double that.
    [Laughter.]
    Mr. Waxman. I will tell you what, I will give you 50 
percent off, and I would be delighted to work with the members 
from both sides to come up with--to figure out where the 
problems are and come up with a solution that is fair to both 
sides.
    Chairman Specter. We are going to take you up on that 
because you have had the experience to have some really unique 
insights.
    Professor, Scheck, you raised a proposition of making the 
entire State court record available to the judge on habeas 
corpus proceedings. Amplify what you mean by that. Is that 
record now not available customarily?
    Mr. Scheck. Actually, there are a lot of problems even 
getting transcripts in place. What I am really talking about, 
when you get to the issue of innocence, is the entire 
prosecution file. Obviously, during the course of a criminal 
case the defense is not entitled to the--
    Chairman Specter. The entire prosecution file, so it is 
more than the trial record, obviously.
    Mr. Scheck. Yes. And that is exactly--take the case of 
Darryl Hunt who is here in the audience, who spent 20 years in 
prison for a crime he did not commit. I will bet you that Judge 
Ludick and Judge Wilkinson, who actually rejected his claim 
when there was some DNA evidence showing that he was innocent 
in some Brady claims, would really like to see that as well, 
because when he went into Federal court, it was a closed case, 
but he could not even get a hearing. Then after his case came 
down we finally got a new DNA test that identified the real 
perpetrator.
    And here is my point, when the real perpetrator was 
identified, we found in the prosecution's file exculpatory 
evidence indicating that the police knew about him.
    Chairman Specter. Let me stop you there because of the 
limitations of time, and turn to the prosecutor.
    Mr. Dolgenos, how about that, would you be willing to 
follow Professor Scheck's idea and turn over the entire file?
    Mr. Dolgenos. I think that is a terrific over-reaction, Mr. 
Chairman.
    [Laughter.]
    Mr. Dolgenos. Concerns of--
    Chairman Specter. Give us a little under-reaction.
    Mr. Dolgenos. Police investigations and law enforcement 
investigations are filled with material, witness statements and 
police information that it is important to keep confidential. 
There are discovery rules in State court.
    Chairman Specter. How about redacting all the 
confidentiality? Professor Scheck is suggesting if there is 
some exculpatory evidence in your file.
    Mr. Dolgenos. Well, exculpatory evidence is absolutely 
subject to discovery in every State court. The question is 
whether or not States can enforce or have their own rules of 
discovery. If we have a policy in Federal court where we hand 
over the entire prosecution and police file, the funnel's 
absolutely backwards. Then the Federal proceeding becomes the 
main event and the State proceeding becomes merely a 
preliminary, simply--and I do not think there is any basis for 
that. I mean obviously Brady violations are very important 
and--
    Chairman Specter. Mr. Dolgenos, I hate to cut you off but I 
want to ask Mr. Cattani a question, and I also want to observe 
my time limit.
    Habeas corpus, the subject matter we are dealing with, 
constitutional standing. Does the Congress have the authority 
to strip the courts, the Federal courts of jurisdiction on 
constitutional issues, Mr. Cattani?
    Mr. Cattani. Yes, I think Congress can certainly restrict 
the types of claims that can be raised.
    Chairman Specter. Even on constitutional issues?
    Mr. Cattani. Yes. I think this Congress has the authority 
to do that. And the jurisdictional restrictions are important. 
What we face in the overwhelming majority of our cases is a 
relitigation of the mitigation investigation as it relates to 
sentencing. Notwithstanding the fact that we have gone through 
a mitigation investigation at trial and again in the post-
conviction stage, we move into Federal court and the attorneys 
representing the petitioner in Federal court start over with a 
complete mitigation investigation. This means we are no longer 
focused on guilt or innocence, we are focused instead on 
whether there is some additional mitigation? And of course 
there is always additional mitigation that can be found. There 
is always someone else somewhere who will say something about 
the defendant's background.
    In my view, at some point it does become necessary to say 
we have to cut off certain types of claims or we simply will 
not have finality in the process.
    Chairman Specter. Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    Mr. Cattani, just to follow up just a little bit, you say 
this Congress has the right to strip the courts of jurisdiction 
over constitutional matters. Assuming I agree, would you also 
agree that if the Congress is going to remove the ability of a 
Federal court to have jurisdiction on something involving 
constitutional matters, your constitutional rights, would that 
not be a step that the Congress should take only with enormous 
deliberation?
    Mr. Cattani. I certainly would agree that there should be 
careful consideration, but I think the proposal that has been 
made--
    Senator Leahy. I am not talking about this proposal. I am 
just talking about in general.
    Mr. Cattani. Certainly. Careful consideration, and I think 
it is important to provide safeguards for actual--
    Senator Leahy. Those may be your constitutional rights we 
are talking about too.
    Mr. Cattani. Sure.
    Senator Leahy. Mr. Waxman, again, thank you for being here, 
and I concur with the Chairman, we much appreciate you taking 
the time because of your own vast experience.
    We are told that this bill is to eliminate inefficiencies 
in the exercise of Federal habeas jurisdiction, not to 
eliminate habeas all together. But you said in your testimony 
that it strips Federal courts of jurisdiction to vindicate 
meritorious constitutional claims. Would you elaborate on that 
a little bit, please?
    Mr. Waxman. Well, I will not be able to as much as I would 
like to, but I listed, just so that the Committee could review, 
four cases that were recently decided by the Supreme Court of 
the United States, where substantial majorities of the Supreme 
Court concluded in Federal court review of State criminal 
convictions, where the State courts had--I believe in all of 
the cases there was counsel in the State courts. The State 
courts concluded that the writ of habeas corpus need not and 
should not issue. The Supreme Court of the United States, in 
each of those cases, concluded by a substantial majority that--
accepting all of the facts as found by the State courts, giving 
complete deference to the fact finding of the State courts--
egregious violations of constitutional rights, three of them 
going to the guilt/innocence stage, had been committed to the 
point that the State courts had not only erred in their 
judgment, but that there was an unreasonable application of the 
facts as found by the State court to the settled law as 
announced by the Supreme Court of the United States.
    Now, I am not throwing stones at State courts or State 
court judges. State court judges are human beings just like 
Federal court judges and just like everybody sitting in this 
room is--
    Senator Leahy. Except for Senators of course.
    [Laughter.]
    Mr. Waxman. Yes, some present company excluded.
    It is part of our tradition, our constitutional tradition, 
our statutory tradition and our cultural tradition going back 
to Magna Carte, that in criminal cases, and particularly in 
cases where the penalty to be exacted is death, we need 
safeguards and we need some redundancy, and the fact that in 
our day and age, under AEDPA, which has raised the bar very 
substantially, 6-, 7-, and 9-Justice majorities of the current 
Supreme Court have found instances where they have said: Look, 
taking all the facts as found by the State court, even in a 
case in which there was counsel, we have no choice but to 
conclude, no alternative but to conclude that fundamental 
constitutional rights were violated that require issuance of 
the writ.
    What I am concerned about is that with respect to the four 
cases that I identified over the weekend and have explained to 
the Committee, those people, if this bill passed, almost 
certainly would not have been able even to get into Federal 
court.
    Senator Leahy. Then would you agree--I think you would not 
agree--the principal sponsor of this bill in the House said 
that if a petitioner had meaningful evidence of innocence he 
would not be subject to the bill's jurisdiction-stripping 
provisions and the other procedural hurdles? Does this bill 
really create general exceptions for people with meaningful 
evidence of innocence? I could not find them.
    Mr. Waxman. I fear that it does not, and I would very much 
like to see--if this legislation were going to pass with an 
actual innocence exception--that standard that you just 
articulated, rather than what is in the bill.
    The reason I say that is as follows. The bill contains, 
with respect to a number of the jurisdiction-stripping 
provisions, an exception that can be met if the innocence 
standard that is already specified in AEDPA is met. Now, that 
standard, which I have explained at the top of page 3 of my 
testimony, is the standard that the Congress imposed on second 
or successor petitions under AEDPA. It was a major point of 
AEDPA to reduce or eliminate the opportunity for petitioners to 
file second or successive petitions. And in order to invoke 
that innocence exception, you need to prove under this bill, as 
under the successor provisions of AEDPA, No. 1, that the claim 
of innocence that you are making rests on a factual predicate 
that quote, ``could not have been previously discovered through 
the exercise of due diligence.'' Even if you had no lawyer, 
even if you found DNA evidence, but a diligent lawyer could 
have found it, you will not meet this exception.
    In addition, under the standard that this bill imports from 
AEDPA, you have to show that the underlying facts that you come 
forward with that could not have reasonably been discovered 
before, quote, ``would be sufficient to establish by clear and 
convincing evidence, that but for constitutional error, no 
reasonable fact finder would have found the applicant guilty.''
    As a threshold finding, that is breathtakingly difficult, 
and even that is not enough, because you also have to show, to 
come within the innocence exception, that a denial of relief on 
the basis of your constitutional claim was not only error by 
the State court, but in fact was, quote, ``contrary to or would 
entail an unreasonable application of clearly established 
Federal law as determined by the Supreme Court.'' I find it 
difficult to think that any prisoner, as a threshold 
jurisdictional matter, could make those showings. The new 
evidence establishing innocence might have been discoverable 
earlier. It probably should have been if competent counsel were 
involved.
    It might show very strongly that the person is likely 
innocent, but would it clearly and convincingly persuade every 
reasonable judge or jury of innocence as a threshold matter? 
And it might also have been wrong but not unreasonable to 
reject the underlying constitutional claim that innocence is 
attached to.
    So if we are going to have a bill like this and we want to 
have an actual innocence exception, it seems to me we need to 
have one that does not pose the AEDPA, successive or second 
petition standard that was designed to--and in my experience 
has served very effectively--to eliminate Federal petitions.
    Chairman Specter. Senator DeWine has to leave early, and 
Senator Kyl has graciously consented to let Senator DeWine go 
ahead.
    Senator DeWine. I thank my colleague from Arizona, and I 
thank the Chairman.
    Mr. Waxman, you have cited here cases where you say were S. 
1088 the law, the Federal courts would not even have had 
jurisdiction to review the meritorious constitutional claims, 
and then you cite these cases.
    I would like to ask the rest of the panel. I do not know if 
you have had a chance to look at Mr. Waxman's examples here, 
but if any of you have, would you agree with his statement? Mr. 
Scheck?
    Mr. Scheck. I not only would agree with it, but I could put 
into the record 27 Supreme Court cases on a section by section 
basis that are affected by this decision. So if you are looking 
for, certainly as Mr. Waxman said, in the short term, this is 
going to cause an incredible set of delays.
    The other thing is I have a list here--and it is just 
beginning--of 8 individuals who were exonerated who would not 
have been able to get into court.
    I cannot emphasize enough what Mr. Waxman has been saying 
about this bar. What this bill says in Section 4 and in other 
sections, is if the State court said, oh, there was a 
procedural default, and I have a client--and we have a lot of 
them, a number from your State, Senator DeWine--you know, who 
are innocent people, I cannot get into Federal court for review 
if a diligent lawyer could have found it.
    Now, take my friend, Brandon Moon, who--
    Senator DeWine. Mr. Scheck, I only have 5 minutes.
    Mr. Scheck. Oh, I am sorry. Brandon Moon is sitting in this 
room and that is exactly what happened to him.
    Senator DeWine. Love to hear you for an hour.
    Mr. Scheck. That is exactly what happened to him.
    Senator DeWine. Let me ask the people on the panel who are 
in favor of the bill if they could comment, because ultimately 
we get down to specifics. We are talking about real cases, real 
people, real victims, real defendants. Do you agree with what 
Mr. Scheck said? Do you agree with what Mr. Waxman has said? 
Are these cases going to be knocked out of court where the 
Federal District court, if it wants to hear the case, just 
says, cannot hear it? Yes, no?
    Mr. Dolgenos. Senator, if I may, I do not agree with that.
    Senator DeWine. So you disagree. All these cases that he 
has cited you have looked at them, you have looked at them, and 
all of these cases that he has cited, you would say no, he is 
wrong about that?
    Mr. Dolgenos. I cannot make that statement, Senator. I have 
not had a chance to look at the list of cases.
    Senator DeWine. Will you take a look at that list and give 
me something in writing?
    Mr. Dolgenos. Absolutely, I would absolutely like to do 
that, Senator.
    Senator DeWine. Okay. How about the rest of those of you 
who are in favor of the bill, anybody else?
    Mr. Todd. I have looked at one of the cases that Mr. Waxman 
cited, and that was the case that dealt with three witnesses 
leaving during trial, defense witnesses that could establish an 
alibi and happened to be relatives of the defendant. It would 
seem to me that would be an absolute defense, and if those 
witnesses went to Federal court and testified and were 
credible, that would satisfy the bill.
    Senator DeWine. You could get into court?
    Mr. Todd. That is my opinion.
    Senator DeWine. Mr. Waxman.
    Mr. Waxman. I wish that were the case. I think the case 
that Mr. Todd is referring to is Lee v. Kemna, which was 
decided by the Supreme Court in 2002. I think it is very, very 
clear that under Section 4 of this bill, this case could not 
get into court. Just very, very briefly, it was a case of 
murder that took place in Missouri. The defendant's defense was 
alibi. He had three witnesses from California who came to 
testify that he had been in California on the day the offense 
was committed. They were in the Federal courthouse under 
subpoena, sequestered in a separate room where the witnesses 
were held. They were told during the course of the day by an 
unnamed person who subsequently the Supreme Court opinion 
reflects was an employee of the State, that the State's 
prosecution case was going to take so long, that they would not 
be called till the next day, and they could and should leave.
    When the defense lawyer called them out of the sequestered 
witness room, he was told that they had left. He asked for a 
short extension to find them because they were his alibi 
witnesses. The judge said no. He asked that the case be 
adjourned till the next day. The judge said no because he was 
going to be visiting his daughter in the hospital the next day. 
He asked for an adjournment till the following Monday. The 
judge said: I have another trial starting that day.
    The Court of Appeals in the State court came up with a new 
problem with the case, which is that he had not made his mid-
trial motion for an extension in writing--
    Senator DeWine. Mr. Waxman, time is running. But ultimately 
you are saying that that case would not have been--the 
jurisdiction would not have been there. Is that your 
interpretation?
    Mr. Waxman. Absolutely not. Section 4's treatment of 
procedural bar would have prohibited the court from hearing the 
case.
    Senator DeWine. My time is up. Let me just conclude with 
two things. One is, I would ask those of you on the panel or 
all of you on the panel, to take a look at Mr. Waxman's 
testimony, look at the cases cited that he has cited. Mr. 
Scheck, are you submitting your cases?
    Mr. Scheck. Yes. And the one I discussed, Williamson and 
Fritz, no question would the guy have gotten into court, he 
would be dead.
    Senator DeWine. Okay. My point is I want to get those to 
the other panel members, and I would like opinions from all the 
other panel members on those cases, whether or not this bill as 
written currently would bar the Federal court from hearing 
those cases. If I could get all of you to give me an opinion on 
that. I think that is very important.
    I would also just, a final comment, say that we really have 
not heard much from any of you about Section 9 of the Act, 
which the way I interpret it, the Federal court would lack 
jurisdiction to hear any claims at all from a capital defendant 
as long as the State's been certified as having a procedure in 
place to provide counsel for post-conviction proceedings, very 
sweeping. We do not have time to get a response from any of 
you, but it seems to me that is quite interesting.
    Thank you very much.
    Chairman Specter. Thank you very much, Senator DeWine.
    Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    The bill clearly puts up substantial barriers to Federal 
courts even with initial habeas appeals. I would like to ask 
each of you this question, if you could just answer it yes or 
no. Do you believe the bill as written is constitutional? Mr. 
Dolgenos?
    Mr. Dolgenos. I do.
    Mr. Scheck. No.
    Mr. Cattani. Yes.
    Mr. Waxman. I doubt it, in all of its provisions.
    [Laughter.]
    Mr. Waxman. Sorry.
    Mr. Stevenson. No, Senator Feinstein.
    Mr. Todd. I believe that, in my opinion, it would be 
constitutional.
    Senator Feinstein. Thank you. Sort of a clear division 
here.
    My friend, Senator Kyl, said earlier that innocence cases 
take priority, and yet as I read page 4, it seems to me that 
the innocence exception is curtailed and limited to new law 
that might be retroactive, or new evidence which could not have 
been discovered. Do you agree with that, each one of you? And 
if not, why not?
    Mr. Dolgenos. Senator, I do agree with that simply because 
I have seen too many cases where old evidence is submitted to 
the court and rehashed as evidence of innocence when it has 
already been rejected by the State court or has been rejected 
by a lawyer who decides, well, I am not going to use it because 
I do not think it is convincing. In other words, when evidence 
is stale, that is usually a good reason to think it is not 
credible.
    Senator Feinstein. Mr. Scheck.
    Mr. Scheck. The fact is that you can look at these records 
and you can see in case after case, like my friend from El 
Paso, that there was evidence that a diligent lawyer could have 
found--I mean literally in his case there was a DNA test and 
just one more thing had to be done, and it was clear that 
Brandon Moon was innocent. 17 years he tried to get that. He 
had no lawyer, until finally he got competent counsel and it 
was solved like that.
    The problem is in this provision of the bill where 
innocence is supposed to be protected, not only is, as Mr. 
Waxman, is it a new rule, but if somebody could look at it and 
say, oh, that evidence could have been found with due 
diligence, even if you now have it and it proves somebody 
innocent, you cannot get into court. And the United States 
Supreme Court, as Senator Specter has emphasized, just took 
cert. in the House case where the issue of actual innocence is 
finally going to be put before them again for the first time 
since Herrera, and House himself could not have brought that 
case to the United States Supreme Court because his lawyer had 
procedurally defaulted and you could have said there is a lot 
of evidence that you could have found if he did it. That is the 
problem.
    Senator Feinstein. Thank you.
    Yes?
    Mr. Cattani. Thank you. I have more confidence in our State 
court system. I think it is important to note that the 
difference in the level of review that you get if you commit a 
federal crime. You simply have your trial, your direct appeal 
and--
    Senator Feinstein. My question is that the innocence 
exception or the innocence ability to move the cases is really 
curtailed.
    Mr. Cattani. Right. And the point I was trying to make is 
that if you compare what happens with a State court conviction 
with a Federal conviction, with the Federal crime you have a 
direct appeal and you have some sort of post-conviction 
proceeding--that is it in the Federal system. And you have that 
same system in the States. Federal habeas review provides 
another layer on top of that. And so I think it is appropriate 
to have a higher standard to obtain relief in this layer of 
collateral review. So I am comfortable with this higher 
standard.
    Senator Feinstein. Thank you.
    Mr. Waxman.
    Mr. Waxman. Yes, it is curtailed in the respects in which I 
articulated, I think, in response to Senator Leahy's question.
    Mr. Stevenson. Senator, I just want to emphasize I think 
this is a very serious problem for precisely the reasons 
Professor Scheck talked about. Most innocence cases involve 
evidence of innocence that was not presented at trial which 
could have been. But when you are dealing with lawyers who are 
capped at $1,000 for their defense work, who are undertrained, 
who do not have an opportunity to do it, they do not get it. My 
innocence case I was talking about turns on weapons evidence. 
He needed an expert. The court gave this defense lawyer $500 
for his expert. The expert that he could bring in to do a 
ballistics comparison was half blind.
    Senator Feinstein. Was half blind?
    Mr. Stevenson. Yes, was legally blind in one eye and could 
not use the machine. And so what we had to do was bring the 
best experts in the country to a post-conviction hearing who 
all said there is no match, this man should be released. But 
that evidence could have been presented at trial. Under this 
bill, that threshold showing that it could have been discovered 
at trial, would bar us from review, and it is that kind of 
jurisdiction restriction I think absolutely will increase the 
execution of innocent people.
    Mr. Todd. That has not been our experience in Arizona. I do 
not know the facts of Mr. Scheck's case, but DNA has progressed 
significantly since 1990 its ability to detect and exonerate 
people. And if the new DNA evidence was not available 
initially, then this would be newly discovered evidence that 
would be certainly appropriate under the bill.
    Senator Feinstein. May I ask one other quick question?
    Chairman Specter. Yes, you may, Senator Feinstein.
    Senator Feinstein. Supposing the DNA evidence had been 
mishandled, it was there but it had been mishandled. Would the 
bill allow the case to go?
    Mr. Todd. Yes, it was newly discovered that it had been 
mishandled.
    Senator Feinstein. See, what my problem is, I do not know 
what newly discovered really means in terms of the law. It 
could have been there but not used.
    Mr. Scheck. Newly discovered means that you could have 
found it with the exercise of due diligence, and this bill says 
as explicitly as it can be said, if a lawyer could have found 
it with due diligence, then you cannot bring it into Federal 
court. So like Mr. Moon, he had partial DNA exclusion just as 
the hypothetical you are giving. The lawyer--literally, it 
showed that it was not his semen but they needed to get an 
exemplar from the victim and her ex-husband in order to make 
the proof. And he waited 17 years trying to get that. He would 
not be able to get into Federal court.
    Once we went and got the exemplar from the wife and the 
husband, proved him innocent, he could not get into Federal 
court to vindicate his claim under this bill. And House would 
be out of the United States Supreme Court in theory. That is 
how extreme this is.
    Senator Feinstein. Thanks, Mr. Chairman.
    Thank you, Mr. Scheck.
    Chairman Specter. Thank you very much, Senator Feinstein.
    Senator Kyl
    Senator Kyl. Thank you, Mr. Chairman.
    In 5 minutes here it is going to be hard to go over a lot, 
so I am just going to select two cases, the case that Professor 
Stevenson discussed, and the Williamson case discussed by you, 
Mr. Scheck. I think in both cases, analyzed very carefully, 
this bill would not have prevented the assertion of actual 
innocence and the exoneration of the individual. Let me quickly 
go through both and then ask for your reaction to that.
    In the Williamson case there were 6 claims that were raised 
and exhausted in the State court. And it was voided in Federal 
court, noting that the 6 claims were fully exhausted and not 
defaulted, and thus would have not been affected in any way by 
our bill standards for unexhausted and defaulted claims.
    The bill would have prevented the Federal District Court 
from granting relief, you state, because the State courts found 
that the grounds for relief were--and I am quoting you--
procedurally defaulted or without merit.
    And so let us go back to the provision of the bill. The 
bill does not apply any special gatekeeper to claims that were 
addressed by the State court on their merits. And let us go 
over and just assume even had all of Williamson's claims been 
procedurally defaulted, which was not true. Then under the bill 
the defendant nevertheless would have still been able to raise 
these claims, presenting clear, previously unavailable evidence 
of innocence. This has to do with the semen and saliva evidence 
and the DNA.
    And it seems to me pretty clear, and I think you have 
established it, that the DNA evidence showing that the rape 
victim was not raped by the defendant would meet the actual 
innocence standards.
    So I do not believe that you have established that the bill 
would have denied the assertion of the claims. I know you 
believe that the semen and saliva evidence indicates the 
defendant was not the perpetrator and would be enough to meet 
the test. So comment briefly on that, and then I have got the 
case you cited.
    Mr. Scheck. When you go back and look at the case itself, 
you will see that the Oklahoma Court of Criminal Appeals said 
that some of the ineffectiveness claims were not raised, and 
they should have been on direct appeal. So they procedurally 
defaulted most of them. The ones that they reached were not 
even the ones for which the Federal judge granted relief. So I 
do not think there is any question that under this bill he 
would have been procedurally barred, and I will submit a more 
extensive analysis if you want.
    But the real point I am trying to make here--
    Senator Kyl. Let me just interrupt there. At this point in 
the record it will show that I disagree with you, that a judge 
reached all 6 claims, and I am going to ask that the record of 
the case be put--rather, the decisions in the case be put in 
the record at this point.
    Chairman Specter. Without objection it will be made a part 
of the record.
    Mr. Scheck. Even if he reached the claims, still under this 
bill it still would have been barred.
    The other issue and the key one is, remember, Williamson's 
case was reversed and remanded on the ineffectiveness claims, 
and it was then afterwards that there was DNA testing that 
showed he was innocent, Fritz was innocent and Gore was the 
real perpetrator.
    So to the extent you are suggesting that the DNA testing 
could have gotten him into Federal court beforehand, you know, 
they did not have that evidence.
    And my real point to you, Senator Kyl, is that procedural 
due process means something in these cases. I have looked at 
more innocence cases, I dare say, in the last 11 years, than 
most people will in a lifetime. I go back and look at these 
cases, and you see again and again, whether it is in State or 
Federal court, there was hidden Brady material, there were 
ineffective lawyers. You know, you do find more of that in 
these cases.
    Senator Kyl. My time is just about up and I want to get to 
Professor Stevenson. We can put some more in the record if you 
would like.
    This case of Hinton that you talked about, I actually think 
our bill would make it easier, not more difficult, and let me 
just quickly go over the fact here. You, in your testimony, 
detail the evidence with respect to his case, and of course I 
am not familiar with it, but if we accept that--talking about 
the tool mark and ballistics evidence that exonerates him, and 
let us assume that that is correct. And further you asserted 
the that State of Alabama agrees that without a weapons match 
Mr. Hinton should be released. So let us accept that as well, 
which would seem to establish the clear and convincing evidence 
that is the standard in the law today and the standard under 
the Act.
    Under current law, a defendant has to exhaust the claims 
for relief in State court, including these actual innocence 
claims. In Section 2 of our bill, we change the requirement by 
amending the current 28 USC provision to provide that each 
claim in a Federal petition must either be exhausted in State 
court or must present clear evidence of innocence, this new 
evidence that we have talked about. So the bill would add a new 
provision that even if the claim had not been exhausted in 
State court, you could go forward with Federal habeas if you 
have this kind of innocence.
    We were trying to bend over backward to ensure that 
whatever the procedural problems with the State court, you 
could always have the Federal habeas reviewed if you have this 
degree of evidence.
    Mr. Stevenson. Just two things as why I say that, Senator. 
We are not convinced we will ever get a ruling in State court. 
I do not know that after 19 years this case will ever be 
exhausted. And so what we have been relying on is language that 
currently allows us to utilize the jurisprudence under AEDPA a 
futility. Going to Federal court and saying we need relief--
this man has been on death row for 19 years, and every day, 
every week, every month, he is being injured and victimized in 
ways that we have a hard time accepting.
    What current law allows us to do at some point is to go to 
Federal court and say, after 19 years, after 15 years, we think 
exhaustion is futile. That is what is eliminated in this bill.
    Senator Kyl. Exactly my point, we eliminate--we do not 
eliminate the exhaustion requirement. We add an additional way 
in which you can get to the Federal court with exactly the kind 
of evidence that you have with a habeas petition.
    Mr. Stevenson. But, Senator, that would only happen if 
after we complete the State court process--
    Senator Kyl. No, that is--
    Mr. Stevenson. Because your bill says no more futility. We 
do not have the option of saying--the claim would be 
unexhausted if we went to Federal court now. And what your bill 
does is say that Federal judges cannot adjudicate unexhausted 
claims.
    Senator Kyl. We have a disagreement here because we are 
trying to specifically exempt that kind of situation by this 
showing of clear evidence of innocence, which would enable you 
to go to the Federal court. Let us discuss that further.
    Mr. Chairman, if I could just make one final comment here.
    Chairman Specter. Senator Kyl, do you need a few more 
minutes? Go ahead.
    Senator Kyl. No, no. I need just 20 seconds here.
    There was a suggestion that--and I think, Mr. Waxman, you 
were the one that noted that State courts may not always be as 
efficient as they need to be, and they take a long time and 
there is certainly evidence that that can happen. I would just 
note that in the Fornoff case that I cited earlier, it took a 
long time in the State courts, but it has been in the federal 
courts since 1992. So Federal courts can delay forever just as 
easily as State courts, and in many cases have done so.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Stevenson, it is good to see you. I tell you, if I were 
in big trouble, I would love to have you defend me.
    [Laughter.]
    Senator Sessions. He has done a very good job in Alabama 
defending people on death row cases, and is an aggressive 
advocate. I know he deeply feels the death penalty is not wise, 
but so far the majority of Americans conclude otherwise.
    I would just say a couple of things, Mr. Chairman, that we 
need to remember. With regard to convictions of crimes, people 
are allowed to appeal, and in most States there is an 
intermediate court of criminal appeals, and that is in the 
State system. If you are tried in State court--you could be 
tried in Federal court, of course, and have Federal appeals--
but if you are tried and convicted in State court, your appeal 
is to usually the intermediate court of criminal appeals, and 
the State pays for that defense, both at trial and at that 
appeal. And then if one is unsatisfied with that, they can 
petition that the case go to the State Supreme Court, and the 
State, if it is approved, the State will pay a defense counsel 
to represent the person in the State Supreme Court.
    What we are talking about here is what used to be very, 
very rare and has now become just commonplace. The Attorney 
General's Office in Pennsylvania has a whole section dealing 
with Federal habeas appeals, do they not, Mr. Dolgenos?
    Mr. Dolgenos. We do, Senator, yes.
    Senator Sessions. Now, what used to be a very rare thing 
just routinely occurs, and you have sections in your office 
handling appeals in Federal court. Historically, there has not 
been--the State has not paid for those appeals, have they?
    Mr. Dolgenos. Historically they did not exist to the extent 
they exist now, Senator.
    Senator Sessions. So now we are finding ways to make sure 
that they have those appeals. And then they go up from the 
Federal District Court to the Federal Circuit Court of Appeals 
and even to the U.S. Supreme Court; is that right?
    Mr. Dolgenos. That is absolutely right.
    Senator Sessions. And that is what you do every day.
    Mr. Dolgenos. Absolutely, Senator.
    Senator Sessions. So now we have had a series of appeals 
all the way up to the State Supreme Court, then presumably the 
conviction is affirmed. Then they go into Federal court, and 
this occurs in every death penalty case, does it not, Mr. 
Stevenson? You would never allow a client to be executed if you 
had not begun a process to review the conviction in Federal 
court.
    Mr. Stevenson. We would not if we could get to it, Senator, 
but of course, we have had cases that have not gone to Federal 
court where people have been executed in part because our 
resources to represent everyone are exhausted. We do not have 
lawyers for everybody on Alabama's death row, and once they 
miss the statute of limitations, then they are barred from 
Federal review.
    You know, the last two executions in Alabama were people 
who never had Federal court review. You are right, it is 
certainly our intention to represent everyone.
    Senator Sessions. Did either one of those renounce Federal 
court appeals and ask to be executed?
    Mr. Stevenson. Two of them did, but the other--we have 
somebody scheduled for execution actually in August, who did 
not, who wants review and was unable to get it because of the 
statute of limitations problem.
    Senator Sessions. But you are working to get that.
    Mr. Stevenson. Well, not at this time, no. I mean I think 
you are absolutely right, there is this appellate--the problem 
in our State is that we have got this cap on compensation for 
direct appeals of $2,000, a cap on representation in post-
conviction of $1,000, and we cannot find lawyers for a lot of 
these folks. We are relying on volunteer counsel.
    Senator Sessions. Well, it is true that there is no limit 
now on the trial of capital cases, and I think that is good.
    Mr. Stevenson. Absolutely.
    Senator Sessions. And that is the most important thing, 
that is what used to count, the trial. Now we drag these cases 
out for years. Here, in the Fornoff case, this lady, the 
conviction of the murderer of her daughter, Christy, who was 
13, occurred in 1985. It was upheld by the Arizona Supreme 
Court after appeals, and he then filed challenges in Federal 
District Court where it remained for another 7 years. Finally 
in 1999 the district court dismissed the case, dismissed the 
appeal. Then a few years later the Ninth Circuit sent it back 
for more hearing. It is still pending.
    The Benjamin Brenneman case in 1981, the 12-year-old was 
kidnapped, assaulted and killed. He was convicted, a defendant 
was, sentenced to death, filed a habeas petition in Federal 
court in 1990. 15 years later it is still before the same 
court. I mean judges have lifetime appointments in Federal 
court. We cannot cut their salary. And if they sit on a case, 
justice is denied.
    Michelle and Melissa Davis in 1982, those two girls were 
killed. The aunt's boyfriend confessed. In 1992 the courts 
finished their review of the case. Today, 23 years later, after 
the girls were murdered, the case remains before the Federal 
District Court.
    Michelle Malander, that case was she was kidnapped and 
murdered in '81. The case remains before the same Federal 
District Court where the appeals began in 1992.
    Do you not think--and there are some other cases in which 
it--I will just ask you, sir, from Philadelphia there, you 
handle these cases regularly. Do you not think that it would be 
legitimate that the judges have a time limit that they have to 
rule on these cases one way or the other instead of just 
letting them sit, and does not this undermine the integrity of 
the legal system when we cannot get a decision?
    Mr. Dolgenos. Absolutely, Senator, and I see no other 
method for addressing those kinds of delays than through a 
congressional statute. And I think when you lower the innocence 
standard you are asking for more litigation into the future. I 
think when you eliminate the diligence requirement for 
discovery of evidence or presentation of evidence of innocence, 
you are again begging for these cases to go on further, longer, 
rather than shorter. I think we have to remember that 
ultimately these cases implicate victims who have been through 
a great deal, and it is important that we do not subject them 
to additional trauma here in Federal court.
    Senator Sessions. Mr. Chairman, just briefly, Mr. Clay 
Crenshaw, who handles the appeals in the State of Alabama, they 
are sort of nemeses's. They go against one another a lot on 
these cases. He notes that on the Rule 32 appeal, this is like 
the Federal habeas, you have already had your direct appeal to 
the Alabama Supreme Court, may have often had an appeal to the 
Federal court system. Now you have a new claim of some kind you 
want to make in the State court as a post-conviction appeal. He 
reports in an affidavit he filed sometime ago that the 
attorneys representing these inmates, even though they may not 
be paid fully for this post-conviction, they have been paid to 
appeal but this post-conviction repetitious filing, the 
attorneys, 92 were out-of-state attorneys from large law firms 
who have given their time to this. The Equal Justice 
Initiative, that is Mr. Stevenson's group, has got 18 of the 
cases. Alabama attorneys, 17. Three of the cases are proceeding 
pro se.
    There are attorneys representing most of these defendants, 
and if there is a good case there of innocence I think we have 
plenty of attorneys that are willing to represent them, even in 
these multiple appeals, post-conviction.
    Chairman Specter. Thank you very much, Senator Sessions, 
and thank you, gentlemen, for coming in today.
    Senator Leahy. Could I ask just one more question?
    Chairman Specter. Sure. Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    I wanted to follow up with things. I want to put in a 
statement from Senator Feingold and some other material if I 
might.
    Chairman Specter. Without objection, all the statements 
will be made a part of the record.
    Senator Leahy. Just one for Mr. Stevenson. Section 6 of S. 
1088 would strip Federal courts of jurisdiction to entertain 
claims going to a sentence. If the State courts decide that any 
error was not prejudicial, would not the State courts say that 
any errors with respect to a sentence is not prejudicial to 
preclude a Federal court from looking at those claims?
    Mr. Stevenson. Absolutely, and, Senator, in every 
ineffectiveness claim there is a prejudice standard which would 
in effect mean claims of ineffective assistance of counsel at 
the penalty phase, where the lawyers do nothing to present 
mitigation, would effectively be barred. One of the tragic 
things, the court has made a lot of progress in the last years, 
in my judgment, have declared you cannot execute people who are 
mentally retarded, you cannot execute people who are juveniles. 
But in many States there are no procedures in State court for 
making those proofs. This bill would again bar people who could 
prove mental retardation and other constitutional defects from 
review.
    In all of those State court cases there is always the 
judgment that the claim is without merit, non-prejudicial, 
harmless, and I think it is a de facto bar on any kind of 
sentencing phase relief in Federal habeas.
    Senator Leahy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Leahy.
    Thank you gentlemen for coming in. This is obviously a 
matter of the utmost gravity, and the Committee will be 
considering it very, very closely.
    Senator Kyl.
    Senator Kyl. May I have a little more time, Mr. Chairman?
    Chairman Specter. Sure. I am going to have to excuse 
myself. We have a stem cell proceeding, press conference. We 
are coming to grips with stem cells, life instead of death, and 
that is scheduled at 11:30. Would you be willing to chair the 
hearing?
    Senator Kyl. Yes, I would be happy to, Mr. Chairman. 
Actually, in view of that, what I can do is just make a couple 
of closing comments here, put some questions in the record.
    Chairman Specter. Fine.
    Senator Kyl. And you have indicated we are going to 
continue to work anyway, and we certainly have some expert 
advice that we can rely upon here.
    Chairman Specter. Proceed.
    Senator Kyl. If you would just permit me then. It is clear 
from some of the testimony that there is some misunderstanding 
about both I think what we are trying to achieve, and also I 
think the actual provisions of the bill. I will just cite one 
example. We really have tried to provide a Federal court remedy 
where there has not been an exhaustion in State court where you 
have the clear and convincing evidence. If we have not 
accomplished that satisfactorily, I need to know that. But I 
think we have.
    And so I want to be sure that the objections to the bill 
are actually based upon features of the bill rather than 
general concerns that people might have about trying to modify 
the 1996 law just as a fundamental basis.
    Secondly, you notice that we have two witnesses from 
Arizona today, and that is not by accident. Arizona has tried 
very, very hard, and Mr. Cattani noted it, under both Democrat 
and Republican Attorneys General and Governors, and State 
legislature, which has been mostly Republican, but certainly 
under the current Democratic Attorney General and his 
predecessors, we have tried very, very hard to meet the ability 
to have the expedited provisions to qualify under Chapter 154, 
for example, and gotten whacked down at every turn. I mean I 
will say it a little bit more bluntly than Mr. Cattani did. You 
heard from the testimony how far Arizona has tried to go here, 
and the Ninth Circuit still says, sorry, you do not qualify.
    There are some things about the bill that are not working 
well, and I agree, Mr. Waxman, with you, or perhaps, Mr. 
Scheck, it was you who said that we need to have an analysis of 
exactly how the bill has worked. It is true, as Professor 
Stevenson said, that it is not necessarily the fact that the 
huge increase in petitions, the doubling of petitions, is due 
to the ineffectiveness of the Act, there are also a lot more 
cases pending. Undoubtedly that accounts for part of it.
    So we do need to understand what effect the Act has had, 
but I think it is undeniable, from the testimony, for example, 
Mr. Dolgenos' testimony, that whatever the effect, it has not 
adequately addressed the problem of volume and delay here, when 
you have got cases anecdotally that go on for decades and you 
have to increase the number of people in the office just to 
handle these kind of petitions.
    So clearly we have not yet solved the problem. There are 
problems and we need to solve them, and I want it clear here 
that in no way am I going to countenance any change in the law 
that results in a situation where somebody who is actually 
innocent cannot get his or her day in court. That is why we 
tried to build in this actual innocence exception. We may not 
have done it quite the way that some of you want us to do it, 
but that is my intention.
    But there is something else that those of you who oppose 
the bill have to account for, and Mr. Waxman, you certainly 
addressed this point, justice delayed is justice denied. Our 
prosecutors and our courts are overburdened, and victims have 
rights too. When Christy Ann Fornoff's mother testified in the 
House--and I am not going to repeat the testimony here at this 
point--it makes you realize that we are not doing our job up 
here of providing a criminal justice system that meets the 
needs of our society. Some of you are focused strictly on the 
defendant, and I am glad you are because we can never let the 
innocent person be executed, for example.
    But we also have to look at the rights of every victim of 
crime, and the obligation of society. And we are the decision 
makers here and we do have the constitutional right to 
legislate with regard to habeas corpus, there is no question 
about that. And therefore, I think after 9 years it is time to 
look at this and to acknowledge that it is not doing the job 
that we wanted it to do, that no State has qualified under 
Chapter 154, none.
    Well, obviously something is wrong here. We tried to set up 
a situation where you could get expedited proceedings and it 
has not worked. So we do need to address this. We do need to 
deal with it. And I appreciate the testimony that all of you 
have provided. It is not all in agreement, but it is all in 
good faith, and it has all been edifying to all of us I am 
quite sure. Though the rest of you did not necessarily 
volunteer at the great rate that Mr. Waxman did, I suspect that 
all of you are available for continued consultation by the 
members of the Committee, and I for one am going to take you up 
on that because I appreciate your interest and your expertise 
in the area.
    I just wanted to make that statement. I know we do not have 
another round here, but we will get some questions to you on 
the record, and I would appreciate the chance to continue to 
consult with all of you.
    Thank you again, Mr. Chairman, for holding the hearing.
    Chairman Specter. Thank you very much, Senator Kyl, for 
your initiatives on this very important subject, your 
leadership. It is obviously a matter of the utmost gravity, and 
we want to pursue it. We have some homework. A number of people 
have undertaken to do some follow-up work. Mr. Waxman has, to 
give us his expertise on trying to find an answer to the issue 
of delay, and at the same time being very sensitive to the 
issue of innocence. But we will be wrestling with this issue on 
the Committee, and we will be following up. I think it has been 
a very useful session with a lot of experience and a lot of 
knowledge here at the witness table today.
    Thank you all very much.
    [Whereupon, at 11:27 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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