[Senate Hearing 110-626]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-626
 
            THE ADEQUACY OF REPRESENTATION IN CAPITAL CASES

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 8, 2008

                               __________

                          Serial No. J-110-84

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
EDWARD M. KENNEDY, Massachusetts     SAM BROWNBACK, Kansas
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
                    Robert F. Schiff, Chief Counsel
               Lauren B. Petron, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
    prepared statement...........................................    56
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    78
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    80

                               WITNESSES

Greco, Michael S., former President of the American Bar 
  Association, and Partner, Kirkpatrick & Lockhart Preston Gates 
  Ellis LLP, Boston, Massachusetts...............................     3
Stevenson, Bryan, Executive Director, Equal Justice Initiative, 
  Clinical Professor of Law, New York University School of Law, 
  Montgomery, Alabama............................................     6
Temin, Carolyn Engel, Senior Judge, Court of Common Pleas of the 
  First Judicial District of Pennsylvania, Philadelphia, 
  Pennsylvania...................................................     8
Verrilli, Donald B., Jr., Partner, Jenner & Block LLP, 
  Washington, D.C................................................    10

                         QUESTIONS AND ANSWERS

Responses of Michael Greco to questions submitted by Senator 
  Kennedy........................................................    22
Responses of Bryan Stevenson to questions submitted by Senator 
  Kennedy........................................................    24

                       SUBMISSIONS FOR THE RECORD

Constitution Project, Washington, D.C., report (excerpts)........    35
Current and retired judges who served on the Supreme Court, 
  Courts of Appeal, and/or Superior Court in California, joint 
  letter.........................................................    54
Greco, Michael S., former President of the American Bar 
  Association, and Partner, Kirkpatrick & Lockhart Preston Gates 
  Ellis LLP, Boston, Massachusetts, statement and attachments....    58
Sessions, William S., former Director, Federal Bureau of 
  Investigation, Washington, D.C., statement.....................    82
Spangenberg, Robert L., President, Spangenberg Group, West 
  Newton, Massachusetts, statement...............................    85
State Bar of Texas, Task Force on Habeas Counsel Training & 
  Qualifications, report.........................................   106
Stevenson, Bryan, Executive Director, Equal Justice Initiative, 
  Clinical Professor of Law, New York University School of Law, 
  Montgomery, Alabama, statement.................................   117
Temin, Carolyn Engel, Senior Judge, Court of Common Pleas of the 
  First Judicial District of Pennsylvania, Philadelphia, 
  Pennsylvania, statement........................................   135
Verrilli, Donald B., Jr., Partner, Jenner & Block LLP, 
  Washington, D.C., statement....................................   140


            THE ADEQUACY OF REPRESENTATION IN CAPITAL CASES

                              ----------                              


                         TUESDAY, APRIL 8, 2008

                                       U.S. Senate,
                          Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 10:20 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senator Feingold.

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

    Chairman Feingold. I call the Committee to order. Good 
morning and welcome to this hearing of the Constitution 
Subcommittee entitled ``The Adequacy of Representation in 
Capital Cases.'' We are honored to have with us this morning 
some very distinguished witnesses. I appreciate the effort they 
have made to be here today, and I also want to thank the 
Ranking Member, Senator Brownback, for working with me to put 
this hearing together. And I am sorry that he is understandably 
unable to attend. I very much appreciate his commitment to 
exploring these critically important issues related to capital 
punishment.
    I will start by making a few remarks, and then we will turn 
to our panel of witnesses for their testimony.
    As a result of the litigation before the Supreme Court 
challenging the constitutionality of lethal injection as a 
method of execution, there is currently a de facto moratorium 
on executions in this country. This presents us with an 
opportunity while executions are paused to take stock of one of 
the most serious problems still facing many State capital 
punishment systems, and that is the quality of representation 
for capital defendants. And that is the purpose of this 
hearing.
    Specifically, today we will examine the adequacy of 
representation for individuals who have been charged with and 
convicted of capital crimes at the State level. We will discuss 
the unique challenges of capital litigation, and the unique 
resources and training capital defenders need to be fully 
effective.
    The Supreme Court held in 1932, in Powell v. Alabama, that 
defendants have the right to counsel in capital cases. The 
Court explained that an execution resulting from a process 
pitting ``the whole power of the state'' against a prisoner 
charged with a capital offense who has no lawyer, and who may 
in the worst circumstances even be illiterate, ``would be 
little short of judicial murder.''
    Those are strong but appropriate words. Over the following 
decades, the Supreme Court continued to recognize the 
importance of the right to counsel, ultimately concluding in 
1984 in Strickland v. Washington that the Sixth Amendment 
guarantees not just the appointment of counsel, but the 
effective--the effective--assistance of counsel.
    Yet as the witnesses today know from the variety of 
perspectives they bring to this issue, these constitutional 
standards are just the beginning. The work done by a criminal 
defense attorney at every stage of a capital case and the 
experts and resources available to that attorney can literally 
mean the difference between life and death.
    This is not a hypothetical. The right to effective 
assistance of counsel is not just a procedural right; it is not 
just lofty words in a Supreme Court decision. Failing to live 
up to that fundamental obligation can lead to innocent people 
being put on death row.
    Just last week, an inmate in North Carolina, Glen Edward 
Chapman, was released after nearly 14 years on death row, 
bringing the number of death row exonerees to 128 people. A 
judge threw out Mr. Chapman's conviction for several reasons, 
including the complete failure of his attorneys to do any 
investigation into one of the murders he was convicted of 
committing--a death that new evidence suggests may not have 
been a murder at all but, rather, the result of a drug 
overdose. Local prosecutors decided not to retry Mr. Chapman 
and dismissed the charges. According to North Carolina 
newspapers, Mr. Chapman's incompetent defense was mounted by 
two lawyers with a history of alcohol abuse. News reports 
indicate that one admitted to drinking more than a pint of 80-
proof rum every evening during other death penalty trials, and 
the other was disciplined by the State bar for his drinking 
problems.
    Yet despite all this, Mr. Chapman on the day of his release 
is quoted as saying, ``I have no bitterness.'' This after 
nearly 14 mistaken years on death row.
    Mr. Chapman's story is astounding, but it is not unique. 
The quality of representation in capital cases in this country 
is uneven, at best. And the story also illustrates a critical 
point: The right to counsel is not abstract. It absolutely 
affects outcomes. Supreme Court Justice Ruth Bader Ginsburg has 
stated it about as plainly as possible: ``People who are well 
represented at trial do not get the death penalty.''
    Obviously, inadequate representation is not unique to 
capital cases. But the challenges presented in a death penalty 
case are unique, and the consequences of inadequate 
representation catastrophic. Capital cases tend to be the most 
complicated homicide trials, and the penalty phase of a capital 
case is like nothing else in the criminal justice system. To do 
these cases right, at the trial, penalty, appellate, and State 
post-conviction stages, requires vast resources and proper 
training--not only for the defense attorneys who need to put in 
hundreds of hours of work, but also for the investigators, the 
forensic professionals, mitigation specialists, and other 
experts.
    Yet those resources are not available in all too many 
cases. We will hear more about that from our witnesses today. 
These realities have led people of all political stripes--both 
supporters and opponents of the death penalty--to raise grave 
concerns about the state of capital punishment today. Judge 
William Sessions, the former FBI Director appointed by 
President Reagan, was unable to join us in person today, but he 
submitted written testimony, which without objection I will 
place in the record. In it he notes that while he supports 
capital punishment, ``[w]hen a criminal defendant is forced to 
pay with his life for his lawyer's errors, the effectiveness of 
the criminal justice system as a whole is undermined.''
    Unlike Judge Sessions, I oppose the death penalty. But as 
long as we have a death penalty, we owe it to those who are 
charged with capital crimes, we owe it to our criminal justice 
system, and we owe it to the principles of equal justice on 
which this Nation was founded, to make sure that they have good 
lawyers who have the resources they need to mount an effective 
defense.
    This is not just the right thing to do. It is not just a 
high aspiration we should try to achieve at some point in the 
distant future. It is a moral imperative. And it is one that 
this country has failed to live up to for far too long.
    We will now turn to the testimony from our witnesses. Will 
the witnesses please stand and raise your right hand to be 
sworn? Do you swear or affirm that the testimony you are about 
to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Greco. I do.
    Mr. Stevenson. I do.
    Judge Temin. I do.
    Mr. Verrilli. I do.
    Chairman Feingold. Thank you very much, and you may be 
seated. I want to welcome you and thank you for being here with 
us this morning. I ask that each of you limit your remarks to 5 
minutes, as we have a lot to discuss. Your full written 
statements will, of course, be included in the record.
    Our first witness is Michael Greco. Mr. Greco is a former 
President of the American Bar Association, has served on the 
ABA Board of Governors, and has been a delegate in the ABA 
House of Delegates for more than 20 years. He is a partner at 
the law firm of Kirkpatrick & Lockhart Preston Gates Ellis in 
Boston.
    Mr. Greco, thank you for your record and what you have 
done, and thank you for joining us. You may begin.

STATEMENT OF MICHAEL S. GRECO, FORMER PRESIDENT OF THE AMERICAN 
 BAR ASSOCIATION, AND PARTNER, KIRKPATRICK & LOCKHART PRESTON 
             GATES ELLIS LLP, BOSTON, MASSACHUSETTS

    Mr. Greco. Thank you, Mr. Chairman, and thank you very much 
for giving the American Bar Association the opportunity to 
present testimony this morning on the subject of today's 
hearing, the adequacy of defense representation in capital 
cases and its impact on the administration of the death 
penalty.
    This subject relates directly to Americans' most cherished 
constitutional principles: protecting the rights and freedoms 
of all citizens, and ensuring that justice is done for all. My 
written statement to the Subcommittee details the many serious 
problems that the ABA's 4-year survey, just completed, has 
found with the administration of the death penalty in the 
United States. In the several minutes I have to speak, I will 
focus my remarks on two points: one, the deplorable quality of 
defense representation in death penalty cases in our country; 
and, two, the ABA's recommendations as to what measures 
Congress and death penalty jurisdictions should take to correct 
the situation that now exists.
    I note at the outset that the American Bar Association has 
not taken a position on the constitutionality or 
appropriateness of the death penalty.
    So the first issue, What has the ABA survey determined 
about the quality of death penalty representation in the United 
States? The ABA's findings, taken as a whole, establish that 
ineffective death penalty representation is pervasive 
throughout the States, and that the administration of the death 
penalty in America is shameful.
    State governments for decades have failed to take necessary 
steps to address longstanding and systemic problems in 
administering the death penalty. As a consequence, too many 
defendants, especially those of low income, do not receive fair 
trials, and mistakes leading to injustice occur far too often.
    Conducted by the ABA's Death Penalty Moratorium Project, 
the ABA survey examined the death penalty systems in eight 
States. State-based assessment teams, composed of experienced 
and respected individuals, conducted the surveys in each State. 
The research teams collected comprehensive data in 12 important 
areas, starting with the most important area--competency of 
defense representation.
    While the scope and detail of the problems may differ among 
the States, most of the identified problems are disturbingly 
universal throughout all the States. Ineffective defense 
representation was found to exist in every State surveyed. 
Effective representation in a death penalty case requires 
lawyers with specialized training and experience in death 
penalty cases, fair compensation to the lawyers who undertake 
these cases, and funding for defense lawyers to engage 
necessary investigators and experts. These key elements are now 
generally being ignored in death penalty jurisdictions.
    A comprehensive study conducted in the year 2000 
established that between 1973 and 1995, State and Federal 
courts reviewing capital cases determined that retrials or 
resentencing were necessary in 68 percent of the cases 
reviewed. Competent defense counsel with adequate resources 
would have averted the constitutional errors that led to a 
miscarriage of justice, that led to cruel and unusual 
punishment for defendants, that led to lack of closure for 
victims' families, and to terribly wasteful use of taxpayer 
money. The ABA assessment criteria included five separate 
recommendations regarding competency of defense counsel.
    Not one--not one--of the States surveyed fully complies 
with any of those criteria. Most egregiously, two of the States 
surveyed failed to provide for the appointment of counsel at 
all in post-conviction proceedings, leaving death row 
defendants desperate for legal assistance. The various causes 
that have contributed during the past three decades to the 
current crisis are detailed in my written statement and are 
well known to many of us in this room. It suffices to say that 
these causes have greatly increased the risk that an innocent 
person may be executed, and that, in your words, Mr. Chairman, 
in your introduction, judicial murder may be committed.
    But rather than focusing on the reasons that our justice 
system continues to fail indigent defendants, let me address 
instead what we must do to remedy the situation. What should 
Congress and the death penalty jurisdictions do? What measures 
to take to address and correct the deplorable situation?
    First, Congress should carefully reexamine its policies and 
correct or repeal those that may have contributed to the 
current situation. For example, data should be collected on the 
effect that the Antiterrorism and Effective Death Penalty 
Reform Act of 1996 has had on the administration of the death 
penalty in our country. Next, Congress should consider new 
legislation to address the systemic problems that are detailed 
in the ABA survey, and implementation of any newly enacted 
legislation that affects death penalty procedures must be 
carefully monitored and evaluated. Congress needs to place 
greater emphasis on adequate funding to help death penalty 
jurisdictions eliminate the injustices detailed in the ABA 
survey.
    This may be a little controversial, but I will say it in 
any event: The ABA believes that Congress should consider 
providing financial incentives to States or withholding funding 
from States that fail adequately to fund a competent death 
penalty system, as Congress has done in other areas.
    Finally, the ABA guidelines discussed in my written 
statement provide death penalty jurisdictions with a clear 
blueprint for reform. Congress should express its approval of 
implementation of the ABA guidelines in every way possible. 
Significant resources--financial and human--must be committed 
by Congress and by death penalty jurisdictions to ensure that 
our justice system is fair and that innocent lives are not 
taken.
    I close by quoting one of my predecessors and good friend, 
former ABA President John J. Curtin, Jr., of Boston, who nearly 
two decades ago said this: ``A system that will take life must 
first give justice.''
    Thank you, Mr. Chairman, on behalf of the American Bar 
Association for this opportunity to address this important 
subject.
    [The prepared statement of Mr. Greco appears as a 
submission for the record.]
    Chairman Feingold. Thank you so much, Mr. Greco.
    Our next witness is Bryan Stevenson. Mr. Stevenson is the 
founder and Executive Director of the Equal Justice Initiative 
in Montgomery, Alabama, and a clinical professor of law at NYU 
Law School. Since 1985, Mr. Stevenson has represented indigent 
defendants and death row prisoners and has secured relief for 
dozens of condemned prisoners. He is a recipient of the 
prestigious MacArthur Foundation's Genius Award and many other 
national awards for his work.
    Mr. Stevenson, thank you for joining us and please proceed.

STATEMENT OF BRYAN STEVENSON, EXECUTIVE DIRECTOR, EQUAL JUSTICE 
  INITIATIVE, CLINICAL PROFESSOR OF LAW, NEW YORK UNIVERSITY 
               SCHOOL OF LAW, MONTGOMERY, ALABAMA

    Mr. Stevenson. Thank you, Mr. Chairman. I want to first 
extend my appreciation to you for convening this hearing and 
for your leadership in promoting fairness in the administration 
of criminal justice.
    It is unfortunate, but I do not think controversial, for me 
to assert that our criminal justice system is incredibly 
wealth-sensitive. We have a criminal justice system in this 
country that in most jurisdictions treats you much better if 
you are rich and guilty than if you are poor and innocent. And 
while that is deplorable and horrific, in death penalty cases, 
it is unacceptable. This legacy of inadequate legal 
representation has now created an environment where the death 
penalty in most jurisdictions is fundamentally flawed by 
unreliability that is largely created by an inadequate indigent 
defense.
    The U.S. Supreme Court has created standards, but these 
standards have not been met or satisfied in most death penalty 
jurisdictions. I would like to talk about this in three areas: 
first at the trial stage, then on direct appeal, and then in 
post-conviction.
    You noted in your opening statement that we have now had 
nearly 130 people released from death row after being proved 
innocent. During that same 30-year time period, there have been 
1,100 executions. This means that we are dealing with a rate of 
error in death penalty administration in this country that 
suggests that for every eight people executed, we have now 
identified one innocent person. The ratio of innocent people is 
actually much higher because we have not achieved finality in 
the other 3,500 cases, but it is a shocking rate of error.
    It is my view that in most of those cases, wrongful 
convictions were largely the result of bad lawyering. While we 
have introduced DNA and other techniques to help us expose 
wrongful convictions, bad lawyering is the common denominator.
    At the trial level, we have seen gross underfunding of 
capital defense work. In my State of Alabama, 60 percent of the 
people on death row were defended by lawyers appointed by 
courts who, by statute, could not be paid more than $1,000 for 
their out-of-court time to prepare the case for trial.
    In Texas, hundreds of death row prisoners are awaiting 
execution after being represented by lawyers who could not 
receive more than $500 for experts or mitigation services.
    In Oklahoma, in Mississippi, in Florida, in Virginia, in 
Georgia, and, in fact, in most of the States where the death 
penalty is most frequently imposed, there are hundreds of death 
row prisoners whose lawyers had their compensation capped at 
rates that made effective assistance impossible. And yet we 
have done nothing to confront that history. These are the cases 
that are now moving toward execution, and in the next 3 years, 
these condemned prisoners face death on those unreliable 
verdicts.
    The problems at trial are animated by horrific incidents: 
sleeping lawyers, drunk lawyers, abusive lawyers. I was in 
Oklahoma last month testifying in a case where a death row 
prisoner had been represented by a lawyer who was abusing drugs 
and alcohol; was actually admitted to a rehab center 3 weeks 
after the trial; who actually threatened his client 2 months 
after meeting him; asking the bailiffs to take off his 
handcuffs so this man could whup him, and notwithstanding all 
of this conflict, was allowed to represent this man. Not 
surprisingly, he was sentenced to death. Previously, the 
defendant was represented by an attorney who waived closing 
argument and presented no evidence at the penalty phase. This 
kind of advocacy is, unfortunately, not the exception. In too 
many jurisdictions, it is the norm.
    The problem of trial advocacy is aggravated by problems on 
appeal. I have attached to my statement today a brief that was 
recently filed on behalf of a death row prisoner in Alabama. It 
is the main brief, the only brief to present and preserve 
issues in this death row prisoner's case. It is 11 pages long. 
It presents not a single coherent constitutional issue. This 
week, my office will file papers at the Alabama Supreme Court 
begging that court for the right to let a death row prisoner 
whose lawyer has failed to file a brief back into court. This 
is the third instance this year where a death row prisoner has 
had his appeals forfeited because a lawyer simply never filed a 
brief. These problems on direct appeal do not get resolved in 
post-conviction because our court has yet to recognize a right 
to counsel for even death row prisoners in collateral review.
    There are 3,500 people on death row in this country. There 
are hundreds that are literally dying for legal representation. 
They cannot find lawyers. We do not provide them a 
constitutional right to counsel, and so we rely on pro bono 
lawyers, volunteer legal aid. In many jurisdictions, these 
lawyers cannot be found. We have two people in Alabama whose 
appeals will expire in the next 6 weeks if they do not find 
lawyers. We have not found them yet.
    These problems of collateral review are also compromised by 
limits on compensation to appointed counsel. In my State, an 
appointed lawyer who represents someone on death row in 
collateral appeals by statute can only be paid $1,000. These 
problems are aggravated in many ways by post conviction law, by 
recent pronouncements from this Congress, and by the courts.
    I just want to conclude by echoing one of the 
recommendations that was made by Mr. Greco. The Antiterrorism 
and Effective Death Penalty Act has absolutely aggravated the 
problem of bad lawyering. By insulating review of bad lawyering 
from Federal courts, we are tolerating greater and greater 
incompetence in these cases. We have now precluded remedies for 
constitutional violations because if the lawyer does not 
object, those issues do not get reviewed.
    I just want to conclude by saying that none of our work to 
make the death penalty fair on race issues, on access issues, 
on resource issues can be achieved until we deal with bad 
lawyering. Just one quick example: I will be arguing a case at 
the Eleventh Circuit in a couple of months dealing with race 
bias. It is a case out of Selma, in Alabama. In that case, the 
prosecutor excluded all African-Americans from serving on the 
jury; he excluded 16 black people. It is a majority black 
county where an African-American was tried by an all-white 
jury. The prosecutor, in justifying these reasons, actually 
said that six of the African-Americans ``looked like they were 
of low intelligence.'' Since the defense lawyer did not object, 
every court that has reviewed that evidence of bias and 
discrimination has upheld it.
    The problem at the Eleventh Circuit will be getting the 
judges to confront this kind of race bias, what it means to 
that whole community to have someone executed with that kind of 
discrimination and bigotry, and what it means for this man that 
the lawyer failed to do his job. Because the lawyer failed to 
do his job, the court is not obligated to talk about the merits 
of the claim.
    This problem of bad lawyering is central to fair and just 
administration of the law. Until we solve it, we are going to 
be fundamentally thwarted in our efforts to create reliable 
justice in these cases, and I really commend this Congress and 
the leadership of this Committee in helping us achieve that 
result.
    Thank you.
    [The prepared statement of Mr. Stevenson appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Stevenson, for your 
interesting testimony.
    Our next witness is Judge Carolyn Engel Temin, a senior 
judge of the Court of Common Pleas of the First Judicial 
District of Pennsylvania in Philadelphia. She has presided over 
hundreds of capital cases. Before joining the bench in 1984, 
Judge Temin was an Assistant District Attorney in Philadelphia 
County, and she has also worked at the Defender Association of 
Philadelphia. She is the principal author of the Pennsylvania 
Bench Book for Criminal Proceedings and has been honored with 
numerous awards over the course of her distinguished career.
    Judge Temin, thank you for joining us today, and you may 
begin.

STATEMENT OF CAROLYN ENGEL TEMIN, SENIOR JUDGE, COURT OF COMMON 
     PLEAS OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, 
                   PHILADELPHIA, PENNSYLVANIA

    Judge Temin. Thank you very much, Senator Feingold, for 
having a hearing that would bring these issues to the 
forefront.
    As a sitting judge, I can tell you that nothing is worse 
than presiding over a penalty phase of a death case in which 
you are watching a lawyer do a bad job.
    Since the recent trilogy of appellate cases coming down 
from the Supreme Court, it has become much easier in my 
jurisdiction to repair some of these problems on appeal on 
collateral attack. In Pennsylvania, you can only raise 
ineffective counsel on collateral attack, so, number one, you 
have to wait until it is time for the collateral attack after 
you have exhausted your direct appeal possibilities.
    I also want to emphasize that collateral attack, although 
it is better than nothing, is not a very good panacea for the 
problems of ineffective assistance of counsel. These hearings, 
these post-conviction hearings, are extremely expensive and 
extremely laborious. They involve hiring all the people that 
should have been hired initially by trial counsel, by 
presenting that evidence to the post-conviction judge. And then 
if the defendant is granted a new penalty phase hearing and if 
that is eventually affirmed by the Supreme Court of 
Pennsylvania, then doing it all over again at a new penalty 
phase hearing--and I can tell you after having presided over a 
number of them that nothing is worse than what I call a 
``stand-alone penalty phase hearing,'' where you basically pick 
a jury, bring 12 people in off the street, and tell them, ``We 
don't have to worry about the guilt phase. The defendant has 
already been found guilty of murder in the first degree. You 
folks just have to decide life or death.'' These hearings 
present numerous problems, both for the prosecution and the 
defense. How the facts of the case are presented to the jury 
hearing only the penalty phase is a big problem. And these 
cases are often brought 20 and 30 years after the original 
trial where records are lost, witnesses die, and there may be 
irreparable prejudice to the defense. In fact, that issue is 
presently before me where the Defender Association in a case 
has raised the issue of whether the State, having been 
responsible for appointing a lawyer who has been found to be 
ineffective by the Supreme Court of Pennsylvania, is estopped 
from holding another penalty phase hearing because of prejudice 
caused to the defendant.
    So, in my view, being able to get a new penalty phase on 
collateral attack is not the answer. The answer is to provide 
effective counsel in the first place. And I sit in a 
jurisdiction, Philadelphia--by the way, it is not just a State 
issue. Many States have statewide Defender Associations. In 
Pennsylvania, each county is different. So it can be a county-
by-county problem as opposed to a State-by-State problem. We 
try to provide effective counsel. We have an excellent Defender 
Association, but they will only accept 20 percent of all murder 
cases. That is their policy.
    For the rest of the cases, we rely on court-appointed 
counsel and then privately retained counsel. Court-appointed 
counsel must go through a certification program, which, of 
course, they sometimes only sit through. We also require the 
appointment of two counsel in every capital case, one of whom 
is the mitigation counsel, who has to be also trained in a 
separate course. But I will tell you that my experience is that 
private appointed counsel fall generally far below the 
standards of the Defender Association counsel.
    I would just in my remaining time like to talk about what I 
think are things that can be done to ensure that every 
defendant in a capital case has effective assistance of 
counsel.
    One is a suggestion that may sound revolutionary, it is 
done in other countries, and that is to say that every 
defendant in a capital case should be entitled to court-
appointed counsel. This is done in other countries that do not 
have capital punishment. Bosnia and Herzegovina for one, which 
is an emerging democracy, allows defendants to have their own 
choice of court-appointed counsel in any case punishable by 
more than 10 years.
    Then I think we have to adopt the standards, the ABA 
standards, as the law, as the minimum standards for appointed 
counsel.
    And, third, we have to fund either specialized capital 
defender offices or existing defender offices to provide 
effective representation. Defender offices are able to develop 
their own what I call ``stable of experts,'' so they are able 
to provide very good and effective experts in every case. And 
we would not have to rely on private counsel. The worst counsel 
are the privately retained counsel over whom the court has 
absolutely no control at all. With court-appointed counsel, we 
have some control over the preparation of the case, and also if 
counsel are doing a bad job before the trial, we can replace 
them.
    So these are the things that I suggest, and I would suggest 
that the Congress can do some of the these that have been 
suggested by other panelists to encourage States to adopt the 
ABA standards and provide effective appointed counsel. And I 
want to underscore what Justice Ginsburg said, which Senator 
Feingold quite rightly referred to. The quality of counsel can 
often make the difference between life and death. We know that. 
And it isn't just following a laundry list of things that a 
lawyer must do. There are many subtle things that go into 
making an effective counsel: ability to connect with the jury, 
ability to strategize--just very subtle things that I as a 
trial judge see every day. And I think that these things are 
best provided by Defender Associations who have the ability to 
train their staff and have the ability to find adequate experts 
to represent their clients.
    Thank you.
    [The prepared statement of Judge Temin appears as a 
submission for the record.]
    Chairman Feingold. Thank you so much, Judge Temin.
    Our final witness is Donald Verrilli. Mr. Verrilli is a 
partner at the Washington, D.C., office of Jenner & Block. He 
has argued numerous cases before the U.S. Supreme Court, 
including Wiggins v. Smith, in which he successfully defended 
the right to effective counsel at the penalty phase of a 
capital proceeding. He is also an adjunct professor of 
constitutional law at the Georgetown University Law Center.
    Mr. Verrilli, thank you for being here today, and you may 
begin.

 STATEMENT OF DONALD B. VERRILLI, JR., PARTNER, JENNER & BLOCK 
                     LLP, WASHINGTON, D.C.

    Mr. Verrilli. Thank you, Mr. Chairman. I personally am very 
grateful that you have focused attention on this critically 
important issue that ought to matter to all of us in this 
profession a very great deal.
    I have got a somewhat different perspective on this set of 
issues. I am a civil litigator, not a criminal lawyer. But I 
have for more than 20 years devoted a portion of my time pro 
bono to the representation of condemned prisoners on death row. 
I became involved in that because, as a law clerk more than 20 
years ago, reviewing emergency stay applications with pending 
executions, it became painfully obvious to me that the quality 
of lawyering for those on death row and facing execution was 
abysmally bad, and I have tried over the course of my career to 
do something about that in a small way.
    The Wiggins case, which managed after a 10-year odyssey to 
make its way to the Supreme Court, was a product of that, and 
it was a case for me that was quite illustrative and opened my 
eyes to what I think the real significant problems are. A key 
part of that problem, I think, begins with the unique nature of 
capital trial.
    Of course, the defendant's life is on the line, and a 
critically important part of the defense counsel's job is to do 
everything possible to try to disprove the defendant's guilt. 
Then, of course, there is an entirely separate phase in a 
capital trial, the penalty phase in which the--if the defendant 
is found guilty, the question becomes life or death, and the 
defense lawyer's job is to put together that case for life. And 
what we learned through the Wiggins case is that that is an 
extraordinarily laborious job. It requires hundreds, if not 
thousands, of hours of attorney time. It requires often tens of 
thousands of dollars' worth of expert assistance to build a 
meaningful case for life.
    Indeed, when we took over the Wiggins case in the State 
post-conviction review, after the direct appeals were 
concluded, the first thing we learned as we dug in was that the 
trial lawyers simply had not done that. They had not put 
together anything with respect to trying to prove a case for 
life at the sentencing phase of the trial. So that is what we 
dug in and did, spent the kind of hours and resources I just 
described. And what we learned was that, in fact, this 
defendant, Mr. Wiggins, had had a horrific, horrific childhood 
and background, subject to awful abuse from his natural mother, 
who was an alcoholic, taken away at age 6, put into foster care 
where he was sexually molested by the foster father for a 
period of 6 years, removed from that home, put in another home 
where he was gang raped by the natural kids, naturally left 
that circumstance, ran away, became homeless.
    That was the kind of background that we discovered through 
our efforts that had not been discovered before, had not been 
presented to the jury, and when we did present that evidence in 
the context of showing what counsel should have done in the 
initial trial, we were fortunate enough eventually to prevail 
in front of the Supreme Court. And so maybe you could think of 
that as a success story, I supposed, in that eventually justice 
was done in that case. The death sentence was vacated, and then 
Mr. Wiggins did not receive a death sentence on retrial. But 
really that is a failure, that story. That is a failure of the 
system. All of those thousands of hours of effort, all of those 
many years of time, all of the lack of closure for the victim's 
family, all the resources the State had to put in were totally 
unnecessary. They were all the product of bad lawyering at the 
outset.
    And so I think that the notion that having this kind of 
focus on the post-conviction review with private pro bono firms 
coming in to do this work to save the day is really a mistaken 
notion. What we need is to be in a situation where you do not 
have to confront this kind of problem. And it seems to me it is 
pretty clear what the answer is, and it is twofold: One is 
training, and I feel quite certain that had Wiggins' trial 
lawyers received appropriate training--which they did not--they 
would have understood about the nature of the case they needed 
to build. And the other is, of course, resources. If you can 
contrast the thousands of hours of attorney time and the tens 
of thousands of dollars of disbursements for experts that we 
put in, the amount of time and the amount of money that is 
normally afforded--and Mr. Stevenson described very well, I 
think, the kinds of limits that prevail around this country, 
and you can see the vast gap between the two. The answer seems 
pretty glaringly obvious that this is about resources, that if 
you want to get effective lawyering, it has to be paid for. And 
that seems to me ought to be front and center in the debate.
    Thank you.
    [The prepared statement of Mr. Verrilli appears as a 
submission for the record.]
    Chairman Feingold. Thank you, sir, and I thank the entire 
panel.
    Just before we move into questions, Senator Leahy, the 
Chairman of the Judiciary Committee, who, of course, has long 
been dedicated to this issue, has asked that his statement be 
placed in the record, and without objection, it will be placed 
in the record.
    Mr. Greco, capital punishment can be a highly divisive 
issue, yet my understanding is that the teams that conducted 
the State-by-State evaluations for the ABA State Assessment 
Project, which found so many problems with the capital defense 
systems in all eight of the States that were studied, consisted 
of local experts from a variety of perspectives. Can you tell 
us a little bit more about the diversity of viewpoints that 
made up these State teams?
    Mr. Greco. Yes, Mr. Chairman. First, we deemed it important 
that the experts doing the State surveys be from the State in 
which the survey was being done. To that end, we had on the 
assessment teams prosecutors, defense counsel, legislators, 
current or retired, judges, current or retired, bar leaders, 
and other people, and access to others in the community so that 
the effort was made to make the assessment team as broadly 
representative of all aspects of the criminal justice system as 
possible. And we think we had such diversity on the assessment 
teams.
    Chairman Feingold. And I take it--and I hope I am right 
about this--that these teams were comprised of people who both 
supported and opposed the death penalty, and they all agreed 
that there were major flaws in each of these State systems. Is 
that correct?
    Mr. Greco. That is correct, Mr. Chairman. There was no 
litmus test for someone being appointed to be for or against 
the death penalty or for or against the moratorium. We wanted 
open-minded people who would look at the fairness of the 
State's capital system.
    Chairman Feingold. Judge Temin, you have explained that in 
Philadelphia there is a mixed system of representation for 
indigent defendants in capital cases, with some being 
represented by the Defender Association, but many more securing 
representation through court-appointed counsel. Is it true that 
not many lawyers are willing to take court appointments in 
capital cases? And why do you think that is?
    Judge Temin. Yes, it is true. We have a very small group of 
lawyers that take appointments, and it makes it very difficult 
for us to list those cases in a timely manner because of the 
lawyers' schedules rather than the court schedules--sort of the 
opposite of the usual situation.
    The reason is because it is such--well, first of all, they 
are underpaid. They are really providing pro bono 
representation. The lawyers are paid approximately $7,000 
apiece for the team, which is far below what they are actually 
putting in and far below what they charge to their private 
clients.
    And then getting experts is a very laborious process. Our 
court gives out about $1,500 to $2,000 automatically at the 
request for an expert. Experts do not work for that amount of 
money. They require 2 and 3 times that amount. And generally 
what happens is the lawyers have to bargain with the experts to 
get them to not charge their usual fee, and then petition the 
court specially for each expert to ask us to allow additional 
funds, which we generally do at the trial level, and then at 
the administrative level, that is sometimes cut down the 
lawyer's request for additional fees, which they are allowed to 
ask for, but they have to petition and file very specific, 
laborious petitions showing all their time. Usually the 
administrative judges feel it is their job to cut those down a 
little bit, and a lot of lawyers that I know have stopped--a 
lot of very good lawyers refuse to take appointments because it 
is just too much trouble to do. As a result, we have a very 
small number of lawyers who are able to take court appointments 
in capital cases.
    Chairman Feingold. And I take it, apart from the set fees, 
that it is difficult for lawyers to obtain additional 
compensation in these cases?
    Judge Temin. Yes, they have to file a specific, very 
detailed petition stating all their time and so forth.
    Chairman Feingold. OK. Mr. Stevenson, following up on that, 
many States place limits on the fees that attorneys can be paid 
in a capital case, including limits as low as $2,000 in 
Mississippi. But most States that have caps also permit those 
limits to be waived in certain circumstances, often by allowing 
the attorney, as was just suggested by Judge Temin, to petition 
the court for additional compensation.
    In your experience, are these types of waiver provisions 
effective in allowing attorneys to be compensated adequately 
for the work necessary to properly defend in a capital case?
    Mr. Stevenson. No. I mean, the problem is that you have to 
do the work before you know whether you are going to get paid. 
If you are a private lawyer in a system where you have other 
paying clients and you have other economic pressures, it just 
becomes unreasonable to do that kind of hopeful litigation.
    And so, even when local judges frequently support the 
lawyer's appeal, as the Judge mentioned, there are 
administrative bodies that have the authority to cut these 
vouchers or cut these payments that have even been authorized 
by judges. So you have to worry about two levels of 
authorization--the local level and the administrative level. 
Most lawyers in a competitive economic environment simply 
cannot afford to give hundreds of hours of work to the system 
for free or without assurances that they will be paid.
    That is aggravated by a larger problem. These improvements 
in compensation--and that is what we are talking about at this 
universe, where the caps have been waivable and what not--have 
all come in the last 5, 6, 7 years. I just want to emphasize 
that the majority of people on death row in this country were 
represented by lawyers at a period of time when even these 
waivers of caps were not available. And we have done absolutely 
nothing to assist those people whose convictions were 
fundamentally flawed by very, very rigid compensation caps.
    Chairman Feingold. Mr. Verrilli, say a bit more about why 
the sentencing phase of a capital case is so different from 
non-capital criminal cases and why it takes so much 
preparation.
    Mr. Verrilli. Yes, Mr. Chairman. I do think that is a 
critical point. Some decades ago, the Supreme Court insisted 
that we have a heightened degree of reliability in our capital 
sentencing process to minimize the degree of mistake. And one 
important part of that heightened degree of reliability has 
been the requirement that the sentencing jury be afforded the 
opportunity to have a comprehensive sense of the defendant's 
background and character, that the sentencing judgment is not 
just about the crime, it is about the defendant's background 
and character, as well as the circumstances of the crime, in 
order to allow the sentencing jury to make what Justice 
O'Connor described as a ``reasoned moral response'' about what 
the appropriate level of culpability should be. And the only 
way that a sentencing jury is going to be able to give that 
reasoned moral response and have it be one that we as a society 
can rely on as a just response is if the lawyers have done 
their job in preparation for that hearing. And what that means 
is just an extraordinary amount of digging into the defendant's 
background. You have got to learn all kinds of things that are 
very difficult to find. You have got to dig out information 
that may be decades old. You have got to track down witnesses 
that may have dispersed to the four corners of the globe. And 
you have got to get people very often to talk about subjects 
that are extremely difficult that they do not want to talk 
about--sexual abuse, drug abuse, other kinds of issues that are 
plainly relevant to that reasoned moral response and take a 
huge amount of work. Very often you really need experts to help 
do that.
    But that is the link, Mr. Chairman, I think, between the 
nature of the proceeding and what the Constitution requires 
that proceeding to be like and the nature of the lawyer's job 
and the reason why we have got such a pervasive pattern of 
ineffectiveness of inadequate representation.
    Chairman Feingold. Thank you.
    Mr. Greco, the ABA's detailed assessments of eight States' 
capital punishment systems led it to renew its call for a 
nationwide moratorium on executions, and those studies actually 
covered many issues. But how big of a role did the quality of 
indigent defense play in the ABA's decision to advocate for a 
moratorium?
    Mr. Greco. It was perhaps the primary reason for the call 
of the moratorium. And if I can go back in history slightly, in 
1997, Mr. Chairman, the ABA House of Delegates adopted the 
moratorium resolution. How did that come about? Father Robert 
Drinan, who, after leaving Congress after 10 years in Congress, 
became--to our great joy--a leader in the American Bar 
Association. He chaired the ABA Section of Individual Rights 
and Responsibilities. It was Father Drinan who in 1997 convened 
a number of us to ask, Isn't it time that the ABA takes a 
position opposing the death penalty?
    We debated it, we discussed it, and it was felt that it had 
to be done incrementally, that at that moment, an abolition 
resolution was not timely. But could we make the case that 
indigent defendants were not getting adequate legal 
representation because people on death row were being found 
innocent after years and years of incarceration, because there 
was racial discrimination in sentencing--all these problems 
needed to be brought to the attention of the American people by 
recommending a moratorium--let us stop executing people, until 
each State that has the death penalty determines that it is 
administering the death penalty fairly.
    The Sixth Amendment to the U.S. Constitution, Mr. Chairman, 
mentions lawyers, legal representation. It has been pointed out 
to me that no other profession is mentioned in the Bill of 
Rights except lawyers. Why is that? The answer is, I think, 
self-evident: the Founders felt that access to adequate legal 
representation when one's liberty or life is at stake is so 
paramount that they expressly wrote into the Sixth Amendment 
that lawyers shall be available to represent citizens who are 
accused of a crime and whose liberty or life is at stake.
    We have to make good, we have to do better, on that promise 
in the Sixth Amendment, Mr. Chairman.
    Chairman Feingold. Thank you, sir.
    This question is for any of the witnesses who would like to 
address it. As you all know, the 1984 Supreme Court case of 
Strickland v. Washington sets out the constitutional minimum 
requirements for what constitutes effective assistance of 
counsel. How effective is that constitutional minimum in 
providing defendants with the legal assistance and resources 
needed to defend against capital charges?
    Mr. Stevenson. Well, I will begin. It has been quite 
inadequate as a mechanism for ensuring adequate representation, 
and there are three reasons for that. One, first of all, to 
enforce that right, you have to have a lawyer. You have to have 
a lawyer who can do the kind of work that Mr. Verrilli's firm 
did in the Wiggins case. That kind of work is not possible 
unless there is access to a lawyer, and, of course, as I stated 
earlier, there is no right to counsel to have the lawyer make 
the showing that Strickland requires. And so in many of these 
jurisdictions, even in death penalty cases, people cannot even 
get to the point where they show that their lawyer was 
ineffective. That is the first problem.
    The second problem is that enforcement of the Sixth 
Amendment has largely been abandoned, in my judgment, by the 
Federal courts as a result of the 1996 Antiterrorism and 
Effective Death Penalty Act. When this Congress passed the 
AEDPA, it insulated from review constitutional violations like 
the Sixth Amendment right to counsel, as a result of taking 
away from Federal courts the discretion to exercise de novo 
review.
    Now these claims get procedurally defaulted. They get 
barred. They get shielded from Federal scrutiny, and as a 
consequence of that, the AEDPA has fundamentally undermined the 
rights provided in Strickland.
    And, finally, the standard itself really gives, in my 
judgment, too much deference to State systems. There was a time 
when we would presume prejudice if the lawyer was drunk, if the 
lawyer was asleep during trial, if the lawyer was intoxicated. 
You would presume prejudice. It is just not fair to have a 
trial with that kind of advocacy. What Strickland requires is 
actually that you prove that something happened while the 
lawyer was asleep or something happened while the lawyer was 
intoxicated, and that kind of showing makes the expense of 
proving a violation much harder.
    I think if we return to a standard that created presumptive 
prejudice, and that put the burden on States to provide 
adequate representation, that would advance the Sixth Amendment 
in a way that would make our enforcement of the Constitution 
achievable.
    Chairman Feingold. Thank you.
    Any other comments on that one? Judge?
    Judge Temin. Well, I would just say that if you look at--
the first prong of the Strickland standard was more often 
satisfied in appellate review and also in collateral attack. 
But the second prong, the prejudice standard, if you look at 
the decided cases, was almost never met. In order to have 
prejudice--I do not know what you had to show. Almost nobody 
met that standard. Courts just held that, well, yes, the lawyer 
was asleep, but the defendant was not prejudiced by that. And 
those of us who are actually in the courtrooms and see what 
happens know that, of course, it was prejudicial.
    But if you look at the decided cases, they show that 
appellate courts were very loath to reverse cases under the 
Strickland standard. I think the latest trilogy of cases which 
go to more of a checklist kind of thing where they say the 
lawyer must do X, Y, and Z, or they are pro se ineffective, are 
doing much more toward granting appellate relief. But as I said 
in my initial remarks, that is very, very difficult and very 
expensive.
    Chairman Feingold. Judge, your testimony discusses the 
required training for defense attorneys who take court 
appointments in capital cases in Philadelphia, and that is 
surely better than not requiring any such specialized training. 
But is sitting through this training enough to create an 
effective capital defense lawyer?
    Judge Temin. It is not. Even private counsel who take death 
cases have to be certified. They are not permitted to litigate 
capital cases unless they are certified. And just 2 months ago, 
I had a capital case in which during the penalty phase the 
lawyer put the mother of the defendant on to beg the jury not 
to take his life, and that was it. And there was nothing I 
could do about it. I was shocked and horrified. I had not seen 
a hearing like that for 20 years. This echoed back to the past, 
because in the past that is what lawyers did. They did not 
prepare at all for the penalty phase, and between the guilt 
phase and the penalty phase, there was usually a short recess, 
maybe a day, for the Commonwealth to get their case ready, and 
the lawyer would take the mother and relatives that were there 
out in the hallway and say, you know, ``Get on the stand and 
tell the jury that they should not vote for execution.'' And 
that was the total preparation.
    In fact, it might interest you to know that in the 
collateral attacks that are happening on those cases now, the 
same relatives that were on the stand, and they are asked by 
the prosecution, ``Well, at the original hearing, didn't you 
say that he had a wonderful childhood and everything was fine, 
and now you are telling us, you know, he was abused?'' And the 
answer is, ``We were afraid to say that he had a bad childhood. 
We were afraid that the jury would hold that against him, and 
so we said everything was good.''
    But even today, we are getting very ineffective counsel who 
have sat through these training courses.
    Chairman Feingold. Mr. Greco, would you care to comment on 
what the ABA State Assessment Reports found with regard to 
attorney training and qualification requirements?
    Mr. Greco. Yes, Mr. Chairman. Thank you. Well, we found it 
deficient, in a word. The ABA guidelines are quite clear about 
what is needed to train lawyers who do death penalty 
representation. And my colleagues on the panel today in their 
own way have pointed to the importance of adequately trained 
lawyers to do the defense.
    Let me give you a comparison. I would ask any judge, State 
or Federal, who appoints counsel to defend a death penalty case 
to think of it as appointing someone who is going to do brain 
surgery on a dying person. It is that technical, that important 
that that individual knows the laws, the contours that go into 
defending a death penalty case. I would ask those judges who 
make the appointments, ``If it were regarding your family 
member with brain disease, would you want a brain surgeon or 
the local butcher to come in and do the work needed?'' The 
answer is self-evident.
    And so training is important. Some States have said to the 
ABA, well, we have rules, look, we have got regulations 
regarding qualifications. That is a step, but enforcement of 
those rules, where they exist, needs followup to make sure that 
the end product of that training is what it should be.
    So it is a very serious problem, but it really goes back to 
the subject of this hearing, Mr. Chairman--adequate defense 
representation, a component of which is training and making 
sure that the people who are appointed to defend these cases, 
whether pro bono lawyers or private lawyers, have the requisite 
training.
    Chairman Feingold. Thank you, sir.
    Mr. Verrilli, according to a report released last year by 
the State Bar of Texas, compensation for State post-conviction 
proceedings in Texas is generally limited to $25,000, and that 
has to cover paying support staff and hiring experts and 
investigators.
    Now, that may sound like a lot, particularly compared to a 
State like Alabama, where if post-conviction counsel is 
appointed, he or she is only paid $1,000 total. But according 
to the ABA guidelines, post-conviction representation includes 
a reinvestigation of the entire case, including reading 
potentially thousands of pages of transcripts.
    Sir, you have handled State post-conviction proceedings. 
For an attorney that does not have the resources of a national 
firm's pro bono practice, is $25,000 adequate to properly 
prepare for and litigate a post-conviction challenge to a death 
sentence? And what kind of odd incentives does capping the fees 
for post-conviction representation create for the attorneys?
    Mr. Verrilli. Yes, Mr. Chairman, I think there is no chance 
that that level of funding is going to be enough to get the job 
done effectively, and there are, it seems to me, three 
important points to make there.
    One is--and I think, Mr. Chairman, you adverted to this--
that the $25,000 includes the fees for experts. You could spend 
easily half that amount, or more, just for the experts.
    The second point is that this is extremely labor-intensive 
activity, and it is unrealistic to think that you are going to 
be able to get anything like the amount of work done that you 
would need to get done to be effective within that cap.
    And then, third, of course, because it is a cap, you have 
got an incentive to work hard until you reach the cap, and then 
what incentive do you have to work at all after that? It seems 
to me like--obviously, $25,000 is better than nothing, but it 
is nowhere near what is adequate to get the job done, 
particularly in the kinds of cases that I have had experience 
with.
    Chairman Feingold. Mr. Stevenson, would you like to comment 
on that given your work in Alabama and elsewhere?
    Mr. Stevenson. Well, yes, Senator. I do think that the 
inability of people on death row to get adequate representation 
in these collateral reviews is a central problem. As Mr. 
Verrilli indicated, there are very few jurisdictions where 
there is adequate compensation for that. Our capacity to 
involve private firms is increasingly exhausted, and so we now 
have a generation of death row prisoners who cannot access that 
kind of pro bono assistance.
    We actually went to the U.S. Supreme Court last summer in a 
case that had support from former members of our Alabama 
Supreme Court asking the Court to revisit this question of 
whether death row prisoners should have a right to counsel. The 
last time the Court addressed this was in the 1980s, and at 
that time, the Court said that no one could show that a death 
row prisoner had been denied counsel for these kinds of 
collateral reviews.
    Since then, of course, we have had people executed simply 
because they could not find a lawyer. That has happened in my 
State. That has happened in Texas. That has happened in other 
States.
    With the introduction of the Antiterrorism and Effective 
Death Penalty Act, which, for the first time, put a time limit 
on how much time is available for a death row prisoner to find 
a lawyer, now you are on the clock once your conviction and 
death sentence is affirmed. You only have 12 months to find 
that lawyer.
    The problem of finding adequate representation has been 
greatly aggravated by caps on compensation, by the AEDPA, and 
by a culture that is now tolerating executions in this 
environment. And so, yes, I think it is a huge problem. We have 
3,500 people on death row in this country, many of whom are 
going to be at risk of execution in the next couple years, who 
have not had reliable assessments or evaluations of their 
convictions and sentences.
    Mr. Verrilli. Mr. Chairman, if I could just followup on 
that quickly.
    Chairman Feingold. Yes.
    Mr. Verrilli. In terms of what private firms can do, you 
know, of course, we do everything we can. But I can say from 
personal experience that we get deluged with calls to take on 
these cases. We take on some, but there is no possible way that 
we could or firms could generally fill that gap and take on all 
these cases.
    Chairman Feingold. Even States that have State-funded 
public defender services face serious shortfalls when it comes 
to indigent defense. Mr. Greco, according to one of the ABA 
reports, Tennessee public defender offices are so underfunded 
that, on average, each lawyer is assigned 600 cases per year, 
and that is in addition to their prior caseload. And in 
Florida, the legislature makes it a habit to provide public 
defender offices with half the funding that State's attorney's 
offices get.
    Can these overworked and underfunded offices capably handle 
capital cases and the enormous amount of work they entail?
    Mr. Greco. No. Simply no. How can a lawyer, who is working 
as hard as she or he can, handle 14 capital cases at one time 
and do a competent job for each of those 14 individuals? It is 
impossible. The ABA encourages States to have statewide public 
defender systems with necessary training and all the necessary 
support, and manageable caseloads, and assistance from the 
other members of the statewide public defender's system given 
to help lawyers in the counties where these cases are 
happening.
    We do not have a handle yet on how many States have 
statewide public defender systems. We think very few. Tennessee 
is one of them. But even when you have a public defender 
statewide system and you burden a lawyer with 600 cases, 12 to 
14 of which are at any time death cases, it is unrealistic to 
expect that that lawyer is going to do the kind of job that is 
required. So that has to be addressed as well.
    Mr. Stevenson. Can I just add to that? It is important to 
recognize that the pressures created by death penalty 
litigation are part of a broader context where there have also 
been growing pressures that really are created by mass 
incarceration. In 1972, there were 200,000 people in jails and 
prisons in this country. Today there are 2.3 million. The 
dramatic increase in the number of cases coming into State 
defender programs and appellate defender programs has been 
overwhelming for these offices. And most of them do not have 
segregated, detailed, and designated resources for their death 
penalty work, so they are trying to manage this tidal wave of 
cases and the reliance on incarceration to deal with a whole 
host of problems that we did not previously use the criminal 
justice system to manage.
    So, it is important that this problem be put in context, 
and I think it is a huge challenge for these defender programs.
    Chairman Feingold. Thank you, and I appreciate your answer 
to all of my questions. Let me give you each, if you want, a 
chance to say something in conclusion. Mr. Greco?
    Mr. Greco. Thank you, Mr. Chairman. I recall a saying that 
I first heard when I was a young lawyer in New England thirty-
five years ago, when friends of ours in Maine would be given to 
say, ``If it ain't broke, don't fix it.'' Well, the death 
penalty system in the United States is broken, and we need to 
fix it. And I hope that under your leadership, Mr. Chairman, 
some things will get done to improve the way the death penalty 
is administered in our country.
    Chairman Feingold. Thank you.
    Mr. Stevenson?
    Mr. Stevenson. Well, I would just like to say that I do 
think the death penalty invites a lot of difficult conversation 
about the morality and the integrity of systems and whatnot. I 
ultimately think, though, that this issue is a lens into a 
broader commitment to human rights and justice. I mean, you do 
not judge the character of a community or a society or the 
civility of the society or the commitment of that society to 
justice by looking at how you treat the privileged or the 
powerful or the wealthy. You judge the character and the 
commitment to justice of a society and a community by how you 
treat the hated, the despised, the rejected, the condemned. In 
this country, that's people on death row. When we ignore their 
basic right to counsel and we do not really do the things that 
we must do to ensure fair and reliable judgment, we not only 
undermine fairness in that arena, I think we undermine our 
commitment to human rights. I think we vitiate the integrity of 
the whole system.
    The way we have dealt with death penalty cases and our 
absence of commitment on indigent defense, I think, has changed 
the moral question posed by capital punishment. I think in this 
country where we have tolerated so much bias and 
discrimination--in my State, there are hundreds of people 
buried in the ground who were lynched, and on that history, we 
are now dealing with the death penalty that has horrific racial 
features. My State produced the Scottsboro boys and Powell v. 
Alabama, and yet we fail fundamentally to meet the legal needs 
of the poor. And when that happens, I think the moral question 
changes. I think the death penalty in this country is no longer 
a question of whether certain people deserve to die for the 
crimes they commit. I think the question has become: Do States, 
the Federal Government, do jurisdictions deserve to kill when 
they fundamentally fail to meet the basic obligation of 
providing counsel and providing fair and just treatment? And 
consequently, I sincerely hope this Committee can advance the 
necessary work to make equal justice real.
    Thank you.
    Chairman Feingold. Thank you for those excellent remarks.
    Judge Temin?
    Judge Temin. Yes, in closing, I would just like to thank 
you again for providing an opportunity to air these issues. It 
is very important for the Federal Government to recognize the 
importance of what has been said by my colleagues on the panel 
and to take leadership, because we at the State level then can 
refer to the Federal solution as precedent. And very often the 
Federal Government has taken the lead, and we as State judges 
have been able to refer to that and to follow that. And I hope 
that will happen because judges are somewhat at a loss to 
prevent a--well, to solve the solution to this problem. It has 
to be done outside of the courtroom, and then it will affect 
the justice in the courtroom. If we do not have effective 
counsel, we do not have a just system. And I have to second 
what has been said by my colleagues.
    Chairman Feingold. Thank you so much, Judge.
    Mr. Verrilli?
    Mr. Verrilli. The entire legitimacy of our criminal justice 
system depends on the right to counsel. It is an adversarial 
system, and without effective counsel, we can have no 
confidence in the results of our criminal process.
    We in the big firms will continue to do our part to try to 
redress this gaping chasm that now exists. But it is a systemic 
problem that goes far beyond our ability to solve it on a pro 
bono basis, and for that reason, Mr. Chairman, I am very 
grateful that you have focused this Committee's and the 
country's attention on this important issue.
    Chairman Feingold. Well, let me thank all the witnesses for 
their testimony and this thoughtful discussion. I appreciate 
your taking the time to be here, and thank you for your 
insights. What we have learned today about the problems with 
the representation of capital defendants is of great concern to 
me, and I hope we can continue this conversation, and I am 
interested in seeing what we can do in this area.
    Regardless of the outcome of the lethal injection 
litigation in the Supreme Court, executions are eventually 
going to resume in this country. Before that happens, we must 
aspire to do better, so that every person charged with a 
capital crime has access to an effective, adequately 
compensated team of lawyers and other professionals, and so 
that every person already on death row has a full opportunity 
to vindicate their Sixth Amendment rights on appeal. It is all 
too clear from this hearing just how far we are from reaching 
that goal.
    Finally, before we close, without objection, I will place 
some items in the hearing record. These include the chapters of 
the ABA State Assessment Reports covering defense services; the 
2007 report of the State Bar of Texas Task Force on Habeas 
Counsel Training and Qualifications; a March 28, 2008, letter 
from 17 California judges expressing concern about California's 
death penalty system; the chapter of the Constitution Project's 
Mandatory Justice Report on ensuring effective counsel; a May 
2007 Spangenburg Group report called ``Resources of the 
Prosecution and Indigent Defense Functions in Tennessee''; and 
the executive summary of an ABA report entitled ``Gideon's 
Broken Promise.''
    The hearing record will remain open for 1 week for 
additional materials to be submitted. Written questions for the 
witnesses must be submitted by the close of business 1 week 
from today, and we will ask the witnesses to respond to those 
questions promptly so the record of this hearing can be 
completed.
    Thanks so much, everyone. The hearing is adjourned.
    [Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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