[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
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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
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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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