[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]







                       INDIGENT REPRESENTATION: 
                       A GROWING NATIONAL CRISIS

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 4, 2009

                               __________

                           Serial No. 111-29

                               __________

         Printed for the use of the Committee on the Judiciary


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





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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel










                            C O N T E N T S

                              ----------                              

                              JUNE 4, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Chairman, Committee on the 
  Judiciary......................................................     5
The Honorable Mike Quigley, a Representative in Congress from the 
  State of Illinois, and Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     5

                               WITNESSES

Mr. Robert M.A. Johnson, Co-Chair, National Right to Counsel 
  Committee and District Attorney, Anoka County, MN
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Alan Crotzer, Probation and Community Intervention Officer, 
  Florida Department of Juvenile Justice, wrongfully convicted 
  and sentenced to 130 years in prison, Tallahassee, FL
  Oral Testimony.................................................    14
  Prepared Statement.............................................    15
Mr. Erik Luna, Professor, Washington and Lee University School of 
  Law, Lexington, VA
  Oral Testimony.................................................    16
  Prepared Statement.............................................    19
Mr. Malcolm R. ``Tye'' Hunter, former Executive Director, North 
  Carolina Office of Indigent Defense Services, Durham, NC
  Oral Testimony.................................................    31
  Prepared Statement.............................................    32
Mr. John Wesley Hall, President, National Association of Criminal 
  Defense Lawyers, Little Rock, AR
  Oral Testimony.................................................    43
  Prepared Statement.............................................    45
Ms. Rhoda Billings, Co-Chair, National Right to Counsel 
  Committee, former Justice and Chief Justice of the North 
  Carolina Supreme Court, Lewisville, NC
  Oral Testimony.................................................    60
  Prepared Statement.............................................    62

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Chairman, Committee on the Judiciary...........................     6
Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on Crime, Terrorism, and Homeland Security     7
Prepared Statement of Melanca D. Clark, Counsel, Brennan Center 
  for Justice at NYU School of Law...............................    84

                                APPENDIX

Material Submitted for the Hearing Record........................    93

                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Submission entitled ``Justice Denied: America's Continuing Neglect of 
    Our Constitutional Right to Counsel,'' a report of the National 
    Right to Counsel Committee, April 2009. This report is available at 
    the Subcommittee and can also be accessed at:

    http://www.nlada.org/DMS/Documents/1239831988.5/
Justice%20Denied_%20
    Right%20to%20Counsel%20Report.pdf

Submission entitled ``Minor Crimes, Massive Waste: The Terrible Toll of 
    America's Broken Misdemeanor Courts,'' a report of the National 
    Association of Criminal Defense Lawyers, April 2009. This report is 
    available at the Subcommittee and can also be accessed at:

     http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/
Report.pdf

 
                       INDIGENT REPRESENTATION: 
                       A GROWING NATIONAL CRISIS

                              ----------                              


                         THURSDAY, JUNE 4, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 9:33 a.m., in 
room 2237, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Conyers, Pierluisi, Waters, 
Quigley, Gohmert, and Goodlatte.
    Staff present: Bobby Vassar, Majority Subcommittee Chief 
Counsel; Jesselyn McCurdy, Majority Counsel; Karen Wilkinson, 
(Fellow) Federal Public Defender Office Detailee; Veronica 
Eligan, Majority Professional Staff Member; Caroline Lynch, 
Minority Counsel; and Robert Woldt, Minority Counsel.
    Mr. Scott. The Subcommittee will now come to order, and I 
am pleased to welcome you today to the hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security on 
``Indigent Representation: A Growing National Crisis.''
    Our criminal justice system has been referred to as a 
three-legged stool supported by the judges, prosecutors and 
defense. If you remove one of those three legs, the stool 
collapses. And we are here today to talk about the third leg of 
the stool, the defense, and whether or not that leg has in fact 
collapsed.
    Researchers have estimated that between 80 and 90 percent 
of all state criminal defendants rely on indigent defense 
systems for counsel. This number will likely only go higher 
with our increasing rate of unemployment and the economic 
downturn. In March, we held a hearing on problems of indigent 
defense systems in the state of Michigan. This hearing focuses 
on the status of such systems nationally.
    Two significant reports have been released since our last 
hearing, the first report of the National Right to Counsel 
Committee titled, ``Justice Denied: America's Continuing 
Neglect of Our Constitutional Right to Counsel.'' The other 
report was prepared by the National Association of Criminal 
Defense Lawyers; that is entitled, ``Minor Crimes, Massive 
Waste: The Terrible Toll of America's Broken Misdemeanor 
Courts.'' Both of these reports are the result of multiyear 
studies. Both reports also confirm what we suspected at the 
last hearing, that the indigent defense system is suffering all 
across the country.
    In 1991, the Department of Justice report--a Department of 
Justice report concluded that indigent defense was in a chronic 
state of crisis. A 2004 study by the American Bar Association 
similarly found that caseloads for public defenders far 
exceeded national standards in many cases, ``making it 
impossible for even the most industrious attorneys to deliver 
effective representation in all cases.''
    A recent New York Times article reported that public 
defenders' offices in at least seven states either had refused 
to take new cases or had filed lawsuits to limit caseloads. 
With only a few exceptions, the situations are only getting 
worse, and the consequences are devastating.
    One of our witnesses today, Alan Crotzer, was convicted of 
a crime he never committed, spent 24\1/2\ years in prison 
before being exonerated by DNA. The first time he met his 
court-appointed attorney was 3 months after his arraignment. He 
told his lawyer he had an alibi, and there were witnesses who 
could testify on his behalf. His lawyer never even bothered to 
interview those witnesses.
    The NACDL's report, ``Minor Crimes, Massive Waste,'' found 
that many defense attorneys were carrying excessive caseloads 
in misdemeanor cases. Their caseloads far exceeded the only 
existing standard of 400 misdemeanor cases per year, and many 
believe that that standard, developed over 35 years ago, is too 
high. In Illinois, Florida, Utah, for example, many 
jurisdictions report average misdemeanor caseloads exceeding 
2,000 per year.
    An attorney carrying a caseload of 2,000 cases could spend 
about 1 hour and 10 minutes on each case total. That attorney 
would have to meet his client, read the police report, conduct 
relevant discovery and research, prepare for court, write 
motions and sentencing memoranda and appear in court all within 
that 1 hour. New Orleans has an average caseload of almost 
19,000 misdemeanor cases per year, which leaves about 7 minutes 
per case.
    The report of the National Right to Counsel Committee 
reveals similar problems in felony cases. In Miami, average 
public defender caseloads have increased in the past 3 years 
from 367 to nearly 500 felonies, while the public defender's 
office's budget has been cut by over 12 percent. These numbers 
compare to a maximum national standard of 150 felony cases per 
year.
    Everyone agrees that indigent defense as a whole needs more 
funding, but no one wants to pay. We continue to fund local and 
state governments with increasing law enforcement and 
prosecution resources but refuse to give money to defense. In 
the meanwhile, innocent people, like Alan Crotzer, continue to 
be convicted and real perpetrators walk free.
    The existing disparity and imbalance in the system 
continues to grow and hits minorities especially hard given 
their overrepresentation in the criminal justice system. This 
problem is exacerbated by the trend in the last several decades 
for mandatory minimum sentences and overcriminalization of 
conduct.
    I have been working in the field of criminal justice for a 
long time, and I thought I had heard everything. But yesterday, 
I learned that it is a crime in Nevada to feed the homeless in 
a city park. In New York, apparently sleeping in a cardboard 
box or even sleeping on a subway is a crime. When we don't like 
certain conduct, all too often our response is to make it a 
crime. In many such instances, a more effective and less costly 
response might be to consider education, prevention or 
treatment.
    All of this leads to the question of whether indigent 
defendants are being deprived of their sixth amendment right to 
counsel under the United States Constitution. Most everyone 
seems to agree that the resounding answer is yes. So what can 
and should Congress do to address this issue?
    The National Right to Counsel Committee has two 
recommendations that we should consider seriously. The first 
the committee recommends is the Federal Government establish 
and adequately fund an independent Center for Defense Services. 
The function of the center would be to assist and strengthen 
the ability of the states to provide quality representation to 
both adult and juvenile criminal defendants who cannot afford 
to pay for legal services.
    Almost 35 years ago, the Federal Government created a 
similar national program called the Legal Services Corporation 
to help states provide legal services in civil cases to people 
who could not afford to hire attorneys. The need for a similar 
national entity to assist states in meeting their requirements 
under the sixth amendment is even more compelling.
    Second, they call for a Federal research and grant parity. 
Congress currently spends billions of dollars on programs to 
states and local governments to enhance the local law 
enforcement and increase prosecution of crimes. We have an 
adversarial legal system. For justice to prevail under such a 
system, the playing field needs to be level, and both sides 
need to be adequately funded.
    Congress cannot continue to fund only one side of the 
system if we are to be assured of an effective and just system 
of justice in order to conform with the Constitution.
    I look forward to hearing from our witnesses about how we 
can address these problems.
    And it is now my pleasure to recognize the Ranking Member 
of the Subcommittee, the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and I do appreciate 
the interest in this issue. Appreciate the witnesses being 
here.
    And of course anytime the justice system fails one person, 
it is a very serious failure for the whole system. And I know 
that everyone has their testimony prepared, and the statements 
are going to be very helpful. We have got some good insights 
into future solutions.
    We don't have anybody who has come in today--I could have 
brought dozens if I had known in time, and that is no fault of 
the majority--people who can come in and point to some 
excellent indigent defense that is going on across this 
country. So it concerns me knowing so many indigent defense 
attorneys across the country who often get a bad rap, who are 
dedicated to doing a good job, usually don't get paid 
adequately but take their job so seriously that they do all 
they can.
    And I know there are attorneys like that because, even 
though I did civil litigation, I was appointed to appeal a 
capital murder case. I think it was nearly 800 hours I spent on 
that case. And I did a good job, not because I was going to be 
properly compensated, because I knew I wouldn't, but because it 
was an oath I took to properly represent my client. My client 
got good representation, and his case was properly reversed 
after we took it to Texas' highest court.
    There is good representation going on out there, far better 
than I provided. There is good representation in many areas in 
the country, and hopefully somebody will be willing to 
acknowledge that as well, even though there are problems.
    Then there are differences on how you address a problem. 
What we hear in Washington, as we become more and more bankrupt 
as a Nation because we cannot control our spending--and I was 
hoping that when--even though the Bush administration, the 
prior majority, had spent too much money, that when we were 
promised change, we were going to get change and not keep 
spending ourselves into bankruptcy. But there has been no 
change, other than accelerating the course we were already on 
to bankrupt this country even faster.
    So when we look at where should the Federal Government be 
spending its money, then we should look carefully at what are 
the constitutional requirements. Constitutional requirements 
are clear, and, as some of you have discussed, Gideon points 
that out. There is to be proper representation of everyone in a 
court--state, Federal or otherwise.
    And one of the witnesses will properly point out and make 
the good point that, even though it is also required that every 
prison, every jail, properly feed inmates, it is not a Federal 
duty to come in and pay for the food if the state or local 
facilities don't adequately feed their inmates. You make sure 
they comply with their state duties.
    So I know there are disagreements on the solutions. And the 
easiest thing is just let the Federal Government pay for it, 
but states and local government have an obligation to make sure 
the system works by having people get adequate representation.
    And I think it is excellent when the national government, 
the Federal Government, can and should show the way, just like 
saying, ``This is what proper nutrition is.'' And then it is up 
to the state and local government to make sure it is adequately 
funded, so that we do not have cases like Mr. Crotzer's 
unfortunate situation arise, that we address that adequately. 
It just seems to be a question of making sure that that is 
applied across the country.
    I do appreciate the witnesses being here, and again I hope 
everybody is not going to beat up on the defense attorneys, so 
many of whom actually do a good job. When I found somebody I 
didn't think was doing a proper job, they did not handle 
another case in my court. And we handled all felonies, 
including death penalty cases.
    But thank you, Mr. Chairman, for the time. And at this 
point, I yield back.
    Mr. Scott. Thank you, and I will point out, I don't think 
my comments should be interpreted as being critical of the 
attorneys. It is just when attorneys, no matter how good they 
are, have a caseload way over what a caseload ought to be, they 
are put in an impossible situation. So your point that 
attorneys are doing a good job, I think, is well taken.
    Gentleman from Michigan--we are joined by the Chair of the 
full Committee and, as he is recognized, if the witnesses will 
come forward and take your seats.
    Gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Top of the morning, Mr. Chairman. I am so 
happy to be here.
    We had the beginning of this hearing on March 26. This is 
June the 4th, and here we are back looking at it again. We had 
former mayor, Dennis Archer; David Carroll; Nancy Diehl; Erik 
Luna; Regina Thomas; Robin Dahlberg. So there has been a 
predicate for this.
    And I am so glad, though, that Judge Gohmert, our Ranking 
Member, is back again with us, working on how we can work this 
thing out. And I see the senior Member of the Committee, the 
Ranking Member, Bob Goodlatte, is here. And we are joined by 
one of the newest Members, Mr. Pierluisi, but he was an 
attorney general from his state. And we are glad that he is 
here too.
    Now, what are we here for? To make the adversarial system 
the basis of our judicial process a better one. Now this is 
constitutional. What part of the Constitution does this appear 
in?
    Voice. What did you say?
    Mr. Conyers. I said what part of the Constitution does this 
appear in?
    Voice. Sixth amendment.
    Mr. Conyers. All right, sixth amendment. Thanks for your 
attention.
    I want to yield time to the newest Member of this Committee 
that I can think of is Mike Quigley.
    I want to give him some of my time, Mr. Chairman, if I may.
    Mr. Scott. The gentleman is recognized.
    Mr. Quigley. Thank you for yielding.
    Thank you, Mr. Chairman. I would like to add something I 
think is a little timely in notice that affects this issue. The 
Chairman is correct; I am the newest Member of this Committee, 
second newest Member of Congress, but I spent 10 years in Cook 
County with a ringside seat in the criminal justice system 
defending people and watched the extraordinary overload of 
cases that the public defender's office had there.
    Yesterday, I think much of that came to a head. A very good 
friend of mine became the public defender of Cook County the 
last week I was there--A.C. Cunningham, a former judge. 
Yesterday, he asked that the public defender's office be 
allowed to withdraw from all of their capital cases because 
they have zero money to defend capital cases for expert 
witnesses, for all the other costs associated with the 
extraordinary defense that comes with a capital case.
    To me, that is as good an example of what is wrong with our 
system right now in providing a fair and just criminal justice 
system as you are going to find. The third largest county in 
this country cannot fund capital cases and is asking to 
withdraw.
    My first act as a county commissioner was to agree to pay a 
$36 million settlement to a group called the Ford Heights Four, 
who were wrongly convicted of a murder case and were in some 
cases minutes from the death penalty. One of them was raped in 
prison. They were later exonerated using DNA evidence. And what 
was pointed to was the extraordinary inept counsel that they 
had.
    Where we are going from here can only be downhill unless we 
do something, because the public defenders are overburdened 
and, at this point, they have no resources to handle our most 
important cases, those cases which, I think, in some respects 
the public cares about least--they are not an always 
sympathetic people--are the ones that we should hold most 
important to us if we care about justice.
    So on behalf of my friend, the chief judge of Cook County, 
our best wishes and hopes during this struggling time. And I 
just want to thank both Chairmen for their indulgence.
    Mr. Conyers. I will put the rest of my statement in the 
record.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Chairman, Committee on the 
                               Judiciary
    Our justice system is an adversarial one, and while it's not 
perfect, it's still the best system that I have seen.
    For this adversarial system to work, however, there has to be a 
fair fight. To that end, the Sixth Amendment provides that the accused 
in ``all criminal prosecutions'' is entitled to have the assistance of 
counsel for his defense.
    Unfortunately, most of our States, including my home State of 
Michigan, fail to comply with this constitutional mandate.
    And this longstanding problem will only worsen in our current 
fiscal difficulties.
    So, what can Congress do to help correct this problem? I see three 
possible roles for Congress.
    The first involves funding. Congress appropriates vast sums for 
State and local governments to train prosecutors and facilitate 
prosecutions, but we provide little or no funding to the defense side.
    Congress should no longer continue to foster this unbalanced 
system. If State and local prosecution resources are funded, we also 
should provide meaningful funding to the defense.
    Second, both the Constitution Project and the American Bar 
Association have recommended that a National Center for Defense 
Services should be established to help States improve their indigent 
defense systems.
    In light of the fact that many States share similar indigent 
defense problems, there is no reason to re-invent the wheel 50 
different times. A centralized center makes sense from both 
organizational and fiscal perspectives.
    Third, Congress should require federal agencies--such as the Office 
of Justice Programs, the Bureau of Justice Assistance, the National 
Institute of Justice, and the Office of Juvenile Justice and 
Delinquency Program--that provide assistance to State and local law 
enforcement entities to also provide assistance to programs that 
provide indigent defense representation services.
    All of these agencies are well-equipped to perform this work.
    I think most of us would agree that the Sixth Amendment's guarantee 
of legal representation in a criminal prosecution is a fundamental 
right, but one that is unfortunately denied to many in our criminal 
system.
    We need to address this problem, and today's hearing is another 
step in the right direction. I hope today's witnesses will help guide 
us on how we can best move forward.
                               __________

    Mr. Scott. Thank you. The gentleman----
    Are there others that want to make statements?
    Gentleman from Texas?
    Mr. Gohmert. Yes, and I did want to also apologize to the 
witnesses. We have hearings set at the same time. I reviewed 
everyone's statement, and I will be reviewing all the 
information we glean both during the hearing and that you may 
care to submit after the hearing, but I will end up needing to 
leave before the hearing is over. Thank you.
    Mr. Scott. The gentlelady from California?
    Ms. Waters. Thank you very much, Mr. Chairman. I was just 
considering whether or not I wanted to go into the statement. 
Why don't I submit the statement for the record and yield back? 
Thank you.
    [The prepared statement of Ms. Waters follows:]
Prepared Statement of the Honorable Maxine Waters, a Representative in 
  Congress from the State of California, and Member, Subcommittee on 
                Crime, Terrorism, and Homeland Security
    Mr. Chairman, I want to thank you for organizing this hearing 
today. I want to also acknowledge our panel of witnesses for 
participating in today's hearing. We can all agree that there is a 
problem in meeting the needs of indigent defendants' right to effective 
representation. The Supreme Court has clearly enunciated that the Sixth 
Amendment guarantees criminal defendants the right to counsel. This is 
particularly imperative in the criminal trial context, as we must 
safeguard our legal system from the tyranny that would ensue were we to 
pit the powerful government and its resources against vulnerable 
indigent defendants. Yet, due to administrative inefficiencies, scarce 
resources, and a huge backlog of cases in public defenders' offices 
across the country, many defendants have been denied effective counsel. 
In the most egregious of cases, they have been denied representation 
entirely. After today's hearing, I hope that we can begin to reach a 
consensus on the most effective congressional response.
    The right of a defendant to legal counsel is granted by the Sixth 
Amendment of the Constitution, which states that ``[i]n all criminal 
prosecutions, the accused shall enjoy the right . . . to have the 
Assistance of Counsel for his defense.'' In 1963, a unanimous Supreme 
Court, in Gideon v. Wainright, held that this right to counsel applied 
to the States by virtue of the Fourteenth Amendment's due process of 
law clause.
    More recently, a 1999 Department of Justice report found that 
despite progress since Gideon, indigent defense remained ``in a chronic 
state of crisis.'' The report pointed to a series of problems facing 
public defenders and their clients, including lack of funding, high 
workloads, and the low quality of appointed attorneys. In the years 
since the report, numerous other organizations have released other 
examinations of indigent defense in America, echoing many of the 
conclusions reached by the Department of Justice.
    Among the most problematic issues raised is the lack of 
independence between the judiciary and attorneys representing indigent 
defendants. When the court system is responsible for choosing and 
paying attorneys for indigent representation, judges may favor 
attorneys who facilitate quick processing of cases. Attorneys may be 
forced to choose between trying to please the judge (and remain 
employed) or representing their clients as required under their ethical 
rules. And the Supreme Court has provided little guidance. Although the 
Court has determined that the Constitution guarantees defendants the 
right to counsel, its holding does not propose how states are to fund 
the significant costs attached to providing all indigent defendants 
with effective counsel.
    The National Right to Counsel Committee's report concluded that 
funding remains one of the biggest obstacles to meeting Sixth Amendment 
requirements. States are having trouble allocating resources in such a 
way that public defenders are equipped with all they need to adequately 
represent their clients. Moreover, public defenders are inundated with 
heavy caseloads, and they simply do not have the personnel, experts, 
investigators and interpreters to handle the casework so that each 
defendant's case can be properly tried. According to a 2004 American 
Bar Association study, caseloads for public defenders far exceed 
national standards in many states, ``making it impossible for event the 
most industrious of attorneys to deliver effective representation in 
all cases.''
    The problem of wrongful convictions also is of concern. 
Unfortunately, Alan Jerome Crotzer's experience occurs far too often in 
courts across the nation. Researchers at the University of Michigan 
surveyed 340 exonerations of innocent defendants, each of whom served 
an average of ten years in prison before being exonerated. The most 
frequent causes of the wrongful convictions were mistaken eyewitness 
identification (64%) and perjury (43%). False confessions occurred in 
15% of the cases. This level of error is unacceptable. It undermines 
our constituents' confidence in our criminal justice system and it must 
be corrected.
    And then there's the issue of mistakes--mistaken identity or lack 
of adequate legal defense. Since 1973, over 120 people have been 
released from death row with evidence of their innocence. From 1973-
1999, there was an average of 3.1 exonerations per year. From 2007-
2008, there have been an average of 5 exonerations per year.
    Once again, I want to thank all of our witnesses today for 
preparing such detailed testimony. Your professional knowledge and 
personal experience is invaluable. And I am hopeful that your 
presentations and answers to our questions will give us a good update 
on previous research and the current situation.
                               __________

    Mr. Scott. Thank you. Other comments? Thank you.
    We have a distinguished panel of witnesses here today to 
help us consider the important issues that are currently before 
us, and I ask each witness, if possible, to complete your 
statement within 5 minutes or less. There is a timing device on 
the table that will start off green, turn yellow when there is 
1 minute left, and the light will turn red when your time is 
up. All of the witnesses' written statements will be made part 
of the record in their entirety.
    Our first witness will be Robert Johnson, who has been a 
prosecutor for over 40 years. He has been the elected county 
attorney in Minnesota since 1983. He is past president of the 
National District Attorneys Association, Minnesota County 
Attorneys Association and the Anoka County Bar Association. He 
is a past chair of the American Bar Association Criminal 
Justice Section and a member of the Minnesota National Guard. 
He graduated from the University of Minnesota with a bachelor's 
degree and a Juris Doctorate. He is also co-chair of the 
National Right to Counsel Committee.
    Our next panelist will be Alan Crotzer. How do you 
pronounce your last name?
    Mr. Crotzer. Crotzer.
    Mr. Scott. Crotzer?
    Mr. Crotzer. Crotzer, yes.
    Mr. Scott. Crotzer--was 20 years old when he was arrested 
for a crime he did not commit. And he met with his court-
appointed attorney for the first time 90 days after his 
arraignment. And we will hear that story when he testifies. He 
now works as a intervention specialist at the Florida 
Department of Juvenile Justice, encouraging at-risk kids to 
follow a positive path.
    Our next witness will be introduced by my colleague from 
Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman. It is again my 
pleasure to welcome back to the Committee Erik Luna, professor 
of law at Washington and Lee University School of Law. He 
graduated summa cum laude from the University of Southern 
California and received his J.D., with honors, from Stanford 
Law School, where he was an editor of the Stanford Law Review.
    Upon graduation, he was a prosecutor in the San Diego 
District Attorney's Office and a fellow and lecturer at the 
University of Chicago Law School. In 2000, Professor Luna 
joined the faculty of the University of Utah College of Law, 
where he was named the Hugh B. Brown chair in law and was 
appointed codirector of the Utah Criminal Justice Center.
    He has served as a senior Fulbright scholar to New Zealand. 
He is an adjunct scholar with the Cato Institute and a member 
of the U.S. Chamber of Commerce's Working Group on Criminal Law 
Issues. In early 2009, Professor Luna accepted a permanent 
faculty position at Washington and Lee University School of 
Law, from whence I am a proud alumnus.
    So thank you very much, Mr. Chairman, and welcome, 
Professor Luna.
    Mr. Scott. Thank you. Our next panelist will be Mr. Malcolm 
R. ``Tye'' Hunter. He has spent more than 30 years working on 
behalf of indigent defendants in North Carolina. He was the 
executive director of the North Carolina Office of Indigent 
Defense Services from 2001 to 2008.
    Before that, he served as the state's appellate defender 
from 1985 until his appointment to the Indigent Defense 
Services. He is currently the executive director of the Center 
for Death Penalty Litigation, a nonprofit law firm representing 
capital defendants at trial, appeal and post-conviction. He 
graduated from the University of North Carolina Chapel Hill 
School of Law and served as an adjunct professor at the law 
school since 1998.
    Next panelist will be John Wesley Hall, currently the 
president of the National Association of Criminal Defense 
Lawyers. He served as deputy prosecuting attorney from 1973 to 
1979 and has since then been in private criminal defense 
practice.
    He is the author of several books and law review articles 
on trial practice, criminal law and professional responsibility 
for criminal defense lawyers. He is a frequent lecturer and 
expert witness on legal ethics and relative matters and serves 
as a consultant in Arkansas' Supreme Court Committee on 
Professional Conduct and on the Disciplinary Appeals Board for 
the International Criminal Court. He graduated from Hendrix 
College with a B.A. and the University of Arkansas with a Juris 
Doctorate.
    Final witness will be Justice Rhoda Billings, who received 
her B.A. from--is it Berea?
    Judge Billings. Berea.
    Mr. Scott. Berea College in Kentucky and her Juris 
Doctorate from Wake Forest University School of Law. She has 
been a private practitioner, a law professor and a judge. She 
was an associate justice and chief justice for the North 
Carolina Supreme Court. She has been a professor of law for 
many years in Wake Forest University School of Law, where she 
teaches criminal procedure and constitutional law. She has been 
a commissioner with the North Carolina Indigent Services 
Commission since 2001 and is co-chair of the National Right to 
Counsel Committee.
    So we will begin with Mr. Johnson.

 TESTIMONY OF ROBERT M.A. JOHNSON, CO-CHAIR, NATIONAL RIGHT TO 
   COUNSEL COMMITTEE AND DISTRICT ATTORNEY, ANOKA COUNTY, MN

    Mr. Johnson. Mr. Chairman, thank you.
    As a prosecutor under all the case law and standards 
relating to criminal justice, I know that my duty is to do 
justice. It is not merely to convict. And in an effort to find 
justice, I need a competent defender in the courtroom on the 
case in order to find that. I need that first to protect 
against convicting innocent people.
    As you may know, prosecutors don't charge all the cases 
that come in from the police. Twenty percent of the cases that 
come in my office we decline; that is probably a low number 
compared to other prosecutor offices. And even those that I 
charge, the 80 percent of the cases, there are questions that 
we still have from the police documents that we get.
    There have been any number of times when defenders have 
gone out, done their investigation, analyzed the case and 
convinced us that there is not a crime that has been committed 
and certainly not a crime that we could prove was committed.
    I need them to protect against convicting innocent people. 
I also need them to find the proper sentence. Make no mistake 
about it; prosecutors sentence. When I charge a mandatory 
minimum--and in my state, when I charge a crime or plea bargain 
to a crime, it puts it on our sentencing guidelines box.
    So as a Federal judge once said at a Kennedy Commission 
hearing in the ABA, if AUSAs are going to sentence, they should 
get a PSI before they indict, as I need more information about 
the offender if I am going to be able to find the right 
disposition of the case.
    Now, most of the people that we deal with are ordinary 
people who have just done something bad. The truly evil people, 
the predators, are easy. We just max them; we put them away for 
as long as possible. But most of the people that we deal with 
are not, and our challenge is to try to find the right 
sentence.
    So I need to have the defender tell us about the 
characteristics of the offender that enables us to find the 
right sentence--find the right disposition. And I need 
defenders to move cases.
    Now, I will certainly acknowledge that we have some 
excellent public defenders in my jurisdiction. I have a 
tremendous public defender who just went to--headed up our 
district public defense, went to another district. There just 
aren't enough of them. There aren't enough of the defenders to 
be able to deal with it, so that when we don't have enough 
defenders, as was pointed out in Chicago on capital cases, it 
paralyzes the system. The system does not go forward.
    Defenders have to triage the cases that they are going to 
handle and decline to handle the others, as was pointed out 
too. Defenders are starting to realize more and more their 
ethical responsibilities not to take on cases that they can't 
adequately represent.
    So you see in Florida, you have seen in Massachusetts, you 
are seeing now in Illinois, where the defenders are saying, 
``We are not going to represent these people because we can't 
do an adequate job.'' That paralyzes the system.
    We have to have good defenders in the courtroom for the 
reasons that I have stated. As the report amply discusses, the 
state of criminal defense in this country is not good. It is 
bad. There is an enormous amount of work that can be done in 
the states. And we recommend in the report that the Federal 
Government contribute to the solution.
    And I will say that the Federal Government does fund 
various parts of the system. The Federal Government has just 
put a billion dollars on the street for cops. I haven't 
received any of that money to prosecute it. The defenders 
haven't received any of that money to defend it. So we are 
going to have an influx of cases that we are going to have to 
deal with. We need balance in the system. We aren't providing 
enough balance.
    I pick up a bit from time to time--drug prosecutions, I get 
Federal money up through the Byrne Grant, through the state to 
my office. I have picked up over half a million dollars over 
the years. In all candor, a piece of that should have gone to 
the defense system. And I understand that is a state 
responsibility to allocate some of that Byrne money or at least 
it is in my state. But we have to recognize that this is a 
balance system, and if we are going to do justice, it is 
important that we do balance it.
    Now, at some point, the states have to come to terms with 
the overcriminalization of behavior. The criminal court in my 
state, Minnesota, has gone, from the time I have been a 
prosecutor, from 35 pages to over 200 pages. When I started 
this work 40 or so years ago, I had less than 100 cases. In 
2006, I had 1,800 cases. So we have to come to terms with this. 
And I think the recommendations in the report are well taken: 
funding defense and a national center for public defense.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Johnson follows:]
               Prepared Statement of Robert M.A. Johnson
    Having been a prosecutor for nearly forty years, president of the 
National District Attorneys Association, chair of the Criminal Justice 
Council, worked for over a dozen years with national and international 
criminal justice organizations, and co-chair of the Constitution 
Project's National Right to Counsel Committee, I have some knowledge of 
the structure of our criminal justice system and the importance of 
capable defense lawyers representing a person accused of a crime. This 
importance goes far beyond the constitutionally generated right of an 
accused to have the assistance of counsel; the right to counsel is 
essential for the integrity and proper functioning of our criminal 
justice system.
    The essential nature of an accused's right to counsel was 
reflective of the experience and wisdom of the drafters of our 
Constitution. They understood from their history and experience under 
the English criminal justice system that citizens must be guaranteed 
certain rights if we were to live in a free society. In the sixth 
amendment, they guaranteed ``in all criminal prosecutions the accused 
shall enjoy the right . . . to have the assistance of counsel for his 
defense.'' In applying this right to the accused in state prosecutions, 
our Supreme Court in a unanimous opinion stated in Gideon v. 
Wainwright, ``in our adversary system of criminal justice, any person 
haled into court, who is too poor to hire a lawyer, cannot be assured a 
fair trial unless counsel is provided for him.'' There have not been 
any credible challenges or even serious discussion challenging this 
constitutional right which the court affirmatively put in the same 
category as the taking of property for public use without compensation, 
and the prohibition of unreasonable searches. The only challenge has 
been and is the implementation of this right in the states.
    Speaking as a prosecutor, I know of the importance of the right to 
counsel for an accused. I see an accused (and family) try to understand 
and struggle with an unknown system as I bring the weight of the state 
to bear. The family is often devastated by what the accused may have 
done and often unable to understand how the accused violated the law 
and how to proceed. They often are unable to afford an attorney to 
advise them and the accused.
    There are a number of reasons a capable defense attorney is 
necessary for the proper functioning of our system of justice. First 
and perhaps most important is to protect an innocent person. As the 
Innocence Project has ably demonstrated, innocent persons are convicted 
of committing crimes. Such an injustice is abhorrent to a professional 
prosecutor. Not only is the guilty party free to commit more crimes, an 
innocent person is unjustly punished. Prosecutors must have capable 
defense attorneys challenging the state's proof to reduce the chance 
that an innocent person is unjustly convicted.
    Secondly, prosecutors do a lot of sentencing in our current system 
of justice. Mandatory sentencing laws and sentencing guidelines permit 
a prosecutor to sentence by what crime is charged or plea bargained to 
a conviction. In these discretionary acts, the prosecutor does not have 
a pre-sentence report as is typically provided a judge before 
sentencing. Prosecutors see the victims and law enforcement and their 
view, but do not see the circumstances of the offender. From my 
experience as a prosecutor and an Army National Guard military judge, I 
tell you the characteristics of an offender are necessary to a reasoned 
decision as to sentence. A defense attorney adequately representing an 
offender and presenting mitigating reasons to a prosecutor is the only 
chance the prosecutor will make a reasoned decision about a sentence.
    A third reason for the full implementation of the constitutional 
right to counsel is simply for the criminal justice system to 
efficiently function. Unless a defense attorney is in the courtroom 
with the prosecutor, the case may not go forward. Judges do and should 
refuse to move forward with a case unless the accused has a defense 
attorney present in court.
    I say again full implementation of this sixth amendment right to 
counsel is critical as both a constitutional and practical matter if we 
are to have the system of criminal justice that our Constitution 
promises. But this promise is not being kept. As set forth in the 
Constitution Project's comprehensive Report of the National Right to 
Counsel Committee entitled Justice Denied: America's Continuing Neglect 
of our Constitutional Right to Counsel, the states have taken a number 
of approaches to complying with the constitutional mandate. Often these 
approaches are shockingly inadequate.
    A common problem in the states meeting their obligations is 
insufficient funding. Whether state funded, county funded, or a mixture 
of both, the funding is inadequate. The budget issues in states and 
local governments are well known. As government struggles to meet its 
often self-imposed needs, it regularly does not adequately fund a 
constitutional right of the people it accuses of a crime. This shameful 
conduct often comes from a lack of understanding of the very practical 
reasons for funding an entire criminal justice system. Particularly 
troubling are the inequities between the adequate funding of law 
enforcement and prosecutors and the lack of funding for defense 
services. While the sentiment to make offenders accountable is 
understandable, there is a lack of understanding of the issues earlier 
discussed. There seems to be a mentality that, if the police arrest and 
the prosecutor brings charges, the accused must be guilty and we should 
just lock them up. Sadly, this type of thinking is part of why the 
state of criminal justice is not good and public safety is less than it 
might be if our criminal justice system was balanced.
    Of course, the lack of funding makes for excessive caseloads for 
the public defenders who are employed. Again, reference to the Report 
provides detail not repeated here. Efforts are underway to deal with 
this issue as public defenders are confronted with failing to fulfill 
their ethical duty to competently represent their clients. Public 
defenders are refusing to take on more clients when overburdened, 
judges are beginning to accept their refusals, and the criminal justice 
system is faltering.
    There are other problems with how defense services are being 
provided. The Report details many of these problems: lack of 
independence, lack of training, inability to hire experts, lack of 
technology, inadequate client contact, and significant lack of 
investigation capability. Prosecutors have enormous investigative 
capability through police departments. Important for the defense is the 
ability to pursue alternative theories as to how the crime occurred or 
even whether a crime occurred. It is not unusual for law enforcement to 
end their investigation when the defense team has a plausible theory.
    With a constitutional guarantee, practical reasons for implementing 
the guarantees, and strong evidence that effective counsel for the 
accused is not being provided, what is the responsibility of the 
federal government? The Report provides two recommendations which are 
reproduced here:
                 a national center for defense services
    Recommendation 12--The federal government should establish an 
independent, adequately funded National Center for Defense Services to 
assist and strengthen the ability of state governments to provide 
quality legal representation for persons unable to afford counsel in 
criminal cases and juvenile delinquency proceedings.
    Commentary--As discussed earlier in this report, the duty of 
providing defense representation in criminal and juvenile cases derives 
from decisions of the U.S. Supreme Court and is based upon 
interpretations of the federal Constitution's Sixth Amendment. Taken 
together, the Court's decisions are an expensive unfunded mandate with 
which state and/or local governments have been struggling for more than 
45 years. Although the federal government established the Legal 
Services Corporation in 1974 to assist states in providing legal 
services in civil cases, in which there is not a constitutional right 
to counsel, the federal government has not enacted comparable 
legislation to assist states in cases where there is a constitutional 
right to counsel or where states require that counsel be appointed, 
even though it is not constitutionally mandated. The Committee applauds 
the establishment of the Legal Services Corporation but believes there 
should also be a federal program to help the states defray the costs of 
defense services in criminal and juvenile cases.
    Thirty years ago, the ABA endorsed the establishment of a federally 
funded ``Center for Defense Services,'' and the Association reiterated 
its support for such a program in 2005. The Center's mission would be 
to strengthen the services of publicly funded defender programs in all 
states by providing grants, sponsoring pilot projects, supporting 
training, conducting research, and collecting and analyzing data. The 
original report submitted to the Association's House of Delegates in 
1979 explained the proposal's importance: ``If adequately funded by the 
Congress, the Center could have far-reaching impact in eliminating 
excessive caseloads . . ., providing adequate training and support 
services . . . and in facilitating representation as well as ensuring 
that quality defense services are available in all cases where counsel 
is constitutionally required.''
                   federal research and grant parity
    Recommendation 13--Until a National Center for Defense Services is 
established, as called for in Recommendation 12, the United States 
Department of Justice should use its grant and research capabilities to 
collect, analyze, and publish financial data and other information 
pertaining to indigent defense. Federal financial assistance through 
grants or other programs as provided in support of state and local 
prosecutors should also be provided in support of indigent defense, and 
the level of federal funding for prosecution and defense should be 
substantially equal.
    Commentary--As noted in the Commentary to Recommendation 12, the 
call for a National Center for Defense Services is not new. Although 
Congress has not been persuaded to enact such a program, the Committee 
is convinced that the proposal still makes excellent sense. However, in 
the absence of such a program, there are valuable steps that the 
federal government can take through existing agencies of the U.S. 
Department of Justice (DOJ) to enhance indigent defense.
    The Office of Justice Programs (OJP) of the DOJ, for example, 
develops and disseminates data about crime, administers federal grants, 
provides training and technical assistance, and supports technology 
development and research. The OJP's bureaus include, among others, the 
Bureau of Justice Assistance (BJA), which gives assistance to local 
communities to improve their criminal justice systems, and the Bureau 
of Justice Statistics (BJS), which provides timely and objective data 
about crime and the administration of justice at all levels of 
government. Also, the National Institute of Justice (NIJ), the research 
and evaluation agency of DOJ, offers independent, evidence-based 
knowledge and tools designed to meet the challenges of criminal 
justice, particularly at state and local levels.
    Although the overwhelming majority of expenditures by these 
agencies have been devoted to enhance law enforcement, crime control, 
prosecution, and corrections, a few successful defense-oriented 
projects have been funded, which suggest that increased federal 
attention to indigent defense could have significant positive impact. 
For instance, in both 1999 and 2000, BJA hosted two symposia that 
brought together from all 50 states criminal justice professionals, 
including judges and leaders in indigent defense, to explore strategies 
to improve the delivery of defense services. The National Defender 
Leadership Project, supported by a grant from BJA, offered training and 
produced a series of publications to assist defender managers in 
becoming more effective leaders. Grant awards by the Office of Juvenile 
Justice and Delinquency Prevention, another bureau of OJP, have 
supported a national assessment of indigent defense services in 
delinquency proceedings as well as numerous individual state 
assessments of access to counsel and of the quality of representation 
in such proceedings.
    While the foregoing projects and programs are commendable, the 
financial support of DOJ devoted to indigent defense is substantially 
less than the sum spent on the improvement of prosecution services at 
the state and local level. For this reason, the Committee calls for the 
financial support of ``prosecution and defense . . . [to] be 
substantially equal.''
    You may say: How can we provide assistance with all the other 
demands we face? I ask: How can you not? You provide massive amounts of 
funds to police, prosecution, and prison. It is past time that you 
invest in an entire system and not simply a punitive piece of the 
system.
                               __________

    Mr. Scott. Mr. Crotzer?

TESTIMONY OF ALAN CROTZER, PROBATION AND COMMUNITY INTERVENTION 
  OFFICER, FLORIDA DEPARTMENT OF JUVENILE JUSTICE, WRONGFULLY 
CONVICTED AND SENTENCED TO 130 YEARS IN PRISON, TALLAHASSEE, FL

    Mr. Crotzer. Good morning, Chairman. Good morning, 
Committee Members. And I just want to thank God for being here 
this morning. I didn't think I was going to make it. I only got 
in around 2 o'clock this morning; my flight was delayed so 
much. So if my eyes are red, it is because I didn't have much 
sleep.
    I did submit a written report, and I know everybody should 
have one. But I want to tell you real quick what really 
happened to me in my own words out of this mouth.
    In 1981, I was convicted of three counts of armed robbery, 
one count of attempt robbery, two counts of sexual battery, two 
counts of kidnap, one count of armed burglary and one count of 
assault with a deadly weapon. I was tentatively identified by 
one of two rape victims--or one of two rape victims, as an 
assailant. I was said to be six feet tall, light complected, 
weighing 200 pounds. I was five foot five, weighed 135 pounds; 
as you look at me, you can see I have never been light skinned. 
[Laughter.]
    You know, but all this points to the fact that I was 
convicted 10 months later, sentenced to 130 years. I spent 24 
years, 6 months, 13 days and 4 hours wrongly convicted. And if 
it wasn't for the grace of God and DNA testing, I would still 
be in there rotting away in a South Florida prison for crimes I 
didn't commit.
    It took me 20 years writing letters to everyone, even the 
person that prosecuted me, and the lawyer that became a judge 
that handled my case can't remember me. Twenty years of writing 
the people everywhere across the Nation to finally find someone 
to take my case, 1,200 miles away in the city of New York City, 
David Menschel and Sam Roberts came to my rescue. Two young men 
that were--one was just an intern, and one was just an attorney 
for a couple of weeks. They saved my life. It took them 3\1/2\ 
years to get me out. That is what you call competent 
representation.
    Why did I not get that before then? No one looked at my 
alibi witnesses; no one looked at the fact that I didn't fit 
the description, at least my attorney didn't. The serology 
report was botched too. The serology report proved I couldn't 
have been the perpetrator of the crime, and yet I spent more 
than half of my life in prison. My whole world was turned 
upside down.
    And I am not the only one. I was number five in the state 
of Florida, 173 in the country. I haven't been out for 3 years 
and 4 months; they have 10 in the state of Florida, DNA 
exonerees, and 234 in the whole country. That is one per year 
for the existence of this country. One is too many.
    The system is broken. It failed me from the beginning. Why? 
Because I was indigent and convenient. This has to stop, and 
the only people that can change that is basically people in 
power, people on this Committee--and no matter what your 
political party is.
    People are dying in there. I represent right now--in my 
heart, I represent Frank Lee Smith, who died on death row, the 
first DNA exoneree in the state of Florida. He died on death 
row before he was DNA exonerated. He was exonerated after his 
death. I represent him today in my heart, and there are others.
    And all I am asking is that you read the report and try to 
help us. One is too many. That is all I have to say.
    [The prepared statement of Mr. Crotzer follows:]
                   Prepared Statement of Alan Crotzer
    Good morning and thank you to this esteemed Committee for inviting 
me to speak about an extremely important issue that has profoundly 
affected my life in unimaginable ways. My name is Alan Jerome Crotzer 
and on July 10, 1981, at the young age of twenty, my life changed 
forever. At around 5:30 A.M., law enforcement officers in St. 
Petersburg, Florida, came to my girlfriend's mother's house where I had 
spent the night. They came to arrest me and accuse me of a horrifying 
crime. They were looking for three black men who invaded a home, 
kidnapped a thirty-year-old white female and twelve-year-old white 
female, placed them in a trunk of a car, drove them to a secluded area 
in the Florida summer heat, and then raped them. They were looking for 
me because the adult female victim made a tentative photo 
identification of me as the ring leader.
    I was taken to the county jail and charged with three counts of 
armed robbery, 1 count of attempted robbery, 2 counts of kidnapping, 2 
counts of sexual battery, 1 count of armed burglary, and 1 count of 
aggravated battery with a deadly weapon. Ten months later, I was 
convicted by an all white jury and sentenced to 130 years in prison. 
When they announced the sentence in court, my mother crawled out of the 
court room on her hands and knees as she wailed, lamenting that her son 
would likely die in prison as a rapist.
    But my faith in God and in my innocence brought a different 
outcome. On January 23, 2006, at 9:30 A.M. and after 24 years, 6 
months, 13 days, and 4 hours of wrongful incarceration, I was released 
from custody an innocent man, as new DNA results proved once and for 
all that I did not commit this crime. I was not the monster they made 
me into.
    I would still be in a deep south Florida prison today for crimes I 
didn't commit but for the legal help I received from 1,200 miles away 
in New York from David Menschel and Sam Roberts. For three years, they 
put their lives on hold, making numerous trips to Florida and spending 
thousands of dollars to free one innocent person.
    These efforts, particularly the time, energy, and money spent to 
free me, are in stark contrast to the efforts made by my court-
appointed attorney to keep me from being convicted in the first place. 
I was just a kid; a minority, poor, uneducated in the law, and very 
convenient. I needed professional legal help and expected to get it 
when the judge appointed me an attorney. It is generous, however, to 
say that my public defender at trial was ineffective. Frankly he hardly 
showed up. The first time I even saw him was 90 days after I was 
arraigned. In one of our very few meetings I had with him, he ignored 
my claim of innocence and instead tried to force me to plead guilty and 
accept 25 years imprisonment. He reasoned that I would probably only do 
12.5 years.
    His cavalier attitude towards my innocence carried over to how he 
handled trial preparation and the actual trial. I alerted him that I 
had an alibi--I was watching TV at my girlfriend's mother's house in a 
different county at the time of the crime--and that witnesses could 
truthfully explain to the jury that I was more than twenty miles away 
from the crime when it happened. My lawyer never even interviewed these 
witnesses. My lawyer failed to subpoena these witnesses for depositions 
or trial, so I had to do these subpoenas myself. The State even came to 
my jail cell to collect physical evidence from me. I asked the 
prosecutor where my attorney was and he replied that my public defender 
was literally on vacation.
    But his unwillingness to put on even a minimal defense at trial 
made my wrongful conviction not just possible, but probable. He did not 
vigorously demonstrate my solid alibi defense. He didn't challenge the 
obviously suggestive photo identification used to mistakenly connect me 
to this crime. And, most importantly, he failed to sever my trial from 
that of one of the actual perpetrators of this horrendous crime. 
Instead, the jury got to blame me as I sat there listening to the 
actual rapist, representing himself and cross-examining his own victim, 
even arguing that because she didn't fight back it must have been 
consensual.
    When the jury read its verdict, I came to the realization that I 
would probably die an innocence man in prison, at least in part because 
my lawyer was too lazy, too busy, or just didn't care enough to provide 
me with the effective representation I was constitutionally guaranteed. 
Despite his gross ineffectiveness, my attorney was rewarded with a 
circuit court judgeship, where he still sits today.
    I lost so much during my wrongful incarceration. The crack-cocaine 
epidemic ravaged my working-class St. Petersburg, Florida neighborhood 
and many of my family and friends became woefully addicted. I never 
fulfilled my dream of serving my country in the coast guard and getting 
an education in the process. I lost the prime years of my life to start 
a family, build a career, and gain the life skills and experience that 
most people take for granted. Most of all, my mother never experienced 
my vindication in her lifetime, as she died of cancer less than five 
years before I was exonerated.
    Many in my position would be bitter and burdened by all that was 
taken during the wrongful incarceration. But I don't have time for 
that. I spend my days working as Intervention Specialist at the Florida 
Department of Juvenile Justice, encouraging at-risk kids to get their 
lives on a positive path. I am a member of the Board of Directors of 
the Innocence Project of Florida where I speak out and raise awareness 
about my wrongful conviction and incarceration, alerting the public of 
ways we can prevent such injustice in the future. I also try every day 
to be a good husband to my new wife and positive role model to her two 
kids.
    I am here today, however, as a member of the National Right to 
Counsel Committee to tell you about my experience as an indigent 
defendant who was left behind by a broken criminal justice system. I 
hope that my story of ineffective assistance of counsel can be a lesson 
that if we are going to continually incarcerate more and more people 
every year in this country, then we have to do better to make good on 
our constitutional promise of adequate representation. It is my wish 
that my words here today are the beginning of real interest by this 
Committee and this Congress in reforming our indigent defense system so 
what happened to me will be infrequent rather than a constant refrain.
    I thank you for your invitation to come here to tell my story and I 
look forward to answering any questions you may have.
                               __________

    Mr. Scott. Thank you. Professor Luna?

         TESTIMONY OF ERIK LUNA, PROFESSOR, WASHINGTON 
        AND LEE UNIVERSITY SCHOOL OF LAW, LEXINGTON, VA

    Mr. Luna. Thank you.
    Thank you, Congressman Goodlatte, for the--introduction.
    Chairman Scott, Ranking Member Gohmert and Members of the 
Committee and Subcommittee, thank you for the opportunity to 
speak today on the subject of indigent representation of 
counsel.
    Let me begin by reiterating my firm belief in the sixth 
amendment and the constitutional duty of the states to provide 
competent legal representation to indigent defendants whose 
liberty the prosecuting jurisdiction seeks to deprive. It is as 
true today as it was when Gideon was announced that defense 
attorneys are necessities, not luxuries, in the criminal 
process.
    One of the documents that inspired today's hearing, the 
report of the National Right to Counsel Committee, provides a 
comprehensive review of indigent defense in jurisdictions 
across the Nation. I will not reiterate the troubling 
narratives it provides, as my fellow witnesses and the report 
itself can do this with far greater eloquence.
    I simply pause to note that the problems detailed in the 
report are deeply disturbing to me, and I suspect the sentiment 
is shared by most in the room regardless of political party. 
The real issue is not whether a so-called constitutional crisis 
exists, but what entity created the dilemma and what should be 
done to resolve it--in other words, questions of responsibility 
and remedy.
    Like previous works, the report sets out a series of 
recommendations to deal with the problems of indigent defense. 
Almost all the recommendations are unobjectionable, if not 
laudable, particularly those that call upon the states to 
fulfill their constitutional obligations by providing adequate 
funding.
    Not only is it constitutionally required that the states 
pay for these expenses, it is altogether fitting. After all, 
the states and their agents are the ones who set the entire 
process in motion and have made all the choices that have 
resulted in today's situation.
    As a matter of Federal constitutional law, the states have 
no obligation to criminalize and punish any particular 
behavior, nor are they required to arrest and prosecute any 
given individual. But when jurisdictions choose to employ their 
awesome power to deprive individual liberty, they have the 
absolute duty to comply with the U.S. Constitution, including 
the sixth amendment. In a very real sense, the states have 
brought any crisis upon themselves through overcriminalization.
    And to be sure, they have the power to remedy the situation 
by parsing back their bloated penal codes and reducing lengthy 
sentences and by being more prudent in the enforcement of 
criminal laws on the streets and in courthouses.
    Indeed, there should be no doubt that the relevant 
jurisdictions can provide the funds for competent indigent 
representation, as demonstrated by the disproportionate 
resources provided to prosecution offices and law enforcement 
agencies and the vast sums the states spend on legal work and 
programs that are not constitutionally required.
    Now, I won't belabor the two primary arguments regarding 
Federal involvement, the principle of federalism and the 
potential for perverse incentive structures, as I testified 
about these concerns at the last hearing, and they are laid out 
in some detail in my written testimony today. In a nutshell, 
federalism, which is in the text and context of the Nation's 
charter, limits Federal power and cautions against interference 
with the core internal affairs of the states, including state 
criminal justice.
    As the Supreme Court has said, constitutional concerns are 
raised whenever Congress affects a significant change in the 
sensitive relation between Federal and state criminal 
jurisdiction. Federalism has many values, including protection 
against the dangers that come from the concentration of too 
much power in too few hands.
    Federal funding of state indigent defense also raises 
policy issues, especially the specter of moral hazard, an 
economic phenomenon that was once described as the distortions 
introduced by the prospect of not having to pay for your own 
sins. If a given state does not bear the full cost of its 
criminal justice's decisions and instead is able to externalize 
a politically disagreeable expense on another entity, state 
officials may have little incentive to temper their politically 
self-serving decisions that extend the criminal justice system.
    In a worst-case scenario, those states that have met their 
constitutional requirements may be tempted to skimp on their 
budgeting for indigent representation with an eye toward 
receiving Federal support.
    I should also mention that I have some concerns about the 
proposed National Center for Defense Services, a bureaucracy 
that would set policy and control and dispense Federal funds. 
Although the proposal is extremely well-intentioned, caution is 
warranted in creating any Federal body with such powers outside 
of the constitutional framework.
    Government bureaucracies tend to be acquisitive, 
monopolistic, and they seek to maximize their funding and 
expand their powers. They also have a tendency toward 
entrenchment, and they create agency cost, serving the self-
interests of bureaucrats rather than the principals, the 
American taxpayers.
    Now, although Federal involvement in state indigent 
representation is problematic on a number of grounds, I will 
not lose sleep if Congress were to create the National Center 
for Defense Services. I am, in fact, more troubled by the 
prospect of becoming an involuntary stockholder of General 
Motors.
    But before acting, I would simply recommend that Congress 
take into consideration all constitutional values at stake, 
including federalism and the unintended consequences and equity 
of absorbing the costs owed by the state that in all good 
conscience they should pay.
    Most of all, I hope Congress will consider measures that do 
not raise the same type of constitutional and public policy 
concerns, a few of which I mention at the end of my testimony, 
my written testimony.
    Again, thank you for the opportunity to speak today, and I 
look forward to answering any questions that you may have.
    [The prepared statement of Mr. Luna follows:]
                    Prepared Statement of Erik Luna




                               __________

    Mr. Scott. Thank you.
    Mr. Hunter?

   TESTIMONY OF MALCOLM R. ``TYE'' HUNTER, FORMER EXECUTIVE 
 DIRECTOR, NORTH CAROLINA OFFICE OF INDIGENT DEFENSE SERVICES, 
                           DURHAM, NC

    Mr. Hunter. Thank you very much, Mr. Chairman. Can you hear 
me? Hello, good morning, is this working? Do I need it----
    The light is on. Now you can hear me. I need to have it a 
little closer.
    Mr. Chairman, Members of the Committee, thank you very much 
for the opportunity to be here.
    I suppose on this panel, I am the career public defender. 
Mr. Gohmert, I am the one who should defend the lawyers who do 
this work. I have devoted my whole career to it. And there is 
no question but what there are lawyers in every state and all 
over the country who are doing great--some people are doing 
heroic jobs and a lot of people are doing good jobs.
    But I think the report is correct in that, in general, the 
system is not working well for a combination of circumstances. 
I think money is probably the biggest reason.
    I also don't disagree with Professor Luna that this is the 
state and the local folks' problem in a lot of respects, but we 
are here. The states aren't doing it. We don't seem to have a 
good way to force the states or make the states see their 
responsibility in a way that they provide adequate funding.
    And adequate, I would say also, standards are just as 
important as funding for this problem. And we are in a 
situation where we are, in fact, sending lots of Federal money 
in. Lots of Federal money has gone in North Carolina, and we 
are like Minnesota. I stopped even applying for Byrne Grants 
years ago because we never got a sniff at that. The great 
majority--practically all of that money goes to prosecution and 
to law enforcement.
    And so we are not living in a world where the Federal 
Government is not involved in state criminal justice; maybe we 
should be. But right now, the state's thumb is on one side and 
not the other. And so if we get out, if Mr. Luna's idea of the 
way government should work prevails, then I have no complaints. 
But until that happens, I think the defense function should get 
their fair share or at least a fair share. And so far, they are 
certainly not.
    I want to follow up just briefly on Mr. Crotzer's story. 
That is not a unique story. I mean, there are five or six or 
seven people convicted of first-degree murder in North 
Carolina. Actually, a lot of them had good lawyers. Some of 
them had terrific lawyers but were wrongly convicted, and only 
through DNA years later did we find out that in fact they were 
not guilty.
    I think what all of us need to remind ourselves about DNA 
is that DNA is just a window to allow--what is more important 
than DNA is what is the evidence that allowed judges and juries 
to convict somebody and find someone guilty beyond a reasonable 
doubt; forget about the DNA. All of those were cases where 
there shouldn't have been evidence that would prove their guilt 
beyond a reasonable doubt. You shouldn't have to prove your 
innocence. The state has the burden of proving you are guilty.
    So we have hundreds of cases where juries are convicting, 
prosecutors are prosecuting, where in fact they have got the 
wrong person. And so we need to be aware of that. And, of 
course, better counsel will be a very important part in trying 
to improve that situation.
    But DNA is not the answer. DNA has given us a window into a 
criminal justice system where we are making mistakes, not most 
of the time, just in a small group of the cases. But we can 
minimize those mistakes, I think, and we need to look at what 
is the evidence--what are the commonalities of the evidence 
that we are convicting people on that later DNA is showing us 
that we made mistakes?
    And so I hope we will look at that. And I hope, if the 
Federal Government gets involved in defense, that you will not 
just send money down to North Carolina and let somebody down 
there decide, you know, willy-nilly how to spread it out to 
make up for the gaps in what the state should be doing. I think 
the appropriate role for the Federal Government is limited, and 
it should be to encourage innovation, to encourage improved 
quality.
    I think any money that gets sent down should be tagged so 
that we are not paying for what the state should be paying 
anyway or allowing the state to shift funds to highways or 
something--all of which we need in North Carolina, by the way--
but that improves the situation we have got right now. And I 
think there are lots of opportunities for innovations and for 
quality that could come from outside funding.
    And I will give you one example; it is in my written 
materials. An LEAA grant was awarded to North Carolina in 1980, 
and we started the Appellate Defender's Office. That was the 
first statewide defender we had in North Carolina. We had a few 
local public defenders, but we had no statewide defender 
office. It funded that Appellate Defender's Office for 1 year. 
I think it cost about $350,000 back in 1980.
    That office was evaluated after that first year. The state 
picked up that office, decided that was an agency that was 
worth the state funding, and it has been going and has provided 
excellent representation for indigent people on appeals for 29 
years now.
    And in fact, I think the success of that office helped 
create an atmosphere where, when we tried to form the Indigent 
Defense Services in 2000, it was acceptable to the legislature 
and to the courts and to the bar because of what we had done in 
the Appellate Defender's Office.
    So that was a small seed money, if you will, contribution 
by the Federal Government, which was limited in time, 1 year, 
and then the state decided--do they want to--is this a service 
that is worth picking up or not? And they did pick it up. And I 
think it has really been a part of the reform movement that we 
have had in North Carolina, where we have improved our work.
    Thank you very much.
    [The prepared statement of Mr. Hunter follows:]
            Prepared Statement of Malcolm R. ``Tye'' Hunter
    Thank you for the opportunity to speak on the subject of indigent 
defense representation. My name is Tye Hunter and I recently retired 
after more than thirty years of direct involvement in the 
representation of indigent persons in state courts in North Carolina. I 
have served as a public defender, an appellate defender and, from 2001 
through 2008 as the first executive director of the newly formed North 
Carolina Office of Indigent Defense Services. In my time I'd like to 
make a modest suggestion about a role the federal government could take 
to encourage reform.

1. Justice Denied

    But first I want to acknowledge the excellent work of the 
Constitution Project's National Right to Counsel Committee and the 
Committee's report, Justice Denied: America's Continuing Neglect of our 
Constitutional Right to Counsel. I agree with the report's criticism of 
our current attempts to provide counsel for indigent people accused of 
crimes. I also agree with the general thrust of the recommendations. I 
especially like that the recommendations are organized to point out 
what different actors could do to improve things. The bar, the state 
and federal judiciary, state legislatures and this Congress have all 
played a part in the neglect of the right to counsel and all, I think, 
must play a role if we are to reform our current system.

2. The North Carolina Indigent Defense Services Commission

    North Carolina created an Indigent Defense Services Commission 
(IDS) in 2000. I am attaching a document from the IDS website, 
ncids.org, that summarizes the reforms undertaken by the Commission in 
the past eight years. These include the development of state wide rules 
governing the delivery of indigent legal services, expansion of public 
defender offices, creation of performance guidelines, improvement of 
training for lawyers and establishment of special state wide rosters 
for capital and appeal cases. While I am proud of what has been 
accomplished in North Carolina, we are aware that we are not nearly 
finished with the long and difficult work of reform. There are a number 
of significant reforms that would improve the quality of indigent 
defense in North Carolina that the Commission has been unable to 
accomplish, not because of lack of funds, but because of resistance to 
change by powerful interests among the bench and bar.

    3. Money Not the Only Problem

    Lack of adequate funding is the biggest problem for indigent 
defense, but it is not the only challenge. Although the problems with 
indigent defense are repeated throughout the country, most people 
involved with indigent defense have a narrow and local view. I have 
found that most lawyers and judges are sympathetic with the kind of 
report we are discussing today and have no problem with general 
criticism of the quality of indigent defense work. However, most people 
in positions of power feel that their own jurisdiction is an exception 
to the general rule of deplorable quality. People support reform until 
it is specifically directed at the place where they make their living. 
While the local indigent defense system may work very badly for 
indigent people accused of crime, it may work pretty well for the local 
judges and lawyers. Or even if it doesn't work very well for the 
professionals, at least they have learned how to negotiate in the 
current system and they are reluctant to exchange it for a system that 
may or may not serve them as well. Thus, it can be difficult to 
convince folks on the local level that they have a problem, much less 
that they need to change the ways they have been doing things. Anyone 
hoping to actually reform our current system must understand that it is 
really thousands of different local systems. This does not mean that a 
regional or national reform effort cannot succeed, but any reform 
strategy must either have the authority to impose reform despite local 
misgivings or be prepared to engage in a protracted effort one 
courthouse at a time.

4. A Role for the Federal Government

    I suspect there will be little dispute about the fact that the 
right to counsel is neglected and that the neglect is nationwide in 
scope. The issue of what the Congress can and should try to do about it 
is more controversial.
    As an early step, I think it would be useful if the federal 
government would make grants available to reward and encourage indigent 
defense reform. Currently, federal grants and assistance coming to 
North Carolina for public safety or criminal justice almost never make 
their way to indigent defense.
    I know that many are suspicious of further federal involvement in 
what they think should be the responsibility of the state or county or 
city. I can tell you about one federal program that funded an indigent 
defense project in North Carolina that has had a very positive impact. 
In 1980, the federal government awarded an LEAA grant to North Carolina 
to fund an Appellate Defender's Office for one year. That was the first 
statewide indigent defense program in North Carolina. During that first 
year a thorough evaluation was conducted and published. The Office of 
the Appellate Defender was picked up for state funding the second year 
and has lifted the quality of indigent representation for appeals for 
29 years. The success of that office helped set the stage for other 
statewide defenders and for the acceptance of IDS in 2000. The lawyer 
who had been the first Appellate Defender in 1980 served as the first 
Chair of the IDS Commission in 2000. That small and limited time 
investment by the federal government paid large dividends for reform in 
North Carolina.
    Any funding from the federal government should be aimed at 
improving the status quo rather than merely filling the budget gap for 
state or local programs. I would reward programs that agree to 
standards consistent with the recommendations of the Right to Counsel 
Committee's report and groups like American Bar Association, the 
National Legal Aid and Defender Association and the National 
Association of Criminal Defense Lawyers. I would also encourage 
innovators. A few of our thousands of local systems can serve as pilot 
programs as we try to discover better ways to accomplish the goal of 
creating a truly effective system of indigent defense. While many 
jurisdictions fail to provide even minimal representation, others have 
tried new approaches. These experiments should be encouraged. All 
programs that are funded should be evaluated to determine whether they 
should be continued.
    Thank you again for your invitation, thank you for your interest in 
this very important problem, and I am happy to answer any questions you 
may have.

                               ATTACHMENT




                               __________
    Mr. Scott. Mr. Hall?

TESTIMONY OF JOHN WESLEY HALL, PRESIDENT, NATIONAL ASSOCIATION 
          OF CRIMINAL DEFENSE LAWYERS, LITTLE ROCK, AR

    Mr. Hall. Mr. Chairman, I am here on behalf of the National 
Association of Criminal Defense Lawyers. And we are the 
organization that represents the mission of the United States 
criminal defense lawyers to ensure due process of those accused 
of crime. We have 12,000 direct members and approximately 
40,000 indirect members through our state and local affiliates, 
and we are committed to preserving fairness within the criminal 
justice system.
    The sixth amendment to the United States Constitution 
guarantees to every accused person the right to effective 
assistance of counsel, and it is one of the hallmarks of 
American justice. It is also a core value of our constitutional 
guarantees, because it is in the Constitution explicitly. 
Defense counsel is recognized by the sixth amendment. The court 
is not; the prosecutor's not. But the defense counsel is.
    Criminal defense lawyers are, of course, the natural 
defenders of all these rights. As already noted by the Chair, 
80 percent of all persons accused are represented by appointed 
counsel, and public defense is, in fact, the backbone of 
American criminal justice.
    And public defenders, I submit to you, get no respect at 
all. I do a fair amount of post-conviction work, and I asked 
the clients, ``Who represented you at trial?'' And they said, 
``I didn't have a lawyer; I had a public defender.'' And that 
is an appalling comment at what people convicted of crime think 
about their representative. They shouldn't think that way, but 
they do because criminal defense--excuse me--appointed criminal 
defense lawyers are just overwhelmed in their work. They have a 
constitutional and ethical duty not to take any more cases when 
they get overwhelmed.
    In Louisiana, lawyers in some counties have sued the court 
or the state to say, ``I cannot take any more cases; I need 
help. I am overwhelmed. My clients are being convicted because 
I can do nothing more to defend them when I have to.'' There is 
a case in Louisiana, New Orleans for instance, where they have 
19,000 cases, misdemeanor cases, per public defender. That is 7 
minutes a case. You cannot represent somebody in 7 minutes.
    And the example of the death penalty Mr. Quigley raised--if 
the state wants to have a death penalty, then they have to pay 
for it. They have to pay for the prosecution, they have to pay 
for the investigation, and they have to pay for the defense. 
And 998 out of 1,000 death penalty cases have appointed 
counsel. Occasionally somebody can afford to pay for counsel; 
usually they cannot.
    The soundness of our entire system depends upon the 
accuracy of results. Mr. Crotzer's case points that out. If the 
wrong person is convicted, that means that the perpetrator is 
still on the street. While he spent 20 years in jail, the guy 
that actually did it is still out there. He may have been 
arrested later for that crime but maybe not.
    But all this erodes public confidence in the system of 
justice. And I agree with Mr. Gohmert that there are, in fact, 
good examples. We should study those examples to learn from 
them.
    But every state manages its own public defense system, and 
some have no system at all. But those systems, the good 
systems, are the exception rather than the rule. I don't think 
that even new money is necessarily required; just require that 
when you give, say, a million dollars for--or excuse me--a 
million dollars for prosecution that some percentage of that 
should be guaranteed for the defense, be it 10 percent, 5 
percent, something so that at least we see how it works at the 
state and local level. Because they will take all this money, 
and they will put it all in prosecutors; they will put it all 
in investigators and give nothing for defense because defense 
is secondary to them.
    But I said before, it is a core value of the sixth 
amendment, and don't let it become an empty right. It continues 
to be an empty right in some states, and it should stop being 
an empty right.
    Thank you.
    [The prepared statement of Mr. Hall follows:]
                 Prepared Statement of John Wesley Hall




                               __________

    Mr. Scott. Ms. Billings?

   TESTIMONY OF RHODA BILLINGS, CO-CHAIR, NATIONAL RIGHT TO 
  COUNSEL COMMITTEE, FORMER JUSTICE AND CHIEF JUSTICE OF THE 
          NORTH CAROLINA SUPREME COURT, LEWISVILLE, NC

    Judge Billings. Good morning, Chairman Scott and Chairman 
Conyers and distinguished Members of the Subcommittee. Thank 
you for the opportunity to comment on the issues that are 
raised by the report of the National Right to Counsel 
Committee, of which I am a member.
    Having listened to the statements of the Members of the 
Subcommittee and of my co-witnesses, I have decided to depart 
completely from my prepared remarks, in part because I think 
everyone here expresses the same agreement that there is a 
serious problem, a real crisis, in indigent defense across 
America. A system of criminal justice that does not convict the 
guilty fails society because it leaves on the streets those 
people who have committed crimes and will probably commit them 
in the future. But a system of criminal justice that convicts 
the innocent, does not exonerate the innocent, is totally 
contrary to our entire American view of justice.
    And we know that people are being convicted who are 
innocent of the crimes. The rate at which our citizens are 
being incarcerated or, even if not incarcerated, are given 
criminal records that interfere with their ability to find 
employment and earn a living for themselves and their 
dependents, a rate that is the highest of any nation in the 
world, is a national disgrace.
    I have some statistics on a report from the Pew Center on 
the States and their report released a little over a year ago 
entitled, ``More than One in 100 Adults Are Behind Bars''. That 
report also deals not just with the ones who are behind bars 
but those who are under some present supervision in the form of 
parole, probation or incarcerated.
    In my state of North Carolina, one in 38 adults are under 
that kind of control. In the state of Virginia, it is better; 
it is one in 46 adults. In the District of Columbia, it is one 
in 21. In New York, it is one in 53. In Texas, it is one in 22. 
Those are people that society has either taken away their 
liberty or has given them a mark that prevents them from 
gaining employment.
    Are we as a Nation that bad? I don't think so. What we have 
had is an explosion in the kinds of behaviors that are made 
criminal. What we have had is an explosion in the length of 
sentences that are imposed on citizens who are convicted of 
crimes. And what we have had is a system that does not protect 
from a finding of guilt those people who are wrongly accused.
    Yes, there are dedicated criminal defense lawyers across 
this state and this Nation. But, as Bob Johnson told you, we 
don't have enough of those people, and the people who are 
dedicated to the defense function are burned out in a very 
short period of time. They have so many cases; they can't do a 
good job no matter how dedicated they are because they simply 
don't have the resources. They don't have the time. They 
finally give out of energy.
    I am proud of what North Carolina has done, and Tye has 
been a tremendous asset to the state and was our first director 
of the Office of Indigent Defense Services--set in place a 
number of policies and a number of studies that have, I think, 
moved North Carolina very far ahead. But we are a long way from 
having solved the problem, because it is, in large part, a 
problem of having the money and the time to give to those 
people who are providing the defense the things that they need 
in order to succeed--the training.
    In my state--which you will notice that my experience as a 
lawyer was that the first time I was in court, shortly after I 
graduated from law school, I defended a person charged with 
murder. My husband tells and in my statement I tell about my 
husband representing a defendant who was charged with common 
law robbery, something that has potential sentence of 20 to 30 
years. The judge pressured, pressured, pressured him to accept 
a plea of guilty. His client accepted a guilty; he refused to.
    That pressure still comes from some judges. We have to stop 
it. The judge says, ``If you don't accept the plea, I will 
extend the sentence to be a maximum for whatever he is 
sentenced for or convicted of.'' And he was convicted of simple 
assault in about 30 days. The judge says, ``Okay, now it is 
time for me to set your fee--4 days of trial, $75.'' My husband 
turned and walked away and said, ``I didn't try this case for 
the money, your honor. You can keep your $75.''
    Those are the kinds of things that we see throughout the 
system time after time after time. What we are here today for 
is to talk about what can we do about it. All governments are 
struggling with budgets. All governments are trying to spend 
their money wisely. How do we get the attention of state 
legislators who are struggling with budget to see that this is 
an important priority?
    And there is where I think, in addition to the other 
suggestions that have been made, that we can have the Federal 
Government provide leadership in showing the states, bringing 
it to their attention, the problems that we have in indigent 
defense and assisting in getting them to recognize the problem 
and that this is a more serious problem than some of the things 
that they are using their money to support.
    Thank you.
    [The prepared statement of Ms. Billings follows:]
                Prepared Statement of Rhoda B. Billings





                               __________

    Mr. Scott. Thank you, and now we recognize ourselves under 
the 5-minute rule.
    Justice Billings, you are not on the supreme court now----
    Judge Billings. Correct.
    Mr. Scott. If counsel was so ineffective, how do you get a 
final judgment? Why isn't the supreme court overturning 
convictions on the basis of ineffective counsel?
    Judge Billings. There are, I think--I would give two 
answers to that question. One is that the United States Supreme 
Court has established a standard for ineffective assistance of 
counsel.
    Mr. Scott. And does that mean that that burden has not been 
met, notwithstanding the fact that you can show that your 
attorney was asleep during the trial?
    Judge Billings. You have to be able to show not only that 
counsel was ineffective but that, in the absence of that 
ineffectiveness, the result would have been different. And that 
is a very difficult thing to show when you don't have the 
evidence that backs up what--that is you don't have the 
evidence that would have been presented to the court had 
counsel been effective.
    The other thing, of course, and the other second sort of 
answer to your question, Chairman Scott, is that the appellate 
courts really are not able to substitute their judgment for 
that of the jury. They don't know what evidence was out there 
but not obtained. And they don't have the ability to say, 
``Well, I don't believe this witness, who is an inmate who 
testified that the defendant made a statement confessing his 
guilt, when in fact that inmate who is the witness against the 
defendant was only attempting to curry favor so that his 
sentence might be reduced or he might get some benefit from the 
state.'' So there is no way that really the appellate courts 
can rectify the deficiencies that result from ineffective 
assistance----
    Mr. Scott. Well, Justice Billings, let me ask you another 
question, just a kind of philosophical question. Is a guilty 
person entitled to a fair trial?
    Judge Billings. Yes.
    Mr. Scott. If you are on appeal and have to show that the 
result would have been different, that is that there would have 
been an acquittal--if he is in fact guilty, you find he 
wouldn't have gotten an acquittal if you had a fair trial. And 
therefore, how, on appeal, can a guilty person be guaranteed a 
fair trial if on appeal the question is: Is he guilty?
    Judge Billings. Well, we don't know if he is guilty if he 
was not given a trial in which the----
    Mr. Scott. But if you can't prove his innocence on appeal, 
that is that if you found the evidence they would have found 
that I didn't do it--if he in fact did it.
    Judge Billings. The problem, I think--I am not, I guess, 
maybe I am not quite following the question.
    Mr. Scott. Well, if they did it--you are on appeal. If they 
found out--any evidence they find would only confirm the fact 
that he in fact was guilty.
    Judge Billings. But, you see, the appellate court doesn't 
get additional evidence. The appellate court----
    Mr. Scott. Well, whatever evidence they got, it wouldn't 
have been a different--it would not have been a different 
result. And therefore, under the present system, a guilty 
person really isn't entitled to a fair trial, because when he 
gets on appeal, he can't prove his innocence; he can't prove 
that it would have been any different because if he had gotten 
a fair trial, he probably would have been found guilty.
    Judge Billings. That is presupposing that the person is 
guilty, but we don't know until we have had a fair trial 
whether he is guilty.
    Mr. Scott [continuing]. That is true. But if he is in fact 
guilty, according to this scenario, he really isn't entitled to 
a fair trial because, on appeal, unless he can show some 
difference, that is he would have been acquitted--he shouldn't 
have been acquitted; he was guilty.
    And so they have a sham trial, he gets on appeal, and he is 
really in a--and like, you are right, you don't know whether he 
is guilty or not. So if a guilty person isn't entitled to a 
fair trial and you get on appeal, an innocent person is stuck 
with having to prove his innocence.
    Judge Billings. Chairman, I would say that everyone is 
entitled to a fair trial. If, as the result of that fair trial, 
the person is found guilty, well, absolutely they should suffer 
the consequences of their guilt.
    Now, one of the things that we have seen happening in some 
of the states--and again making reference to my own state of 
North Carolina, we have an actual innocence commission that has 
been put in place as the result of the number of exonerations 
that we have been seeing, primarily as the result of DNA 
testing. Now, those commissions are looking back at the 
question of did this person's--was this person's trial fair and 
is there other evidence.
    Mr. Scott. That is to show whether they did it or not, 
whether they are in fact innocent.
    Judge Billings. Where they are in fact.
    Mr. Scott. And if the person is in fact guilty----
    Judge Billings. They would not recommend that it be 
reviewed further.
    Mr. Scott. And if a person on appeal cannot represent, as 
part of the allegation, that I didn't do it--if he in fact did 
it but just didn't get a fair trial, there is nothing there for 
him. He is not entitled--a guilty person is not entitled to a 
fair trial.
    Judge Billings. I still say that our Constitution entitles 
everyone to a fair trial.
    Mr. Scott. Well, in the present system, there is nothing to 
guarantee that for a person who is in fact guilty.
    Judge Billings. There is nothing to guarantee that a person 
who is in fact guilty will not be found guilty and punished.
    Mr. Scott. Even if the trial is not fair, because when he 
gets on appeal, he did it. So the fact that he got a unfair 
trial--there is no reversible error for a guilty person being 
convicted in an unfair trial.
    Judge Billings. I cannot say that it is not--there are a 
lot of cases that are reversed on appeal even though the 
defendant may be guilty. The appellate process is not to 
determine guilt or innocence so much as it is to determine 
whether there was a fair trial. And if some defect in the trial 
violates the rules, then the appellate courts will reverse and 
send it back for a fair trial to determine whether the 
defendant in fact is guilty.
    Mr. Scott. That is the way it ought to work, but as you 
have heard, unless you can--on ineffective counsel, you have to 
show the result would have been different, which only an 
innocent person can do, not a guilty person. So if you have 
someone like Mr. Crotzer, who was innocent, he can pursue his 
case because he was in fact innocent. Had he in fact been 
guilty and gotten that kind of representation, what would have 
happened?
    Judge Billings. The----
    Mr. Scott. My time is expired. I have got a bunch of other 
questions. [Laughter.]
    Let me go to the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. The present Chair of the Crime Committee in 
Judiciary is the finest one that I have ever worked with since 
I have been on the Committee, which goes back an incredibly 
long amount of time. But he has a--he also is a psychological 
student, and he uses reverse psychology in some of his 
questions, which could confound the normal mind. I am used to 
it, though. [Laughter.]
    I want to commend him for this series of hearings that he 
has held. This is an enormous subject. And I am not concerned 
with the media, except there is only one reporter in the 
Judiciary Committee during this hearing. Chairman Scott made me 
feel a lot more comfortable when he told me they are all 
looking at it up in the gallery in their offices. I want to 
believe that, too. [Laughter.]
    And that puts a finger on the problem, doesn't it? This is 
not a sexy subject. Who wants to listen? Hey, look, let us--
look at all the talking heads and drama shows and crime shows 
and law, how prosecutors bust criminals, all that going on, and 
here we are talking about a whole history of a serious 
constitutional problem, and we scrape up one reporter.
    And I commend all six of you this morning because nobody--
we have been extremely legalistic, and I am so glad that nobody 
has raised the question of race or racism. I am proud of you. 
And I am not raising it either; I want to keep this discussion 
clean of that. But it occurred to one smart-aleck staffer that 
the reason for most of this is race. So I commend all of you 
for wanting to do something about it.
    We apologize to Rhoda Billings. Her sign should read Chief 
Justice Rhoda Billings. Since we are putting on she is the 
former justice, why don't we put on former chief justice? And 
she has done such--all of you have done such a commendable job.
    Professor Luna deserves a hearing on the constitutional 
questions that he raises. That could be a panel of serious 
discussion, because I respect your integrity and the way you 
pose not only the problem but the solution to the problem. All 
of you have done such a great job.
    Now, the question is--and I think it was Malcolm Hunter who 
put it succinctly--it is not just spending, but how will we 
revisit the standards and make them workable? I think that is 
the crux of which I hope our Chair will continue these 
hearings.
    Now, this raises another subject for the Committee. This is 
one part of the Constitution that is failing to uphold its 
commitment. I mean, everybody--I walk around with a 
Constitution in my pocket. This thing is failing; we are 
failing miserably, and this is the first major effort to 
redress it.
    And so one of the questions then--and we are going to be in 
contact now; you are part of our extended legislative committee 
now. There are a lot of--there is so much going on that we 
could go into this further, but it is a huge undertaking. You 
could put another Subcommittee--we could create another--he has 
got so many problems: disparity, the state of the prisons, the 
fact that many people are further criminalized after they are 
incarcerated. He has got stacks of stuff.
    And so we have got to look at this as effectively as--you 
have brought in people who have dedicated your careers--Johnson 
could have--all of you could have gone on into much less trying 
aspects of the law or the practice of law, and yet you are 
here. And that is what makes me so very proud of you. We have 
got a huge job to do, and, when we do it, we make the 
Constitution believable.
    I close with this thought. I keep asking myself how people 
in this country, the greatest democracy, wealthiest, most 
powerful that civilization has ever recorded--and yet you have 
an election and 12 percent of the people even bother to cast a 
ballot, some of them people who would have had to pay with 
their lives to try to cast a ballot not that long ago.
    And I think that it goes, Professor Luna, into making 
people believe that this all amounts to something. This is one 
of the things I am inquiring into. ``Why didn't you vote?'' 
``Well, we like you, Conyers; we know you are going to get 
reelected. And, you know, I was busy, on my way to work. I am 
being foreclosed on.'' And so this is what plays a much larger 
role in the psychological dimension of our citizens who say, 
``Vote for what?''
    We got a prison-to-pipeline system going in nearly every 
state in the union, and they are not all bad people or sub-
Klansmen or people with a fanatical racist attitude. Look, 
folks, it is just the system, Conyers; all these people we are 
bringing into Federal court in your city, all punks on the 
corner, you arrest them one night, there is another group there 
that are back selling narcotics.
    And they will be in--the next week, they will be brought in 
in chains. And in your heart, you know they are done for. The 
odds against any of them--and it is not that they are all 
innocent or that they were framed, but the system goes for--
someone said it--overincarceration, overprosecution.
    Look, we caught this guy on the corner, and you know what? 
And with disparity kicking in, another one of his problems, he 
is going to get the max, first time. Sure, he violated the law, 
but those of us who make the law have to ask the question: Is 
this what this country is really all about?
    Is there any way, Luna, that we can devise a system that 
doesn't coddle criminals or allow us to be told that we are 
soft on crime but yet can understand the dimensions of a 
community where you got 70 percent of the people unemployed? 
They talk about a 9-percent unemployment rate. Are you kidding?
    And the people that are driving around and looking flashy, 
they are all violating the law hand over fist and everybody 
knows it, and so kids know. We have got graduates now that 
can't find a job. People are saying--and it really hurts--``I 
am not going to college. What is the diff? I can make as much 
money without going to college. What do I need a degree for?''
    It is incredible that we could have come to this situation, 
and yet, as you say, we are the primary shareholders in General 
Motors and at the same time that they are closing plants in 
Detroit, Hamtramck, Trenton and moving out of the country with 
billions of taxpayer dollars. So I can't tell you how important 
your insights are to me and how important this Committee is to 
me.
    Mr. Scott. Gentleman from Puerto Rico?
    Mr. Pierluisi. Thank you, Mr. Chairman. I commend you as 
well.
    The first thing I am going to say is that it is so much 
easier for elected officials to talk about law enforcement as 
opposed to the rights of the accused, and that is why this is--
it is a tough one for many.
    But all of us who have been officers of the court know that 
this is about justice; it is about the adversarial system that 
we are supposed to have in America. And the way it works is by 
both sides having access to competent counsel, the prosecution 
as well as the defense, the accused. Right now, it is clear 
that this is not working.
    And one thing that was mentioned in here--I believe it was, 
well, both Mr. Johnson and I believe also Professor Luna--is 
that we talk about funding. Perhaps this is not a matter of 
spending more money, but we have to also look for a balance in 
the way that the Department of Justice uses its resources.
    There is a wide range of Federal programs assisting 
prosecutors, assisting police and prevention as well, so we 
have to then determine ways in which we can use Federal funding 
to improve the way we go about complying with the sixth 
amendment. It could be in the area of standards. It was 
mentioned by Mr. Hall. It could be in the area of innovation 
and quality, trying to spur that. Perhaps we are talking about 
formula grant programs. It could be discretionary programs, but 
we have to be creative.
    We have to deal with this. We cannot simply let it continue 
happening because it ends up with a travesty of justice, like 
in your case, Mr. Crotzer, and in so many others. I wonder, 
then, what is the best way of dealing with this from the point 
of view of the Federal Government and the point of view of 
limited Federal resources.
    So I just throw the question, and I assume that any of you, 
particularly Mr. Johnson or Professor Luna or any of you, could 
address it--creative ideas, ways in which we can come up with 
programs at the Federal level to improve the way that we are 
handling this, because frankly it is really, really, really 
disturbing. And it should be disturbing.
    Mr. Johnson. We will pass it down.
    Mr. Chairman, remember, I raised that, and, as you have 
described, I think it is a very important issue that when you 
are considering funding some aspect of the state criminal 
justice system, that there be direction to the Department of 
Justice, if we are routing it through Justice, that that be 
parsed to all parts of the system, that you can't, as you very 
accurately recognize, that you can't fund one part of the 
system and continue to have a system that is going to deliver 
justice because the other parts have to also come into play.
    You can't fund specialty courts unless you are also going 
to fund the defense aspect of the specialty courts. You can't 
put enormous amount of money into drug interdiction if you are 
going to deal with the drug problem through the criminal 
justice system. You can't just provide that to drug task forces 
and to prosecutors to prosecute that. You also have to provide 
funds if you are going to have a system of justice to the 
defense side, too, so that we can effectively deal with those 
and perhaps not quite as harshly as we historically have been 
doing.
    Mr. Hall. Mr. Chairman, I would suggest that you look at 
the Administrative Office of the Courts. They fund the Federal 
defender system. And the Federal defender employees make as 
much as the U.S. attorneys make. They are adequately staffed. 
They have caseload numbers. And when they reach a caseload 
maximum, they put other people on staff, the same as the U.S. 
attorney does.
    Just look at that system. It is administered throughout the 
Federal Government by the Judiciary on the defense side, but 
the Department of Justice has an equal balance through the 
Federal defender.
    The problem is, what happens when it gets down to the state 
level? You give the money to the states, and they get whatever 
number of millions of dollars for prosecution; none of that 
goes for defense. And that just gives another overwhelming 
advantage to the prosecution. Some part of that money could be 
delegated to the defense. So you are not spending any more, but 
you are requiring them to guarantee the sixth amendment right 
to counsel in these new prosecutions that they are trying to 
instill.
    Mr. Luna. I would commend Chairman Conyers for his words. 
And just to add a little--this is to add on to what he said. If 
you placed a prison wall around North Dakota, South Dakota and 
Wyoming and counted every person as an inmate, it would not 
equal the total prison and jail population in America. And only 
to give--you would have to add American Samoa, Guam and the 
U.S. Virgin Islands penal colonies for it to get very close. 
That is the problem is we are looking into obviously indigent 
defense and, as was said earlier, it is constitutionally 
required. There is no doubt about that. But unfortunately, it 
is at the very end of the line.
    There is a lot that happens before then to lead to this 
problem. Overcriminalization is a real problem. The abuse of 
the criminal justice system, the incentive structures that 
police and prosecutors have to arrest and to prosecute--those 
are very troubling in our adversarial system. In terms of what 
Congress can do, I think there are many things that it can do 
that are consistent with the Constitution.
    I would throw this out. I know this won't be very popular 
with law enforcement and with the prosecutor's office, but one 
possibility is to simply end Federal funding and the Byrne 
Grants, which have, among other things, led to the scandal in 
Tulia, Texas. And that is a possibility. That is a very easy 
way to end disparity. I understand that is probably unlikely, 
given the constituents and their desires for Federal funds.
    I think a way forward that is very plausible is for the 
Federal Government to be a role model. The Federal criminal 
code, if you want to call it--and it is no criminal code; it is 
spread throughout the U.S. Code--contains more than 4,000 
different provisions that are punishable as crimes. That is 
quite simply ridiculous. Mandatory minimums, which are being 
addressed by Members of this Committee, should be looked at 
and, I believe, eliminated. You have sentencing guidelines--are 
absolutely indescribable, truly indescribable, and they should 
be looked at as well.
    And I would advocate your support for Senator Webb's call 
for a study commission on the criminal justice system as a 
whole because, again, indigent defense is constitutionally 
required. Truly, we should be outraged that the states are not 
meeting their obligations, but it is part of a larger problem 
as to why, at the end of the day, they are not getting 
representation.
    Mr. Pierluisi. Can I use a bit more of my time? Actually, I 
think it expired a moment ago, Mr. Chairman.
    Mr. Scott. The gentleman's time is expired. The gentleman 
is given an additional 2 minutes.
    Mr. Pierluisi. Just thought a variation of your proposal on 
the Byrne Grant could be that you track caseloads. You track 
what is happening and then you condition this funding upon 
complying with the constitutional requirement and improving 
upon your record, tying one thing to another. That could be an 
avenue.
    I wonder, are there recent studies comparing the conviction 
rates and length of sentences between defendants represented by 
appointed counsel as opposed to those represented by privately 
hired attorneys? Are there any recent studies? Because if not, 
the Federal Government could also--Congress could provide some 
funding to conduct them. But do you know of any?
    Mr. Luna. I personally don't. Maybe Chief Justice Billings 
might have heard of something.
    Judge Billings. I am trying to remember--and, Tye, maybe 
you can help--that I think in some of the studies that Margaret 
Gressens from your staff is conducting that there is some 
information on that disparity in the study that she did. But I 
don't have it----
    Mr. Scott. Which way is the disparity?
    Judge Billings. That those who are represented by private 
counsel, in similar situations, get much shorter sentences, 
come out with a much better result, but I really can't support 
this. It is just something that is a memory of something that I 
have read in an effort that the IDS in North Carolina has 
conducted, but I can't be sure about it.
    Mr. Conyers. Mr. Chairman, for a moment.
    Mr. Scott.--Puerto Rico yield?
    Mr. Pierluisi. I yield.
    Mr. Conyers. I would like to put this on the record because 
I would like--I would like you six to help me develop it. We 
have had all of you here. I would like to invite some people 
that may have a different experience and even a different view.
    I remember Reed Walters, the district attorney from Jena, 
Louisiana, in September 3 years ago, who went to a school there 
and he lectured the students about--that were involved in the 
protest, and he said: I can be your best friend or your worst 
enemy; I can take away your lives with a stroke of my pen. I 
would like Attorney Walters to be a witness at one of these 
hearings.
    I would like to have the U.S. attorney for the Eastern 
District of Michigan be a witness. And I would like to--I think 
we should entertain, with the openness of which this Committee 
operates, people who may have a different--a legitimate 
different point of view from what has been expressed here. I 
think it is important that we listen.
    There are some people that seriously and honestly believe 
that locking them up and throwing away the key apply to as many 
people as we can get our hands on. And I think there ought to 
be a hearing of that point of view, just to see, get a feel of 
where we are, Chairman Scott.
    Mr. Scott. Thank you, the gentleman's time is expired. We 
will start another round.
    And, Mr. Hunter, could you describe the agency that you 
head right now? Is it a support group or do you provide actual 
court representation?
    Mr. Hunter. The Center for Death Penalty Litigation is a 
nonprofit law firm. We actually litigate. We represent clients 
at trial and----
    Mr. Scott. Just the death penalty?
    Mr. Hunter. Just for death penalty cases. Prior to that, I 
was the director of the Office of Indigent Defense Services, 
which Chief Justice Billings was a commission member, one of my 
bosses in that, and that was a administrative office that 
oversaw the provision of indigent defense for people all over 
North Carolina.
    Mr. Scott. Now, do you have public defenders, as opposed to 
court-appointed attorneys?
    Mr. Hunter. We have a mix. We have public defenders in 
about 40 percent of the state, mainly where we have our larger 
towns, and then we have an appointed list in our more rural 
areas in North Carolina.
    Mr. Scott. And do you provide resources for attorneys' 
education, professional CLE and that kind of stuff?
    Mr. Hunter. We do provide training. We have manuals, you 
know, that we make available, actually free of cost. You can 
download them from off the Internet.
    Mr. Scott. Now, how much does that service cost? One of the 
things that occurs to some of us--that a resource like that 
statewide would be better than trying to have each county 
figure out what they are doing or even a national so that each 
state doesn't have to replicate the same kind of resource. How 
much does that cost to keep the Services Commission up and 
running?
    Mr. Hunter. I think, well, the cost of our office is--I 
don't know--is about maybe a million or a million and a half 
dollars. The total cost of indigent defense in North Carolina 
is, I think, around maybe a little bit higher than the middle 
of the road if you look at cost per citizen for indigent 
defense and you look at the 50 states. The last time I looked 
at one of Mr. Scanshenberg's rundowns of that, we were a little 
bit above the average. We were in the 20's among the 50 or 51 
jurisdictions----
    Mr. Scott. And how much money was spent----
    Mr. Hunter. I don't remember--well, we----
    Mr. Scott. I am looking for what portion of the defense 
cost was spent on the Indigent Services Commission staff.
    Mr. Hunter. Well, less than 1 percent.
    Mr. Scott. Okay.
    Mr. Crotzer, how long after the conviction, your 
conviction, did they test the evidence, the DNA?
    Mr. Crotzer. Approximately 23 years.
    Mr. Scott. Why did they still have the evidence?
    Mr. Crotzer. Well, they thought they didn't. My evidence 
was found in a FDLE crime lab in the basement in a file cabinet 
where the maintenance man probably would look. And it sat there 
in a climate-controlled environment, five microscopic slides.
    Mr. Scott. And did the DNA point to the person that 
actually did it?
    Mr. Crotzer. What the DNA did was totally exclude me. My 
lawyers told me that I was the most fortunate unfortunate 
person they ever met because BHR was double rape, and this 
biological evidence from the actual rape kits, the swabs, 
cuttings from the undergarments--all those things were intact 
in those five microscopic slides from both rape victims. So 
what it did--it excluded me. And the individual that you are 
asking about, as far as him ever paying for the crime, the 
statute of limitations would not allow him to be prosecuted for 
that.
    Mr. Scott. But it did point to him?
    Mr. Crotzer. No, it did not--because they were never 
allowed to ask for DNA. They couldn't approach him because he 
was never incarcerated.
    Mr. Scott. Do they know who it is?
    Mr. Crotzer. They found out who he was through two people 
that were charged with me, two blood brothers that their 
homeboy grew up with. So that is how they found out who he was. 
But he wouldn't even come forward even after knowing that he 
would not be charged to even testify on my behalf to try to 
free me prior to DNA testing.
    Mr. Scott. Mr. Hunter, you talked about a fair share of 
resources. Is the prosecutor's office in an area more expensive 
to run than defense?
    Mr. Hunter. Generally, yes. It really depends on the area. 
You know----
    Mr. Scott [continuing]. All cases, some cases where the 
person--you can do a freebie on; there is not a whole lot of 
defense work to be done.
    Mr. Hunter. Well, if you look--that is true, Mr. Chairman. 
If you look at the typical what we call district court, which 
is our lower-level court, there is usually an assistant 
district attorney who is in there handling cases. And there 
might be 100 or 150 cases that are resolved in a day with one 
assistant district attorney in that case.
    Defense lawyers, you cannot have 150 clients in 1 day; even 
on the 7-minute rule you can't have 150 clients in 1 day. So we 
talk about parity in funding. They are really not mirror-image 
functions, especially, I think, at the lower level where a lot 
of the work has been done by law enforcement and the prosecutor 
is just carrying that to the court.
    Defense has a duty to do an independent investigation, 
which I would say it is almost never done in lower-level cases, 
and then advise the client on how to proceed. So that is quite 
a different role than the prosecutor's role, which is largely 
consulting with the arresting law enforcement officer who has 
already done an investigation and a report.
    I know that doesn't work--you don't need to tell me, Mr. 
Johnson--that doesn't work perfectly every time. The point I am 
making is that the roles are really not mirror images. And I 
think sometimes that can make it even worse, the disparities in 
funding, especially at the lower level.
    Mr. Scott. Let me ask Mr. Hall, on the lower level, what is 
it about misdemeanor cases that makes resolving ineffective 
counsel issues more difficult?
    Mr. Hall. Misdemeanor cases usually don't end up being a 
part of the ineffective assistance claims that are brought. 
Those are brought by people in prison saying, ``I shouldn't be 
here at all because my lawyer was ineffective.''
    But people are herded through the criminal justice system 
at the low end for misdemeanors. They are given offers they 
can't refuse: Take probation and be done with it. And then they 
find out later that that probation or short term in jail ended 
up costing them more.
    For instance, the poor are especially vulnerable for those 
types of outcomes because they can't pay a fine; they can't pay 
a lawyer. So they end up going to jail in lieu of paying a fine 
sometimes, and then they find out there are collateral 
consequences. For instance, somebody pleads to an offense and 
now they can't stay in public housing anymore; they are not 
entitled to some type of public assistance and even get kicked 
out of college for misdemeanors.
    Mr. Scott. Do most states have automatic rights of appeal 
de novo for misdemeanors?
    Mr. Hall. Many states do; I don't know how many do. My 
state for one does. Most of the states around me do. But that 
doesn't mean that those rights will ever be exercised.
    The person goes off to jail, gets a 5-day sentence, for 
instance, and that may cost the county $500 to keep that person 
for that 5 days. And that is added cost when they shouldn't 
have ever been prosecuted in the first place because it is an 
overcriminalization problem in part. It is throw everybody in 
jail, as Mr. Conyers said, also in part.
    And the focus of the system just seems to be convict them 
all; let God sort it out. And it should be everybody should get 
a measure of justice to at least decide whether or not they are 
really guilty before they plea to it. Sometimes it is easier to 
plea than to confess; at least that is the view that they see 
in the lower-level courts.
    Mr. Scott. Well, particularly it is true if the pleading 
just gets you the collateral consequences later. You don't 
serve any jail time now, and you walk out of court. And you 
think that is the end of it until you try to get a job.
    Mr. Hall. And you don't even know about the collateral 
consequences sometimes for years. Sometimes you find out the 
next day, but sometimes you don't find out for a long time.
    Mr. Scott. Professor Luna, you mentioned the moral hazards. 
Is one of the moral hazards that is not being paid for in the 
system the fact that you are not having good literacy programs 
in the third grade and those children get into the cradle-to-
prison pipeline?
    Mr. Luna. That is a problem. I don't think it quite fits 
the definition of moral hazard, but certainly it is a problem. 
The possibilities in the individuals--I mean, this is in a very 
real sense--and I don't disagree with anything that has been 
said here. But in a very real sense, the criminal justice 
system has become a war on the poor. And that should concern 
everyone. I have no doubt that that is something that needs to 
be addressed. Again, my concern is how to address it, rather 
than whether it needs to be addressed.
    Mr. Scott. One of the things that keeps coming up is the 
excessive caseloads. Why can't lawyers ethically say no to 
additional cases when they are obviously--when, I mean, 19,000 
in Louisiana--why don't they just say no and not accept the 
cases?
    Mr. Johnson?
    Mr. Johnson. Mr. Chairman, oftentimes the defenders have a 
lot of pressure put on them by the court. The court will tell 
them that they are going to defend this person, and it takes a 
lot of courage when you are supporting a family as a defender 
to say no and put themselves at risk.
    And then the head of their agency may not be as sympathetic 
to them saying no. It is both an individual and an agency 
responsibility to draw the line. And if there is a lot of 
pressure in the system for them to just bow to the wishes of 
the system----
    Mr. Scott. And do any lawyers put on the record the fact 
that, at the beginning of the case, that they have not had an 
adequate time to prepare because of their caseload and let the 
appellate courts see that?
    Mr. Johnson. Mr. Chairman, I understand that that has been 
done around the country, but they will put it on the record, 
and it won't be of any significant consequence that they put it 
on the record, and then go on from that. Again, all the 
circumstances surrounding----
    Mr. Scott. Because ineffective counsel is for harmless 
error?
    Mr. Johnson. Right. If I might, Mr. Chairman, add one thing 
on another matter that Mr. Conyers had--or Chairman Conyers had 
raised. And that is there are a lot of prosecutors in this 
country who think that incapacitation is protecting public 
safety, and they honestly believe that. That is, I suggest--and 
if I would like to have you consider this aspect of it--we do 
criminal justice in the United States quite differently from 
the rest of the world.
    Every place else in the world, prosecutors are appointed; 
they are not elected. Everyplace else in the world, they are 
big systems where people in those systems have a time to think 
about criminal justice policy and what is the appropriate thing 
to do. I do a fair amount of work with international 
prosecutors and understand the way that they can think about 
criminal justice systems in their system.
    In the states, we have over 2,400 little empires like mine, 
where I am the absolute authority as to criminal justice. Most 
of the prosecutors of that over 2,400 are in very small 
systems. They are moving cases. They don't have time to think 
about criminal justice policy, what is right. The answer for 
them is real easy: Put them in prison. And it doesn't go any 
further than that.
    Very few big systems, like Chicago or L.A., where they sit 
back and can think about and study--in other countries--you 
have one prosecution system in England, one in Ireland. In 
Canada, it is one for every province. In Australia, it is one 
for every state. And they sit back and really think about 
criminal justice and what is the right thing to do.
    In other countries, prosecutors don't lobby. In the states, 
we hire lobbyists. We are in the halls of the legislature every 
day. That influences criminal justice policy. And that is what 
drives the criminal justice policy in the states and the, in my 
mind, the major reason that we have the type of system we have.
    Mr. Scott. Justice Billings?
    Judge Billings. One obviously should never speak unless 
they have the facts on which to base their statement, and I 
just want to correct my sort of side comment about a study on 
disparity of sentences. What this was was not disparity of 
properly assigned counsel versus appointed counsel; it was 
disparity between guilty pleas and going to trial.
    And this raises another issue that we really haven't talked 
about that is also a matter of great concern with the indigent 
defense system. And that is that because of the inability of 
counsel to investigate because counsel aren't appointed soon 
enough, we have a lot of people who are sitting in jail 
awaiting trial, and that period of time that they are sitting 
in jail awaiting trial, they lose jobs; they are unable to 
support their families. They reach the point where they will 
plead guilty simply to get out of jail.
    And the study that I was remembering incorrectly was that 
following--the sentences following jury trials are 44.5 months 
or 3\3/4\ years longer than those following guilty pleas, which 
is a pressure on people to plead guilty because, if they 
exercise their right to jury trial, they will be punished for 
exercising that right, which is another travesty within our 
system.
    Mr. Scott. I would suspect that there is a difference 
between court-appointed and public defenders. Public defenders 
are criminal law specialists; court-appointed in a--you don't 
know what you are going to get. You might have a real estate 
specialist taking a case that they don't know a lot about. But 
a public defender is a criminal law specialist, so I think you 
might get better representation there if there is a rational 
caseload.
    Mr. Hunter?
    Mr. Hunter. Well, I think you get more variety. You can get 
absolutely great lawyers who are court appointed. Most real 
estate lawyers, frankly, unless real estate is terrible, they 
are not interested in accepting an appointed case. But you can 
also get--they are not real estate specialists but they are 
lawyers that, frankly, are not making it in the private sector, 
and so they are appointed cases. You know you don't have to--
your client doesn't have to agree to hire you. He is stuck with 
you.
    And that, I think, is another problem with our indigent 
defense system that we haven't touched on is the fact that 
clients have so little power. In lawyers in private practice, 
the market operates in some way. People don't always choose 
wisely when they have the money to hire a lawyer, but in 
general I think the market works. We don't have that in 
indigent defense.
    I mean, one of the innovations I would love to see is to 
have a system where people who require appointed counsel get to 
pick their lawyer from a list. I just think that one thing 
might make a big difference in both the way lawyers feel about 
their clients and about the way the client feels about the 
lawyer. One thing about a hired lawyer is you have committed to 
that lawyer. You went somewhere and you decided this is the 
person who I want to represent me. If someone is just presented 
to you, of course you don't have the same feeling; you didn't 
make the decision.
    And so that is one. It wouldn't cost any money; it would 
just be a different way of trying it. And I would like to see 
that. I think that might, you know--that is an innovation I 
would just like to see tried somewhere and see where it goes. 
But I think that would be an improvement without spending any 
more money.
    Mr. Scott. Thank you.
    Mr. Hall, did you have a comment?
    Mr. Hall. Yes, sir, again I would suggest you look at the 
Federal model. In my jurisdiction, there are probably 20 
assistant U.S. attorneys and maybe seven in the Federal 
defender's office, but the Federal defender cannot represent 
everybody in a multidefendant conspiracy case. They represent 
one and the rest go to appointed counsel under the Criminal 
Justice Act.
    And in the Eastern District of Arkansas, there are about 
5,500 to 6,000 lawyers in that district, but only 39 are on the 
appointed list, and they have to go through screening by the 
district court to get on the list. They are all criminal law 
specialists, and I am proud to say I am on that list.
    Mr. Scott. That is in the Federal system.
    Mr. Hall. That is in the Federal system.
    Mr. Scott. Well, I want to thank our witnesses for being 
with us today. The Members may have additional written 
questions for witnesses, which we will forward to you and ask 
that you answer as promptly as you can so the answers may be 
part of the record.
    The Brennan Center for Justice has submitted written 
testimony which, without objection, will be included in the 
record.
    [The information referred to follows:]
           Prepared Statement of Melanca D. Clark, Counsel, 
            Brennan Center for Justice at NYU School of Law




                               __________

    Mr. Scott. And also the reports that I indicated, ``Justice 
Denied: America's Continuing Neglect of Our Constitutional 
Right to Counsel,'' a report of the National Right to Counsel 
Committee,* and ``Minor Crimes, Massive Waste: The Terrible 
Toll of America's Broken Misdemeanor Courts,'' by the National 
Association of Criminal Defense Lawyers,** will also be made 
part of the record.
---------------------------------------------------------------------------
    *Note: The information referred to, ``Justice Denied: America's 
Continuing Neglect of Our Constitutional Right to Counsel,'' a report 
of the National Right to Counsel Committee, April 2009, is not 
reprinted here but is available at the Subcommittee. The report can 
also be accessed at: http://www.nlada.org/DMS/Documents/1239831988.5/
Justice%20Denied_%20Right%20to%20Counsel%20Report.pdf
    **Note: The information referred to, ``Minor Crimes, Massive Waste: 
The Terrible Toll of America's Broken Misdemeanor Courts,'' a report of 
the National Association of Criminal Defense Lawyers, April 2009, is 
not reprinted here but is available at the Subcommittee. The report can 
also be accessed at: http://www.nacdl.org/public.nsf/defenseupdates/
misdemeanor/$FILE/Report.pdf
---------------------------------------------------------------------------
    Without objection, the hearing will remain open for 1 week 
for the submission of any additional material.
    And without objection, the Subcommittee stands adjourned.
    [Whereupon, at 11:22 a.m., the Subcommittee was adjourned.]



                            A P P E N D I X

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               Material Submitted for the Hearing Record




                                 
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