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



 
  IMPACT OF FEDERAL HABEAS CORPUS LIMITATIONS ON DEATH PENALTY APPEALS

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


                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            DECEMBER 8, 2009

                               __________

                           Serial No. 111-66

                               __________

         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
JUDY CHU, California                 TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          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, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            DECEMBER 8, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     3

The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4

The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     6

                               WITNESSES

Mr. Stephen F. Hanlon, Chair, American Bar Association Death 
  Penalty Moratorium Project Steering Committee, Partner, Holland 
  and Knight LLP
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11

The Honorable Gerald Kogan, Chief Justice (Retired), Florida 
  Supreme Court, Co-Chair, Constitution Project Death Penalty 
  Committee
  Oral Testimony.................................................    20
  Prepared Statement.............................................    22

Mr. Michael E. O'Hare, Supervisory State's Attorney, Civil 
  Litigation Bureau, Office of the Chief State's Attorney, 
  Connecticut
  Oral Testimony.................................................    32
  Prepared Statement.............................................    34

Mr. John H. Blume, Professor of Law, Director, Cornell Death 
  Penalty Project, Cornell University Law School
  Oral Testimony.................................................    39
  Prepared Statement.............................................    41

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     5

Material submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................    60

                                APPENDIX

Material Submitted for the Hearing Record........................    65
                        OFFICIAL HEARING RECORD
      Material Submitted for the Hearing Record but not Reprinted

Report entitled ``Final Technical Report: Habeas Litigation in U.S. 
    District Courts.'' This report is available at the Subcommittee and 
    can be accessed at:

    http://law.vanderbilt.edu//article-search/article-detail/
download.aspx?id=1639


  IMPACT OF FEDERAL HABEAS CORPUS LIMITATIONS ON DEATH PENALTY APPEALS

                              ----------                              


                       TUESDAY, DECEMBER 8, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:15 p.m., in 
room 2237, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Scott, Johnson, 
Jackson Lee, Chu, Sensenbrenner, King, Gohmert, and Jordan.
    Staff Present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Keenan Keller, Counsel; Michelle Millben, 
Counsel; Reuben Goetzl, Staff Assistant; (Minority) Paul 
Taylor, Counsel; Caroline Lynch, Counsel; and Demelza Bare, 
Clerk.
    Mr. Nadler. Good afternoon. This hearing of the 
Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties will come to order. We will begin by recognizing 
myself for 5 minutes for an opening statement.
    Today's hearing examines the impact of the Federal habeas 
corpus rules on the application of the death penalty in the 
United States. It is incumbent upon those who support the 
application of the death penalty to ensure that it is 
administered fairly and that every risk of error is wrung out 
of the system.
    The right to petition for a writ of habeas corpus is really 
the last line of defense against error and injustice in our 
legal system. While executive clemency is still a possibility, 
it is subject to the political winds in ways that the 
independent judiciary is, hopefully, not.
    In recent years, the right of habeas corpus has been the 
object of derision and subject to attack. The ``Antiterrorism 
and Effective Death Penalty Act of 1996'' was an especially 
egregious example of the extent to which some have been willing 
to go to expedite the use of capital punishment. Its main flaw 
is that it sets strict time limits for habeas petitions: 1 year 
generally and, if a State qualifies, 6 months in capital cases.
    The standard is even more disturbing. It gives extreme 
deference to State court decisions. It prohibits the court from 
granting relief for any claim adjudicated on the merits in 
State court unless the State decision rejecting the claim is, 
quote, ``contrary to or involved an unreasonable application of 
clearly established Federal laws as determined by the Supreme 
Court of the United States,'' unquote, or is, quote, ``based on 
an unreasonable determination of the facts in light of the 
evidence presented in State court proceedings,'' unquote.
    At the same time, resources to assist defendants in State 
court proceedings have diminished. In many ways, we have made a 
mockery of the administration of justice and the search for the 
truth.
    What is really ironic about all of this is that, while 
these changes were sold to Congress as a way to move the cases 
and make the system more efficient and bring closure more 
rapidly, in fact it has had the opposite effect. The time it 
takes for these petitions to move through the process has 
increased substantially. Since the ``Antiterrorism and 
Effective Death Penalty Act of 1996'' and the restrictions on 
the Great Writ, the time for moving through the process has 
increased substantially and confusion about existing legal 
standards has been widespread.
    I want to commend our colleague, the gentleman from 
Georgia, for introducing legislation to correct this situation. 
I am pleased to be an original cosponsor, and I look forward to 
working with him to bring reason and justice back to this 
important process.
    While there is always a push to move faster with 
executions, the record indicates that this rush to execute has 
called into question the fairness and accuracy of our machinery 
of death. We stand alone in the industrialized world in our 
commitment to capital punishment. Even Russia has a 
longstanding moratorium on executions. It is a disgrace, and 
the limitations on the Great Writ only exacerbate the problem.
    I think we would do well to remember Justice Blackmun's 
observation in his opinion dissenting from the Supreme Court's 
decision denying review in a Texas death penalty case, Callins 
v. Collins, in 1994, when he stated, ``Twenty years have passed 
since this court declared that the death penalty must be 
imposed fairly and with reasonable consistency or not at all. 
And despite the effort of the States and courts to devise legal 
formulas and procedural rules to meet this challenge, the death 
penalty remains fraught with arbitrariness, discrimination, and 
mistake.
    ``From this day forward, I no longer shall tinker with the 
machinery of death. For more than 20 years, I have endeavored 
to develop rules that would lend more than the mere appearance 
of fairness to the death penalty endeavor. Rather than continue 
to coddle the court's delusion that the desired level of 
fairness has been achieved, I feel obligated simply to concede 
that the death penalty experiment has failed. It is virtually 
self-evident to me now that no combination of procedural rules 
and substantive regulations ever can save the death penalty 
from its inherent constitutional deficiencies.
    ``Perhaps one day this court will develop procedural rules 
of verbal formulas that actually will provide consistency, 
fairness, and reliability in a capital sentencing scheme. I am 
not optimistic that such a day will come.
    ``I am more optimistic, though, that this court eventually 
will conclude that the effort to eliminate arbitrariness while 
preserving fairness in the infliction of death is so plainly 
doomed to failure that it and the death penalty must be 
abandoned altogether. I may not live to see that day, but I 
have faith that eventually it will arrive. The path the court 
has chosen lessens us all,'' close quote.
    If anything, after years of exonerations of death row 
inmates because of DNA evidence, and in other areas of the 
criminal law and notorious decisions like the Fifth Circuit's, 
in which the court held that an attorney sleeping through a 
capital trial is not reversible error, is not the ineffective 
of assistance of counsel, Justice Blackmun's admonition rings 
truer today than it did a decade and a half ago. And the 
restrictions on post-conviction review imposed by the 1996 act 
look not only like a failure in terms of shortening the 
process--they have, as I said, gravely lengthened the process--
but look even more dangerous in terms of restricting the 
availability of constitutional rights and the vindication of 
the actual right of innocence.
    I look forward to the testimony of the witnesses on this 
very important and timely subject.
    The Chair now recognizes the distinguished Ranking Member 
of the Subcommittee for 5 minutes for his opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    As we consider the need to strike the right balance between 
finality in capital cases and confidence that only the guilty 
have been sentenced to death, it makes sense to first consider 
how the most significant measures Congress has passed in 
decades to protect the innocent have been implemented.
    I am referring to the ``Justice for All Act of 2004,'' 
which was enacted on an overwhelmingly bipartisan vote and 
unanimously in the Senate. I worked with colleagues on both 
sides of the aisle and on both sides of the Capitol to see that 
this legislation made it to the President's desk.
    DNA samples can help to quickly apprehend offenders and 
solve crimes if law enforcement agencies have access to the 
most up-to-date testing capability. Additionally, DNA 
technology is increasingly vital to ensuring accuracy and 
fairness in the critical justice system. DNA can identify 
criminals with incredible accuracy when biological evidence 
exists, and DNA can be used to clear suspects and exonerate 
persons mistakenly accused or convicted of crimes.
    The ``Justice for All Act'' was designed to provide the 
necessary funding to ensure that these critical programs 
include the equipment and training necessary to eliminate the 
backlog of DNA samples in need of testing and to provide 
greater access to potentially exculpatory evidence of those who 
have been wrongly convicted of crimes.
    ``Justice for All'' legislation also provides that up to 25 
percent of authorized grants to States can be used to provide 
training to defense attorneys for appellate representation and 
to establish a system of appointment of competent counsel in 
capital cases. It also provides that there shall be 
notification 180 days after any direct appeal of a conviction 
is complete before any biological evidence can be destroyed. 
This will ensure that the evidence in the case is preserved to 
benefit both the defendant and the government if the conviction 
is reversed.
    In addressing concerns relating to DNA testing portions of 
the legislation, I considered that on one side of the debate 
there were a group of people who wanted to have no time limit 
at all, such that a motion could be made for testing at any 
time as long as the defendant was still alive and in jail. On 
the other side of the debate, there were people who wanted to 
have a hard and fast limit and the shorter the limitation, the 
better, to prevent defendants from gaming the system and 
waiting until witnesses had died and the DNA had evaporated so 
that there would not be enough evidence to conduct a retrial.
    The compromise that was worked out, I think, was a fair 
one. Under that compromise, for the first 5 years after 
conviction, there is a rebuttable presumption in favor of the 
DNA test. After 5 years, there is a rebuttable presumption 
against the DNA test. But the defendants can have their motion 
granted if the court finds that the applicant was incompetent 
at trial, there is newly discovered DNA evidence, or that 
denial of the motion to retest would result in manifest 
injustice or for good cause shown.
    The legislation also struck a balance regarding the 
standard for obtaining a new trial by requiring that there be 
compelling evidence that a new trial would result in an 
acquittal. This represents a compromise between the 
preponderance of the evidence and clear and convincing evidence 
standards.
    I mention this experience by way of example. I have no 
preconceived notions regarding the issues before us today, but 
if a searching analysis reveals that there is any need to amend 
the Federal habeas laws, I hope that similarly fair compromises 
can be reached.
    The ``Justice for All Act'' is a vast improvement over what 
had prevailed prior to its enactment, but there is still room 
for improvement in its implementation. As the Department of 
Justice's inspector general explained last year, the Office of 
Justice Programs has been reluctant to exercise appropriate 
oversight over ``Justice for All Act'' programs. And that means 
that this Committee has also failed to exercise appropriate 
oversight over the last few years.
    If this Committee is interested in exonerating the innocent 
and also in solving crimes that lead to the incarceration of 
very dangerous criminals, they could do no better than by 
strengthening the post-conviction DNA programs that the 
``Justice for All Act'' has already put in place. I hope we can 
find the time to do that, and soon.
    Let me say that I am going to have to leave this hearing 
now because I have a press conference on the Copenhagen 
conference over in the Capitol Visitor Center, but I will be 
interested in reading what the witnesses have to say.
    And I thank the Chairman for giving me the time.
    Mr. Nadler. I thank the gentleman.
    And before the gentleman leaves, I would simply want to 
observe that most of the province of this hearing is to deal 
with the problem of when there is no DNA evidence. When there 
is DNA evidence, in some ways, it is simpler.
    Thank you.
    I will now recognize the distinguished Chairman of the full 
Committee for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    Your constitutional wisdom, which was in your opening 
statement--not exhaustive but it was very fulsome--leads me 
with very little to add. And so I will submit my statement for 
the record, and add that Chairman Scott and I are looking 
toward ways that we can improve this legislation so that 
Chairman Johnson will still consider us among his best friends.
    And I yield back the balance of my time.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    In 1996, when Congress passed the Antiterrorism and Effective Death 
Penalty Act, I expressed scepticism about whether the bill would have 
any realistic impact on the prosecution of terrorism. In light of the 
fact that we needed to pass sweeping legislation after the tragic World 
Trade Center attacks, my concerns appear vindicated. However, my 
concerns about the legislation's impact on death penalty jurisprudence 
were precisely on target. The bill re-wrote the law on Federal habeas 
corpus and appears to have unleashed a series of unintended 
consequences that we do not yet fully understand.
    For that reason, I welcome today's hearing and look forward to a 
lively discussion with our witnesses.
    The writ of habeas corpus is one of the most fundamental safeguards 
in our Constitution to prevent the imprisonment and execution of 
innocent people. The Constitution states that the ``writ of habeas 
corpus shall not be suspended,'' except ``in cases of rebellion or 
invasion'' or when ``the public safety may require it.''
    From the 1950s to the early 1970s, the Supreme Court interpreted 
the Due Process Clause of the Fourteenth Amendment to extend many of 
the procedural protections previously limited to federal court 
defendants to state criminal defendants. During this time, the Court 
also expanded the scope of habeas by allowing more opportunities for 
state prisoners to obtain federal relief when state police, 
prosecutors, and judges violated their constitutional rights. The 
confluence of these two developments produced an exponential increase 
in habeas filings.
    First: The writ of habeas is most important in the context of death 
penalty cases. The death penalty is our society's most severe and 
permanent punishment. Putting aside my position about the fairness of 
the death penalty, as a procedural matter, before we permit the 
execution of an individual, we must have appropriate, constitutional 
due process.
    In the past few decades, 139 people on death row have been 
exonerated based on their innocence. Some of these individuals died 
while in prison and were only exonerated posthumously. This is not only 
unacceptable, but it undermines the very integrity of our criminal 
justice system.
    Second: I believe we should revisit the restrictions placed on the 
habeas petitions of death row inmates in the Antiterrorism and 
Effective Death Penalty Act of 1996. When we considered this Act over a 
decade ago, I raised the concern that this Act was over broad and could 
harm the administration of justice.
    Through this Act, we created a 1 year statute of limitations for 
the filing of a habeas petition after the completion of a direct appeal 
and we created a highly deferential standard of review of state court 
findings by federal courts. Under this new standard of review, it is 
possible that some innocent people will not receive relief through the 
habeas process if a claim was adjudicated on the merits in state court. 
In these circumstances, a federal court can only overturn such a claim 
if it was contrary to clearly established federal law or based on an 
unreasonable factual determination.
    The one year statute of limitations is also troubling. Many capital 
defendants are indigent and cannot afford an attorney to represent them 
in a habeas appeal, so it is particularly burdensome to have such a 
short statute of limitations for these individuals to file for habeas 
relief. This burden is made heavier by the fact that the process of 
filing a habeas petition is complex and requires the exhaustion of 
state court claims. Based on this statute of limitations, about 1 in 20 
capital defendants have been denied any federal review of their case.
    Third: Further, although our intention was to improve the 
efficiency of the criminal justice system, this has not occurred. In 
fact, an independent study commissioned by the Department of Justice 
demonstrates that the average amount of time from the conviction of a 
capital defendant to the processing of their habeas petition now takes 
6.3 years. Prior to this Act, the average amount of time for the 
processing of a capital defendant's habeas petition was 5 years.
    While the case processing time has increased significantly over the 
past fifteen years, there are also fewer evidentiary hearings held to 
consider the issues raised in habeas petitions. Moreover, there are 
also fewer grants of habeas petitions at the district court level than 
prior to this Act.
    These data collections issues are critical to determining the 
Committee's future action in this area. Consequently, I am very 
interested to hear from the witnesses today about their interpretation 
of the recent data on habeas petitions for capital defendants.
    The United States continues to be the only western nation that 
actively pursues a program of capital punishment. Last week the Russia 
government announced that it has begun the process of abolishing the 
death penalty. When notable cases, raising the question of innocence 
arise, our criminal justice program is subject to worldwide scrutiny. 
The writ of habeas is one of the principle protections given to 
individuals and we must thoughtfully consider our role in regulating 
the process by which prisoners may seek redress, especially since 
habeas is the last step in our criminal justice system to ensure that 
an innocent person is not executed or wrongfully imprisoned.
                               __________

    Mr. Nadler. I thank the gentleman.
    It is usually the custom of this Subcommittee that, after 
asking the Chairman and Ranking Member and the Chairman and 
Ranking Member of the full Committee, we ask other Members to 
put their statements into the record. But, in view of Mr. 
Johnson's sponsoring the legislation, I will ask Mr. Johnson if 
he wishes to make an opening statement.
    Mr. Johnson. Yes, I do. And thank you, Mr. Chairman and 
Chairman Nadler.
    And, also, whenever offered some help from the Committee 
Chairman, Chairman Conyers, I would be remiss not to be 
intrigued with how we can improve this bill. And so we will be 
working on it together, along with Congressman Scott and others 
who have voiced interest in this.
    Today, we are here to discuss an issue that is near and 
dear to my heart, Federal habeas corpus reform. There is a 
whole lot more that needs to be done to restore the Great Writ 
to its intended purposes. This is just a small beginning, a 
humble beginning, which takes on the fact that, even if it is a 
DNA-based conviction, if the DNA is found after you are killed 
by the State, you know, it is just a theoretical matter at that 
point, and that is not fair.
    Earlier this year, I introduced H.R. 3986, the ``Effective 
Death Penalty Appeals Act.'' I was pleased to work with 
Chairman Nadler, Chairman Conyers, Chairman Scott, and Chairman 
Cohen, all of whom have cosponsored the legislation, to ensure 
that the bill addresses a key failing of the habeas system as 
it pertains to inmates on death row.
    Congressman John Lewis of Atlanta, a tireless advocate for 
civil rights, was also closely involved in developing this 
bill, which has been endorsed by Amnesty International, the 
NAACP, and the ACLU.
    The civil rights and civil liberties advocacy community, 
which I want to tip my hat to for protecting the rights that we 
take for granted in this country, that community has been 
integrally involved in the drafting of this bill and in laying 
foundations for more comprehensive reform in the months and 
years to come. Without their hard work, legislation would be 
less efficient and less effective.
    My bill, H.R. 3986, would empower Federal courts to grant 
habeas corpus petitions for inmates facing execution when newly 
discovered evidence convinces the court of probable innocence.
    As the law stands today, death row inmates can be stranded 
in a procedural no man's land, condemned to die, even if there 
is compelling new evidence and even if their habeas lawyers 
were ineffective in some way. Imagine that, in America, you can 
be killed by the state without new evidence of your innocence 
ever getting a hearing. The status quo is inhumane, 
unconstitutional, and unacceptable.
    Justice Stephens recently wrote that Section 2452(D) is 
arguably unconstitutional, to the extent it bars relief for an 
inmate sentenced to death who can present newly discovered 
evidence of innocence.
    The Johnson-Nadler bill--and I thank Chairman Nadler for 
his work on this bill--this bill will fix the law as it stands 
to protect innocent Americans from execution. I can imagine few 
more urgent tasks as we restore America's reputation as the 
white light on the hill that everybody respects and appreciate 
the rights that the people are given under our system of 
government.
    So I look forward to hearing the witnesses' views of this 
legislation, and I am equally interested in their thoughts on 
the broader issues at hand.
    Today, we are not only considering the merits of the 
Johnson-Nadler bill, we are laying the groundwork for 
comprehensive reform of Federal habeas corpus. I want to 
emphasize that it is possible to legislate a system that is 
equitable and efficient, but only if we commit to finding real 
common ground and renounce the counterproductive legislative 
tactics that have stymied effective criminal justice reforms in 
recent years.
    The legislative branch sometimes fails to recognize that 
the judicial branch is coequal, in terms of our branches of 
government. And perhaps, once this is passed, it will help to 
restore fairness.
    We need to pass the ``Effective Death Penalty Appeals 
Act,'' and quickly, before another potentially innocent 
American is executed. We should also commit to fully reforming 
those statutes during the 111th Congress. It will be a long 
time until the composition of Congress is as favorable for such 
reform as it is now.
    I look forward to leading on this issue and working closely 
with both of my Chairmen, and all of the Chairmen actually, and 
the advocacy community to move legislation that will help 
restore fairness to Federal habeas corpus without compromising 
efficiency.
    I thank our distinguished panel for their attendance, and I 
thank Chairman Nadler for holding this important hearing and 
for his indispensable assistance in helping to develop H.R. 
3986.
    I yield back the balance of my time.
    Mr. Nadler. Thank you.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, which we will only do, hopefully, if 
there are votes on the floor.
    We will now turn to our panel of witnesses. As we ask 
questions of our witnesses, the Chair will recognize Members in 
the order of their seniority in the Subcommittee, alternating 
between majority and minority, provided the Member is present 
when his or her turn arrives. Members who are not present when 
their turn begins will be recognized after the other Members 
have had the opportunity to ask their questions. The Chair 
reserves the right to accommodate a Member who is unavoidably 
late or is only able to be with us for a short time.
    I will now introduce our witness.
    Stephen Hanlon is a partner at Holland and Knight, 
currently managing the firm's community services team, which 
provides pro bono legal services for indigent clients.
    Mr. Hanlon has worked on civil rights issues, particularly 
indigent defense systems, claims for survivors of the Rosewood 
massacre, death penalty litigation, prisoner rights, medical 
experimentation without consent, and racial discrimination. He 
is also a member of the American Bar Association Death Penalty 
Moratorium Project, and currently chairs the Constitution 
Project's board of directors.
    He received his JD from the University of Missouri-Columbia 
School of Law and his BS from St. Louis University.
    The Honorable Gerald Kogan served on the Florida Supreme 
Court from 1987 to 1998, including 2 years as chief justice. He 
served on the faculty of the University of Florida, the 
University of Miami, Nova University, the University of 
Virginia, and New York University.
    Before serving on the Florida Supreme Court, Justice Kogan 
was a member of the U.S. Army Counterintelligence Corps, a 
practicing attorney, Dade County chief prosecutor, a circuit 
judge in Florida's 11th Judicial Circuit, and an administrative 
judge of the criminal division.
    Since his retirement, he heads the National Committee to 
Prevent Wrongful Executions, along with co-chair Charles Baird, 
a former judge of the Texas Court of Criminal Appeals. He 
attended the University of Miami, where he received his 
bachelor's degree in business administration and his juris 
doctorate degree.
    Michael O'Hare has served the State of Connecticut as the 
supervisory assistant State's attorney for the Civil Litigation 
Bureau since 2002. He currently supervises all Federal habeas 
corpus litigation for the State of Connecticut arising from 
challenges to State convictions.
    Mr. O'Hare served in the U.S. Army Judge Advocate General's 
Corps and as a staff judge advocate in the Reserves from 1979 
to 2009, which included deployment to Iraq in 2003. He retired 
from the Army with the rank of colonel.
    He has also worked in the Justice Department's Office of 
International Affairs in the Criminal Division, the narcotics 
section of the Criminal Division as a member of the State of 
the Connecticut's capital litigation unit. In 2005, Mr. O'Hare 
successfully led efforts to defeat State and Federal habeas 
corpus challenges to the execution of convicted serial killer 
Michael Ross.
    John Blume is professor of law at Cornell Law School and 
the director of the Cornell Death Penalty Project. He is the 
co-author of the ``Federal Habeas Corpus Update,'' an annual 
compendium of habeas corpus developments.
    In addition to his academic work, he has argued eight cases 
before the United States Supreme Court. Since 1996, Professor 
Blume has served as one of several consultants to the Defendant 
Services Division of the Administrative Office of the United 
States Courts on habeas corpus issues.
    Professor Blume is a 1978 graduate of the University of 
North Carolina at Chapel Hill, a 1982 graduate of Yale Divinity 
School, and a 1984 graduate of Yale Law School. He has been at 
Cornell Law School since 1993.
    I am pleased to welcome all of you. Your written 
statements, in their entirety, will be made part of the record. 
I would ask each of you to summarize your testimony in 5 
minutes or less.
    I am supposed to say that, to help you stay within that 
time limit, there is a timing light at your table which 
switches from green to yellow to red. I am informed that the 
power has failed. It is back; the power is back. So you can't 
filibuster anymore. This is not the Senate anyway. You couldn't 
in any event, nor can we. But when 1 minute remains on your 
time, the light will switch from green to yellow, and then red 
when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hand to take the oath.
    [Witnesses sworn.]
    Mr. Nadler. Let the record reflect that the witnesses 
answered in the affirmative.
    You may be seated, and we thank you.
    I now recognize for 5 minutes Mr. Hanlon.

TESTIMONY OF STEPHEN F. HANLON, CHAIR, AMERICAN BAR ASSOCIATION 
 DEATH PENALTY MORATORIUM PROJECT STEERING COMMITTEE, PARTNER, 
                     HOLLAND AND KNIGHT LLP

    Mr. Hanlon. Thank you, Mr. Chairman.
    I would like to focus my remarks on the recommendation in 
my written statement that, as part of any anticipated AEDPA 
reform, that the funding of State trial and particularly State 
post-conviction representation be seriously considered.
    In 1989, the United States Supreme Court, in the Giarratano 
case, refuses to find a constitutional right to State post-
conviction counsel. And the result is that, throughout the 
States now, we either have no State funding or grossly 
inadequate State funding, particularly for State post-
conviction counsel.
    It was about that time, in the late 1980's or early 1990's, 
that Justice Kogan and other members of the Florida Supreme 
Court came to us in the private bar and asked us to provide pro 
bono counsel since the State simply was not adequately funding 
post-conviction counsel. And then I learned for the first time 
of the enormity of this problem.
    These cases raised for the first time ever the issues of 
ineffective assistance at trial, prosecutorial suppression of 
material evidence, and juror misconduct, and a host of other 
serious constitutional issues involving facts which are almost 
entirely outside the trial record.
    I have been practicing law now for approximately 43 years. 
I have done a wide range of civil trial practice: 
constitutional litigation, civil rights litigation, class 
action litigation, securities litigation, probate litigation. I 
have never seen anything in my experience approaching the 
factual and the legal complexity of capital post-conviction 
litigation. This can fairly be characterized as the brain 
surgery of our profession.
    In the past 18 years, I and many members of my law firm 
have represented several men on death row. And it continues to 
astonish me that we cannot establish a right to adequately 
funded post-conviction counsel. A man's life is at stake.
    I think both Professor Blume's written testimony and 
Justice Kogan's testimony give you a very good idea of the 
massive additional complexity that AEDPA has introduced into 
this area of the law. My experience with AEDPA--and I have been 
involved in this work both before AEDPA and after AEDPA--is 
that it has dramatically increased satellite litigation in 
death penalty cases, which has nothing to do with----
    Mr. Nadler. Excuse me. Could you explain what you mean by 
``satellite litigation''?
    Mr. Hanlon. A host of procedural and technical questions 
that are unrelated to guilt, innocence, death-worthiness or 
constitutional error. And both the courts and counsel--and by 
counsel I mean not only defense counsel, I mean the State--are 
engaged in a wide variety of technical litigation, which again 
is well described in both Professor Blume's testimony and 
Justice Kogan's testimony, which is significantly slowing down 
this process and keeping us from getting to the merits of these 
cases.
    There is a study that has been done by professors at 
Vanderbilt. This was a study that was funded by the National 
Institute of Justice, Office of Justice Programs, the 
Department of Justice. It was a collaborative effort with the 
National Center for State Courts, and it reviewed capital cases 
filed in 2000, 2001, and 2002, in the 13 Federal districts with 
the highest volume of capital habeas filings. And it found that 
capital habeas cases that terminated in Federal district court 
lasted an average of 29 months, almost twice the 15 months they 
took before AEDPA. I have a copy of that study and I ask 
permission to include that in the record.
    Mr. Nadler. Without objection.*
---------------------------------------------------------------------------
    *The report entitled ``Final Technical Report: Habeas Litigation in 
U.S. District Courts,'' is not reprinted in this hearing record but is 
archived at the Subcommittee and can be accessed at http://
law.vanderbilt.edu//article-search/article-detail/
download.aspx?id=1639.
---------------------------------------------------------------------------
    Mr. Hanlon. Thank you. Again, this is not only tying up 
State court--Federal court time, it is tying up the efforts of 
defense counsel and the Attorney Generals and the States 
attorneys around the country.
    Our concerns about AEDPA and the additional complexity that 
it has added to the process are very real and substantiated. I 
urge to you proceed with great caution in your consideration of 
AEDPA reform.
    [The prepared statement of Mr. Hanlon follows:]
                Prepared Statement of Stephen F. Hanlon




















                               __________
    Mr. Nadler. Thank you. Mr. Professor, Judge Kogan.

    TESTIMONY OF THE HONORABLE GERALD KOGAN, CHIEF JUSTICE 
   (RETIRED), FLORIDA SUPREME COURT, CO-CHAIR, CONSTITUTION 
                PROJECT DEATH PENALTY COMMITTEE

    Judge Kogan. Thank you very much, Mr. Chairman. I want to 
start out by showing you basically where I come from and what 
my experience has been in this field. Not only was I the chief 
prosecutor of the Capital Crimes Division in Miami, I 
personally appeared before jurors asking the jurors to impose 
the death penalty on the defendant who was there sitting in the 
courtroom and was being tried.
    I had members of my staff, my associate prosecutors, also 
ask jurors under certain circumstances to impose the death 
penalty. When I left the State attorney's office I defended 
these particular cases. Later on I went on the trial bench and 
I tried death penalty cases as a trial judge. And starting in 
1987 until the end of December 1998, I was a member of the 
Supreme Court of the State of Florida. And every single time a 
judge in the State of Florida imposed the death penalty on an 
individual, that case came before us on the court for our 
review and our decision as to what ought to be done with it.
    As a matter of fact, 28 people were executed in the State 
of Florida while I was sitting on the Supreme Court. And in 
most of those cases, I in fact went ahead and signed off 
approving the imposition of the death penalty.
    As a matter of fact, on nine occasions while I was chief 
justice I presided over these proceedings and I was the last 
person who made the final decision as to whether or not the 
defendant would suffer death or would not. And of course at 
that particular time, everything had been done. All the habeas 
corpus proceedings had been filed. All the post-conviction 
relief matters had been disposed of, and I was the one who 
stood between that person living or dying.
    And I remember when I said there are no stays of execution 
because all of that has been decided and when governor's 
counsel heard that he told me what was proceeding on about 
putting the hood over the head of the person to be executed. He 
told me that, Mr. Chief Justice, the electricity--because in 
those days Florida only had the electric chair--has been turned 
up to 2,500 volts. And what do you think went through my mind 
at that time? With all of my experience, I knew that every day 
in this great country of ours with the greatest legal system in 
the world, I know that innocent people have been convicted of 
crimes they have not committed. I said God help us if we have 
made a mistake here. We are human beings. We are trying to work 
a system that we would like to believe is perfect. But being 
human beings we are not perfect and we can make mistakes. And 
then what seems like an eternity I was told the electricity was 
turned off and the attending physician had pronounced that 
individual dead.
    In over 40 years of practicing in the death penalty field, 
both as an attorney, prosecutor, judge, trial and appellate, I 
have participated in the final decision in more than 1,200 
capital cases. That does not mean all 1,200 people received the 
death penalty. But they were subject to the death penalty at 
some point along in those particular proceedings.
    And I learned one thing, that the most important thing that 
we have going for us is a system which allows us to permit the 
highest court in this land, the U.S. Supreme Court, to be able 
to consider those issues that manifestly affect whether or not 
people live or die after they have been convicted of a capital 
offense.
    And we should do everything in our power--and of course you 
folks have power to see to it that all persons who are charged, 
especially in death penalty cases, have the ability to have 
these issues resolved by habeas corpus. Not in a year, not in 6 
months as the current law requires, but whenever it arises.
    We cannot as a civilized society tell these people you 
don't have any more rights because it is procedurally barred. 
That is absolutely absurd to say you have got to die because 
something wasn't filed on time or due to some peculiar reason 
we cannot consider what may manifestly be evidence of 
innocence.
    And, Mr. Chairman, you mentioned something before about 
DNA. DNA is wonderful. There is only one problem with it. DNA 
only is present in a very limited number of cases. It does not 
consider those cases where people are convicted because of 
false identification or because of a false confession that in 
some way has been induced from their lips by law enforcement 
action and other items that come up as well. So you are right 
about that. Not so much to worry about the DNA, although there 
was a time that all of you gentlemen recall when prosecuting 
attorneys fought the defendant's ability to get DNA.
    Mr. Nadler. Not so long ago a time.
    Judge Kogan. But I think now that--that is true. That is 
very, very true. And so from my background, you can see that I 
have had up front experience, I have been out there on the 
street with law enforcement looking at the dead bodies. I 
commiserated with the members of the families of these people 
who have been killed. But still I say that our system must 
provide all the safeguards that we possibly can in regards to 
preserving that very, very sacred writ of habeas corpus. And I 
think that Congress needs to reexamine the situation and come 
up with a comprehensive law. And I commend Congressman Johnson 
for taking a step in that direction. And I think this is a 
very, very worthwhile endeavor by this Committee and by 
Congress.
    And I thank you for the opportunity for having said my 
piece, so to speak.
    [The prepared statement of Judge Kogan follows:]
            Prepared Statement of the Honorable Gerald Kogan





















                               __________
    Mr. Nadler. And thank you. Mr. O'Hare, you are recognized 
for 5 minutes.

 TESTIMONY OF MICHAEL E. O'HARE, SUPERVISORY STATE'S ATTORNEY, 
CIVIL LITIGATION BUREAU, OFFICE OF THE CHIEF STATE'S ATTORNEY, 
                          CONNECTICUT

    Mr. O'Hare. Thank you. Thank you, Chairman Nadler, Members 
of the Subcommittee. I am Michael O'Hare----
    Mr. Conyers. Turn your mic on, please.
    Mr. O'Hare. I am sorry. Members of the Committee, I am 
Michael O'Hare, an Assistant State's Attorney from the State of 
Connecticut, and I am speaking on behalf of the State today. 
Thank you for the opportunity to address the Committee on an 
issue of great importance to the State.
    The bill is important to the States because it has a direct 
effect on the ability of the States to carry out the lawful 
judgments of their courts, the lawful and constitutional 
judgments of their courts. As a prosecutor and as a Federal 
habeas practitioner, the proposed legislation raises a number 
of concerns for me. I will focus on two that I think are most 
significant.
    First, I believe that the proposed amendment to section 
2254(d) is of questionable constitutionality. And second, I 
think----
    Mr. Nadler. Could you, sir--please don't assume that 
everybody automatically knows which section is which by number. 
You might characterize what amendment you are talking about and 
what position you are talking about.
    Mr. O'Hare. I am sorry, Mr. Chairman. I am talking about 
the provision that sets forth the standards for Federal habeas 
corpus relief in AEDPA, the section that provides that you are 
entitled to relief if you can show that there has been an 
unreasonable application of clearly established Federal law or 
an unreasonable determination of the facts.
    I also believe that if enacted the amendment to section 
2244--and that is the section that bars successive petitions--
would effectively prevent the States from ever carrying out an 
execution.
    The proposed amendment to section 2254(d), that is the 
section that sets forth the standards that must be met to 
obtain Federal habeas corpus relief, seeks to add a provision 
that would provide relief for claims of actual innocence raised 
by petitioners who have been sentenced to death. It is well 
established, however, that congressional enactments must be 
based on the Constitution. If a Federal statute--if a statute 
enacted by Congress exceeds Congress' constitutional authority, 
it is unconstitutional.
    Here I believe that the proposed amendment exceeds 
congressional authority because it creates a remedy for a claim 
of actual innocence. As Justice Scalia pointed out in his 
dissent in In re: Davis, and also as the Court as a whole 
stated in Herrera v. Collins, the Constitution has never been 
interpreted to provide Federal habeas corpus relief for claims 
of actual innocence.
    And the reason for this is clear. Under our Federal system, 
Federal courts may, of course, determine whether State courts 
have properly applied the provisions of the procedural 
protections that are required by the United States 
Constitution. But there is nothing in the Constitution to 
provide Federal courts with superior authority in determining 
the facts. The claim of actual innocence is a factual claim and 
under our constitutional system I believe that the States have 
the final say in adjudicating such a claim. Indeed in Barefoot 
v. Estelle and other cases the United States Supreme Court has 
said that the role of the Federal courts in Federal habeas 
corpus claims is not to retry facts or review State factual 
determinations, but rather it is to determine whether the State 
court judgment has been determined in compliance with the 
procedural requirements under the Federal Constitution.
    Because the proposed amendment here seeks to provide relief 
on a factual claim I believe it exceeds Congress' power to act 
and is therefore unconstitutional.
    The proposed amendment to section 2244 seeks to remove the 
barrier to successive petitions with respect to claims of 
actual innocence raised by petitioners who have been sentenced 
to death. If this provision is enacted, because it removes the 
barrier to second or successive factual innocence claims, it 
would effectively authorize an unlimited number of claims of 
actual innocence. As such it becomes a vehicle for perpetual 
delay and would ultimately prevent States from carrying out 
executions. I don't believe that such a rule would be in the 
public interest or in the interest of justice, and I would urge 
the Committee not to adopt these amendments.
    Thank you.
    [The prepared statement of Mr. O'Hare follows:]
                Prepared Statement of Michael E. O'Hare










                               __________

    Mr. Nadler. I thank the gentleman. Mr. Blume, you are 
recognized for 5 minutes.

TESTIMONY OF JOHN H. BLUME, PROFESSOR OF LAW, DIRECTOR, CORNELL 
      DEATH PENALTY PROJECT, CORNELL UNIVERSITY LAW SCHOOL

    Mr. Blume. Mr. Chairman, Members of the Committee, thank 
you for this opportunity.
    The Nadler-Johnson bill is a laudable effort to address a 
critical problem in the criminal justice system: The conviction 
and execution of the innocent. I think the problems with habeas 
corpus are much deeper than that, and I want to talk about a 
few of those instances today. But I do want to first say that I 
think that Mr. O'Hare is clearly wrong that this bill is 
unconstitutional. If he were right, then the Supreme Court 
itself acted in a completely lawless and ultra vires manner 
when it sent Troy Davis's case back to the District Court for 
further fact-finding. They could not have done that had they 
not at least implicitly recognized a right not to be executed 
if you are innocent.
    I want to talk about three issues briefly. The first was 
mentioned by Chairman Nadler in his opening response, is the 
statute of limitations. The statute of limitations in AEDPA has 
produced Draconian results. A number of death sentence inmates 
and literally thousands of non-death sentence inmates have been 
deprived of any Federal habeas corpus review of their 
convictions in death sentences because of this.
    I want to briefly talk about one case. Kenneth Rouse was 
convicted and sentenced to death in North Carolina for the 
crime that he allegedly murdered, raped, and robbed an elderly 
white female. Mr. Rouse is African American. He produced 
uncontradicted evidence in Federal court that one of the jurors 
who convicted him and sentenced him to death's mother was also 
convicted, raped and robbed by a different African American 
male and he lied about that fact during voir dire for the 
purpose of getting on the jury to sentence Mr. Rouse to death.
    That uncontradicted evidence received no Federal review 
whatsoever. Why? Because his attorneys filed his habeas 
petition 1 day, yes, 1 day late. And they did so despite the 
fact that there was a good faith dispute about whether that 
filing was timely.
    That is shocking and that is unconscionable and that 
shouldn't be allowed in a civilized society but it goes on in 
this regime.
    Second, I would like to talk about Federal procedural 
default. As Mr. Hanlon mentioned in his remarks, there is this 
sort of Byzantine set of procedural rules that are now in place 
in the habeas system. And these also produce Draconian and 
unjust results. John Eldon Smith was executed in the State of 
Georgia despite the fact that there was widespread 
discrimination against women in the grand jury process that led 
to his conviction and death sentence. His co-defendant's 
lawyers objected. Mr. Smith's lawyers did not object. What was 
the result? Mr. Smith was executed. Mr. Smith's co-defendant 
received a new trial and was sentenced to life imprisonment.
    It is absolutely clear that had Mr. Smith's lawyers 
objected it would not have made one bit of difference to the 
judge because that judge overruled the objection made by his 
co-defendant, but yet one person lived and one died because one 
set of lawyers knew the rules of the road and the other set of 
lawyers didn't.
    Again, that is shocking and unconscionable and it should 
not be allowed. It also means in these capital cases a 
substantial amount of time and effort is spent on the riveting 
questions such as was there a State rule? Is it consistently 
and regularly applied? Is it adequate? If all of these 
procedural obstacles were eliminated we could streamline the 
review, we could achieve more justice and the system would work 
better and produce just results.
    Finally, I wanted to talk a little bit about 2254(d), which 
was also mentioned in the Chairman's opening remarks. Section 
2254(d) says that a Federal court cannot grant relief unless 
the State court's decision was contrary to or an unreasonable 
application of clearly established Federal law as determined by 
the Supreme Court of the United States or constituted an 
unreasonable determination of the facts.
    Now, I realize that is quite a mouthful. And this 
particular language has no pedigree in habeas. We don't know 
where Congress actually got it from when it passed AEDPA in 
1996. But I will say that proponents of the AEDPA assured 
Members of Congress that if they passed this that meritorious 
claims would be vindicated. President Clinton's signing 
statement said the same thing. But that promise has been 
broken. In Neal v. Thigpen for example, a case out of the 5th 
Circuit, Mr. Thigpen presented evidence that persuaded that 
court that his conviction and death sentence was obtained 
unconstitutionally. His lawyers presented virtually no evidence 
of mitigation, despite the fact that there was uncontradicted 
evidence of the extreme abuse to which he was subjected to when 
being placed in the State mental institution, including being 
repeatedly gang raped by other members there. The 5th Circuit 
agreed that his lawyer's performance was unreasonable, they 
agreed that it was prejudicial, but they said they could do 
nothing because while the State court decision was wrong, it 
was not so off the mark and thus AEDPA tied their hands.
    Again, that should not be allowed. If there is a 
constitutional violation the Federal court should have the 
power to remedy it. This court should go beyond just the 
question of innocence, engage in sweeping reform and untie the 
hands of the Federal courts and allow them to get down to the 
business of remedying constitutional error.
    Thank you.
    [The prepared statement of Mr. Blume follows:]
                  Prepared Statement of John H. Blume






                               __________

    Mr. Nadler. Thank you very much. I will begin the questions 
by recognizing myself for 5 minutes. Let me start by asking Mr. 
O'Hare, since one of the major purposes of AEDPA, which I think 
you referred to also, was for finality and to reduce the number 
of post-conviction appeals and, more importantly, to reduce the 
time of litigation between an adjudication of guilt and 
execution of sentence, but since the result seems to have been 
a great lengthening of the time--because of all of the--as 
Judge Kogan referred to it--satellite litigation, and all of 
these other questions of whether the statute was met and so 
forth, do you think that ought to be reviewed or revised 
because in fact the central purpose of the statute has gone the 
other way? It seems to have backfired?
    Mr. O'Hare. Well, in my view, Mr. Chairman, that additional 
litigation arises when the State--and I represent the State and 
I have done this--we move to dismiss petitions on the grounds 
that they are filed in violation of the statute of 
limitations----
    Mr. Nadler. Excuse me. That is exactly my point. Wouldn't 
it be better, instead of wasting a lot of time, money, and 
effort as to whether the procedures were followed properly, to 
get to the heart of the matter on the merits?
    Mr. O'Hare. No, I think the heart of the matter on the 
merits has been resolved in the State courts and I think the 
point of AEDPA is to allow that ruling to stand unless there is 
a clear constitutional error.
    Mr. Nadler. Okay. Now, based on a study commissioned by the 
Department of Justice--well, as I said, it is now obvious that 
capital habeas petitions now take twice as long as they did 
prior to AEDPA's enactment. Let me ask Judge Kogan, since the 
primary purpose of AEDPA was to improve the efficiency in the 
habeas process, do you think the act should be modified? Same 
question.
    Judge Kogan. Well, obviously I think the entire habeas 
corpus position has to be looked at again and a whole new 
regimen of what is going to happen in these situations adopted 
by the Congress. Because if you don't do that you are going to 
get involved in things that are really superfluous. Procedural 
matters are all well and good. The only problem with procedural 
matters is they obscure the thing you are really looking at.
    Mr. Nadler. That is an interesting philosophical point of 
view, which is exactly the opposite of Mr. O'Hare's view, which 
seems to be better to spend time on the procedural obstacles to 
vindicate the right of a State not to have their determinations 
looked at on merits by a Federal court. Which I disagree with, 
Mr. O'Hare, but that is his position as I gather it.
    Now let me ask you further, Judge Kogan, based on our--
because of the provision in the AEDPA that a Federal court 
cannot grant habeas on a claim decided unless it is contrary to 
or involved in unreasonable application of clearly established 
Federal law or based on unreasonable determination of the facts 
in light of the evidence, could there be circumstances where 
innocent individuals are denied habeas relief?
    Judge Kogan. Sure, it could do that. In other words you are 
looking at is the lower court making a mistake? That is really 
what you are looking at. And the whole point is that if you are 
going to go ahead and start talking about whether or not 
something is reasonable or unreasonable, you have to go to the 
highest level in favor of the person who is filing that 
particular petition. Because remember, the whole system of 
justice is not just to convict the guilty, it is also to 
protect and prevent the innocent from being convicted.
    Mr. Nadler. Although some people's view seems to be that 
the purpose of the Federal justice system is to protect the 
right of the States to make determinations whether right or 
wrong.
    Professor Blume, in light of what we have been discussing, 
do you have any specific suggestions on how to modify the 
current law to ensure that individuals whose Constitutional 
rights have been violated are ensured meaningful review of 
their habeas petitions in Federal court?
    Mr. Blume. Yes, I would suggest that 2254(d) be eliminated.
    Mr. Nadler. Just eliminated? Not modified?
    Mr. Blume. Yes, it has created a perverse incentive system 
in many ways, in that the less the State courts say, the more 
deference they get in Federal court.
    Mr. Nadler. In other words, the less they say the more 
deference they get because they don't say enough to hang 
themselves?
    Mr. Blume. To hang themselves. And the Supreme Court has 
focused solely on the result at the lower Federal court. There 
is a presumption that the State courts got it all right when 
they in fact say nothing. I don't think that is what the people 
who passed AEDPA intended, but that it is how it has played out 
and it has led to numerous Draconian and unjust results. The 
elimination of procedural default would also get down to the 
business, as you said, of getting to the merits, and avoiding--
--
    Mr. Nadler. Besides eliminating 2254(d) in its entirety, 
would you have any other suggestions?
    Mr. Blume. Yes, I would get rid of the procedural default 
doctrine and if you want to leave the statute of limitations at 
least create a fair equitable tolling provision.
    Mr. Nadler. And what would a fair equitable tolling 
provision look like?
    Mr. Blume. A fair equitable tolling provision I think would 
take into account that some attorney errors would justify 
Federal review. Right now Federal courts have interpreted that 
such lawyers' egregious mistakes, no matter how egregious, does 
not toll the statute of limitations. And because many of these 
inmates have no right to either a lawyer or an attorney of 
their choice--and there have been shocking examples of attorney 
malfeasance in this--there should be some exceptions to statute 
of limitations for attorney error.
    Mr. Nadler. And one further question before my time 
expires. Do you think it should make any difference in the 
degree of review of attorneys' misconduct or lack of effective 
representation with respect to tolling the statute if the 
attorney was selected by the defendant or is assigned to him?
    Mr. Blume. I don't know that that should necessarily be. I 
think I would really want to focus more on the attorney's 
conduct. It may be that he might be selected poorly but they 
are not really in the position to know what they are getting.
    Mr. Nadler. My time has expired. I recognize the 
distinguished Chairman of the full Committee, the gentleman 
from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman. Could I solicit the 
views of those that are on the panel with Mr. O'Hare about the 
question of constitutionality? I want--I am here to help Mr. 
Johnson. So what I would like to ask all of you to do, is help 
us figure out how we can improve this really important piece of 
legislation.
    But let's look at the constitutional question first. Could 
you start us off, Mr. Hanlon?
    Mr. Hanlon. Well, I would start--I read briefly Mr. 
O'Hare's statement before coming in--sitting down here. And I 
note that he starts off citing dissenting opinions in the 
recent Supreme Court case. And I think Professor Blume is 
absolutely right that the action that the court took in Troy 
Davis's case is the strongest message that I think can be sent 
to this Committee and others that there is a constitutional 
right involved when we are dealing with the execution of a 
possibly potentially innocent man. And I think that is why the 
Court sent the case back.
    Justice Stevens weighed in on this, and I just don't think 
you can make the case that the law as it stands right now holds 
that there is no constitutional right to be free from execution 
of a potentially innocent man.
    Mr. Conyers. Judge Kogan?
    Judge Kogan. Well, as everybody knows, we do have an 
amendment to the U.S. Constitution that talks about nobody's 
life, liberty or property can be taken without due process of 
law. And due process of law has been defined over the years by 
all courts, including the U.S. Supreme Court, to include those 
things that arguments such as Mr. O'Hare's might have years ago 
been valid, but really aren't any more.
    What do we mean by due process of law? Simply has the law 
treated this particular litigant, in this case the defendant, 
fairly? And that is really the issue. And the court can always 
decide whether or not that person has been treated fairly and 
do it under the due process clause.
    Mr. Conyers. Thank you. Professor Blume?
    Mr. Blume. Yes, I addressed this in my opening remarks but 
let me go with a little more detail. Yes, it is true that prior 
to In re: Troy Davis the Supreme Court had said we have never 
explicitly decided whether there is a right not to be executed 
if you are innocent. That of course is a statement that I think 
most people on the street in this country would find shocking. 
That in this country, supposedly the greatest democracy in the 
world, the greatest defenders of civil liberties, that it is 
not enough to obtain a new trial. That you are just innocent of 
the offense for which you were convicted and sentenced to 
death.
    But despite that fact I think it is true the court could 
not have done what it did in In re: Davis. It took the case and 
said we are sending it back to the district court to determine 
if Mr. Davis is innocent in light of the statutory criteria it 
met, unless it first decided implicitly that there is a 
constitutional right not to be executed unless you are 
innocent. They would have had no power to do that without at 
least making that determination. So I think Davis speaks 
clearly to the fact that there is now a constitutional right 
not to be executed while you are innocent. Thus this Committee 
has and the Congress has the power to pass it and I think also 
to influence the decision of what is the standard for 
innocence, which is something this bill takes on.
    Mr. Conyers. Well, Attorney O'Hare, what seems to be 
disturbing some of the people at this hearing about your 
analysis?
    Mr. O'Hare. Well, I think they have stated what disturbs 
them about my analysis. But I would respond by saying that I 
believe on that issue the Court spoke most clearly in Herrera 
v. Collins, where they declined to hold that there is a right 
to relief on a claim of actual innocence--for a right to 
Federal habeas corpus relief on a claim of actual innocence. 
And I think that is the state of the law and their action on 
the order in Troy Davis does not alter that.
    And I think that the real issue is not whether or not a 
person can be executed if he is innocent of the crime. I think 
the issue is where that decision is made. And I believe that 
the decision--if the decision is made in a State proceeding 
that complies with the requirements of the Federal 
Constitution, then that should be the final decision on that 
issue. And I think that that is the basis of our Federal 
constitutional system. And I believe that in Herrera v. Collins 
the United States Supreme Court, the entire court in this case, 
declined to hold that there is a basis for relief on a claim of 
actual innocence in Federal habeas.
    Mr. Conyers. If it turned out that many here today were 
correct, you could reconcile yourself with a new position on 
this subject? I mean, is this deeply held and you don't have 
any question about it? Or is it something that you can accept 
after you review the kinds questions that have been raised 
about it?
    Mr. O'Hare. Well, Mr. Conyers, I am a practitioner and I 
apply the law as I believe it exists. So my position is based 
on the law as I believe it currently exists today and I 
represent my clients, the people of the State of Connecticut, 
based on that belief. If the Supreme Court were to change and 
issue a clear opinion indicating that there was such a right 
then certainly I would alter my position.
    Mr. Conyers. Well, that is pretty decent of you. We 
appreciate that very much. And the reason that I pursue this 
conversation is that we all--some of our views, legal, are 
deeply held. And I have found myself on occasion saying I don't 
care what the Supreme Court says. As a matter of fact 
increasingly I have found myself with that view.
    So I just wanted to know if you could easily adjust 
yourself to that if the Supreme Court spoke thusly. I have got 
some issues that I think the Supreme Court, with all due 
respect, was dead wrong. So is there any other basis of 
persuasion that might move you to modify your position?
    Mr. O'Hare. Well, Mr. Conyers, as a practitioner, I have to 
follow the law as articulated by the Supreme Court and my own 
State Supreme Court on matters of State law. And I often 
disagree with my State Supreme Court and sometimes the United 
States Supreme Court. But when I do, I follow the law in 
representing the State of Connecticut.
    Mr. Conyers. Well, you can't not follow the law, but that 
does not mean you don't--you haven't changed your opinion. Do 
you see what I am trying to convey? I mean, just because the 
Supreme Court says O'Hare is wrong, that does not mean O'Hare 
says okay, I will do it your way. You likely don't have any 
other choice. But would there be other things that could help 
you reexamine your position like maybe reviewing this 
transcript of this discussion?
    Mr. O'Hare. Well, Mr. Conyers, I always keep an open mind 
on these issues.
    Mr. Conyers. Well, now that is what I was looking for. I 
wish you had said that a few minutes ago instead of about how 
blindly you follow Supreme Court dicta. But I thank you for 
this discussion.
    Mr. O'Hare. You are welcome.
    Mr. Nadler. The gentleman yield back?
    Mr. Conyers. Yes.
    Mr. Nadler. I now recognize the gentleman from Virginia for 
5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Let me follow through 
on that just a minute. Mr. O'Hare, you talk about what the law 
is. In the legislative branch we have the opportunity to 
perhaps change the law. And I was wondering since we know what 
we know with findings of DNA where people have had a trial and 
by all aspect its looks like a fair trial, but we know that 
they just got it wrong. Now, do you find it inherently wrong to 
have--just inherently wrong, whether that it is the way it is 
or not, that there is a system that someone who is factually 
innocent of the charge ought to be executed?
    Mr. O'Hare. My State, my State has very broad rights of 
post-conviction, to challenge convictions in post-conviction 
proceedings. And we have virtually unlimited opportunity for 
defendants in our State who want to present DNA evidence and 
other claims of innocence to do so in the State courts.
    Mr. Scott. If the DNA is kind of outside of the process, 
that is just the umpire after the game has been played. You 
have a videotape review and they just got it wrong. If there is 
no DNA, you wouldn't expect any better percentage results than 
in the case of DNA. We know there is DNA, they come and look at 
it, and whether you got it wrong. If you don't have the DNA, it 
is not perfect. Some of them are wrong. If you can show that 
you are factually innocent of the charge, is there anything 
inherently wrong with a system that will put you to death 
anyway? Without an appeal?
    Mr. O'Hare. I think that someone who can show that they are 
factually innocent of the charge should not be put to death.
    Mr. Scott. Where in the process would they have the 
opportunity to have someone put a stop to the proceedings?
    Mr. O'Hare. I think, as I indicate in my testimony, in my 
view it should take place in the State proceeding.
    Mr. Scott. In the State court. You trust the State court to 
get it right and the Federal court should have no opportunity 
to put a halt to the State proceedings when someone claiming 
innocence would be denied the opportunity to present the 
evidence gets put to death anyway without the Federal 
Government being able to put a halt to the proceedings?
    Mr. O'Hare. I think that the Federal Government can ensure 
that the defendant----
    Mr. Scott. But there is nothing inherently wrong with a 
system that would put them to death if he is factually innocent 
of the charge? We have questions as to whether factual 
innocence is--whether you have a constitutional right against 
execution if you are factually innocent. Is nothing inherently 
wrong with that process?
    Judge Kogan, do you have--is there something inherently 
wrong with a system where someone who is factually innocent 
cannot present evidence to show that they are innocent?
    Judge Kogan. In this country there is. There are some 
countries around the world where I think that routinely 
happens. But the important thing to remember----
    Mr. Scott. That what happens?
    Judge Kogan. Where they are put to death. Where they just 
have evidence, but they have no chance to present it and even 
if they did present it, they wouldn't prevail anyway.
    Mr. Scott. Does that happen in the United States?
    Judge Kogan. Unfortunately, I believe so. Let me also say--
--
    Mr. Scott. And is there something inherently wrong with 
that?
    Judge Kogan. Inherently wrong? In a country such as ours 
that prides itself upon the right of individuals to have life, 
liberty and the pursuit of happiness, it sure does. It is just 
morally wrong to execute someone who is innocent of a crime and 
especially not even giving that person the opportunity to come 
around to show that they are in fact innocent.
    And also let me say this. You know, having been on the 
bench, I am not someone who overlooks reality. Courts can be 
wrong. They are wrong many, many times. State Supreme Courts 
make mistakes. The U.S. Supreme Court makes mistakes. And for 
us to say that let us rely upon a supposed infallibility of a 
State court is a big mistake.
    Mr. Scott. Mr. Blume, is there anything inherently wrong 
with putting innocent people to death?
    Mr. Blume. Yes. I think to me the answer is simple. In this 
day and age in this society it is unconscionable that we would 
execute someone who may be innocent without giving them some 
fair opportunity to present that evidence.
    Mr. Scott. Mr. Hanlon.
    Mr. Hanlon. The answer is yes, of course. It is inherently 
wrong. One of the things I would like you to do in your review 
here is question the underlying assumption of AEDPA. AEDPA's 
underlying assumption was that there was a need to restrict 
Federal court review in death penalty and habeas litigation.
    This is 1996. There was a study Professor Liebman did at 
Columbia University from 1973 to 1995 of all death penalty 
cases during that period of time. There was a 68 percent error 
rate. 47 percent of that was out of the State courts and 40 
percent out of the Federal courts. Imagine if that were an 
airline.
    The need to restrict review with a 68 percent error rate is 
simply nonexistent. That is an error rate unheard of in the 
annals of Anglo American jurisprudence. The normal rate of 
reversals--and Justice Kogan, correct me if I am wrong--but I 
think it is 5 percent, somewhere around 5 and 10 percent.
    Mr. Scott. This is in death penalty. 68 percent error rate?
    Mr. Hanlon. Yes.
    Mr. Scott. And what do you mean by error rate?
    Mr. Hanlon. There were serious constitutional reversible 
errors in those cases.
    Mr. Scott. Thank you, Mr. Chairman.
    Judge Kogan. If you would allow to me to interrupt, I was 
also part of that Columbia University study with Professor 
Liebman. So I am very, very familiar as to what took place 
during that particular study. But as I said before, the problem 
with all of these things is that we have human beings trying to 
be perfect in operating the system. And you can't say that we 
can operate a perfect system. There is no such thing. So 
therefore we have to give this escape valve which allows us to 
correct somewhere around the line errors that even the courts 
themselves will submit.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. Will the gentleman yield?
    Mr. Scott. I yield.
    Mr. Nadler. You were just saying in that study where they 
found 68 percent error rate, how did they define the error 
rate?
    Judge Kogan. I think Mr. Hanlon described it. Actually, it 
does not mean that the person was innocent. It means that there 
was some substantial mistake that occurred during the 
proceeding that would entitle the defendant to either a new 
trial----
    Mr. Nadler. As defined by a subsequent court or as defined 
by the people doing the study?
    Mr. Hanlon. Defined by the State courts and Federal courts.
    Mr. Scott. That was the finding. They were in fact set 
aside?
    Mr. Hanlon. Yes.
    Mr. Nadler. I now yield 5 minutes to the gentlelady from 
California.
    Ms. Chu. Mr. Hanlon, many of your criticisms of AEDPA seem 
to some back to one major flaw in the way we handle capital 
cases in this country, the lack of well-trained, experienced 
lawyers to help prisoners who are sentenced to death penalties 
and who lack the lack the ability to have representation on 
their appeals. And the statistics are disturbing that seven out 
of 10 capital cases fully reviewed over a 20-year period had 
serious constitutional errors.
    I doubt that many prisoners that are sentenced to death can 
afford the cost of a multiyear post-conviction proceeding and 
yet they are not guaranteed counsel after their initial 
conviction.
    What is the best way to fix this problem? What is the best 
way to make sure that they have adequate legal advice and 
representation? Should the Federal Government provide defenders 
to capital cases to shepherd them through the Federal process 
post-conviction as we do prior to conviction?
    Mr. Hanlon. Well, that is a very good question. The 
American Bar Association has studied this issue for over 20 
years now and continually promulgated guidelines, 
recommendations, an exhaustive study of the State systems. 
Particularly now I want to focus on State post-conviction 
capital litigation. And because we can't establish a 
constitutional right to capital post-conviction representation, 
the funding for counsel in these cases is grossly inadequate 
almost everywhere. And this is just terribly exacerbated by a 
1996 effort to limit Federal review. Under that situation, one 
would think you would want to expand Federal review knowing 
that the problem of adequate counsel in capital post-
conviction, in cases where this is the first time that this 
issue can be raised, ineffective assistance of counsel, 
prosecutorial misconduct, suppression of material evidence, 
juror misconduct, et cetera.
    So what we are recommending here is that the Congress 
seriously consider funding for these State capital post-
conviction defender systems. Because we have at least a 20-year 
record of failure. We can't get it. We have tried and tried and 
tried and we are met with well, it is just a matter of 
legislative grace. We don't have to provide you with any. And 
faced with that, we go begging but we always come up 
dramatically short. And it seems to me that the record is 
overwhelming right now that we are not going to get that 
funding in the States. And we have only one other place to look 
for it.
    Ms. Chu. And you mentioned that there are Federal training 
programs in place to help States improve training and standards 
for counsels that are appointed to State capital cases. Are the 
States taking advantage of this?
    Mr. Hanlon. I frankly don't know the answer to that 
question, but I will get it for you. One of the bad things that 
happened in 1996 is that we lost funding for the Volunteer 
Lawyers Resource Center. Right at the time we had this record 
established of a 68 percent error rate and inadequate funding 
in the States, then we lost that Federal funding that we had 
there. And those were--they would help lawyers like me who 
never tried a misdemeanor case to come in and do a capital case 
and train us. So the training money is essential.
    I just don't know the answer to your question. I just don't 
know.
    Ms. Chu. Justice Kogan, you gave a detailed analysis of the 
flaws in the drafting of that process. The last time Congress 
meddled with habeas corpus we clearly missed the mark and it 
has made it even more difficult and more time consuming for 
inmates to receive proper justice.
    In your testimony you mentioned two pending Supreme Court 
cases that will rule on the same issues that you raise. Why not 
leave it up to the courts to iron out these inconsistencies and 
confusion of law?
    Judge Kogan. Well, remember now we have 50 States in the 
United States. And you could very simply wind up with 10 or 15 
different ideas as to what something should be interpreted as 
and what the law should be.
    We have the United States Supreme Court and it is there in 
the Constitution for a purpose, and the purpose is to be the 
Supreme Court of the United States. And this is where these 
differences ought to be ironed out.
    Ms. Chu. Thank you, I yield back.
    Mr. Nadler. And thank you. And I am corrected by counsel. 
Let the record reflect I did not yield to the gentlewoman from 
California; I recognized her for 5 minutes, as I now recognize 
the gentleman from Iowa for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I may not ask you to 
yield during this process. I thank the witnesses as well, and 
the level of curiosity that has grown here, but as I listened 
to Mr. Hanlon talk about the statistics of the error rate and 
defined it, I think a couple of you gentlemen, in an accurate 
way. Process, procedure, legal technicalities whatever it might 
be, but not necessarily innocence.
    And so I would ask first Mr. Hanlon this question. Of this 
data that you put out, do you have data that would reflect the 
identity of the individuals and the numbers of individuals who 
were executed unjustly who were actually innocent of the crime?
    Mr. Hanlon. That data is generally collected by the Death 
Penalty Information Center and is available on its Web site. 
Okay? But I do want to correct the record. I did not say that 
these errors were procedural, technical, et cetera. My 
testimony was that the courts had reviewed these cases and had 
found serious constitutional and reversible error.
    Mr. King. Thanks for the clarification, Mr. Hanlon. I did 
not intend to put words in your mouth, but I would ask you 
again do you have knowledge of any individuals who were 
executed that have been determined to be innocent?
    Mr. Hanlon. I think I am going to ask Justice Kogan to 
answer that question.
    Mr. King. I will be happy to turn this to the Honorable 
Judge Kogan, but I want the record to reflect that I am asking 
the Honorable Judge Kogan if he can respond to that question.
    Judge Kogan. I cannot give you names, but I will say this. 
I am going to use DNA as an example of what I am going to refer 
to. Now, say to yourselves, DNA as we all know, first of all, 
only covers a certain number of cases but say it this way. What 
happened to these people prior to DNA being developed as a 
science which could prove them innocent? I will tell you 
exactly what happened to them. They were executed. Common sense 
tells you that. You can't say, oh, you know, DNA only arose and 
was used in recent years like it is just something that fell 
out of the sky. In other words, there were innocent people 
going back to the founding of this country. But yet we did not 
have DNA developed up until the nineties where it was able to 
be used in court to exonerate. So logically, they had to have 
been executing.
    Mr. King. Mr. Kogan, I would point out that we have over 
40,000 people a year killed on the highways in America and over 
16,000 that are murdered in America and we will lose an average 
over the last 2 years of 172 troops in Afghanistan. Surely when 
we look at the magnitude of what we are dealing with, do you 
have a sense of the magnitude of how many innocents have been 
executed over a period of time? Do you have any sense of that 
that you can help this panel out?
    Judge Kogan. I understand that we have had 100 to 150 
people exonerated by DNA.
    Mr. King. None of them executed.
    Judge Kogan. No, none of them were executed but if we 
didn't have DNA they would have been.
    Mr. King. Are we certain of that? I am glad this happened. 
And I have been a strong supporter of establishing a DNA data 
bank and all kinds of circumstances because I think the saving 
of one life is worth all the investment we could possibly put 
into it. I don't want to leave a tone--I would just like to be 
able to understand the magnitude of this. I agree with the 
necessity to never execute anyone and unjustly an innocent 
person.
    Mr. Nadler. Will the gentleman yield?
    Mr. King. Yes, I would yield.
    Mr. Nadler. With respect to your question just now, in what 
percentage of death penalty cases is DNA evidence available?
    Judge Kogan. I can't give you an exact percentage but it is 
a very, very small amount.
    Mr. Nadler. So in other words, one has to assume that if X 
percent of people would have been executed but for DNA evidence 
where DNA evidence is available, then probably a similar amount 
of people who are innocent are executed where the DNA evidence 
is not available; would that be correct?
    Judge Kogan. I don't know. There is no way for us to 
quantify that at all. But we have to say logically that if now 
we have exonerated between 100 and 150--and it may be more than 
that--by DNA in capital cases, look at the same percentage for 
years gone by.
    Mr. King. Justice Kogan, I think you have given an accurate 
answer on this. We don't know the number and we don't know the 
names. And it would be helpful to know the number and the names 
so that we understood the magnitude of this. Is this a way-out-
on-the-stretch anomaly or a statistical--and I think we are 
going to have to go look at that data on the Web site, as 
mentioned to Mr. Hanlon.
    But I also want to point out before I turn to Mr. O'Hare, 
and my clock is running out, I watched the O.J. Simpson trial 
and there was DNA evidence there. So some of these things go 
out the window when it comes time to go before a jury.
    Mr. O'Hare, I wanted to get a clarification that you might 
be able to illuminate the situation and that is if I go to the 
bill and it reads on page 2: ``A sentence of death that was 
imposed without consideration of newly discovered evidence 
which, in combination with the evidence presented at trial, 
demonstrates that the applicant is probably not guilty of the 
underlying offense.'' Can you tell me where is that burden of 
proof on ``probably''? And how do you define ``probably''?
    Mr. O'Hare. Well, I think that if there is going to be a 
right to habeas corpus relief for claims of factual innocence, 
``probably'' is far too low a burden of proof. In my State we 
do have actual innocence claims can be made in post-conviction 
proceedings and the standard is clear and convincing evidence 
of actual innocence, which is a higher and more appropriate 
standard.
    So I would suggest that a standard of ``probably'' is far 
too low and too imprecise.
    Mr. King. Would you agree as our side-bar conversation that 
``probably'' means preponderance? And if that is the case 
shouldn't that be an amendment to this language so that it is 
clear and convincing to us?
    I think that is a good place for me to yield back to the 
Chairman, and I thank the witnesses for their testimony.
    Why don't you answer the question I asked? Would you agree 
that the bill should be amended for preponderance if that is 
the intent?
    Mr. O'Hare. I think preponderance would be a much clearer 
standard.
    Mr. King. I am clearly convinced.
    Mr. Nadler. I thank the gentleman, and I now recognize the 
gentleman from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman, and I appreciate you 
being here.
    Mr. Nadler. I am sorry. I recognize the gentleman from 
Georgia.
    Mr. Gohmert. I appreciated being recognized. Good to see 
you too. Thank you.
    Mr. Nadler. I am sorry.
    Mr. Johnson. Thank you, Mr. Chairman. I will say that a 
probable cause standard, in other words it is more likely than 
not----
    Mr. Nadler. Sir, your mic, please.
    Mr. Johnson. That standard is used for arrests, for 
criminal offenses and also for things like search warrants. And 
so I just want everyone to know that probable cause, which is 
what this legislation would actually provide for is not a 
strange or foreign standard that is used by the courts.
    Back in 1980, I was a brand new lawyer. I started 
practicing in January 1980, handling misdemeanor cases. And a 
friend came to me and said there is a guy down on death row who 
really needs an attorney, and he is due to get killed, as I 
recall it was around February 26, almost 1 month to go. The 
death penalty bar was so busy that they were willing to entrust 
that case to a young lawyer with no experience. We didn't have 
the death penalty seminars to get lawyers ready for that kind 
of work.
    And so Mr. Howard Jones had already exhausted his direct 
appeals and so now it was State habeas and Federal habeas, on 
down the line. The record on the State habeas level pretty much 
mirrored the trial court's denial of the motion for new trial 
and was also in keeping with the Supreme Court's, the State 
Supreme Court's denial of any relief in this case. There were a 
number of issues that only ripened about 8 years, 7, 8 years 
later, so Howard Jones from October 1977 until I think it was 
around March 1984, languished on death row.
    His attorney was great friends with the D.A. And the D.A. 
And his attorney were also well-acquainted with the judge. 
During the trial where the defense lawyer filed two motions, 
both of which were misspelled, motion for ``trail'' as opposed 
to ``trial'' and there was some other motion with misspellings. 
It wasn't a careful approach to representing Mr. Jones.
    To make a long story short, in 1984 a Federal district 
court judge was able to see that this case against Howard Jones 
was based on perjured testimony and also prosecutorial 
misconduct, and the prosecutorial misconduct had to do with 
allowing the State's principal witness to testify that there 
was no deal between he and the State. He had already received a 
12-year sentence for armed robbery with the murder case being 
dead docketed. But anyway that case ended up, the prosecutor 
allowed that testimony and the defense lawyer did ask the 
appropriate question of the State's principal and main witness. 
It did ask him and he said no, I've not reached a deal. Nobody 
disputed that on the prosecution side.
    So I am saying that to say it went all of the way through 
State court, the appellate direct appeal, and all of the way up 
to the U.S. Supreme Court. Then when I came into the case--
well, actually I came into the case at State habeas, but then 
we embarked upon the Federal habeas and it was a Federal 
district judge and it was also the public defender for the main 
witness against my client who as he was getting older I guess 
he wanted to make a death bed confession or something like 
that. But he was the one who told the court who testified that 
yeah, my client did have a deal, this is what the deal was. And 
so based on that, the judge ruled in favor of Mr. Jones.
    Now not to talk about whether or not Mr. Jones was guilty 
or innocent, I think it is important for people to have respect 
for our system of justice. And if our system of justice allows 
for lies, for a conviction to be based on lies, knowingly, then 
we need to improve that system. So I am just stating for the 
record that procedurally, procedural issues are important. 
Certainly procedural requirements are very important. So is the 
application of substantive law and whenever that process is not 
true, whenever there is a question about whether or not 
witnesses lied, in Troy Anthony Davis, several of the 
identification witnesses testified that it was Troy Anthony 
Davis who pulled the trigger, but now they are all saying that 
they were victimized by police misconduct and they wanted to 
change their testimony.
    So, you know, people do have conversions at some point 
where the truth comes out. And for us not to be able to get at 
that truth in the most important type of case that we can have 
where a person's life is at stake, where the State is getting 
ready to take someone's life, I think a successive petition, if 
necessary, in that case is not too tough a procedural hurdle 
for States to overcome.
    I had some questions that I wanted to ask, but I felt like 
it was better for me to give my personal experience with this 
and to echo, everybody has been talking about prosecutorial 
misconduct and ineffective assistance of counsel, and it does 
happen in the real world. I want to thank the Chairman for 
allowing me to have a little more time than I should.
    I yield back, Mr. Chairman.
    Mr. Nadler. The time of the gentleman has expired.
    I now recognize the gentleman from Texas.
    Mr. Gohmert. I do appreciate you all being here, and I am 
sorry I was late. We were going through a Federal district 
judge impeachment hearing downstairs.
    Just so I know where everybody stands, I would like to ask: 
Do you support the imposition of the death penalty in any cases 
from State court personally?
    Mr. Hanlon. I am here on behalf of the American Bar 
Association, and the American Bar Association, other than 
certain categories of juveniles, mental retardation----
    Mr. Gohmert. So you have no personal opinion?
    Mr. Hanlon. I have a personal opinion.
    Mr. Gohmert. What is your personal opinion?
    Mr. Hanlon. My personal opinion is that the death penalty 
is not worth the price. But that is my personal opinion.
    Mr. Gohmert. I know. You are here representing the ABA. I 
appreciate that.
    Judge?
    Judge Kogan. This may surprise you. I am opposed to the 
death penalty because I see the problems in the system and how 
every day we run the risk of executing, and it is a person. For 
that reason alone. But there are some people who have committed 
crimes that are so heinous and so horrible that actually I 
think the only way society can show its disapproval is by 
exercising the death penalty.
    Now that doesn't mean run of the mill----
    Mr. Gohmert. My time is so limited. I am just trying to get 
a feel where everybody is.
    Judge Kogan. There are certain people, and on a world 
scale, and on a world scale Adolph Hitler, Joseph Stalin, Mao 
Tse-tung----
    Mr. Gohmert. But they weren't tried in State court.
    Mr. O'Hare. I have argued to uphold death penalties, and I 
do in certain situations support the imposition of the death 
penalty.
    Mr. Blume. My personal opinion is similar to Mr. Hanlon's. 
I think it is not worth the time and effort.
    Mr. Gohmert. Thank you. That lets me know where everyone is 
coming from personally. Since we do in our court proceedings 
allow questions so we know where people are coming from 
personally.
    When I look at the proposed bill, I do have concerns about 
the word ``probably.'' Yes, we have all kinds of law on the 
words ``probable cause,'' but ``probably'' is going to create 
all kinds of new case law. And so if the idea were to drag 
litigation out, drag things out to prevent any further 
execution in any case, then this would seem to be a good word 
to use.
    Also, the law as it exists right now has some limits on how 
many shots at the apple you get as well as exhaustion 
requirements, and it is my understanding under the proposed law 
that there is no exhaustion requirements of other remedies as 
well as potentially unlimited opportunities to continue to 
pursue a writ of habeas corpus under that bill.
    Is that your understanding? Mr. Hanlon, is that your 
understanding that there is no limit to the number of writs 
that may be brought under the proposed bill?
    Mr. Hanlon. You mean under Congressman Johnson's bill, is 
there any limit to the number of proposed writs?
    Mr. Gohmert. That is correct.
    Mr. Hanlon. I am not sure that I know the answer. I know 
there is no specific limit articulated in the bill.
    Mr. Gohmert. Then that would be subject to court 
interpretation, but the bill itself does not limit it.
    I have to tell you, I appreciate Mr. Johnson's comments. I 
was appointed to appeal a death penalty case in Texas and I 
have had three death penalty cases that I tried as a judge. Two 
had the death penalty sentence imposed and one did not. The one 
I was appointed to appeal, though, the court kept dragging--the 
highest court in Texas kept dragging its feet on whether or not 
to render a decision. Frankly, I had done a very effective case 
of pointing out that I didn't have a problem with the death 
penalty, but in that case the rules were not followed and 
needed to be reversed. But my client kept begging me, please, 
it has been so long, tell them just give us a decision, leaving 
me on death row for an unlimited period is cruel and unusual. 
Don't make me sit here day after day after day not knowing 
whether I am going to die next month or not die next month. Am 
I going to get close and be pulled back. Let's just do it. It 
is cruel and unusual to make me sit here for such a long period 
of time.
    So I see the pendulum swing back and forth, but I want to 
make sure that we don't go as far as we had back in the sixties 
and seventies, forgetting the victims and victims' rights. I 
think we have done a good job with the DNA laws that we have 
passed, and I applaud the majority's efforts in making sure 
that we get better results in trials, but I would hate to see 
us completely eviscerate a State's rights to impose punishment.
    Thank you.
    Mr. Nadler. Thank you.
    The gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman, and I 
thank the witnesses as well. I want to make a statement just 
for the record that this hearing is on the impact of Federal 
habeas corpus limitations on death penalty appeals. And I 
appreciate the honesty of the witnesses, but this is not a 
hearing on your position on death penalty. I am sure many of us 
would have differing views on how we would approach our 
analysis of the moral validity of the death penalty. And many 
of us quarrel with ourselves in particular, Judge, on the 
framework which you used, heinous and horrific crimes. You 
probably have personal quarrels with your own morality.
    But I think this hearing is important because many of us 
have lived through the crisis of death penalty cases becoming 
political footballs. I think that is an abuse of justice. I 
think that is a heinous, immoral act. When in essence the 
political future of those who are entrusted to make fair and 
unbiased decisions are based solely on the latest poll, whether 
or not I will win the conservative vote, whether or not I can 
go into a primary and be successful.
    And why am I speaking from that perspective, because I have 
had real life experience over a period of years in trying to 
secure not biased results, not feeding false information to 
distort the decision-making process of an elected official, but 
giving them our very best so they can make the right decision 
or giving the very best to the Supreme Court so they can in 
essence put in place a stay. But obviously if you are 
addressing the conservative court versus another type of court, 
and of course we have lived under now what has been called a 
conservative court for more than two decades.
    So let me give you an example of what we face in particular 
in the State of Texas. One particularly troubling case is the 
case of Todd Willingham, who was executed by lethal injection 
in Texas in 2004. Todd Willingham was accused of deliberately 
trapping his three children inside of a burning house. He 
contended that he did not set the fire and was asleep on the 
morning that the house caught fire, but managed to escape with 
burns while his daughters died inside. Before Willingham's 
execution, his attorneys were able to procure expert evidence 
proving that he did not cause the fire that killed his 
daughters. Yet the Governor's office of the State of Texas 
declined to even read the report. Todd Willingham was executed 
without an opportunity to appeal with evidence that could have 
very well saved his life. A heinous crime, certainly something 
that would distort the hearts and minds of individuals as to 
why this person should live.
    Chairman Nadler, if I could, I would like to officially ask 
for a full hearing on the Todd Willingham case. I think it is a 
case in point, and I have written a letter.
    Mr. Nadler. If the gentlelady will yield, that is in the 
works.
    Ms. Jackson Lee. Thank you. I am so grateful for the 
leadership of this Committee.
    Let me move quickly and just indicate, that is one glaring 
case out of the State of Texas, one Governor by the name of 
Governor Rick Perry.
    The second case was with a Kristian Oliver, executed on 
November 6, 2009, one case that I personally got involved with 
because it was represented that there was new evidence dealing 
with DNA on a rifle. Certainly someone died. No one would ever 
diminish the loss to these families. But someone died, and we 
asked for a 30-day stay. It was rejected. The Governor did not 
respond.
    Mr. Blume, if I can quickly ask the question as to what the 
legislation Mr. Johnson has offered, and I am an original 
cosponsor, would have done to these cases when I believe it was 
truly tainted by political aspirations and political concerns 
as opposed to the basic raw facts of a simple process of 
justice, and not even justice, but a procedural road map in 
order to allow new evidence to be presented.
    I would like Judge Kogan and Mr. Hanlon to answer those 
cases as well.
    Mr. Blume. Certainly I know about the Willingham case more 
than the second one. I do believe that the bill, if enacted, 
would have created a forum for Mr. Willingham to present his 
new evidence. To me, it is a clear case of someone who was 
executed even though they were innocent in this country.
    Ms. Jackson Lee. Mr. Hanlon, are you familiar with the Todd 
Willingham case out of Texas?
    Mr. Hanlon. I am. I read Jeffrey Toobin's article. And I 
agree with Mr. Blume.
    I want to address this question of factual innocence, if I 
may. My colleagues at the ABA have given me the DPIC Web site 
numbers. There have been 137 death row exonerations; 17 people 
found factually innocent through DNA evidence; 122 overwhelming 
evidence of innocence undermine the validity of the conviction, 
for a total of 139.
    Let me tell you what is even more disturbing to me than 
that, and that is in many, many of these cases how lucky we 
were to find it.
    In Chicago, some Northwest journalism students worked. We 
were just lucky that there was a law professor there who put 
his students out to do an investigation, to unearth it and 
produce the exonerations. I can say in my review of these cases 
I am convinced to a moral certainty that we have executed 
innocent people. It is almost inconceivable that we haven't 
done that given the luck that we have had many, many times 
throughout the system.
    Ms. Jackson Lee. Judge Kogan?
    Mr. Nadler. The time of the gentlelady has expired. The 
gentleman may answer the question.
    Ms. Jackson Lee. The question was would a procedural road 
map help to void political decisions or decisions that might 
cloud the opportunity for new evidence to be presented?
    Judge Kogan. There is no question you would need a road map 
to do that, and it should be set up and done.
    Let me make one comment. I just remembered something. A 
number of years ago I was on an American Bar Association panel 
at the Inns of Court in London, and it was an international 
gathering. And the moderator of that panel, in front of a huge 
audience said, you know in order for a country to become a 
member of the European Union, they have to abolish capital 
punishment in their countries. He said how come the United 
States still has capital punishment? I said very simply because 
our elected public officials who have something to say about 
that feel that the American people are in favor of the death 
penalty. Then he told us something that I never knew before. He 
said in every one of the European Union countries, the general 
populace is in favor of the death penalty, but we don't worry 
about that because we are their elected officials and they have 
confidence in our ability to know more about these problems and 
the issue of the death penalty than they do and they trust us 
to do the right thing.
    Ms. Jackson Lee. A potent statement, and I think the right 
note to end my questioning on. Thank you, gentlemen, very much.
    Mr. Nadler. I now recognize the gentleman from Georgia for 
a unanimous consent request.
    Mr. Johnson. Mr. Chairman, I would like to submit three 
letters, one from NAACP and the other from Amnesty 
International, and the third from the ACLU. All of these 
documents show that these organizations are in favor of H.R. 
3986.
    Mr. Nadler. Without objection, they will be admitted for 
the record.
    [The information referred to follows:]
    
    
    
    
    
    
    
    
                               __________

    Mr. Nadler. Without objection, all Members will have 5 
legislative days to submit to the Chair additional written 
questions for the witnesses, which we will forward to the 
witnesses and ask them to respond as promptly as they can so 
their answers may be made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    I thank the Members and witnesses. With that this hearing 
is adjourned.
    [Whereupon, at 3:10 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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