[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
IMPACT OF FEDERAL HABEAS CORPUS LIMITATIONS ON DEATH PENALTY APPEALS
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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
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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
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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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Material Submitted for the Hearing Record