[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7819-S7820]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  THE INNOCENCE PROTECTION ACT OF 2000

  Mr. LEAHY. Mr. President, at the beginning of this year, I spoke to 
the Senate about the breakdown in the administration of capital 
punishment across the country and suggested some solutions. I noted 
then that for every 7 people executed, 1 death row inmate has been 
shown some time after conviction to be innocent of the crime.
  Since then, many more fundamental problems have come to light. More 
court-appointed defense lawyers who have slept through trials in which 
their client has been convicted and sentenced to death; more cases--43 
of the last 131 executions in Texas according to an investigation by 
the Chicago Tribune--in which lawyers who were disbarred, suspended or 
otherwise being disciplined for ethical violations have been appointed 
to represent people on trial for their lives; cases in which 
prosecutors have called for the death penalty based on the race of the 
victim; and cases in which potentially dispositive evidence has been 
destroyed or withheld from death row inmates for years.
  We have also heard from the National Committee to Prevent Wrongful 
Executions, a blue-ribbon panel comprised of supporters and opponents 
of the death penalty, Democrats and Republicans, including six former 
State and Federal judges, a former U.S. Attorney, two former State 
Attorneys General, and a former Director of the FBI. That diverse group 
of experts has expressed itself to be ``united in [its] profound 
concern that, in recent years, and around the country, procedural 
safeguards and other assurances of fundamental fairness in the 
administration of capital punishment have been significantly 
diminished.''
  I have been working with prosecutors, judges and defense counsel, 
with death penalty supporters and opponents, and with Democrats and 
Republicans, to craft some basic common-sense reforms. I could not be 
more pleased that Senators Gordon Smith, Susan Collins, Jim Jeffords, 
Carl Levin, Russ Feingold, and others here in the Senate, and 
Representatives Ray LaHood, William Delahunt, and over 60 other members 
of both parties in the House have joined me in sponsoring the Innocence 
Protection Act of 2000.
  The two most basic provisions of our bill would encourage the State 
to at

[[Page S7820]]

least make DNA testing available in the kind of case in which it can 
determine guilt or innocence and at least provide basic minimum 
standards for defense counsel so that capital trials have a chance of 
determining guilt or innocence by means of the adversarial testing of 
evidence that should be the hallmark of American criminal justice.
  Our bill will not free the system of all human error, but it will do 
much to eliminate errors caused by the willful blindness to the truth 
that our capital punishment system has exhibited all too often. That is 
the least we should demand of a justice system that puts people's lives 
at stake.
  I have been greatly heartened by the response of experts in criminal 
justice across the political spectrum to our careful work, and I would 
like to just highlight one example. A distinguished member of the 
Federal judiciary, Second Circuit Judge Jon O. Newman, has suggested 
that America's death penalty laws could be improved by requiring the 
trial judge to certify that guilt is certain. I welcome Judge Newman's 
thoughtful commentary, and I ask unanimous consent that his article, 
which appeared in the June 25th edition of the Harford Courant, be 
printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. LEAHY. It is my hope that the national debate on the death 
penalty will continue, and that people of good conscience--both those 
who support the death penalty and those who oppose it--will join in our 
effort to make the system more fair and so reduce the risk that 
innocent people may be executed.

                               Exhibit 1

               [From the Harford Courant, June 25, 2000]

                   Require Certainty Before Executing

                           (By Jon O. Newman)

       The execution of Gary Graham demonstrates the need to make 
     one simple change in America's death penalty laws: a 
     requirement that no death sentence can be imposed unless the 
     trial judge certifies that the evidence establishes the 
     defendant's guilt to a certainty.
       Under current law, a death sentence requires first a jury's 
     finding of guilt of a capital crime and then a jury's 
     selection of the death penalty. In deciding both guilt and 
     the death penalty, the jury must be persuaded beyond a 
     reasonable doubt. That is a high standard, but it is not as 
     high as a requirement that the trial judge certify that guilt 
     is certain.
       Experience has shown that in some cases juries have been 
     persuaded beyond a reasonable doubt to convict and vote the 
     death penalty even though the defendant is innocent. The most 
     common reason is that one or more eyewitnesses said they saw 
     the defendant commit the crime, but it later turned out that 
     they were mistaken, as eyewitnesses sometimes are.
       But when even one eyewitness testifies that the defendant 
     did it, that is sufficient evidence for a jury to find guilt 
     beyond a reasonable doubt, and neither the trial judge nor 
     the appellate judges can reject the jury's guilty verdict 
     even though they have some doubt whether the eyewitness is 
     correct.
       Our system uses the standard of proof beyond a reasonable 
     doubt, rather than certainty, to determine guilt and thereby 
     accepts the risk that in rare cases a guilty verdict might be 
     rendered against an innocent person. Procedures are available 
     for presenting new and sometimes conclusive evidence of 
     innocence at a later time.
       But with the death penalty, such exonerating evidence 
     sometimes comes too late. Every effort should therefore be 
     made to assure that the risk of executing an innocent person 
     is reduced as low as humanly possible.
       Requiring the trial judge to certify that guilt has been 
     proven to a certainty before a death penalty can be imposed 
     would limit the death penalty to cases where innocence is not 
     realistically imaginable, leaving life imprisonment for those 
     whose guilt is beyond a reasonable doubt but not certain.
       Certification of certainty might be withheld, for example, 
     in cases like Gary Graham's, where the eyewitness had only a 
     fleeting opportunity to see an assailant whom the witness did 
     not previously know, or in cases where the principal accusing 
     witness has previously lied or has a powerful incentive to 
     lie to gain leniency for himself.
       On the other hand, certification would be warranted where 
     untainted DNA, fingerprint or other forensic evidence 
     indisputably proved guilt or where the suspect was caught in 
     the commission of the crime.
       In state courts (unlike Connecticut's) where judges are 
     elected and sometimes succumb to public pressure to impose 
     death sentences, certification of certainty might be 
     entrusted to a permanent expert panel or might be made a 
     required part of the commutation decision of a governor or a 
     pardons board. In federal courts, the task could 
     appropriately be given to appointed trial judges.
       Even certification of certainty of guilt will not eliminate 
     all risk of executing an innocent person. But as long as the 
     death penalty is used this is a safeguard that a civilized 
     society should require. Adding it to the innocence protection 
     bill now being considered in Congress would help that act 
     live up to its name.

                          ____________________