[Congressional Record Volume 148, Number 53 (Thursday, May 2, 2002)]
[Senate]
[Pages S3859-S3871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 2443. A bill to ensure that death penalty defendants have a true 
opportunity to have their cases considered by the courts, and for other 
purposes; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation which is designed to have societal rights check law 
enforcement and to protect defendants' rights to fundamental fairness.
  We are seeing an evolution of a number of problems in the criminal 
courts, especially applicable to capital cases involving the death 
penalty where I believe we are in danger of losing the death penalty in 
the United States if

[[Page S3860]]

we do not act to see to it that there is fairness.
  For example, there is one case specifically where the Supreme Court 
of the United States had four votes to grant certiorari where the 
defendant was under the death penalty, and that individual was executed 
without the Supreme Court hearing the case because there was not a 
fifth vote to stay the execution.
  In the past several years, there has been growing evidence that DNA 
materials would have exonerated many individuals who have been in jail, 
and among those quite a number of individuals who have been under the 
death penalty.
  And we have also seen very significant problems with the adequacy of 
defense counsel in capital cases.
  The legislation I am introducing today will address these issues.
  During my tenure as district attorney of Philadelphia--from 1966 to 
1974--I became convinced that the death penalty is an effective 
deterrent. I had come to that conclusion earlier when I was an 
assistant district attorney for 4 years preceding my tenure as 
Philadelphia's district attorney.
  I have seen many cases where individuals will decline to carry 
weapons on robberies or burglaries because of fear that a killing might 
occur, and that would be murder in the first degree under the felony 
murder rule and therefore carry the death penalty.
  One case is illustrative of many I have seen. There was a case in the 
late 1950s in Philadelphia with three defendants, Cater, Rivers, and 
Williams. Those young men were 17, 18, and 19 years old, respectively. 
They had IQs of less than 100. They set out to rob a merchant in North 
Philadelphia, and Williams had a gun. Cater and Rivers said: We are not 
going to go along on this robbery if you take the gun. They took that 
position because they were apprehensive that a killing might result and 
they could face the death penalty under the felony murder rule. That is 
a rule which says anyone committing one of five enumerated felonies, 
including robbery, would be subject to murder in the first degree and 
the death penalty if there was a killing in the course of that robbery.
  Williams put the gun in the drawer, slammed it shut, and, as the 
three of them walked out, unbeknownst to Cater and Rivers, Williams 
took the gun with him. They robbed the store. In the course of the 
melee, the merchant was killed. The three of them faced murder in the 
first degree charges and the death penalty.
  In the course of the investigation, the confessions disclosed the 
essential facts which I have related, and all three got the death 
penalty. Williams, the gunman, was subsequently executed, in the early 
1960s, one of the last people executed in Pennsylvania before ``Furman 
v. Georgia'' set aside all of the death penalty cases.
  Cater's and Rivers's cases came up later. I was an assistant DA at 
the time and argued that case in the Supreme Court of Pennsylvania.
  Later, when I was district attorney, Cater and Rivers argued for 
commutation. Representing the Commonwealth, I agreed that they should 
not face the death penalty but should face life imprisonment because 
they had tried to dissuade Williams from carrying the gun. Although in 
the eyes of the law their culpability was the same as a coconspirator, 
it seemed to me that as a matter of fairness they ought not to have the 
death penalty.
  That case is illustrative of many cases which have convinced me that 
the death penalty is a deterrent. But if we are to retain the 
deterrent, we have to be very careful how we use the death penalty.
  When I was district attorney of Philadelphia, we had some 500 
homicides a year. I would not permit any of my 160 assistants to ask 
for the death penalty without my personal review. We asked for the 
death penalty in a very limited number of cases--four, or five, or six 
a year--really heinous and outrageous cases where it was the conclusion 
that only the death penalty would suffice.
  There has recently been a commission in Illinois which has been very 
critical of the application of the death penalty.
  The Governor of Illinois has declared a moratorium on the death 
penalty. And with the growing number of DNA cases which are arising, it 
is my view, that unless some action is taken to see to it that there 
are not executions of people whose innocence might be established 
through DNA evidence, that we will soon lose the death penalty.
  So it is a matter of protecting society's interest to maintain the 
death penalty that this legislation is being introduced, and, at the 
same time, with equal force, it is in order to provide fundamental 
fairness to defendants. Where DNA evidence is available, it ought to be 
examined. And we know it has the capacity, in many, many cases, to rule 
out the defendant.
  The science of DNA has progressed to the point where tangible 
evidence may specifically exclude a defendant. We have seen many cases 
where incarcerated people, including those awaiting the death penalty, 
have been released when the DNA evidence has established their 
innocence.
  There is legislation pending, but none reaches what I consider to be 
the fundamental question--I ask unanimous consent that I may proceed 
for an additional 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. The pending legislation does not reach the critical 
issue; and that is, to establish a right to DNA evidence as a 
constitutional right.
  Congress, under section V of the 14th amendment, has the authority to 
legislate in furtherance of the due process clause. Congress has been 
very inert on establishing constitutional rights under our legislative 
authority under section V. We have seen the wave of Supreme Court 
decisions in the constitutional area--``Mapp v. Ohio,'' where the 
Supreme Court of the United States said it was a constitutional right 
not be subjected to unreasonable searches and seizures, incorporating 
the search and seizure provisions of the 4th amendment into the due 
process clause of the 14th amendment.
  The Supreme Court, ``Miranda v. Arizona,'' required warnings for 
those suspects who are in custodial interrogation. And there have been 
many cases where it has been up to the Court to establish the 
constitutional right.
  In the obvious landmark case, perhaps the most important case in 
American constitutional history, ``Brown v. Board of Education of 
Topeka,'' it was up to the Supreme Court to establish desegregation as 
a constitutional right. Action should have been taken long before by 
the Congress, long before by the executive branch, and long before by 
the State legislatures; but it was up to the Court to establish that 
constitutional right.
  There has been one case in the Eastern District of Pennsylvania, the 
``Godschalk'' case, where Judge Weiner established a constitutional 
right for the defendant to see DNA evidence. And there is a Fourth 
Circuit opinion which addresses the issue but leaves it up to the 
Congress to act. And that is a matter that is taken up in this 
legislation.
  On two other items, the bill will first provide for a true 
opportunity for defendants to have their cases considered by the 
courts. For example, there was a case where the Supreme Court of the 
United States had four justices willing to vote to grant certiorari and 
the defendant was executed because there was not a fifth justice voting 
for a stay of execution--and I ask unanimous consent that the case be 
included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Alexzene Hamilton, as Natural Mother and Next Friend To James Edward 
 Smith v. Texas, No. 89-7838, Supreme Court of the United States, 498 
      U.S. 908; 111 S. Ct. 281; 112 L. Ed. 2d 236; October 9, 1990


                             prior history:

       On petition for writ of certiorari to The Court of Criminal 
     Appeals of Texas.


                                judges:

       Rehnquist, White, Marshall, Blackmun, Stevens, O'Connor, 
     Scalia, Kennedy. Justice Marshall, with whom Justice Blackmun 
     joins, concurring. Justice Stevens, with whom Justice 
     Blackmun joins, concurring. Justice Souter took no part in 
     the consideration or decision of this motion and this 
     petition.


                                opinion:

       [*908] [***236] [**281] The motion of Chris Lonchar Kellogg 
     for leave to intervene is denied. The petition for a writ of 
     certiorari is denied.


                               concurby:

       MARSHALL; Stevens

[[Page S3861]]

                                concur:

       Justice Marshall, with whom Justice Blackmun joins, 
     concurring.
       I agree with Justice Stevens that the issue raised in this 
     petition is important and merits resolution by this Court. I 
     write to express my frustration with the Court's failure to 
     avail itself of the ordinary procedural mechanisms that would 
     have permitted us to resolve that issue in this case.
       It is already a matter of public record that four Members 
     of this Court voted to grant certiorari before petitioner was 
     executed. [*909] See Hamilton v. Texas, 497 U.S. (1990) 
     (Brennan, J., dissenting from denial of application for 
     stay). According to established practice, this fact should 
     have triggered a fifth vote to grant petitioner's application 
     for a stay of [**282] execution. * Indeed, this result flows 
     naturally from the standard by which we evaluate stay 
     applications, a central component of which is ``whether four 
     Justices are likely to vote to grant certiorari.'' Coleman v. 
     Paccar, 424 U.S. 1301, 1302 (1976) (Rehnquist, J., in 
     chambers) (emphasis added); see also Maggio v. Williams, 464 
     U.S. 46, 48 (1983) (per curiam) (same).
       *See Autry v. Estelle, 464 U.S. 1, 2 (1983) (per curiam) 
     (``Had applicant convinced four Members of the Court that 
     certiorari would be granted on any of his claims, a stay 
     would issue''); Darden v. Wainwright, 473 U.S. 928, 928-929 
     (1985) (Powell, J., concurring in granting of stay); Straight 
     v. Wainwright, 476 U.S. 1132, 1333, n. 2 (1986) (Powell J., 
     concurring in denial of stay, joined by Burger, C. J., 
     Rehnquist, and O'Connor, JJ.) (noting that ``the Court has 
     ordinarily stayed executions when four Members have voted to 
     grant certiorari''); id., at 1134-1135 (Brennan, J., 
     dissenting from denial of stay, joined by Marshall and 
     Blackmun, JJ.) (``When four vote to grant certiorari in a 
     capital case, but there is not a fifth vote to stay the 
     scheduled execution, one of the five Justices, who does not 
     believe the case worthy of granting certiorari will 
     nonetheless vote to stay; this is so that the `Rule of Four' 
     will not be rendered meaningless by an execution that occurs 
     before the Court considers the case on the merits'').
       In my view, the Court's willingness in this case to 
     dispense with the procedures that it ordinarily employs to 
     preserve its jurisdiction only continues the distressing 
     rollback of the legal safeguards traditionally afforded. 
     Compare Boyde v. California, 494 U.S., (1990) (Marshall, J., 
     dissenting) (criticizing diminution in standard used to 
     assess unconstitutional jury instructions in capital cases); 
     Barefoot v. Estelle, 463 U.S. 880, 912-914 (1983) (Marshall, 
     J. dissenting) (criticizing Court's endorsement of summary 
     appellate procedures in capital cases); Autry v. McKaskle, 
     465 U.S. 1085, 1085-1086 (1984) (Marshall, J., dissenting 
     from denial of certiorari) [***237] (criticizing expedited 
     consideration of petitions for certiorari in capital cases).
       Justice Stevens, with whom Justice Blackmun joins, 
     concurring
       This petition for a writ of certiorari raises important, 
     recurring questions of law that should be decided by this 
     Court. These questions concern the standards that the Due 
     Process Clause of [*910] the Fourteenth Amendment mandates in 
     a hearing to determine whether a death row inmate is 
     competent to waive his constitutional right to challenge his 
     conviction and sentence and whether he has made a knowing and 
     intelligent waiver of this right.
       James Edward Smith was convicted of murder and sentenced to 
     death in Harris County, Texas, in 1984. Smith had a 
     substantial history of mental illness, and his mental 
     difficulties prompted a finding by the Texas trial court that 
     he was not competent to represent himself on appeal. Pet. for 
     Cert., Exh. 2, p. 13, Exhs. 4-8, 10-12. After his conviction, 
     Smith vacillated between forceful insistence on prosecuting 
     his own appeal and equally forceful insistence on abandoning 
     any challenge to this conviction or his sentence. Pet. for 
     Cert., Exh. 2, pp. 10-11, p. 2.
       Petitioner is Smith's natural mother. Proceeding as Smith's 
     ``next friend,'' she attempted to establish her standing to 
     litigate on her son's behalf and to have his execution stayed 
     until his competence was established after a full adversarial 
     hearing. She was unsuccessful. On May 23, 1990, without 
     notice to petitioner, the Texas trial court held a 
     nonadversarial hearing, made a finding that Smith was 
     competent to make a decision regarding his execution, and set 
     his execution for 12:01 A. M. on June 26, 1990. Pet. for 
     Cert., Exh. 3.
       [**283] On June 22, over the dissent of Justice Teague, n1 
     the Texas Court of Criminal Appeals for Stay of Execution and 
     Objections to Trial Court's Prior Proceedings.'' Ex Parte 
     Hamilton. No. 18,380-02 (Tex. Crim. App., June 22, 1990) (en 
     banc) (per curiam) (order denying application for stay). On 
     June 24, petitioner filed in this Court her petition for a 
     writ of certiorari and her application for a stay of [*911] 
     Smith's execution. Four Members of the Court voted to grant 
     certiorari, n2 and to stay the execution. Nevertheless, the 
     stay application was denied, and Smith was executed on 
     schedule.
       n1 ``Teague, J., notwithstanding that such might, but 
     probably only will cause a slight delay in carrying out 
     applicant's obvious desire to carry into effect his long held 
     death wish, as well as his strong belief that he will be 
     reincarnated after he is killed, but believing that this 
     Court, at least implicitly, has ruled that in a case such as 
     this one, where the reasonable probability that the defendant 
     is not competent to request that he be put to a premature 
     death, or, to put it another way, to commit legal suicide 
     through the hands of others, has been raised, it is necessary 
     for the trial court to conduct a `full adversarial hearing' 
     should now be conducted in this cause. See Ex parte Jordan, 
     758 S. W. 2d 250 (Tex. Cr. App. 1988). Also see Ford v. 
     Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 92 L. Ed. 2d 335 
     (1986).'' Ex Parte Hamilton, No. 18, 380-02 (Tex. Crim. App., 
     June 22, 1990) (Teague, J., dissenting from order denying 
     application for stay).
       n2 See Hamilton v. Texas, 497 U.S. (1990) (Brennan, J., 
     dissenting from denial of application for stay).
       [***238] Smith's execution obviously mooted this case. The 
     Court has therefore properly denied the petition for a writ 
     of certiorari. This denial, however, does not evidence any 
     lack of merit in the petition; n3 instead, the reason for the 
     denial emphasizes the importance of confronting on the merits 
     the substantial questions that were raised in this case.
       n3 See Singleton v. Commissioner, 439 U.S. 940, 942 (1978) 
     (opinion of Stevens, J., respecting denial of petition for 
     writ of certiorari).

  Mr. SPECTER. The legislation further addresses the issue of adequacy 
of counsel.
  I will now describe the specific provisions of the bill I am offering 
today, and the cases and history that shows the manifest need for such 
legislation.
  The bill contains three titles. The first Title will ensure that 
defendants facing the death penalty will not be executed while the 
Supreme Court considers their petitions for certiorari or their cases 
on the merits. The second Title will ensure that both federal and state 
defendants have a meaningful opportunity to present DNA evidence in 
their defense. Finally, the third Title will establish minimal 
standards for defense counsel representing defendants in death penalty 
cases in state court. I am additionally introducing these three Titles 
as three separate bills, as I will explain later. The first is ``Title 
I: Right to Review of the Death Penalty While a Case is Pending Before 
the Supreme Court.''
  There have been death penalty cases where, despite the fact that the 
Supreme Court was either considering to grant certiorari or had 
actually granted certiorari and the case was pending, the Court did not 
issue a stay of execution in the interim. In the 1990 case of 
``(Alexzene) Hamilton v. Texas,'' 497 U.S. 1016, the Supreme Court 
failed to issue a stay of execution while considering a cert. petition, 
and the defendant was executed before the Court ruled on the petition. 
James Smith was convicted in 1984 of committing murder while 
perpetrating a robbery in 1983. He was sentenced to death. Smith 
appealed his conviction to the Texas Court of Criminal Appeals, citing 
seven points of errors, ranging from insufficiency of evidence to 
sustain a death sentence to challenges to the jury selection process in 
the trial. ``Smith v. State,'' 744 S.W.2d 86, Tex. Crim. App. 1987. In 
1987, that court affirmed his conviction and sentence. In April, 1988, 
Smith waived any further appellate review of his case. His mother, 
Alexzene Hamilton, then entered the case, and filed a state habeas 
corpus petition in the Court of Criminal Appeals, claiming that her son 
was incompetent. The state responded to the mother's petition, and the 
Texas court denied relief. Ms. Hamilton then brought a petition for 
certiorari in the Supreme Court. The Supreme Court granted a stay of 
execution pending disposition of the cert. petition. ``Hamilton v. 
Texas,'' 485 U.S. 1042, 1988. The Court entered an order stating that 
the ``stay of execution of sentence of death . . . is granted pending 
the disposition by [the] Court of petition for writ of certiorari. 
Should the petition for a writ of certiorari be denied, this stay 
terminates automatically. In the event the petition . . . is granted, 
this stay shall continue pending the issuance of the mandate of [the] 
Court.'' Id. On April 3, 1990, the cert. petition was denied. 
``Hamilton v. Texas,'' 496 U.S. 913, 1990. In May, 1990, the state 
trial court conducted a hearing and found that Smith still wanted to 
waive his appellate rights and that he was still competent. The trial 
court scheduled his execution for June 26, 1990. Ms. Hamilton again 
brought a writ of habeas corpus in the state courts on June 20, 1990, 
challenging the court's finding that Smith was competent. On June 22, 
1990, the state courts denied this petition.
  Ms. Hamilton then filed a habeas petition in federal district court 
on June 23, 1990, which the court denied on June 24th. However, Dr. 
Brown, one of the several doctors that had previously

[[Page S3862]]

opined that Smith was competent, stated that he now had some doubts of 
Smith's competency due to his review of some medical records he had not 
previously seen. The federal district court found that this new opinion 
did not affect its findings, and denied Ms. Hamilton's request for 
reconsideration. On June 25th, the state trial court had Dr. Brown re-
examine Smith, and Dr. Brown then returned to his original opinion that 
Smith was competent. On the same day, the trial court then denied Ms. 
Hamilton's habeas corpus petition. The Texas Court of Criminal Appeals 
also dismissed Ms. Hamilton's motion for reconsideration on the same 
day. Additionally, on the same day, the United States Court of Appeals 
for the Fifth Circuit affirmed the federal district court's dismissal 
of the habeas petition and denied her motion for a stay of execution. 
``Hamilton v. Collins,'' 905 F.2d 825, 5th Cir. 1990. Ms. Hamilton then 
filed petitions for certiorari, asking the Supreme Court to review both 
the state and federal court decisions and for a stay of execution. On 
June 26, 1990, the originally scheduled execution date, four Supreme 
Court Justices voted to grant certiorari, but for some unknown 
procedural reason, the Court did not formally act on the petition. The 
Court also did not vote to grant a stay of execution. Smith was 
subsequently executed before the Supreme Court decided on his cert. 
petition. The Supreme Court then denied Smith's petitions of 
certiorari. ``Hamilton v. Collins,'' 498 U.S. 895, 1990; ``Hamilton v. 
Texas,'' 498 U.S. 908, 1990. In denying the petition from the state 
court decision, the Court noted that it was dismissing the petition as 
``moot.'' 498 U.S. 908, Stevens, J., concurring in the dismissal of the 
petition.

  In the 1992 case of ``Herrera v. Collins,'' 502 U.S. 1085, the Court 
actually granted certiorari but failed to issue the stay. Herrera had 
been convicted of the 1981 murder of two police officers. Herrera then 
pursued two lines of appeals through the Texas state system--direct 
appeal and then collateral proceedings. Herrera then pursued two 
sequential federal habeas corpus proceedings. During these proceedings, 
certiorari had been denied three times, but on the second federal 
habeas proceeding, certiorari was granted. Herrera's claim was that he 
was actually innocent in this proceeding. After granting certiorari, 
the Supreme Court failed to grant a stay of execution. However, in that 
case, the Texas Court of Criminal Appeals granted a stay while the case 
was pending before the Supreme Court. Herrera's claim was ultimately 
denied by the Supreme Court and he was executed.
  The reason for this sequence is a procedural twist. By Supreme Court 
practice, it takes only four votes to grant certiorari. Although 
certiorari is recognized by statute as the procedure for getting a case 
before the Court, the statute does not state how many votes are needed. 
The four vote standard is the practice of the Court. However, to grant 
a stay, there must be a majority--five votes--and the standard the 
Court applies is different from that for granting certiorari. There may 
be good reasons why the standard is different, and in almost all other 
cases, the failure to grant a stay when certiorari has been granted or 
while the Court is still considering whether to grant certiorari does 
not have the dispositive effect that it does in a capital punishment 
case. However, in a capital case, the failure to grant a stay while the 
Court considers whether to even hear the case sends the signal that the 
Court is, in effect, affirming the decision of a lower court before it 
even decides that the lower court's decision is worthy of affirmation. 
In a case where the Court has actually granted certiorari and failed to 
issue a stay the Court, in effect, tells the world that a case is 
important enough to be heard, but not important enough to postpone an 
execution.
  Until relatively recently, the Supreme Court had an ``informal'' 
practice where a fifth Justice would vote to grant a stay when four 
justices had voted to grant certiorari. The late Justice Brennan 
articulated the rationale for this rule:

  A minority of the Justices has the power to grant a petition for 
certiorari over the objection of five Justices. The reason for this 
``antimajoritarianism'' is evident: in the context of a preliminary 5-4 
vote to deny, 5 give the 4 an opportunity to change at least one mind. 
Accordingly, when four vote to grant certiorari in a capital case, but 
there is not a fifth vote to stay the scheduled execution, one of the 
five Justices who does not believe the case worthy of granting 
certiorari will nonetheless vote to stay; this is so that the ``Rule of 
Four'' will not be rendered meaningless by an execution that occurs 
before the Court considers the case on the merits. ``Straight v. 
Wainwright,'' 476 U.S. 1132, 1134-35, 1986, Brennan, J., dissenting. 
Justice Brennan's argument requires no further elaboration.

  Justice Brennan's opinion involved a ``hold'' case, where he was 
arguing that a stay should have been granted. The ``hold'' is an 
informal practice whereby at least three Justices of the Supreme Court 
can ``hold'' the Court from acting on a petition for certiorari so that 
the Court does not deny the petition. A ``hold'' is placed on a case 
when the Court has another case pending before the Court, the 
disposition of which may have an affect on the first case.
  In addition to Justice Brennan's argument, there are other reasons 
why a stay should be granted. In my experience as District Attorney in 
Philadelphia, and conducting oversight of the Justice Department while 
serving in the Senate, one theme is constant concerning our system of 
criminal justice: It rests on a bedrock that all Americans see the 
system as being fair to all. When the average American questions the 
fundamental fairness of any aspect of the criminal justice system, then 
it is in trouble. To the average American, when the Supreme Court has 
not yet decided whether it should consider a case or, has in fact, 
decided to consider a case by granting certiorari, but then fails to 
act to ensure that it can in actuality hear the case, that raises 
fundamental questions about fairness, regardless of the procedural 
nuances that legally allow for such a result. If we are to maintain 
confidence in our criminal justice system, then it has to be seen as 
fair to all.
  When the Supreme Court takes action like this, in my judgment, it 
denies the defendant his constitutional right of ``due process'' of law 
which, in these circumstances, is colloquially referred to as 
``procedural due process.'' When the government takes action against an 
individual, the essential core of procedural due process is notice and 
an opportunity to be heard. In the instant case, we are not concerned 
with the notice aspect because the defendant knows why he was 
convicted. But when the Supreme Court has a case pending before it-that 
is a motion to stay execution or a petition for certiorari has been 
filed or the Court has issued a writ of certiorari-and then fails to 
grant a stay so that it can actually consider the petition or hear the 
case, it denies the defendant due process of law because the defendant 
is deprived of his right to be heard. A motion for a stay of execution 
should be treated as a petition for certiorari in these circumstances 
because, in effect, the motion is a preliminary petition for 
certiorari.
  As I noted earlier, the writ of certiorari is codified in Title 28 of 
the U.S. Code. No defendant has a constitutional right to have his or 
her case heard by the Supreme Court. But once the defendant files a 
petition, then the defendant has a statutory right to have, at the very 
least, his petition considered by the court and, if the petition is 
granted, then the right to have his case considered by the Court. This 
is the method that Congress has created for the consideration of these 
cases, which does not allow a right of direct appeal. As Congress has 
created this two step procedural mechanism, Congress has the authority 
to ensure that it is effective. The Court does not have to grant a 
petition, but it must, at the very least, not allow a petition to 
become moot before it even makes this very basic decision. The same 
logic applies if the Court grants the petition.

  The Court cannot consider the petition or the case if the defendant 
is executed before the Court acts. When a defendant is executed in 
these circumstances, he is being denied his right to be heard on his 
petition or his case and is therefore denied his basic right to 
``procedural due process.''
  The legislation I propose addresses this issue both at the federal 
and state level. With respect to federal cases, my

[[Page S3863]]

proposed bill would prohibit the Bureau of Prisons or the military from 
executing a death row inmate when a defendant has filed a petition for 
certiorari and when the Supreme Court has granted certiorari. Congress 
created the federal death penalty, and Congress can establish the 
conditions when it can or cannot be carried out. With respect to state 
cases, my bill would address this issue in two different ways.
  First, just as with federal cases, my bill would prohibit the 
executive officer of a state from executing a defendant when a cert. 
petition is pending or has been granted. Congress's authority to 
legislate in this arena is derived from Section V of the 14th Amendment 
which reads that ``[t]he Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.'' Section 1 of 
that Amendment reads in pertinent part that no ``State [shall] deprive 
any person of life . . . without due process of law. . . .'' As noted 
above, when a person is executed before the Supreme Court has granted 
or denied certiorari or acted on a case once cert. is granted, that 
person is deprived of his or her life without due process of law. My 
bill would also require the Court to treat a motion for a stay of 
execution as a petition for certiorari.
  Furthermore, this bill would also require all federal judges, to 
include Supreme Court justices, to issue a stay whenever a habeas 
corpus case is pending before the judge or judges and the habeas 
petitioner defendant has been sentenced to death. A case is considered 
to be pending if a defendant has filed a notice of appeal, filed a 
motion for a stay of execution, filed a petition for certiorari, or 
when certiorari has been granted. Most death penalty cases, both 
federal and state cases, have their final hearings through federal 
habeas corpus review. Congress has broad authority in the area of 
habeas corpus legislation. Indeed, Congress enacted a similar provision 
as part of the Antiterrorism and Effective Death Penalty Act of 1996. 
28 U.S. Code Section 2262 requires a federal court to issue a stay of 
execution in those circumstances where a defense counsel has been 
appointed to an indigent defendant and a state is seeking to fall 
within the streamlined habeas corpus procedures contained in the Act.
  Additionally, my bill would require a lower court to issue a stay if 
a higher court did not in these circumstances.
  Finally, my bill would require that if four Justices vote to grant 
certiorari in a death penalty case, then certiorari will be granted. 
When a person petitions the Supreme Court to hear his or her case, that 
person expects to have the case heard if four Justices believe it 
should be heard. This is the expectation of all those seeking Supreme 
Court review, an expectation resulting from the practices of the Court. 
The Court already has great discretion not to hear almost all cases it 
does not wish to consider. Congress has given the Court this discretion 
by eliminating almost all avenues of appeal by right to the Court and 
instead giving the Court the power to pick the cases it wants to hear 
through the certiorari process. Accordingly, Congress should have the 
power to require the Court to review those cases where four Justices 
vote to hear the case. The procedures for obtaining access to our 
courts should be as transparent as possible, and it simply defies logic 
and makes a mockery of the phrase ``equal justice'' when four votes in 
one set of circumstances can result in Supreme Court review of a case, 
but not in other circumstances.
  The second title is ``TITLE II: DNA Testing.''
  My bill also addresses the issue of DNA testing for prisoners who 
claim that such testing would exonerate them. This bill would establish 
the procedures for federal prisoners who seek such review. It would 
also mandate that states adopt similar procedures. My bill would 
establish federal procedures that set a middle ground between the two 
DNA bills that are currently pending before the Senate.
  My bill requires that a person seeking DNA testing not take a 
position inconsistent with any affirmative defense he may have raised 
at trial. An affirmative defense is one such as self-defense, where a 
defendant is not denying that he committed one or more of the acts 
constituting the charged offense, but the defendant is denying criminal 
responsibility. One of the other pending bills does not have any 
similar provision, and another bill requires that the defendant's 
current theory of defense not be inconsistent with a prior theory of 
defense. However, my bill would allow a defendant who pled guilty to 
request DNA testing. Unfortunately, there are instances where due to 
inadequate representation or lack of sophistication on a defendant's 
part, or for a variety of other reasons, a defendant will plead guilty 
to a crime that he did not commit. My bill would allow such a defendant 
to seek DNA testing.
  Another difference is that my bill has a five year limitation on its 
application, with one exception regarding newly discovered evidence. 
One of the other pending bills has no time limitation, and the other 
has a three year time limitation. The thrust of all the pending DNA 
bills is to allow a prisoner to seek potentially exculpatory DNA 
testing, even though such a request would otherwise be barred on 
procedural grounds, such as timeliness requirements.
  My bill would benefit those defendants currently incarcerated who did 
not have access to DNA testing at the time of their trials. My bill 
defines lack of access rather broadly. If 1, the technology was 
actually not available, or 2, it was not generally known that such 
testing was available at the time of trial, or 3, if the technology was 
available and the testing was not requested and the applicant shows 
that the failure to have requested testing is attributable to deficient 
performance on his counsel's part, then the applicant is deemed not to 
have had access to the testing. The bill would allow a prisoner to seek 
testing for up to five years after the enactment of the bill, with the 
exceptions I noted above. Five years would give all defendants 
currently incarcerated enough time to bring their claims.
  I do not propose that there be no time limitation, because I do not 
want to create an exception that could conceivably swallow the time 
limitations currently existing in federal law.
  However, that concern may be misplaced. A track record of five years 
can tell us if this bill is ripe for abuse. If not, then the bill can 
be reenacted with no time limit. If, however, there is evidence that is 
being abused by prisoners, then the law would expire. Based on my 
experience as a prosecutor, I am concerned that the three year 
limitation is not long enough to develop a good track record on the use 
of this testing.
  There would be an exception for this five year limitation. If a 
prisoner can show that there is newly discovered evidence in his case, 
and such evidence could not have been discovered through due diligence, 
or the failure to discover the evidence is attributable to deficient 
performance on his counsel's part, then he could bring a claim beyond 
the five year limit. This exception is consistent with the laws 
currently in force concerning newly discovered evidence.

  Some may question the need for these DNA testing procedures in 
federal cases, as the level of practice and standard of representation 
is considered to be of the highest caliber. Even at that level there 
can be problems. Even though it did not involve DNA testing, we had the 
case of Timothy McVeigh when only days before his scheduled execution 
the FBI announced that it had discovered documents it had failed to 
provide the defense before trial. This highlights that even at the 
federal level mistakes can be made. This bill would provide one 
safeguard against such mistakes.
  My bill would also mandate that states provide similar procedures to 
state prisoners in all cases. One of the pending bills has such a 
requirement, but only in capital cases. DNA evidence is such a powerful 
tool that can exonerate the unjustly convicted that I believe Congress 
has the authority pursuant to Section V of the 14th Amendment to impose 
post-conviction DNA testing requirements on the states.
  In 1963, the United States Supreme Court decided the seminal case of 
``Brady v. Maryland,'' 373 U.S. 83, where the Court held that 
``suppression by the prosecution of evidence favorable to an accused . 
. . violates due process where the evidence is material either to guilt 
or punishment . . . .'' The Court also noted that ``[s]ociety wins not 
only when the guilty are convicted but when criminal trials are

[[Page S3864]]

fair; our system of the administration of justice suffers when any 
accused is treated unfairly.'' Congress has the authority to enact 
legislation to enforce the protections of the ``due process'' clause 
through Section V of the 14th Amendment.
  DNA evidence is the most powerful evidence that can be ``favorable to 
an accused,'' because it can prove that the accused did not commit the 
crime. But when DNA evidence remains in the hands of the state 
untested, we do not know if it is favorable or unfavorable to the 
accused. It really is not ``evidence'' until it is tested, because its 
relevancy to guilt or innocence cannot be determined without testing. 
When a state does not provide a defendant with the opportunity to 
determine whether evidence may exculpate him, the state is, in effect, 
``suppressing . . . favorable evidence'' by not allowing a defendant to 
determine whether it is favorable or not.
  DNA evidence has proven to be extremely valuable to the criminal 
justice system. It has aided prosecutions and freed unjustly convicted 
persons. Since 1973, over 100 people have been freed from Death Row, at 
least 10 due to DNA testing. Additionally, over a total of 100 people 
have been freed after having been exonerated in both capital cases and 
non-capital cases due to DNA testing. The FBI has found that since 
1989, DNA testing has cleared about 25% of sexual assault suspects 
whose samples are sent to the FBI for testing. Indeed, DNA evidence can 
be a stronger indicator of innocence than guilt. If the defendant's DNA 
does not match the DNA evidence, that is conclusive evidence. However, 
when a match results, in actuality, it is only a probability, albeit a 
very high probability, that the defendant was the source of the DNA.
  In questioning whether the death penalty was being fairly 
administered in the United States, Supreme Court Justice Sandra 
O'Connor noted the number of Death Row inmates freed due to being 
exonerated, to include by DNA testing. Indeed, she commented that 
``[i]f statistics are any indication, the system may well be allowing 
some innocent defendants to be executed.'' This concern was made 
manifest when the Governor of Illinois ordered a moratorium on the 
death penalty after 13 Death Row inmates were exonerated. Justice 
O'Connor also noted that the availability of DNA testing in the various 
states varied widely, with some states affording this post-conviction 
DNA testing and others not providing any at all. Even in those states 
that offer such testing, there is a wide variation in procedures. My 
bill would require the states to adopt procedures similar to the 
federal standards and thereby promote consistency among the states.

  Indeed, the recent groundswell of opinion questioning the death 
penalty has been based on doubts about its accuracy. Providing Death 
Row defendants with the opportunity for DNA testing would do much to 
allay those concerns.
  But the death penalty is not the only reason for enacting this bill. 
Many federal and state prisoners are currently incarcerated for long 
sentences due to mandatory minimums and Sentencing Guidelines. Indeed, 
the prisoner most recently freed due to DNA testing had served 21 years 
of an 80 year sentence for rape. Additionally, DNA evidence is relevant 
in many types of cases, beyond the classic sex assault cases and 
violent crimes where there is blood evidence. For example, in a bank 
robbery case, the FBI was able to connect a suspected robber to the 
case by recovering some hairs from a woolen cap the robber used as a 
mask. Obviously, such evidence could also be used to exonerate a 
defendant.
  However, in order for this DNA testing to be of any use, there must 
be evidence to test. That is why this bill requires the preservation of 
biological evidence for the five year period after the enactment of 
this bill or, if someone requests testing pursuant to this bill, while 
those proceedings are underway.
  This bill does more than provide justice to wrongfully convicted 
defendants. It also protects the public. When a person is wrongfully 
convicted of murder or rape, that allows the real perpetrator to remain 
at large. And based on my experience as District Attorney, sexual 
predators, especially those who prey on children, have the highest 
levels of recidivism.
  As noted above, the authority for enacting this provision is Section 
V of the 14th Amendment to the Constitution. When a state fails to 
provide DNA testing that might bear on the guilt or innocence of a 
defendant, then the state is depriving the defendant of his life or 
liberty without due process of law. The state's interest in the 
finality of a conviction is strong. However, when balancing that 
interest against a prisoner's interest in not being wrongfully 
executed, justice cries out for access to DNA testing.
  The need for Congress to address this issue was highlighted by two 
recent federal court decisions that addressed giving state prisoners 
access to DNA testing. In the 2001 case of ``Godschalk v. Montgomery 
County District Attorney's Office,'' 177 F.Supp.2d 366, Judge Charles 
R. Weiner of the United States District Court for the Eastern District 
of Pennsylvania ruled that a prisoner who sought DNA testing had a 
right to such testing pursuant to the Due Process clause of the 14th 
Amendment because such evidence could be exculpatory evidence as 
defined by ``Brady v. Maryland'' and its progeny. In 1987, Godschalk 
had been convicted of two rapes committed in 1986. At the time of 
trial, DNA testing was not available. At the trial, the prosecution 
introduced an audiotaped confession by Godschalk that contained details 
of the crimes not known to the public. Godschalk's state appeals of his 
convictions were denied, as well as his petitions for DNA testing. 
Godschalk then brought an action pursuant to 42 U.S. Code Section 1983 
seeking DNA testing. The evidence from only one of the rapes was still 
in a condition so that it could be tested, but there was no dispute 
that the same person committed both rapes. The court ordered the DNA 
testing, noting that ``[w]hile [Godschalk's] detailed confessions to 
the rapes are powerful inculpatory evidence, so to any DNA testing that 
would exclude [Godschalk] as the source of the genetic material taken 
from the victims would be powerful exculpatory evidence. . . . Given 
the well-known powerful exculpatory effect of DNA testing, confidence 
in the jury's finding of [Godschalk's] guilt at his past trial, where 
such evidence was not considered, would be undermined.'' 177 F.Supp.2d 
at 370. The evidence was tested, and it did not match Godschalks's DNA, 
and he was subsequently freed.

  The United States Court of Appeals for the Fourth Circuit reached a 
different result in the 2002 case of ``Harvey v. Horan,'' 278 F.3d at 
370. In that case, Harvey had been convicted of rape and forcible 
sodomy. Harvey brought a Section 1983 action to have the evidence in 
that case tested with a new DNA technology that had not been available 
at the time of his trial. The district court granted his request, but 
on appeal the Fourth Circuit found his request to be procedurally 
barred. The court found that Section 1983 was not the proper path for 
such a request and that Harvey's request was, in effect, a petition for 
habeas corpus, which was statutorily barred as a successive petition. 
The court specifically noted that Harvey's path of redress was either 
through the state courts and legislature or Congress, stating that 
``[f]ederal and state legislatures and state courts are free in ways 
that [the federal court is] not to set the ground rules by which 
further collateral attacks on state convictions such as Harvey's may be 
entertained.'' 278 F.3d at 380. The purpose of my bill is to establish 
those ``ground rules.''
  The third title is ``Title III: Counsel Standards.''
  Finally, my bill would establish minimal standards for defense 
counsel in state court cases where the defendant is facing the death 
penalty. In 1991, when my distinguished colleague and friend Senator 
Biden chaired the Judiciary Committee, he asked Professor James Liebman 
of Columbia Law School to calculate the frequency of relief in capital 
habeas corpus cases. This ultimately led Professor Liebman to conduct a 
study of the error rates in capital cases. His study found that one of 
the two most common errors prompting a majority of reversals at the 
state post-conviction stage was ``egregiously incompetent defense 
lawyers who didn't even look for and demonstrably missed important 
evidence

[[Page S3865]]

that the defendant was innocent or did not deserve to die . . . .'' In 
a more recent study released this year, Professor Liebman again cited 
the poor quality of defense counsel as a contributing factor to 
erroneous results in capital cases. And we all have heard the stories 
of defense counsel sleeping during the course of a capital trial.
  My bill would establish minimal standards for defense counsel in 
capital cases who represent indigent defendants. The standards I 
propose are the same that are required in federal courts and establish 
an absolute floor for competence of counsel, both at the trial level 
and the appellate level. Unlike the other two pending bills, my bill 
would establish and mandate actual standards. If these standards are 
good enough for the federal courts, they should be good enough for 
state courts. They are specific enough to ensure that a defendant 
receives competent representation but also general enough so that they 
could be applied throughout the United States. Among other 
requirements, the bill would require that any counsel have several 
years of felony experience, and that a defendant would have a right to 
two defense counsel at trial.

  One of the requirements is that defense counsel be ``learned in the 
law applicable to capital cases.'' Concededly, this is a rather general 
requirement which we can develop and explore at hearings on this bill 
and bring more definition to through legislative history or amending 
the bill. However, such generic language would allow flexibility 
between the different states, where the number of capital cases vary 
widely. For example, there may be a very experienced felony defense 
counsel who has never actually tried a capital case, but has attended 
several training sessions put on by the ABA or an equivalent 
organization. Why should not such a person be deemed competent to serve 
as defense counsel in a capital case even though he or she may have 
never defended such a case before? And this ``generic'' requirement 
will have a strict enforcement mechanism described below that will 
ensure it has ``teeth.''
  In the seminal 1963 case of ``Gideon v. Wainwright,'' 372 U.S. 335, 
the Supreme Court recognized that indigent defendants have a 
constitutional right to be represented by counsel in criminal cases. In 
the 1984 case of ``Strickland v. Washington,'' 466 U.S. 668, the 
Supreme Court held that a defendant has a constitutional right to 
effective assistance of counsel guaranteed by the 6th Amendment to the 
Constitution, and that this requirement applied to the states through 
the due process clause of the 14th Amendment. Interestingly, 
``Strickland'' was a death penalty case.
  As these rights are guaranteed by the Constitution and apply to the 
states through the ``due process'' clause of the 14th Amendment, 
Congress has the authority to enforce these rights through Section V of 
that Amendment. There is no doubt that there is state action in these 
circumstances, as the state is responsible for appointing and 
compensating the counsel representing indigent defendants.
  My bill, however, also contains an additional enforcement mechanism. 
``Strickland'' identified a two-part analysis in determining whether 
there was a constitutional violation due to ineffective assistance of 
counsel. The first prong of that analysis is a determination whether 
``counsel's performance was deficient,'' that is, whether the ``counsel 
made errors so serious that counsel was not functioning as the 
`counsel' guaranteed the defendant by the Sixth Amendment.'' 
``Strickland,'' 466 U.S. at 687. The second prong requires a 
determination as to whether the ``counsel's errors were so serious as 
to deprive the defendant of a fair trial, a trial whose result is 
reliable.'' Id. A defendant must establish both prongs to make a 
successful challenge. My bill would, in effect, eliminate the first 
prong of the analysis in a habeas corpus proceeding. If a defendant's 
counsel did not meet the standards established by my bill, then the 
first prong of ``deficient performance'' would be deemed to have been 
met. The defendant would then only have to satisfy the requirements of 
the second prong, thus allowing him to challenge the decisions his 
counsel made that influenced the outcome of the trial, without having 
to fear that the habeas court would deem such decisions to be 
``tactical'' decisions that were within the realm of reasonable 
practice. However, if a state adopted the standards contained in my 
bill, a defendant would have to make both showings, as required by 
current law. A habeas court's review as to whether these standards were 
met will be ``de novo'' and the State would have the burden of proving 
that the standards had been met.
  This overall enforcement provision is analogous to the provision I 
referred to earlier in the 1996 antiterrorism act, that provided for 
expedited habeas review if a state adopted certain procedures for 
indigent defendants.
  The provisions of my bill are all aimed at achieving one goal--
securing for all defendants throughout the criminal justice process all 
the protections guaranteed by the ``due process'' clause and thereby 
ensuring that they receive fair treatment throughout the process, 
regardless of their income level.
  Mr. President, I ask unanimous consent that the bill containing these 
three provisions be printed in the Record.
  Additionally, in order to facilitate hearings or perhaps legislative 
enactment of these bills, I am introducing the three separately: a 
separate bill on DNA evidence; a separate bill on staying execution, 
where the Supreme Court has granted certiorari; and a separate bill on 
adequacy of counsel, so that, in total, four bills are being 
introduced, and I ask that these bills also be printed in the Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                S. 2446

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Confidence 
     in Criminal Justice Act of 2002''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

Sec. 101. Protecting the rights of death row inmates to review of cases 
              granted certiorari.
Sec. 102. Habeas corpus.

                  TITLE II--POSTCONVICTION DNA TESTING

Sec. 201. Postconviction DNA testing.
Sec. 202. Prohibition pursuant to section 5 of the 14th amendment.

TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES.

Sec. 301. Right to legal representation for indigent defendants.
Sec. 302. Minimum experience required for defense counsel.
Sec. 303. Adequate representation.
Sec. 304. Attorney fees and costs.
Sec. 305. Irrebuttable presumption of deficient performance.

    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

     SEC. 101. PROTECTING THE RIGHTS OF DEATH ROW INMATES TO 
                   REVIEW OF CASES GRANTED CERTIORARI.

       Section 2101 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h) Upon notice by a party that has filed a motion for a 
     stay of execution or filed for certiorari with, or has been 
     granted certiorari by, the United States Supreme Court in an 
     appeal from a case in which the sentence is death, the 
     Governor of the State in which the death sentence is to be 
     carried out, in a State case, or the Director of the Bureau 
     of Prisons, the Secretary of a military branch, or any other 
     Federal official with authority to carry out the death 
     sentence, in a Federal case, shall suspend the execution of 
     the sentence of death until the United States Supreme Court 
     enters a stay of execution or until certiorari is acted upon 
     and the case is disposed of by the United States Supreme 
     Court.
       ``(i) For purposes of this section, the United States 
     Supreme Court shall treat a motion for a stay of execution as 
     a petition for certiorari.
       ``(j) In an appeal from a case in which the sentence is 
     death, a writ of certiorari shall be issued by the United 
     States Supreme Court upon the vote of at least 4 qualified 
     justices.''.

     SEC. 102. HABEAS CORPUS.

       (a) State Court Proceedings.--Section 2251 of title 28, 
     United States Code, is amended--
       (1) by inserting ``(a)'' at the beginning of the text;
       (2) by inserting ``(b)'' before the second sentence; and
       (3) by adding at the end the following:
       ``(c)(1) Notwithstanding any other provision of law, a 
     justice or judge of the United States before whom a habeas 
     corpus proceeding that involves the death sentence is

[[Page S3866]]

     pending shall stay the execution of the death sentence until 
     the proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``(2) For purposes of this subsection, a case is pending 
     before a court in the Circuit Court of Appeals if a notice of 
     appeal has been filed and is pending before the United States 
     Supreme Court, if a petition for certiorari has been filed, 
     or if a motion to stay execution has been filed.
       ``(3) A case described in paragraph (2) remains pending 
     before the court until the petition for certiorari is denied. 
     If the petition is granted, the case remains pending.
       ``(4) If a higher court is unable or fails to issue a stay 
     pursuant to this subsection, a lower court before which the 
     case had been pending shall issue the stay of execution.
       ``(d) For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari.''.
       (b) Federal Court Proceedings.--Section 2255 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``Notwithstanding any other provision of law, a justice or 
     judge of the United States, before whom a habeas corpus 
     proceeding that involves a Federal death sentence is pending, 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``If a higher court is unable or fails to issue a stay 
     pursuant to the preceding paragraph, a lower court before 
     which the case had been pending shall issue the stay of 
     execution. For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari. A 
     case described in the preceding paragraph--
       ``(1) is pending before a court in the Circuit Court of 
     Appeals if a notice of appeal has been filed; and
       ``(2) is pending before the United States Supreme Court 
     if--
       ``(A) a petition for certiorari has been filed and has not 
     been denied; or
       ``(B) a motion to stay execution has been filed.''.

                 TITLE II--POST-CONVICTION DNA TESTING

     SEC. 201. POST-CONVICTION DNA TESTING.

       (a) Federal Criminal Procedure.--
       (1) In general.--Part II of title 18, United States Code, 
     is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.

     ``Sec. 3600. DNA testing

       ``(a) Motion.--
       ``(1) In general.--An individual imprisoned because of a 
     conviction of a criminal offense in a court of the United 
     States (referred to in this section as the `applicant') may 
     make a written motion to the court that entered the judgment 
     of conviction for the performance of forensic DNA testing on 
     specified evidence that was secured in relation to the 
     investigation or prosecution that resulted in the conviction.
       ``(2) Contents.--The motion shall--
       ``(A) include an assertion by the applicant, under penalty 
     of perjury, that the applicant is actually innocent of the 
     crime for which the applicant is imprisoned or of uncharged 
     conduct, if the exoneration of the applicant of such conduct 
     would result in a mandatory reduction in the sentence of the 
     applicant;
       ``(B) identify the specific evidence secured in relation to 
     the investigation or prosecution that resulted in the 
     conviction for which testing is requested;
       ``(C) identify a theory of defense--
       ``(i) the validity of which would establish the actual 
     innocence of the applicant, and explain how the requested DNA 
     testing would substantiate that theory; and
       ``(ii) that is not inconsistent with any affirmative 
     defense issued by the applicant in the original prosecution;
       ``(D) make a prima facie showing that the conditions set 
     forth in subsection (c) for issuance of a testing order are 
     satisfied; and
       ``(E) certify that the applicant will provide a DNA sample 
     from the applicant for purposes of comparison.
       ``(3) Filing.--A motion filed under this section is timely 
     if--
       ``(A) it is filed within 60 months of the date of enactment 
     of this section;
       ``(B) the applicant can show that--
       ``(i) the evidence identified pursuant to paragraph (2)(B) 
     is newly discovered; and
       ``(ii)(I) such evidence could not have been discovered 
     through the exercise of due diligence; or
       ``(II) the proximate cause for not having previously 
     discovered such evidence was the deficient performance of the 
     attorney of the applicant; or
       ``(C) the applicant can show that--
       ``(i)(I) the technology for the requested DNA testing was 
     not available at the time of trial;
       ``(II) it was not generally known that such technology was 
     available at the time of trial; or
       ``(III) the failure to request such testing using the 
     technology was due to the deficient performance of the 
     attorney of the applicant; and
       ``(ii) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer 
     technology for DNA testing that is reasonably certain to 
     provide results that are substantially more accurate and 
     probative than any previous DNA testing of the evidence.
       ``(b) Notice to the Government; Preservation Order; 
     Appointment of Counsel.--
       ``(1) Notice to the government.--Upon receipt of a motion 
     under subsection (a), the court shall promptly notify the 
     government of the motion and afford the government an 
     opportunity to respond to the motion.
       ``(2) Preservation order.--The court may direct the 
     government to preserve any evidence to which a motion under 
     subsection (a) relates to the extent necessary to carry out 
     proceedings under this section.
       ``(3) Appointment of counsel.--The court may appoint 
     counsel for an indigent applicant under this section in 
     accordance with section 3006A of this title.
       ``(c) Order for DNA Testing.--The court shall order the DNA 
     testing requested in a motion filed under this section if--
       ``(1) the motion satisfies the requirements of subsection 
     (a);
       ``(2)(A) the identity of the perpetrator was at issue in 
     the trial that resulted in the conviction of the applicant; 
     or
       ``(B) in a case where the applicant pled guilty, the 
     identity of the perpetrator would have been at issue at 
     trial;
       ``(3) the evidence to be tested is in the possession of the 
     government and has been subject to a chain of custody and 
     retained under conditions sufficient to ensure that it has 
     not been substituted, contaminated, tampered with, replaced, 
     or altered in any respect material to the requested DNA 
     testing;
       ``(4)(A)(i) the technology for the requested DNA testing 
     was not available at the time of trial;
       ``(ii) it was not generally known that such technology was 
     available; or
       ``(iii) the applicant can show that the failure to request 
     such testing was due to the deficient performance of the 
     attorney of the applicant; and
       ``(B) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer DNA 
     testing technique which is reasonably certain to provide 
     results that are substantially more accurate and probative 
     than any previous DNA testing of the evidence;
       ``(5) the proposed DNA testing uses scientifically sound 
     methods and is consistent with accepted forensic practice;
       ``(6) the proposed DNA testing is reasonable in scope; and
       ``(7) the court determines, after review of the record of 
     the trial of the applicant and any other relevant evidence, 
     that there is a reasonable probability that the results of 
     the proposed DNA testing will enable the applicant to 
     establish that the applicant is entitled to a new trial under 
     the standard of subsection (e)(3).
       ``(d) Testing Procedures; Reporting of Test Results.--
       ``(1) Testing procedures.--The court shall direct that any 
     DNA testing ordered under this section be carried out by--
       ``(A) a laboratory mutually selected by the government and 
     the applicant; or
       ``(B) if the government and the applicant are unable to 
     agree on a laboratory, a laboratory selected by the court 
     ordering the testing.
       ``(2) Laboratory approval.--With respect to DNA testing by 
     a laboratory in accordance with this subsection, other than 
     an FBI laboratory, the court must approve the selection of 
     the laboratory and make all necessary orders to ensure the 
     integrity of the evidence and the testing process and the 
     reliability of the test results.
       ``(3) Laboratory costs.--The applicant shall pay the cost 
     of any testing by a laboratory in accordance with this 
     subsection, other than an FBI laboratory, except that the 
     court shall pay, in accordance with section 3006A of this 
     title, the cost if the applicant would otherwise be 
     financially incapable of securing such testing.
       ``(4) Disclosure of test results.--The results of any DNA 
     testing ordered under this section--
       ``(A) shall be disclosed to--
       ``(i) the court;
       ``(ii) the applicant;
       ``(iii) the government; and
       ``(iv) the appropriate agency under subsection 
     (e)(3)(B)(ii); and
       ``(B) shall be included in the Combined DNA Index System if 
     the conditions set forth in subsection (e)(2) are met.
       ``(e) Posttesting Procedures.--
       ``(1) Inconclusive result.--If the DNA testing results are 
     inconclusive, the court may order further testing, as 
     appropriate, or may deny the applicant relief.
       ``(2) Positive result.--If DNA testing results obtained 
     under this section show that the applicant was the source of 
     the DNA identified as evidence under subsection (a)(2)(B), 
     the court shall--
       ``(A) deny the applicant relief;
       ``(B) submit the DNA testing results to the Department of 
     Justice for inclusion in the Combined DNA Index System; and
       ``(C) on motion of the government, proceed as provided in 
     paragraph (5)(A).
       ``(3) Negative result.--If DNA testing results obtained 
     under this section show that the applicant was not the source 
     of the DNA identified as evidence under subsection 
     (a)(2)(B)--
       ``(A) the court shall promptly--

[[Page S3867]]

       ``(i) order any further DNA testing needed to clarify the 
     import of the test results, including any testing needed to 
     exclude persons other than the perpetrator of the crime as 
     potential sources of the DNA evidence; and
       ``(ii) determine whether the applicant is entitled to 
     relief under paragraph (4); and
       ``(B) the Attorney General shall--
       ``(i) compare the DNA evidence collected from the applicant 
     with DNA evidence in the Combined DNA Index System that has 
     been collected from unsolved crimes;
       ``(ii) if the comparison yields a DNA match with an 
     unsolved crime, notify the appropriate agency and preserve 
     the DNA sample; and
       ``(iii) if the comparison fails to yield a DNA match with 
     an unsolved crime, destroy the DNA sample collected from the 
     applicant.
       ``(4) Exculpatory evidence.--If the DNA testing conducted 
     under this section produces exculpatory evidence--
       ``(A) the applicant may, during the 60-day period beginning 
     on the date on which the applicant is notified of the test 
     results, make a motion to the court that ordered the testing 
     for a new trial based on newly discovered evidence under rule 
     33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such a 
     motion as untimely; and
       ``(B) upon receipt of a motion under subparagraph (A), the 
     court that ordered the testing shall consider the motion 
     under rule 33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such 
     consideration as untimely.
       ``(5) Failure to obtain relief.--
       ``(A) In general.--If the applicant fails to obtain relief 
     under this subsection, the court, on motion by the 
     government, shall make a determination whether the assertion 
     of innocence by the applicant was false.
       ``(B) False assertion.--If the court finds that the 
     assertion of innocence by the applicant was false, the 
     court--
       ``(i) may hold the applicant in contempt;
       ``(ii) shall assess against the applicant the cost of any 
     DNA testing carried out under this section; and
       ``(iii) shall forward the finding to the Director of the 
     Bureau of Prisons.
       ``(C) Bureau of prisons.--On receipt of a finding by the 
     court under this paragraph, the Director of the Bureau of 
     Prisons may deny, wholly or in part, the good conduct credit 
     authorized under section 3624 of this title, on the basis of 
     that finding.
       ``(D) Parole commission.--If the applicant is subject to 
     the jurisdiction of the United States Parole Commission, the 
     court shall forward its finding under this paragraph to the 
     Parole Commission, and the Parole Commission may deny parole 
     on the basis of that finding.
       ``(E) Penalty.--In any prosecution of an applicant under 
     chapter 79 of this title, for false assertions or other 
     conduct in proceedings under this section, the court, upon 
     conviction of the applicant, shall sentence the applicant to 
     a term of imprisonment of 1 year, which shall run 
     consecutively to any other term of imprisonment the applicant 
     is serving.
       ``(f) Final Order.--An order granting or denying DNA 
     testing under subsection (c), or an order granting or denying 
     a new trial under subsection (e), is a final order for 
     purposes of section 1291 of title 28.
       ``(g) Time Limits Inapplicable; Other Remedies 
     Unaffected.--Notwithstanding any time limit otherwise 
     applicable to motions for new trials based on newly 
     discovered evidence, a court may grant relief under 
     subsection (e) to an applicant, at any time.
       ``(h) Other Remedies Unaffected.--This section does not 
     affect the circumstances under which a person may obtain DNA 
     testing or postconviction relief under any other law or rule.

     ``Sec. 3600A. Prohibition on destruction of biological 
       material

       ``(a) Prohibition.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, during the period described in paragraph (2), the 
     government shall not destroy any biological material 
     preserved if the defendant is serving a term of imprisonment 
     following conviction in a case.
       ``(2) Period described.--The period described in this 
     paragraph is the period beginning on the date of enactment of 
     this section and ending on the later of--
       ``(A) the expiration of the 60-month period beginning on 
     that date of enactment; or
       ``(B) the date on which any proceedings under section 3600 
     relating to the case are completed.
       ``(b) Sanctions for Intentional Violation.--The court may 
     impose appropriate sanctions, including criminal contempt, 
     for an intentional violation of subsection (a).
       ``(c) Exceptions.--The government may dispose of evidence 
     before the expiration of the period of time described in 
     subsection (a) if--
       ``(1) other than subsection (a), no statute, regulation, 
     court order, or other provision of law requires that the 
     evidence be preserved; and
       ``(2)(A)(i) the government notifies any person who remains 
     incarcerated in connection with the investigation or 
     prosecution and any counsel of record for that person (or, if 
     there is no counsel of record, the public defender for the 
     judicial district in which the conviction for that person was 
     imposed), of the intention of the government to dispose of 
     the evidence and the provisions of this chapter; and
       ``(ii) the government affords such person not less than 180 
     days after such notification to make a motion under section 
     3600(a) for DNA testing of the evidence; or
       ``(B)(i) the evidence must be returned to its rightful 
     owner, or is of such a size, bulk, or physical character as 
     to render retention impracticable; and
       ``(ii) the government takes reasonable measures to remove 
     and preserve portions of the material evidence sufficient to 
     permit future DNA testing.''.
       (2) Technical and conforming amendment.--The analysis for 
     part II of title 18, United States Code, is amended by 
     inserting after the item relating to chapter 228 the 
     following:

``228A.  Postconviction DNA Testing.........................3600''.....

       (b) Applicability.--The provisions and amendments in this 
     section shall take effect on the date of enactment of this 
     Act and shall apply with respect to any offense committed, 
     and to any judgment of conviction entered, before, on, or 
     after that date of enactment.
       (c) Report by the Attorney General.--
       (1) Tracking system.--
       (A) In general.--The Attorney General shall establish a 
     system for reporting and tracking motions under section 3600 
     of title 18, United States Code.
       (B) Requested assistance.--The judicial branch shall 
     provide to the Attorney General any requested assistance in 
     operating a reporting and tracking system and in ensuring the 
     accuracy and completeness of information included in that 
     system.
       (2) Information.--Not later than 180 days before the 
     expiration of the time period referenced in section 
     3600(a)(3)(A) of title 18, United States Code, the Attorney 
     General shall submit a report to Congress containing--
       (A) a summary of the motions filed under section 3600 of 
     title 18, United States Code;
       (B) information on whether DNA testing was ordered pursuant 
     to such motions;
       (C) information on whether the applicant obtained relief on 
     the basis of DNA test results; and
       (D) information on whether further proceedings occurred 
     following a granting of relief and the outcome of those 
     proceedings.
       (3) Assessment.--The report submitted under paragraph (2) 
     may also include--
       (A) any other information that the Attorney General 
     believes will be useful in assessing the operation, utility, 
     or costs of section 3600 of title 18, United States Code; and
       (B) any recommendations that the Attorney General may have 
     relating to future legislative action concerning section 3600 
     of title 18, United States Code.

     SEC. 202. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH 
                   AMENDMENT.

       (a) Application for DNA Testing.--No State shall deny an 
     application for DNA testing made by a prisoner in State 
     custody who would be eligible for such testing under the 
     provisions of sections 3600 and 3600A of title 18, United 
     States Code.
       (b) DNA Testing Procedures.--The procedures for DNA testing 
     for a prisoner in State custody shall be substantially 
     similar to the DNA testing procedures established for Federal 
     courts under sections 3600 and 3600A of title 18, United 
     States Code.
       (c) Remedy.--A prisoner in State custody may enforce 
     subsections (a) and (b) in a civil action for declaratory or 
     injunctive relief, filed either in a State court of general 
     jurisdiction or in a district court of the United States, 
     naming an executive or judicial officer of the State as a 
     defendant.

TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES

     SEC. 301. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT 
                   DEFENDANTS.

       (a) Preconviction Representation.--Notwithstanding any 
     other provision of law, a defendant in a criminal action in a 
     State court, which may result in punishment by death, who is 
     or becomes financially unable to obtain adequate 
     representation or investigative, expert, or other reasonably 
     necessary services at any time--
       (1) before judgment; or
       (2) after the entry of a judgment imposing a sentence of 
     death, but before the execution of that judgment;

     shall be entitled to the appointment of 1 or more attorneys 
     and the furnishing of such other services in accordance with 
     the provisions of this title.
       (b) Postconviction Representation.--In a postconviction 
     proceeding in which a defendant seeks to vacate or set aside 
     a death sentence, a defendant who is or becomes financially 
     unable to obtain adequate representation or investigative, 
     expert, or other reasonably necessary services shall be 
     entitled to the appointment of 1 or more attorneys and the 
     furnishing of such other services in accordance with the 
     provisions of this title.

     SEC. 302. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

       (a) Prejudgment Appointment.--
       (1) In general.--If the appointment of legal counsel under 
     this title is made before judgment, at least 1 attorney so 
     appointed--
       (A) must have been admitted to practice for not less than 5 
     years in the court in which the prosecution is to be tried; 
     and
       (B) must have not less than 3 years experience in the 
     actual trial of felony prosecutions in that court.
       (2) Judicial appointment.--The court before which the 
     defendant is to be tried, or a

[[Page S3868]]

     judge thereof, shall promptly, upon the request of the 
     defendant, assign 2 attorneys to the case.
       (3) Expertise; accessibility.--At least 1 of the attorneys 
     assigned under paragraph (2)--
       (A) shall be learned in the law applicable to capital 
     cases; and
       (B) shall have free access to the accused at all reasonable 
     hours.
       (4) Recommendation.--In assigning counsel under this 
     section, the court shall consider--
       (A) the recommendation of the State public defender 
     organization, community defender organization, or equivalent 
     organization; or
       (B) if no such organization exists in the relevant 
     jurisdiction, the administrative office of the local court or 
     any governmental entity, bar association, or organization 
     with knowledge regarding the skills and qualifications of 
     local defense counsel.
       (5) Witnesses.--The court shall allow a defendant, under 
     this title, to produce lawful witnesses to testify in support 
     of the defendant, and shall compel such witnesses to appear 
     at trial in the same manner that witnesses are compelled to 
     appear on behalf of the prosecution.
       (b) Postjudgment Appointment.--If the appointment is made 
     after judgment, at least 1 attorney appointed shall--
       (1) have been admitted to practice for not less than 5 
     years in the appropriate State appellate court;
       (2) have not less than 3 years experience in the handling 
     of felony appeals in that court; and
       (3) be learned in the law applicable to capital cases.
       (c) Learned Standard.--In determining whether an attorney 
     is learned in the law of capital cases under this section, 
     the State court shall apply the standard used in the courts 
     of the United States.

     SEC. 303. ADEQUATE REPRESENTATION.

       (a) Appointment of Substitute Counsel.--With respect to 
     this section, the court, for good cause, may appoint another 
     attorney whose background, knowledge, or experience would 
     otherwise enable the attorney to properly represent the 
     defendant, with due consideration to the seriousness of the 
     possible penalty and to the unique and complex nature of the 
     litigation.
       (b) Scope of Legal Representation.--Unless replaced by 
     similarly qualified counsel upon the motion of the attorney 
     or the defendant, each attorney appointed under this title 
     shall represent the defendant throughout every stage of 
     available judicial proceedings, including--
       (1) pretrial motions and procedures;
       (2) competency proceedings;
       (3) trial;
       (4) sentencing;
       (5) executive and other clemency proceedings;
       (6) motions for new trial;
       (7) appeals;
       (8) applications for stays of execution; and
       (9) applications for writ of certiorari to the Supreme 
     Court of the United States.
       (c) Additional Services.--
       (1) In general.--Upon a finding that investigative, expert, 
     or other services are reasonably necessary for the 
     representation of the defendant, whether in connection with 
     issues relating to guilt or the sentence, the court may 
     authorize the attorneys for the defendant to obtain such 
     services on behalf of the defendant and, if so authorized, 
     shall order the payment of fees and expenses for such 
     services pursuant to section 304.
       (2) Ex parte communications.--No ex parte proceeding, 
     communication, or request may be considered pursuant to this 
     section unless a proper showing is made concerning the need 
     for confidentiality. Any such proceeding, communication, or 
     request shall be transcribed and made a part of the record 
     available for appellate review.

     SEC. 304. ATTORNEY FEES AND COSTS.

       (a) Attorney Fees.--Compensation shall be paid to attorneys 
     appointed under this title at a rate equivalent to that of 
     attorneys representing defendants in Federal capital cases 
     pursuant to section 408(q)(10)(A) of the Controlled 
     Substances Act (21 U.S.C. 848(q)(10)(A)).
       (b) Additional Expenses.--Fees and expenses paid for 
     investigative, expert, and other reasonably necessary 
     services authorized under this section shall be equivalent to 
     fees paid in Federal capital cases pursuant to section 
     408(q)(10)(B) of the Controlled Substances Act (21 U.S.C. 
     848(q)(10)(B)).
       (c) Public Disclosure.--The amounts paid for services under 
     this section shall be disclosed to the public, after the 
     disposition of the petition.

     SEC. 305. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

       (a) In General.--In a proceeding in Federal court pursuant 
     to section 2254 of title 28, United States Code, the failure 
     to comply with the procedures of this title shall create an 
     irrebuttable presumption that the performance of the counsel 
     for the petitioner was deficient.
       (b) Entitlement to Relief; Burden of Proof; Standard of 
     Review.--A petitioner is not entitled to relief unless the 
     petitioner shows that the result of the proceeding would have 
     been different if the performance of the counsel for the 
     petitioner had not been deficient. The party opposing the 
     petition has the burden of establishing that the standards in 
     this section have been met. The court shall conduct a de novo 
     review to settle this issue.
       (c) Other Remedies.--The provisions of this section are not 
     intended to limit any other Federal or State court from 
     enforcing this section by any other appropriate remedy.
                                  ____


                                S. 2441

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``Post-
     Conviction DNA Testing Act of 2002''.

     SEC. 2. POST-CONVICTION DNA TESTING.

       (a) Federal Criminal Procedure.--
       (1) In general.--Part II of title 18, United States Code, 
     is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.

     ``Sec. 3600. DNA testing

       ``(a) Motion.--
       ``(1) In general.--An individual imprisoned because of a 
     conviction of a criminal offense in a court of the United 
     States (referred to in this section as the `applicant') may 
     make a written motion to the court that entered the judgment 
     of conviction for the performance of forensic DNA testing on 
     specified evidence that was secured in relation to the 
     investigation or prosecution that resulted in the conviction.
       ``(2) Contents.--The motion shall--
       ``(A) include an assertion by the applicant, under penalty 
     of perjury, that the applicant is actually innocent of the 
     crime for which the applicant is imprisoned or of uncharged 
     conduct, if the exoneration of the applicant of such conduct 
     would result in a mandatory reduction in the sentence of the 
     applicant;
       ``(B) identify the specific evidence secured in relation to 
     the investigation or prosecution that resulted in the 
     conviction for which testing is requested;
       ``(C) identify a theory of defense--
       ``(i) the validity of which would establish the actual 
     innocence of the applicant, and explain how the requested DNA 
     testing would substantiate that theory; and
       ``(ii) that is not inconsistent with any affirmative 
     defense issued by the applicant in the original prosecution;
       ``(D) make a prima facie showing that the conditions set 
     forth in subsection (c) for issuance of a testing order are 
     satisfied; and
       ``(E) certify that the applicant will provide a DNA sample 
     from the applicant for purposes of comparison.
       ``(3) Filing.--A motion filed under this section is timely 
     if--
       ``(A) it is filed within 60 months of the date of enactment 
     of this section;
       ``(B) the applicant can show that--
       ``(i) the evidence identified pursuant to paragraph (2)(B) 
     is newly discovered; and
       ``(ii)(I) such evidence could not have been discovered 
     through the exercise of due diligence; or
       ``(II) the proximate cause for not having previously 
     discovered such evidence was the deficient performance of the 
     attorney of the applicant; or
       ``(C) the applicant can show that--
       ``(i)(I) the technology for the requested DNA testing was 
     not available at the time of trial;
       ``(II) it was not generally known that such technology was 
     available at the time of trial; or
       ``(III) the failure to request such testing using the 
     technology was due to the deficient performance of the 
     attorney of the applicant; and
       ``(ii) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer 
     technology for DNA testing that is reasonably certain to 
     provide results that are substantially more accurate and 
     probative than any previous DNA testing of the evidence.
       ``(b) Notice to the Government; Preservation Order; 
     Appointment of Counsel.--
       ``(1) Notice to the government.--Upon receipt of a motion 
     under subsection (a), the court shall promptly notify the 
     government of the motion and afford the government an 
     opportunity to respond to the motion.
       ``(2) Preservation order.--The court may direct the 
     government to preserve any evidence to which a motion under 
     subsection (a) relates to the extent necessary to carry out 
     proceedings under this section.
       ``(3) Appointment of counsel.--The court may appoint 
     counsel for an indigent applicant under this section in 
     accordance with section 3006A of this title.
       ``(c) Order for DNA Testing.--The court shall order the DNA 
     testing requested in a motion filed under this section if--
       ``(1) the motion satisfies the requirements of subsection 
     (a);
       ``(2)(A) the identity of the perpetrator was at issue in 
     the trial that resulted in the conviction of the applicant; 
     or
       ``(B) in a case where the applicant pled guilty, the 
     identity of the perpetrator would have been at issue at 
     trial;
       ``(3) the evidence to be tested is in the possession of the 
     government and has been subject to a chain of custody and 
     retained under conditions sufficient to ensure that it has 
     not been substituted, contaminated, tampered with, replaced, 
     or altered in any respect material to the requested DNA 
     testing;

[[Page S3869]]

       ``(4)(A)(i) the technology for the requested DNA testing 
     was not available at the time of trial;
       ``(ii) it was not generally known that such technology was 
     available; or
       ``(iii) the applicant can show that the failure to request 
     such testing was due to the deficient performance of the 
     attorney of the applicant; and
       ``(B) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer DNA 
     testing technique which is reasonably certain to provide 
     results that are substantially more accurate and probative 
     than any previous DNA testing of the evidence;
       ``(5) the proposed DNA testing uses scientifically sound 
     methods and is consistent with accepted forensic practice;
       ``(6) the proposed DNA testing is reasonable in scope; and
       ``(7) the court determines, after review of the record of 
     the trial of the applicant and any other relevant evidence, 
     that there is a reasonable probability that the results of 
     the proposed DNA testing will enable the applicant to 
     establish that the applicant is entitled to a new trial under 
     the standard of subsection (e)(3).
       ``(d) Testing Procedures; Reporting of Test Results.--
       ``(1) Testing procedures.--The court shall direct that any 
     DNA testing ordered under this section be carried out by--
       ``(A) a laboratory mutually selected by the government and 
     the applicant; or
       ``(B) if the government and the applicant are unable to 
     agree on a laboratory, a laboratory selected by the court 
     ordering the testing.
       ``(2) Laboratory approval.--With respect to DNA testing by 
     a laboratory in accordance with this subsection, other than 
     an FBI laboratory, the court must approve the selection of 
     the laboratory and make all necessary orders to ensure the 
     integrity of the evidence and the testing process and the 
     reliability of the test results.
       ``(3) Laboratory costs.--The applicant shall pay the cost 
     of any testing by a laboratory in accordance with this 
     subsection, other than an FBI laboratory, except that the 
     court shall pay, in accordance with section 3006A of this 
     title, the cost if the applicant would otherwise be 
     financially incapable of securing such testing.
       ``(4) Disclosure of test results.--The results of any DNA 
     testing ordered under this section--
       ``(A) shall be disclosed to--
       ``(i) the court;
       ``(ii) the applicant;
       ``(iii) the government; and
       ``(iv) the appropriate agency under subsection 
     (e)(3)(B)(ii); and
       ``(B) shall be included in the Combined DNA Index System if 
     the conditions set forth in subsection (e)(2) are met.
       ``(e) Posttesting Procedures.--
       ``(1) Inconclusive result.--If the DNA testing results are 
     inconclusive, the court may order further testing, as 
     appropriate, or may deny the applicant relief.
       ``(2) Positive result.--If DNA testing results obtained 
     under this section show that the applicant was the source of 
     the DNA identified as evidence under subsection (a)(2)(B), 
     the court shall--
       ``(A) deny the applicant relief;
       ``(B) submit the DNA testing results to the Department of 
     Justice for inclusion in the Combined DNA Index System; and
       ``(C) on motion of the government, proceed as provided in 
     paragraph (5)(A).
       ``(3) Negative result.--If DNA testing results obtained 
     under this section show that the applicant was not the source 
     of the DNA identified as evidence under subsection 
     (a)(2)(B)--
       ``(A) the court shall promptly--
       ``(i) order any further DNA testing needed to clarify the 
     import of the test results, including any testing needed to 
     exclude persons other than the perpetrator of the crime as 
     potential sources of the DNA evidence; and
       ``(ii) determine whether the applicant is entitled to 
     relief under paragraph (4); and
       ``(B) the Attorney General shall--
       ``(i) compare the DNA evidence collected from the applicant 
     with DNA evidence in the Combined DNA Index System that has 
     been collected from unsolved crimes;
       ``(ii) if the comparison yields a DNA match with an 
     unsolved crime, notify the appropriate agency and preserve 
     the DNA sample; and
       ``(iii) if the comparison fails to yield a DNA match with 
     an unsolved crime, destroy the DNA sample collected from the 
     applicant.
       ``(4) Exculpatory evidence.--If the DNA testing conducted 
     under this section produces exculpatory evidence--
       ``(A) the applicant may, during the 60-day period beginning 
     on the date on which the applicant is notified of the test 
     results, make a motion to the court that ordered the testing 
     for a new trial based on newly discovered evidence under rule 
     33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such a 
     motion as untimely; and
       ``(B) upon receipt of a motion under subparagraph (A), the 
     court that ordered the testing shall consider the motion 
     under rule 33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such 
     consideration as untimely.
       ``(5) Failure to obtain relief.--
       ``(A) In general.--If the applicant fails to obtain relief 
     under this subsection, the court, on motion by the 
     government, shall make a determination whether the assertion 
     of innocence by the applicant was false.
       ``(B) False assertion.--If the court finds that the 
     assertion of innocence by the applicant was false, the 
     court--
       ``(i) may hold the applicant in contempt;
       ``(ii) shall assess against the applicant the cost of any 
     DNA testing carried out under this section; and
       ``(iii) shall forward the finding to the Director of the 
     Bureau of Prisons.
       ``(C) Bureau of prisons.--On receipt of a finding by the 
     court under this paragraph, the Director of the Bureau of 
     Prisons may deny, wholly or in part, the good conduct credit 
     authorized under section 3624 of this title, on the basis of 
     that finding.
       ``(D) Parole commission.--If the applicant is subject to 
     the jurisdiction of the United States Parole Commission, the 
     court shall forward its finding under this paragraph to the 
     Parole Commission, and the Parole Commission may deny parole 
     on the basis of that finding.
       ``(E) Penalty.--In any prosecution of an applicant under 
     chapter 79 of this title, for false assertions or other 
     conduct in proceedings under this section, the court, upon 
     conviction of the applicant, shall sentence the applicant to 
     a term of imprisonment of 1 year, which shall run 
     consecutively to any other term of imprisonment the applicant 
     is serving.
       ``(f) Final Order.--An order granting or denying DNA 
     testing under subsection (c), or an order granting or denying 
     a new trial under subsection (e), is a final order for 
     purposes of section 1291 of title 28.
       ``(g) Time Limits Inapplicable; Other Remedies 
     Unaffected.--Notwithstanding any time limit otherwise 
     applicable to motions for new trials based on newly 
     discovered evidence, a court may grant relief under 
     subsection (e) to an applicant, at any time.
       ``(h) Other Remedies Unaffected.--This section does not 
     affect the circumstances under which a person may obtain DNA 
     testing or postconviction relief under any other law or rule.

     ``Sec. 3600A. Prohibition on destruction of biological 
       material

       ``(a) Prohibition.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, during the period described in paragraph (2), the 
     government shall not destroy any biological material 
     preserved if the defendant is serving a term of imprisonment 
     following conviction in a case.
       ``(2) Period described.--The period described in this 
     paragraph is the period beginning on the date of enactment of 
     this section and ending on the later of--
       ``(A) the expiration of the 60-month period beginning on 
     that date of enactment; or
       ``(B) the date on which any proceedings under section 3600 
     relating to the case are completed.
       ``(b) Sanctions for Intentional Violation.--The court may 
     impose appropriate sanctions, including criminal contempt, 
     for an intentional violation of subsection (a).
       ``(c) Exceptions.--The government may dispose of evidence 
     before the expiration of the period of time described in 
     subsection (a) if--
       ``(1) other than subsection (a), no statute, regulation, 
     court order, or other provision of law requires that the 
     evidence be preserved; and
       ``(2)(A)(i) the government notifies any person who remains 
     incarcerated in connection with the investigation or 
     prosecution and any counsel of record for that person (or, if 
     there is no counsel of record, the public defender for the 
     judicial district in which the conviction for that person was 
     imposed), of the intention of the government to dispose of 
     the evidence and the provisions of this chapter; and
       ``(ii) the government affords such person not less than 180 
     days after such notification to make a motion under section 
     3600(a) for DNA testing of the evidence; or
       ``(B)(i) the evidence must be returned to its rightful 
     owner, or is of such a size, bulk, or physical character as 
     to render retention impracticable; and
       ``(ii) the government takes reasonable measures to remove 
     and preserve portions of the material evidence sufficient to 
     permit future DNA testing.''.
       (2) Technical and conforming amendment.--The analysis for 
     part II of title 18, United States Code, is amended by 
     inserting after the item relating to chapter 228 the 
     following:

``228A.  Postconviction DNA Testing.........................3600''.....

       (b) Applicability.--The provisions and amendments in this 
     section shall take effect on the date of enactment of this 
     Act and shall apply with respect to any offense committed, 
     and to any judgment of conviction entered, before, on, or 
     after that date of enactment.
       (c) Report by the Attorney General.--
       (1) Tracking system.--
       (A) In general.--The Attorney General shall establish a 
     system for reporting and tracking motions under section 3600 
     of title 18, United States Code.
       (B) Requested assistance.--The judicial branch shall 
     provide to the Attorney General any requested assistance in 
     operating a reporting and tracking system and in ensuring the 
     accuracy and completeness of information included in that 
     system.

[[Page S3870]]

       (2) Information.--Not later than 180 days before the 
     expiration of the time period referenced in section 
     3600(a)(3)(A) of title 18, United States Code, the Attorney 
     General shall submit a report to Congress containing--
       (A) a summary of the motions filed under section 3600 of 
     title 18, United States Code;
       (B) information on whether DNA testing was ordered pursuant 
     to such motions;
       (C) information on whether the applicant obtained relief on 
     the basis of DNA test results; and
       (D) information on whether further proceedings occurred 
     following a granting of relief and the outcome of those 
     proceedings.
       (3) Assessment.--The report submitted under paragraph (2) 
     may also include--
       (A) any other information that the Attorney General 
     believes will be useful in assessing the operation, utility, 
     or costs of section 3600 of title 18, United States Code; and
       (B) any recommendations that the Attorney General may have 
     relating to future legislative action concerning section 3600 
     of title 18, United States Code.

     SEC. 3. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH 
                   AMENDMENT.

       (a) Application for DNA Testing.--No State shall deny an 
     application for DNA testing made by a prisoner in State 
     custody who would be eligible for such testing under the 
     provisions of sections 3600 and 3600A of title 18, United 
     States Code.
       (b) DNA Testing Procedures.--The procedures for DNA testing 
     for a prisoner in State custody shall be substantially 
     similar to the DNA testing procedures established for Federal 
     courts under sections 3600 and 3600A of title 18, United 
     States Code.
       (c) Remedy.--A prisoner in State custody may enforce 
     subsections (a) and (b) in a civil action for declaratory or 
     injunctive relief, filed either in a State court of general 
     jurisdiction or in a district court of the United States, 
     naming an executive or judicial officer of the State as a 
     defendant.
                                  ____


                                S. 2442

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``Capital 
     Defense Counsel Standards Act of 2002''.

     SEC. 2. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT 
                   DEFENDANTS.

       (a) Preconviction Representation.--Notwithstanding any 
     other provision of law, a defendant in a criminal action in a 
     State court, which may result in punishment by death, who is 
     or becomes financially unable to obtain adequate 
     representation or investigative, expert, or other reasonably 
     necessary services at any time--
       (1) before judgment; or
       (2) after the entry of a judgment imposing a sentence of 
     death, but before the execution of that judgment;

     shall be entitled to the appointment of 1 or more attorneys 
     and the furnishing of such other services in accordance with 
     the provisions of this Act.
       (b) Postconviction Representation.--In a postconviction 
     proceeding in which a defendant seeks to vacate or set aside 
     a death sentence, a defendant who is or becomes financially 
     unable to obtain adequate representation or investigative, 
     expert, or other reasonably necessary services shall be 
     entitled to the appointment of 1 or more attorneys and the 
     furnishing of such other services in accordance with the 
     provisions of this Act.

     SEC. 3. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

       (a) Prejudgment Appointment.--
       (1) In general.--If the appointment of legal counsel under 
     this Act is made before judgment, at least 1 attorney so 
     appointed--
       (A) must have been admitted to practice for not less than 5 
     years in the court in which the prosecution is to be tried; 
     and
       (B) must have not less than 3 years experience in the 
     actual trial of felony prosecutions in that court.
       (2) Judicial appointment.--The court before which the 
     defendant is to be tried, or a judge thereof, shall promptly, 
     upon the request of the defendant, assign 2 attorneys to the 
     case.
       (3) Expertise; accessibility.--At least 1 of the attorneys 
     assigned under paragraph (2)--
       (A) shall be learned in the law applicable to capital 
     cases; and
       (B) shall have free access to the accused at all reasonable 
     hours.
       (4) Recommendation.--In assigning counsel under this 
     section, the court shall consider--
       (A) the recommendation of the State public defender 
     organization, community defender organization, or equivalent 
     organization; or
       (B) if no such organization exists in the relevant 
     jurisdiction, the administrative office of the local court or 
     any governmental entity, bar association, or organization 
     with knowledge regarding the skills and qualifications of 
     local defense counsel.
       (5) Witnesses.--The court shall allow a defendant, under 
     this Act, to produce lawful witnesses to testify in support 
     of the defendant, and shall compel such witnesses to appear 
     at trial in the same manner that witnesses are compelled to 
     appear on behalf of the prosecution.
       (b) Postjudgment Appointment.--If the appointment is made 
     after judgment, at least 1 attorney appointed shall--
       (1) have been admitted to practice for not less than 5 
     years in the appropriate State appellate court;
       (2) have not less than 3 years experience in the handling 
     of felony appeals in that court; and
       (3) be learned in the law applicable to capital cases.
       (c) Learned Standard.--In determining whether an attorney 
     is learned in the law of capital cases under this section, 
     the State court shall apply the standard used in the courts 
     of the United States.

     SEC. 4. ADEQUATE REPRESENTATION.

       (a) Appointment of Substitute Counsel.--With respect to 
     this section, the court, for good cause, may appoint another 
     attorney whose background, knowledge, or experience would 
     otherwise enable the attorney to properly represent the 
     defendant, with due consideration to the seriousness of the 
     possible penalty and to the unique and complex nature of the 
     litigation.
       (b) Scope of Legal Representation.--Unless replaced by 
     similarly qualified counsel upon the motion of the attorney 
     or the defendant, each attorney appointed under this Act 
     shall represent the defendant throughout every stage of 
     available judicial proceedings, including--
       (1) pretrial motions and procedures;
       (2) competency proceedings;
       (3) trial;
       (4) sentencing;
       (5) executive and other clemency proceedings;
       (6) motions for new trial;
       (7) appeals;
       (8) applications for stays of execution; and
       (9) applications for writ of certiorari to the Supreme 
     Court of the United States.
       (c) Additional Services.--
       (1) In general.--Upon a finding that investigative, expert, 
     or other services are reasonably necessary for the 
     representation of the defendant, whether in connection with 
     issues relating to guilt or the sentence, the court may 
     authorize the attorneys for the defendant to obtain such 
     services on behalf of the defendant and, if so authorized, 
     shall order the payment of fees and expenses for such 
     services pursuant to section 5.
       (2) Ex parte communications.--No ex parte proceeding, 
     communication, or request may be considered under this 
     section unless a proper showing is made concerning the need 
     for confidentiality. Any such proceeding, communication, or 
     request shall be transcribed and made a part of the record 
     available for appellate review.

     SEC. 5. ATTORNEY FEES AND COSTS.

       (a) Attorney Fees.--Compensation shall be paid to attorneys 
     appointed under this Act at a rate equivalent to that of 
     attorneys representing defendants in Federal capital cases 
     under section 408(q)(10)(A) of the Controlled Substances Act 
     (21 U.S.C. 848(q)(10)(A)).
       (b) Additional Expenses.--Fees and expenses paid for 
     investigative, expert, and other reasonably necessary 
     services authorized under this section shall be equivalent to 
     fees paid in Federal capital cases under section 
     408(q)(10)(B) of the Controlled Substances Act (21 U.S.C. 
     848(q)(10)(B)).
       (c) Public Disclosure.--The amounts paid for services under 
     this section shall be disclosed to the public, after the 
     disposition of the petition.

     SEC. 6. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

       (a) In General.--In a proceeding in Federal court under 
     section 2254 of title 28, United States Code, the failure to 
     comply with the procedures of this Act shall create an 
     irrebuttable presumption that the performance of the counsel 
     for the petitioner was deficient.
       (b) Entitlement to Relief; Burden of Proof; Standard of 
     Review.--A petitioner is not entitled to relief unless the 
     petitioner shows that the result of the proceeding would have 
     been different if the performance of the counsel for the 
     petitioner had not been deficient. The party opposing the 
     petition has the burden of establishing that the standards in 
     this section have been met. The court shall conduct a de novo 
     review to settle this issue.
       (c) Other Remedies.--The provisions of this section are not 
     intended to limit any other Federal or State court from 
     enforcing this section by any other appropriate remedy.
                                  ____


                                S. 2443

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Death Penalty Review Act of 
     2002''.

     SEC. 2. PROTECTING THE RIGHTS OF DEATH ROW INMATES TO REVIEW 
                   OF CASES GRANTED CERTIORARI.

       Section 2101 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h) Upon notice by a party that has filed a motion for a 
     stay of execution or filed for certiorari with, or has been 
     granted certiorari by, the United States Supreme Court in an 
     appeal from a case in which the sentence is death, the 
     Governor of the State in which the death sentence is to be 
     carried out, in a State case, or the Director of the Bureau 
     of Prisons, the Secretary of a military branch, or any other 
     Federal official with authority to carry out the death 
     sentence, in a Federal case, shall suspend the execution of 
     the sentence of death until the United States Supreme Court 
     enters a stay of execution or

[[Page S3871]]

     until certiorari is acted upon and the case is disposed of by 
     the United States Supreme Court.
       ``(i) For purposes of this section, the United States 
     Supreme Court shall treat a motion for a stay of execution as 
     a petition for certiorari.
       ``(j) In an appeal from a case in which the sentence is 
     death, a writ of certiorari shall be issued by the United 
     States Supreme Court upon the vote of at least 4 qualified 
     justices.''.

     SEC. 3. HABEAS CORPUS.

       (a) State Court Proceedings.--Section 2251 of title 28, 
     United States Code, is amended--
       (1) by inserting ``(a)'' at the beginning of the text;
       (2) by designating the second sentence as subsection (b); 
     and
       (3) by adding at the end the following:
       ``(c)(1) Notwithstanding any other provision of law, a 
     justice or judge of the United States before whom a habeas 
     corpus proceeding that involves the death sentence is pending 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``(2) For purposes of this subsection, a case is pending 
     before--
       ``(A) a court in the Circuit Court of Appeals, if a notice 
     of appeal has been filed; and
       ``(B) the United States Supreme Court, if a petition for 
     certiorari has been filed, or if a motion to stay execution 
     has been filed.
       ``(3) A case described in paragraph (2) remains pending 
     before the court until the petition for certiorari is denied. 
     If the petition is granted, the case remains pending.
       ``(4) If a higher court is unable or fails to issue a stay 
     pursuant to this subsection, a lower court before which the 
     case had been pending shall issue the stay of execution.
       ``(d) For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari.''.
       (b) Federal Court Proceedings.--Section 2255 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``Notwithstanding any other provision of law, a justice or 
     judge of the United States, before whom a habeas corpus 
     proceeding that involves a Federal death sentence is pending, 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``If a higher court is unable or fails to issue a stay 
     pursuant to the preceding paragraph, a lower court before 
     which the case had been pending shall issue the stay of 
     execution. For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari. A 
     case described in the preceding paragraph--
       ``(1) is pending before a court in the Circuit Court of 
     Appeals if a notice of appeal has been filed; and
       ``(2) is pending before the United States Supreme Court 
     if--
       ``(A) a petition for certiorari has been filed and has not 
     been denied; or
       ``(B) a motion to stay execution has been filed.''.
                                 ______