[Congressional Record Volume 152, Number 33 (Wednesday, March 15, 2006)]
[Extensions of Remarks]
[Pages E375-E376]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       CHILDREN'S SAFETY AND VIOLENT CRIME REDUCTION ACT OF 2006

                                 ______
                                 

                               speech of

                            HON. JEFF FLAKE

                               of arizona

                    in the house of representatives

                        Wednesday, March 8, 2006

  Mr. FLAKE. Mr. Speaker, I would like to comment on section 302 of the 
Children's Safety and Violent Crime Reduction Act of 2006. This section 
is based on an amendment that I offered, and that was accepted by voice 
vote, to H.R. 3132, a predecessor version of the Children's Safety and 
Violent Crime Reduction Act, on September 14 of last year.
  Section 302 is named after Kenneth Wrede, a young man who served as a 
police officer in West Covina, California. On August 31, 1983, Officer 
Wrede responded to a call about a man behaving strangely in a 
residential neighborhood. Wrede confronted the man, who became abusive 
and tried to hit Wrede with an 8-foot tree spike. Wrede could have shot 
the man, but instead attempted to defuse the situation. The man then 
reached into Wrede's patrol car and ripped the shotgun and rack from 
the dashboard. Wrede drew his gun and tried to persuade the man to lay 
down the shotgun. The man did so, but when Wrede lowered his revolver, 
the man picked up the shotgun again and shot Wrede in the head. Officer 
Wrede was killed instantly. He was 26 years old.
  Officer Wrede's killer was sentenced to death in 1984, and that 
conviction was affirmed by the California Supreme Court in 1989. Then 
in 2000--17 years after Ken Wrede's murder--a divided panel of the 
Federal Court of Appeals for the Ninth Circuit reversed the killer's 
death sentence. The Ninth Circuit found that the killer's lawyer 
provided ineffective assistance of counsel at the sentencing phase of 
the trial because he did not present additional evidence of the 
killer's abusive childhood and chronic use of PCP.
  When the Ninth Circuit handed down its ruling, Officer Wrede's mother 
simply noted that, ``We thought we finally were close to getting this 
behind us. And now this.'' (Gordon Dillow, Long Wait for Justice Gets 
Worse, The Orange County Reg., May 11, 2000, at B01.) A California 
Deputy Attorney General denounced the court's action, commenting that 
``it can always be suggested a jury should have heard something else in 
the penalty phase of a death penalty case.'' (Richard Winton, Reversal 
of Death Penalty in Officer's Killing Decried Courts, L.A. Times, May 
10, 2000, at B3.) West Covina Corporal Robert Tibbets, the original 
investigator at the scene of Wrede's murder, described the Ninth 
Circuit's decision as a ``miscarriage of justice.'' (Id.) He had 
promised Officer Wrede's parents that he would accompany them to every 
court hearing for their son's killer. He made good on his promise. 
Nineteen years later, in 2002, Corporal Tibbets was there with the 
Wredes when their son's killer was given a second sentencing trial and 
was again sentenced to death.
  But the Wredes now face yet another round of state-court appeals for 
their son's killer, and that litigation will be followed by a new a 
battery of federal habeas appeals. At the 2002 retrial, Ken's father 
noted that ``my family and I had endured 19 years of trial, appeals, 
delays, causing us to relive the trauma of Kenny's death over and over 
again.'' The trial judge noted the absurdity of this system. He stated, 
``It is an obscenity to put anyone through this needlessly for 19 
years. It is inexcusable for us in the system that we need to look at 
this case for 19 years to get it resolved. The system at some point in 
the line has become clogged and broken.'' (Larry Welborn, 19 Years and 
No Resolution For Parents, The Orange County Reg., Sept. 21, 2002.)

  My amendment will prevent injustices such as the one inflicted on the 
Wredes. It will guarantee that federal jurisdiction will not be used to 
reverse criminal sentences and force a repeat of the litigation years 
after the crime has occurred, the trial has been completed, and state 
appeals have been exhausted--all because of an error that was already 
judged harmless in state proceedings, or that was never presented at 
all on earlier review.
  It is simply ridiculous that, 17 years after a police officer was 
murdered, federal courts would prolong the litigation of the case of 
the officer's killer for this kind of reason. The error identified by 
the Ninth Circuit in the Wrede case had nothing to do with the 
reliability or fairness of the jury's conclusion that the defendant had 
murdered Officer Wrede. Instead, the Ninth Circuit invalidated the 
sentence because it thought that the trial attorney could have 
introduced additional evidence of the killer's use of phencyclidine. 
(Trial counsel already had introduced considerable evidence of such 
drug use during the guilt phase of the trial.) Frankly, I do not see 
how the fact that a defendant regularly used a dangerous drug could 
mitigate his criminal conduct at all. The jury in the Wrede case did 
not think so, nor did the state appeals courts think that additional 
evidence of the defendant's PCP use could reasonably have affected the 
jury's decision to sentence the defendant to death. The Ninth Circuit's 
conclusion that such an error could have made a difference in the 
sentencing decision obviously is a highly subjective judgment. It is 
not really a judgment of law, so much as a question of personal opinion 
and popular psychology. Such unstable judgments, at least with respect 
to sentencing errors that are properly subject to harmlessness review, 
should not be a basis for overriding duly entered state criminal 
sentences many years after the fact.
  My amendment to this bill builds on an amendment that I filed earlier 
in this Congress and which has been enacted as section 507 of the USA 
Patriot Improvement and Reauthorization Act. That amendment guarantees 
that states such as Arizona and California will be given an objective 
evaluation of their eligibility for the streamlined and expedited 
habeas corpus procedures in chapter 154 of title 28. That chapter sets 
strict time deadlines for federal judicial action on capital habeas-
corpus petitions in qualifying states, restricts amendments, and 
eliminates ping-pong litigation between state and federal courts over 
unexhausted claims. By unlocking states' access to chapter 154, my 
previous amendment will ensure that cases such as that of Kenneth 
Wrede's killer--or the infamous Christy Ann Fornoff case in Arizona--
will be resolved much more quickly. My current amendment to the 
Children's Safety and Violent Crime Reduction Act will ensure that 
these types of cases are not reversed on account of claims of minor and 
highly subjective sentencing errors. Allegations of such errors do not 
relate to the defendant's culpability for the underlying offense, and 
they do not merit the use of federal judicial resources at this late 
stage of the criminal-litigation process.
  My amendment is based on a legislative proposal that is part of the 
habeas corpus reform bill introduced by Senator Kyl and Congressman 
Lungren. That broader bill has been the subject of four hearings in 
this Congress: two before the House Judiciary Committee's 
Crime Subcommittee on June 30 and November 10, and two before the 
Senate Judiciary Committee on July 13 and November 16.

  Between its evolution from the Kyl/Lungren bill to my amendment, and 
again from my original amendment to the provision in the current 
Children's Safety and Violent Crime Reduction Act, section 302 has been 
modified somewhat. First, it has been expanded to also apply to those 
sentencing claims that the habeas applicant procedurally defaulted in 
the state courts. It would make no sense to limit federal review for a 
habeas petitioner who presented his sentencing claim in state court in 
a timely manner, where the error had been found harmless, but to afford 
unrestricted habeas review to a petitioner who did not timely and 
properly present his claim in state proceedings. The purpose of the 
procedural-default doctrine is to encourage state prisoners to abide by 
state procedural rules. That purpose would be undercut if the applicant 
presenting a defaulted sentencing claim were afforded more liberal 
access to federal court than the applicant who had properly presented 
his claim during state review.
  Also, allowing defaulted sentencing claims to be heard for the first 
time in a federal application inevitably disrupts the federal 
proceedings. A defaulted claim generally will not have been considered 
on the merits in state court, and therefore there is no evidentiary 
record on which to evaluate the claim in federal court. And allowing 
the applicant to obtain relief on a defaulted claim in federal habeas 
inevitably prejudices the state. As the Supreme Court has noted, 
forcing prisoners to

[[Page E376]]

timely present their claims in state court ``affords the state courts 
the opportunity to resolve the issue shortly after trial, while 
evidence is still available both to assess the defendant's claim and to 
retry the defendant effectively if he prevails in his appeal.'' Murray 
v. Carrier, 477 U.S. 478 (1986). But when a federal habeas court orders 
a sentencing retrial on the basis of a claim that was never presented 
to the state courts, it often will have been many years since the 
original trial and the crime occurred. (In the Wrede case, the Ninth 
Circuit's reversal of the killer's sentence came 17 years after the 
crime had been committed.) During this time, witnesses often will die 
or disappear or their memories will fade and other evidence will become 
unavailable. If defaulted claims were exempted from my amendment, not 
only would habeas petitioners presenting such claims have better access 
to the federal courts than would those who followed state rules; the 
relief that the defaulting petitioner obtains would be more likely to 
mean not just a second chance to try the sentencing case, but rather 
would amount to a permanent bar on the state's imposition of a capital 
or other sentence.
  Finally, I would like to respond briefly to those critics who argue 
that any tailoring or limits on federal habeas-corpus review constitute 
an unconstitutional ``suspension'' of the Great Writ. I would note that 
federal courts rejected this argument when it was made by critics of 
the 1996 reforms. The courts noted that Congress has the power both to 
expand and to retract the scope of federal collateral review of state 
criminal convictions. In Felker v. Turpin, 518 U.S. 651 (1996), the 
U.S. Supreme Court highlighted the utter lack of basis for the view 
that Congress is required to grant lower federal courts unrestricted 
power over state criminal convictions:

       ``The first Congress made the writ of habeas corpus 
     available only to prisoners confined under the authority of 
     the United States, not under state authority. It was not 
     until 1867 that Congress made the writ generally available in 
     `all cases where any person may be restrained of his or her 
     liberty in violation of [federal law]. ' And it was not 
     until well into this century that this Court interpreted 
     that provision to allow a final judgment of conviction to 
     be collaterally attacked on habeas.''

  The Supreme Court concluded: ``We have long recognized that the power 
to award the writ by any of the courts of the United States, must be 
given by written law, and we have likewise recognized that judgments 
about the proper scope of the writ are normally for Congress to make.''
  The U.S. Court of Appeals for the Seventh Circuit elaborated on this 
point in Lindh v. Murphy, 96 F.3d 856 (rev'd on other grounds, 521 U.S. 
320), and explained the nature of the constitutional habeas right:

       ``The writ known in 1789 was the pre-trial contest to the 
     executive's power to hold a person captive, the device that 
     prevents arbitrary detention without trial. The power thus 
     enshrined did not include the ability to reexamine judgments 
     rendered by courts possessing jurisdiction. Under the 
     original practice, ``a judgment of conviction rendered by a 
     court of general criminal jurisdiction was conclusive proof 
     that confinement was legal * * * [and] prevented issuance of 
     a writ.'' The founding-era historical evidence suggests a 
     prevailing view that state courts were adequate fora for 
     protecting federal rights. Based on this assumption, there 
     was (and is) no constitutionally enshrined right to mount a 
     collateral attack on a state court's judgment in the inferior 
     Article III courts and, a fortiori, no mandate that state 
     court judgments embracing questionable (or even erroneous) 
     interpretations of the federal Constitution be reviewed by 
     the inferior Article III courts.''

  The Seventh Circuit concluded: ``Any suggestion that the 
[Constitution] forbids every contraction of the [federal habeas] power 
bestowed by Congress in 1885, and expanded by the 1948 and 1966 
amendments, is untenable.''
  My amendment is a necessary and appropriate adjustment to the federal 
jurisdiction over state criminal convictions. I am pleased to see that 
it is part of the Children's Safety and Violent Crime Reduction Act.

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