[Senate Hearing 107-485]
[From the U.S. Government Publishing Office]
S. Hrg. 107-485
PROTECTING THE INNOCENT: ENSURING COMPETENT COUNSEL IN DEATH PENALTY
CASES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 27, 2001
__________
Serial No. J-107-29
__________
Printed for the use of the Committee on the Judiciary
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81-606 WASHINGTON : 2002
___________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 123
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 69
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 14
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 8
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 148
WITNESSES
Brackett, Kevin S., Deputy Solicitor, 16th Judicial District,
York, South Carolina........................................... 56
Bright, Stephen B., Director, Southern Center for Human Rights,
Atlanta, Georgia............................................... 33
Collins, Hon. Susan, a U.S. Senator from the State of Maine...... 6
Delahunt, Hon. William D., a Representative in Congress from the
State of Massachusetts......................................... 3
Eisenberg, Ronald, Deputy District Attorney, Philadelphia,
Pennsylvania................................................... 45
Ellis, Hon. Rodney, Texas State Senator, Austin, Texas........... 29
Graham, Michael R., Roanoke, Virginia............................ 42
LaHood, Hon. Ray, a Representative in Congress from the State of
Illinois....................................................... 1
Pryor, Hon. William H., Jr., Attorney General, State of Alabama,
Montgomery, Alabama............................................ 20
Wilkinson, Beth, Co-Chair, Constitution Project's Death Penalty
Initiative, Washington, D.C.................................... 52
QUESTIONS AND ANSWERS
Responses of Kevin S. Bracket to questions submitted by Senator
Leahy.......................................................... 78
Responses of Steven B. Bright to questions submitted by Senator
Durbin......................................................... 80
Responses of Steven B. Bright to questions submitted by Senator
Leahy.......................................................... 81
Response of Rodney Ellis to a question submitted by Senator Leahy 84
Responses of William H. Pryor, Jr. to questions submitted by
Senator Durbin................................................. 85
Responses of William H. Pryor, Jr. to questions submitted by
Senator Leahy.................................................. 87
SUBMISSIONS FOR THE RECORD
Administrative Office of the United States Courts, Washington,
DC:
Executive Summary............................................ 93
Leonidas Ralph Mecham, Director, July 5, 2001, letter........ 103
Leonidas Ralph Mecham, Director, July 16, 2001, letter....... 105
American Bar Association, Governmental Affairs Office, Norman
Lefstein, Washington, DC, statement............................ 105
Benjamin, Steven D., Benjamin & DesPortes, P.C., Richmond, VA,
statement...................................................... 110
Brackett, Kevin S., Deputy Solicitor, State of South Carolina,
York, SC, July 2, 2001, letter................................. 112
Bruck, David I., Attorney, Columbia, SC:
statement.................................................... 113
letter, July 2, 2001......................................... 117
Constitution Project's Death Penalty Initiative, Washington, DC,
summary of recommendations and attachment...................... 118
Equal Justice Initiative, Bryan A. Stevenson, Executive Director,
Montgomery, AL, statement...................................... 124
Firestone, David, New York Times, June 16, 2001, article......... 128
Former prosecutors, law enforcement officers, and Justice
Department officials, statement................................ 130
Liebman, James S., Simon H. Rifkind Professor of Law, Columbia
Law School, New York, NY, July 2, 2001, letter................. 131
Lloyd, Charles J., Lindquist & Vennum, P.L.L.P., Minneapolis, MN,
June 26, 2001, letter.......................................... 134
Louisiana Crisis Assistance Center, Clive Stafford Smith,
Director, New Orleans, LA, statement........................... 135
Mississippi Post-Conviction Counsel Project, Charles J. Press,
Director, Jackson, MS, statement............................... 139
Pescetta, Michael, Assistant Federal Public Defender, Office of
the Federal Public Defender for the District of Nevada, Las
Vegas, NV, statement........................................... 141
Rowley, Maureen Kearney, Chief Federal Defender, Eastern District
of Pennsylvania, Philadelphia, PA, July 5, 2001, letter........ 143
Smith, Hon. Gordon H., a U.S. Senator from the State of Oregon,
statement...................................................... 145
Texas Defender Service, Maurie Levin, Managing Attorney, Austin,
TX, statement.................................................. 145
Young, Denise, Attorney, Tempe, AZ, statement.................... 149
PROTECTING THE INNOCENT: ENSURING COMPETENT COUNSEL IN DEATH PENALTY
CASES
----------
WEDNESDAY, JUNE 27, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Hatch,
Specter, and Sessions.
Chairman. Leahy. Good morning. I am going to withhold my
opening statement for a few minutes to accommodate two of the
most distinguished members of the House who have a vote in a
short while.
I would just note that the Members are Congressman Ray
LaHood, of Illinois, and Congressman William Delahunt, of
Massachusetts. Both Mr. LaHood and Mr. Delahunt are close
personal friends, one a Republican, one a Democrat. They are
the main sponsors of this legislation in the other body, and
with the permission of Senator Collins, I thought we would go
first with their statements. I appreciate very much their
taking the time to be here. I also applaud the enormous amount
of work done in a totally bipartisan fashion in the other body.
Congressman LaHood?
STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ILLINOIS
Representative LaHood. Thank you, Mr. Chairman. Thank you
very much for accommodating our schedule and the fact that we
have a vote. I am going to be very brief. I assume our
statements will be made a part of the record.
Chairman Leahy. They will.
Representative LaHood. Let me just say, as a Republican, as
much as I dislike the idea of all of you folks taking over the
Senate, I think this really enhances our opportunity to pass
this bill, your bill, and thank you for your leadership in this
and getting us all involved in the House. You really have shown
extraordinary leadership on this issue.
Just very briefly, Mr. Chairman, I have been a proponent of
the death penalty and still am a proponent of the death
penalty, but I do believe that when the death penalty is meted
out and administered, we have to have 100-percent certainty
that it is done correctly.
I think the Innocence Protection Act, which Mr. Delahunt
and I and others--now we have 203 cosponsors in the House,
which is far in excess of what we had a year ago, and I think
it shows, again, leadership on the part of many organizations.
I have sort of taken the lead from my own Governor,
Governor George Ryan, whom you know and is a good friend of
yours. I know you have had many discussions with him and he has
been to Washington and testified before the House Judiciary
Committee subcommittee a year ago. I have taken my lead from
him because he did place a moratorium on the death penalty
because he wanted to be sure there was certainty when the death
penalty is administered.
So I think our bill is a good bill. It requires and calls
for DNA testing, it requires competent counsel. I think it is a
well-worded bill. I have talked to Chairman Sensenbrenner, the
chairman of the House Judiciary Committee, about this issue,
and I believe he has a great deal of interest in it.
So again, Mr. Chairman, thank you very much for the
opportunity to speak here ahead of everyone else, and thank you
again for your leadership. We look forward to working with you
and hopefully passing this bill and having it signed into law.
Chairman Leahy. Well, after all the enormous amount of work
you and Congressman Delahunt have done over there in obtaining
over 200 co-sponsors, we should move along with it. I hope to
sit down with Chairman Sensenbrenner after the 4th of July
break and, among other things, talk about that with him. I also
want to see how our committees can work well together.
So thank you very much. Give my best to the Governor. He
has not wavered on this issue at all, and I appreciate that.
Representative LaHood. Thank you.
[The prepared statement of Representative LaHood follows.]
Statement of Hon. Ray LaHood, a U.S. Representative in Congress from
the State of Illinois
Mr. Chairman, I would like to thank you and the members of the
Senate Judiciary Committee for holding this hearing and allowing me the
opportunity to testify today on a very important subject. Additionally,
Mr. Chairman, I would like to thank you for the strong lead you have
taken on this issue in the Senate. Your efforts are greatly appreciated
as we try to ensure the fairness in our justice system with the
reintroduction of the Innocence Protection Act.
Illinois Governor George Ryan showed great leadership and
tremendous courage by imposing a moratorium on the Illinois death
penalty earlier last year. One of the many things that led him to this
decision was the case of Anthony Porter. Porter was two days from being
executed for allegedly killing two people in 1982. Due to a temporary
stay of execution with questions over his mental competence and his low
IQ, journalism students from Northwestern University obtained a
videotaped confession from the true killer and an affidavit from a
witness who admitted he gave false statements about the case. Without
those students, Anthony Porter could have been executed.
Due to cases such as that, there is no better time than now to take
appropriate measures to correct the wrongs that have occurred in our
capitol punishment system across this country.
Mr. Chairman, I support the death penalty. However, I believe there
must be 100% certainty when the death penalty is administered. A just
society cannot engage in the taking of an innocent life. Our nation's
system is fatally flawed, and we must ensure that every possible legal
and technological method is provided to determine guilt in capital
cases. Since the reinstatement of the death penalty in 1976, 96 people
have been exonerated after spending years on death row for crimes they
did not commit. In my home state of Illinois, 12 death row inmates have
been executed, while 13 have been exonerated.
As a supporter of the death penalty, I have, again, introduced the
House version of the Innocence Protection Act, H.R. 912, with
Congressman Bill Delahunt. I introduced this bill because I believe
that those of us who support the death penalty have a special
responsibility to ensure it is applied fairly. I am pleased to report
that we have 203 cosponsors, 38 Republicans and 165 Democrats, which is
well over twice the number we had in the 106`'' Congress. To me, this
means people are beginning to recognize the importance of this
bipartisan legislation.
As long as innocent Americans are on death row, guilty predators
are on our streets. Many defendants lack competent counsel and are
unable to obtain and present evidence that will establish their
innocence. The Innocence Protection Act seeks to address both of these
concerns by giving those accused of murder access to new DNA technology
that may not have been available at the time of their trial and by
ensuring that the attorneys, in whose hands these lives are placed, are
qualified. In Illinois alone, 22 defendants have been sentenced to
death while being represented by attorneys who have either been
disbarred or suspended at some time during their legal careers. In some
cases, attorneys have even been found sleeping or under the influence
of alcohol during the trial. I believe ensuring competent counsel is a
vitally important step in the right direction toward fixing our capitol
punishment system.
This legislation would increase public confidence in our nation's
judicial system specifically as it relates to the death penalty. People
have spent years on death row for crimes they did not commit. Some have
come within hours of execution. A death sentence is the ultimate
punishment. Its absolute finality demands that we be 100% certain that
we've got the right person. For in protecting the innocent, we also
ensure that the guilty do not go free.
Again, Mr. Chairman, thank you and the Committee for the
opportunity to testify today.
Chairman Leahy. Congressman Delahunt. I should note for the
record that the Congressman and I helped keep New England safe
for years in our roles as prosecutors, he in Massachusetts, I
in Vermont.
Go ahead.
STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Representative Delahunt. Well, thank you, Mr. Chairman, and
I would just associate myself with the kudos that were put
forth about you from my friend and colleague, Ray LaHood. I
would also add that it warms the cockles of my heart to address
you as ``Mr. Chairman.''
In any event, thank you for inviting us to come here and to
testify on behalf of 200 of our House colleagues who have
cosponsored the Innocence Protection Act. We introduced this
Act because the reality is our Nation's system for trying
capital cases is failing, and this has been demonstrated by a
series of studies such as the one conducted last year by
researchers at Columbia University.
I want to acknowledge the Ranking Member.
Senator Hatch. Good to see you.
Representative Delahunt. Senator, good to see you.
The study at Columbia examined over 4,000 capital cases in
28 States over a 23-year period, and the study concluded that 7
out of every 10 death penalty cases contained serious
reversible error--7 out of 10. A failure of that magnitude
calls into question the fairness and integrity of the American
justice system itself.
Some suggest that the high rate of reversals showed that
the system is working. Let me suggest that is absurd. We cannot
know whether the appeals process is catching all the errors or
not, but what we do know definitively is that errors are not
being caught at trial. We do know that innocent people are
serving lengthy sentences for crimes that they did not commit.
What is heartening and encouraging is that the public
understands this. Polls reveal growing misgivings about the
administration of the death penalty and overwhelming support
for reforms that would provide some degree of reassurance that
it is being properly and fairly implemented.
Now, the catalyst for this sea change can be summed up in
one word, or actually three words--DNA. Science has given us a
new forensic tool which can conclusively establish guilt or
innocence, and this tool has been used to exonerate nearly 100
people who spent years on death row for crimes they did not
commit, some of whom came within days of being put to death.
Fortunately, their lives were spared, but the system failed
them, and it failed society as well by leaving the real
perpetrators out walking the streets.
DNA is the spotlight that has enabled us to focus on this
problem with our criminal justice system, and our bill would
help ensure that defendants have access to testing in every
appropriate case. But we should be under no illusion that by
granting access to DNA testing we are solving the problem. DNA
is not a panacea for the frailties of the justice system. To
suggest otherwise would be tantamount to fraud, particularly
when, in the vast majority of cases, biological evidence that
can be tested does not even exist.
What DNA has revealed is that the lack of adequate legal
services is the crux of the problem. The adversary process is
the heart and soul of our system of justice, a chance to put
evidence on trial and confront the witnesses in open court.
As you indicated, I was a prosecutor for over 20 years, and
I know that the process, the system can work only when lawyers
on both sides are up to the job. Those kinds of lawyers aren't
as easy to find as some may think. We have a lot of lawyers in
this country, but very few of them are engaged in trial
practice, and fewer still have ever tried a criminal case from
beginning to end. And it is a tiny percentage of that
percentage who are equipped to shoulder the immense
responsibility of trying a case in which a human being is on
trial for his or her life.
These are complex matters which cannot be handled by
lawyers who lack the training, experience and resources to
prepare a proper defense, let alone by lawyers who are
incompetent, unprepared, or impaired by substance abuse. We
cannot tolerate a system that relies on reporters and
journalism students to develop new evidence that was never
presented at trial, a system in which luck or chance plays such
a profound role in determining whether a defendant lives or
dies.
The Innocence Protection Act encourages States to develop
minimum standards for capital representation, as some States
have already done, and it would provide the States with
resources to ensure that indigent defendants have access to a
lawyer who can meet those standards.
If we are successful, the impact of these measures will be
felt far beyond simply death penalty cases. By raising
standards, we can help restore public confidence not just in
the fairness and reliability of capital trials, but in the
integrity of the American justice system itself.
The American people have a right to expect that the truth
will be relentlessly pursued, that every needed resource and
every possible safeguard will be brought to bear. Yet, if that
does not happen in death penalty cases, how can they have
confidence that the justice system is any less fraught with
error in non-capital cases? Without that confidence and
respect, our system of justice, so essential in a democracy, is
at grave risk.
I thank the Chair.
[The prepared statement of Representative Delahunt
follows.]
Statement of Hon. William D. Delahunt, a U.S. Representative from the
State of Massachusetts
Mr. Chairman and Members of the Committee:
Thank you for inviting me to testify today on behalf of the more
than 200 members of the House of Representatives who have cosponsored
the Innocence Protection Act.
--We introduced the Innocence Protection Act because our nation's
system for trying capital cases is failing. This has been demonstrated
by a series of studies, such as the one conducted last year by
researchers at Columbia University. They looked at over 4,000 capital
cases in 28 states over a 23-year period. And they concluded that seven
out of every 10 death penalty cases contained serious reversible error.
Seven out of 10. A failure of that magnitude calls into question
the fairness and integrity of the American justice system itself.
Some suggest that the high rate of reversals shows that the system
is working. But that is nonsense. We cannot know whether the appeals
process is catching all the errors or not. But we do know--
definitively--that the errors are not being caught at trial. We do know
that innocent people are serving lengthy sentences for crimes they did
not commit.
What is heartening is that the public understands this. Polls
reveal growing misgivings about the administration of the death
penalty, and overwhelming support for reforms that would provide some
degree of reassurance.
The catalyst for this sea-change can be summed up in one word: DNA.
Science has given us new forensic tools which can conclusively
establish guilt or innocence. And these tools have been used to
exonerate nearly 100 people who spent years on death row for crimes
they did not commit. Some of whom came within days of being put to
death.
Fortunately, their lives were spared. But the system failed them.
And it failed society as well, by leaving the real perpetrators out
walking the streets.
DNA is the spotlight that has enabled us to focus on this problem,
and our bill would help ensure that defendants have access to testing
in every appropriate case. But we should be under no illusion that by
granting access to DNA testing we are solving that problem. DNA is not
a panacea for the frailties of the justice system. To suggest otherwise
would be tantamount to fraud-particularly when, in the vast majority of
cases, biological evidence that can be tested does not even exist.
What DNA has revealed is that the lack of adequate legal services
is the crux of the problem. The adversary process is the heart and soul
of our system of laws. The chance to put the evidence on trial, and
confront the witnesses in open court. I was a prosecutor for over 20
years. And I know that the process can work only when the lawyers on
both sides are up to the job.
Those kinds of lawyers aren't as easy to find as some may think. We
have a lot of lawyers in this country. But very few of them are engaged
in trial practice, and fewer still have ever tried a criminal case from
beginning to end.
It is a tiny percentage of that percentage who are equipped to
shoulder the immense responsibility of trying a case in which a human
being is on trial for his life. These are complex matters which cannot
be handled by lawyers who lack the training, experience and resources
to prepare a proper defense. Let alone by lawyers who are incompetent,
unprepared, or impaired by substance abuse.
We cannot tolerate a system that relies on reporters and journalism
students to develop new evidence that was never presented at trial. A
system in which chance plays such a profound role in determining
whether a defendant lives or dies.
The Innocence Protection Act would encourage states to develop
minimum standards for capital representation, as some states have
already done. And it would provide the states with resources to help
ensure that indigent defendants have access to a lawyer who can meet
those standards.
If we are successful, the impact of these measures will be felt far
beyond the confines of death penalty cases. By raising standards we can
help restore public confidence, not just in the fairness and
reliability of capital trials, but in the integrity of the American
justice system as a whole.
The American people have a right to expect that the truth will be
relentlessly pursued. That every needed resource-and every possible
safeguard-will be brought to bear. Yet if this does not happen in death
penalty cases how can they have confidence that the justice system is
any less fraught with error in non-capital cases?
Some have suggested that our society cannot afford to pay for
qualified counsel in every capital case. The truth, Mr. Chairman, is
that we cannot afford to do otherwise, if that cherished system of
justice is to survive.
Chairman Leahy. Well, I thank both you and Congressman
LaHood.
I would note for the record that the good-looking group of
people who have joined us here are all relatives of Senator
Hatch. You might not have known that if I hadn't pointed it
out, because they are all better looking than he is.
Senator Hatch. That is not saying much.
Chairman Leahy. We are delighted to have them here.
I don't know if you wanted to make a comment.
Senator Hatch. Well, thank you. I am very happy to have
them here to listen to the three of you. I am also very
interested in what you have to say.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Congressman Delahunt and Congressman LaHood, I understand
you do have a vote. If you wanted to leave at any point, just
feel free to do so.
Representative LaHood. Thank you.
Representative Delahunt. Thank you, Mr. Chairman.
Chairman Leahy. Senator Collins, I appreciate your courtesy
in letting our two colleagues from the other body go forward at
this point.
I thank you both. We obviously will be talking about this a
lot more during the summer. Thank you both.
Senator Collins, we appreciate you being here. As I have
noted before, we have withheld the opening statements myself
and by Senator Hatch to allow the witnesses to testify. Senator
Collins, as will the rest of us, will also have a vote very
shortly.
Go ahead.
STATEMENT OF HON. SUSAN COLLINS, A U.S. SENATOR FROM THE STATE
OF MAINE
Senator Collins. Thank you, Mr. Chairman. Mr. Chairman,
Senator Hatch, members of the committee, thank you for inviting
me to testify before you this morning.
I feel compelled to say a few words to Senator Hatch's
relatives to tell you what an outstanding Senator he is. He has
been such a help to me as a first-term Senator, and I take
great pleasure in working very closely with him.
Senator Hatch. You can see why I love this woman, that's
all I can say.
Senator Collins. Mr. Chairman, I also want to commend the
efforts of our two House leaders on this important issue. It is
extraordinary that they have been able to sign up more than 200
cosponsors, and I believe that bodes well for enactment of this
important legislation.
To appreciate the importance of the issue of procedural
safeguards in death penalty cases, consider what price our
society would be willing to pay to prevent the execution of
just one innocent individual. The price, of course, cannot be
measured, and yet the threat of such a wrongful execution is
all too real.
Since the reinstatement of capital punishment in 1976, 720
people have been executed nationwide, including 37 this year
alone. In this same time period, nearly 100 individuals who
were sentenced to die had their convictions overturned and were
released from death row. Each of these individuals has lived
the Kafkaesque nightmare of condemnation and imprisonment for
crimes that they did not commit. Thirty-seven hundred prisoners
now sit on death row. It is impossible to know for certain how
many of them are innocent of the crimes for which they have
been sentenced to die. But if history is any guide, some of
them undoubtedly are innocent.
My home State of Maine ushered in the first era of death
penalty reform in 1835 with what came to be known as the Maine
Law. The Maine Law held that all felons sentenced to death had
to remain in prison at hard labor and could not be executed
until 1 year had elapsed, and then only on the Governor's
order. No Governor ordered an execution under Maine law for 27
years, and Maine finally abolished the death penalty in 1887
after a botched hanging.
But Maine is one of only 12 States to abolish the death
penalty, and so under the great majority of State court systems
and under the Federal system, executions can and do occur. It
is our responsibility to make sure that this frightening power
to take another's life is wielded judiciously, with the
greatest care.
I am proud to join many in this room in cosponsoring the
Innocence Protection Act, and I commend the chairman, Senator
Gordon Smith and Senator Feingold for their tireless efforts to
see this bill through to passage. I believe that over time, as
more and more capital convictions are overturned, more and more
Americans will come to embrace the principles of this important
bill.
Take Title II of the bill, for example, which is designed
to ensure competent legal counsel in death penalty cases.
Instead of attempting to impose Federal requirements created
out of whole cloth, the bill establishes a commission of
prosecutors, defense attorneys and judges tasked with
developing standards for providing adequate legal
representation for those facing the death sentence. It then
provides grants to help States implement the commission's
standards, as well as disincentives for States that choose to
ignore them.
I also strongly support the DNA testing provisions of this
bill. Convicted offenders ought to have access to DNA testing
in cases where it has the potential to help prove an inmate's
innocence. The Innocence Protection Act sets procedures
governing DNA testing in the Federal courts and encourages
States to adopt their own procedures to ensure that testing is
available and that biological material is preserved. In
recognition that the States are higher in death penalty cases,
our bill would prohibit States from denying applications for
DNA testing by death row inmates if the testing could produce
new exculpatory evidence.
Mr. Chairman and Senator Hatch, thank you again for
inviting me to testify today on an issue of such profound
significance. I am hopeful that this Congress we will reach
across the aisle to enact meaningful safeguards to protect the
innocent from paying the ultimate price and society from making
the ultimate mistake. This is an issue that should unite all of
us, whether we are opponents or proponents of the death
penalty. Surely, we can come together to ensure that important
procedural safeguards and protections are provided in these
cases.
Thank you, Mr. Chairman, Senator Hatch, members of the
committee.
Chairman Leahy. Well, thank you, Senator Collins. I
appreciate your support of this.
I will also place in the record a statement by Senator
Gordon Smith, who is a proponent of the death penalty but a
cosponsor of this legislation. That will be part of the record.
I appreciate you being here.
Senator Collins. Thank you.
Senator Hatch. Thank you.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I know that we will having a vote soon. I
am going to give my opening statement and then yield to the
distinguished senior Senator from Utah for his.
Obviously, we are pleased to have all of you who have taken
the time to come here. Certainly Senator Collins' testimony and
Senator Smith's testimony is very welcome, as were the
statements of the lead House cosponsors, Congressmen Bill
Delahunt and Ray LaHood. We have already heard their testimony,
one a proponent of the death penalty, one an opponent of the
death penalty, and one a former prosecutor. They make it very
clear that they are united on the question of competent counsel
in capital cases and, of course, on the availability of
whatever evidence may be there.
We now have 200-or-so cosponsors in the House and 19 in the
Senate, including three members of this committee--Senators
Feingold, Kennedy and Cantwell. I am grateful to each of them
for their help, and also for the interest that Senator Hatch
and Senator Feinstein have shown on this issue.
I am really very pleased because we have had liberals,
conservatives, supporters of the death penalty, opponents of
the death penalty, Republicans and Democrats, on this. That is
the way it should be. This should not be a partisan issue. It
is an issue of conscience, but also an issue of confidence in
our criminal justice system. A criminal justice system only
works if people have confidence in it, and it totally falls
apart--especially in a democracy--if people lose confidence in
it.
I may disagree with some of my friends on this committee on
some issues, but none of us disagrees with the principle that
somebody who is on trial for his life deserves a fair trial and
deserves a competent defense attorney. We are talking about the
ultimate penalty that can be imposed. I appreciated Senator
Specter's comment on Sunday that competent counsel is
fundamental.
Let's look at what has happened while the Innocence
Protection Act has been pending in the Congress. In the last 6
months, more than a dozen people have been cleared of the
crimes that sent them to prison. In 6 cases they were convicted
and sent to death row, and then we find we made a mistake.
Let's go with this: Jerry Frank Townsend was sentenced to
seven concurrent life sentences in Florida, in 1980--seven
concurrent death sentences. And then we found, ``Sorry, we made
a mistake.'' You are free to go.
Joaquin Martinez, sentenced to death in Florida, in 1997--
sentenced to death. Fortunately, they found out they had the
wrong person before he was actually executed.
Gary Wayne Drinkard was sentenced to death in Alabama, in
1995. I understand Mr. Drinkard is here today with his
attorney. The headline in the Associated Press says it all:
``He Fought Fear of Death Everyday.'' He was on death row,
knowing he was innocent, wondering what it would be like to be
executed as an innocent man.
Of course, in every one of these cases, while they had the
wrong person on death row, that meant whoever committed the
crime was out free and able to commit the same crime again.
Jeff Pierce was sentenced to 65 years in Oklahoma, in 1986.
I would ask anybody at this hearing, what would you think if
you heard the cell door close and knew you had been sentenced
for 65 years for something you didn't do. Then they find out,
well, a chemist made a mistake and they had the wrong person.
Danny Brown was sentenced to life in Ohio, in 1982.
Nineteen years you can never give back to somebody in their
life; 19 years behind bars, and they had the wrong person.
Richard Danziger was sentenced to 99 years in Texas, in
1990. Now, he was finally cleared, but he has an uncertain
future, as it says here. Why does he have an uncertain future?
He was beaten so badly while in prison that he now has brain
damage. He was in prison for a crime he did not commit.
Kenneth Waters was sentenced to life in Massachusetts. I
think the headline says it all from the Boston Globe: ``'After
18 years in prison, it is great to be free,' ex-inmate says.''
I can well imagine.
In 1984, Earl Washington was sentenced to death in
Virginia. He came within days of execution, and then they did a
DNA test and they found they had the wrong person. Mr.
Washington is here with us today and I appreciate him coming
here to join us.
David Pope was sentenced to 45 years Texas, in 1986. He
served 15 years and then they did a DNA test, and again, sorry,
wrong person. Again, I would point out not only the injustice
of serving that time behind bars, but it also means that the
guilty person is free to commit more crimes.
Peter Limone was sentenced to death in Massachusetts, in
1968. He spent 33 years in prison after his conviction, and
they say again, wrong person, we will let you go. His wife had
eked out a living by sewing so the family could visit him every
week in prison, convinced of his innocence.
Christopher Ochoa was sentenced to life in Texas. It turns
out he was falsely accused and he was freed from a life term.
Michael Graham and Albert Burrell were sentenced to death
in Louisiana, in 1987. Mr. Graham is here as a witness today;
death row inmates exonerated, having served time facing death,
expecting to be executed. Wrong person, and they were finally
let out.
Gerald Harris was sentenced to 9 to 18 years in New York,
in 1992. Guess what? The headline says it all in Newsday: ``He
Was the Wrong Man.'' He served the time, but the wrong man; the
right man was out free.
Frank Lee Smith was sentenced to death in Florida, in 1986.
It turns out the DNA tests cleared him.
Now, we didn't go back through a long, long history to get
these. These people were all released in the last 6 months.
What should we learn from these cases? Well, some have argued
these cases in which innocent people were cleared after years
and sometimes decades in prison show that the system is
working. Working? Something is tragically flawed with the
system if they can serve all that time.
I have only one thing to say. Listen to Michael Graham
testify today about 14 years on death row, knowing that they
had the wrong person. Listen to what he has to say. Put
yourself in the place of sitting there, waiting to be executed
for a crime that you didn't commit. Then ask yourself whether
finally being released is a triumph of the judicial system or
whether there was a failure that put you there in the first
place.
The Innocence Protection Act proposed some basic, common-
sense reforms to our criminal justice system to reduce the risk
of mistaken execution. We have listened to a lot of good
advice. We have made refinements to the bill since the last
Congress. Again and again, experts in the field have told us
that ensuring competent counsel is the single most important
thing we can do to get to the truth and protect innocent
people. I will tell you what we have done.
The bill would establish a national commission which would
consist of distinguished American legal experts who have
experienced the criminal justice system firsthand--prosecutors,
defense lawyers and judges. They would formulate reasonable
minimum standards for ensuring competent counsel at each stage
of a capital case, something that the Conference of Chief
Justices has been calling for for years.
The IPA uses a ``carrot and stick'' approach to ensure that
counsel standards are met. The carrot is more than $50 million
in grants to help put the new standards in effect. The stick is
that States that fail to meet the standards would have their
death sentences given less deference and subjected to more
rigorous Federal court review. This is because we would not
have the confidence that comes from knowing that competent
counsel represented the defendant. These states would forfeit
some of their prison grant funding over time.
Now, I want to stress the importance of these enforcement
mechanisms. Without them, standards developed under the IPA
would merely gather dust on a shelf, like a lot of the other
voluntary counsel standards that we have seen over the years.
Critics of the bill raise two arguments against its mandate
for competent counsel in death penalty cases. Let me briefly
discuss them.
The first argument I have heard is that there is no real
problem because the States are already providing decent defense
counsel in capital cases. The facts show otherwise. The problem
is real, it is urgent and it is well-documented. It has been
more than a decade since the U.S. Judicial Conference and the
ABA issued reports on the widespread problem of incompetent and
underfunded capital defense counsel. It has been 8 years since
this committee held a hearing on innocence and the death
penalty, in which witness after witness spoke to the same
issue.
In March of 2000, the Justice Department released a report
on indigent defense services across the country and concluded
that ``Indigent defense in the United States today is in a
chronic state of crisis, resulting in legal representation of
such low quality to amount to no representation at all, delays,
overturned convictions, and convictions of the innocent.''
In June of 2000, Professor Jim Liebman and his colleagues
at the Columbia Law School released the most comprehensive
statistical study ever undertaken of modern American capital
appeals. They found that serious errors were made in two-thirds
of all capital cases. The most common problem was grossly
incompetent defense lawyers.
Today, in Alabama, there are 42 prisoners on death row who
have no lawyer to pursue appeals. Today, in Texas, one out of
every four death row inmates was defended by a lawyer who has
been disciplined, suspended or disbarred. This is not competent
counsel, and it is certainly not the counsel that any Senator
on this panel would expect to have if they were accused of a
capital crime. Today in America, there are people awaiting
execution whose lawyers slept through part of their trials.
That is unjust, it is shocking, and it ought to be unacceptable
in this country.
The other argument I have heard against our bill goes
something like this: maybe some States could do a better job
providing counsel for indigent defendants. Maybe some States do
skimp on funding. Maybe this has resulted in a few innocent
people being sentenced to death here and there. But that is no
reason for Congress to get involved.
In fact, it is a reason for Congress to get involved. There
should be zero tolerance for mistakes in death penalty cases.
We have a duty to get involved to try to contain the crisis
before innocent people are put to death. Congress has the duty
to get involved because the crisis is national scope.
Since 1973, 96 people who were sentenced to death and were
heading to death row have been exonerated--one for every seven
or eight who have been executed. These 96 exonerations span 22
different States, which is a substantial majority of the States
that have a death penalty.
In Illinois, the Governor, a conservative Republican,
imposed a moratorium on executions because of the State's
dismal record of sending innocent people to death row. But this
isn't an Illinois problem or a Texas problem; it is a national
problem. It calls into question the legitimacy of criminal
convictions, but it also undermines public confidence in the
integrity of the criminal justice system as a whole.
If mistakes occur when a life is at stake, what happens
when the crimes and penalties are less severe? Witnesses and
juries and judges become more skeptical about how well the
police and prosecutors are doing their jobs. If they do not
trust the jobs that are being done, what does that mean for our
prosecutors and police? It means that it is going to be far
more difficult to get convictions when they have the right
person if they show sloppiness when they have the wrong person.
And let us not forget that when an innocent person is put
in prison, that doesn't protect us. The person who committed
the crime is out there, free to do the same thing. If you
convict the wrong person, leaving the actual murderer free,
what does that do?
In 1985, Rolando Cruz and Alejandro Hernandez were wrongly
convicted and sentenced to death for the murder of a 10-year-
old girl. DNA tests ultimately linked another man to the little
girl's death, clearing them. In the meantime, because the wrong
men were convicted and the right person was still out there,
the actual criminal committed another murder. This is a
national problem. It is not a question whether Congress should
act, but when.
Last year, we passed the Paul Coverdell National Forensic
Sciences Improvement Act. I was proud to cosponsor this
bipartisan legislation which will improve the quality and
credibility of our Nation's crime labs. We are still working to
fund it. When the Senate took up the Paul Coverdell bill, I
proposed a sense of the Congress amendment which the Senate
adopted. In it, we resolved to work with the States to improve
the quality of legal representation in capital cases through
the establishment of counsel standards. Congress has already
gone on record in recognizing what has to be done; now is the
time to do it.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont
I want to welcome all of the witnesses and thank you for coming
today. I am particularly pleased to welcome Senator Smith and Senator
Collins, as well as our lead House cosponsors, Congressman Bill
Delahunt and Congressman Ray LaHood. I thank them for their commitment
to our legislation, the Innocence Protection Act of 2001.
We now have 19 cosponsors in the Senate. That includes three
members of this committee: Senator Feingold, Senator Kennedy, and
Senator Cantwell. I am grateful to each of them for their support. I
also want to thank Senator Feinstein and Senator Hatch for the interest
that they have shown in this issue.
I could not be more delighted with the progress that the IPA has
been making in the House. There are now more than 200 House cosponsors,
including Republicans and Democrats from all parts of the country,
conservatives and liberals, supporters and opponents of the death
penalty.
That is how it should be, because this is not a partisan issue; it
is an issue of conscience and confidence in our criminal justice
system. I may disagree with some of my friends on this committee on
some issues, but none of us disagrees with the principle that someone
on trial for his life deserves a fair trial and a competent defense
lawyer. I appreciated Senator Specter's comment on Sunday that
competent counsel is ``fundamental.''
Let's look at what has happened while the Innocence Protection Act
has been pending in the Congress. In the last six months, more than a
dozen people have been cleared of the crimes that sent them to prison
or, in six cases, to death row.
Jerry Frank Townsend, sentenced to 7 concurrent life
sentences in Florida in 1980
Joaquin Martinez, sentenced to death in Florida in
1997;
Gary Drinkard, sentenced to death in Alabama in 1995;
Jeff Pierce, sentenced to 65 years in Oklahoma in
1986;
Danny Brown, sentenced to life in Ohio in 1982;
Richard Danziger, sentenced to 99 years in Texas in
1990;
Kenneth Waters, sentenced to life in Massachusetts in
1983;
Earl Washington, sentenced to death in Virginia in
1984;
David Pope, sentenced to 45 years in Texas in 1986;
Peter Limone, sentenced to death in Massachusetts in
1968;
Christopher Ochoa, sentenced to life in Texas in 1988;
Michael Graham and Albert Burrell, sentenced to death
in Louisiana in 1987;
Gerald Harris, sentenced to 9-18 years in New York in
1992;
Frank Lee Smith, sentenced to death in Florida in
1986.
What should we learn from these cases:' Some have argued that these
cases, in which innocent people were cleared after years and sometimes
decades in prison, show that the system is ``working.'' To them, I have
only one thing to say: Listen to :Michael Graham testify today about
his 14 years on death row. Then ask yourself whether his case
represents a triumph of our judicial system. We must do better.
The Innocence Protection Act proposes some basic, common-sense
reforms to our criminal justice system. The goal of our bill is simple,
but profoundly important: To reduce the risk of mistaken executions.
We have listened to a lot of good advice and made refinements to
the bill since the last Congress. Again and again, the experts in the
field have told us that ensuring competent counsel is the single most
important thing we can do to get at the truth and protect innocent
lives. So let me briefly describe our proposals regarding counsel.
The bill would establish a national commission, which would consist
of distinguished American legal experts who have experienced the
criminal justice system first hand-prosecutors, defense lawyers, and
judges. The commission would formulate reasonable minimum standards for
ensuring competent counsel at each stage of a capital case--something
that the Conference of Chief.Justices has been calling for many years.
The IPA uses a ``carrot and stick'' approach to ensure that counsel
standards are met. The ``carrot'' is more than S50 million in grants to
help put the new standards into effect.
As for the ``stick'': States that fail to meet the standards would
have their death sentences given less deference and subjected to more
rigorous federal court review, because we will not have the confidence
that comes from knowing that competent counsel represented the
defendant. These States would also forfeit some federal prison grant
funding over time.
I want to stress the importance of these enforcement mechanisms.
Without them, standards developed under the IPA would merely gather
dust on a shelf like the many other voluntary counsel standards
developed over the last decade.
Critics of the bill have raised two arguments against its mandate
for competent counsel in death penalty cases. I will address these
arguments briefly.
The first argument I have heard is that there is no real problem
because the states are already providing decent defense counsel in
capital cases. The facts show otherwise. The problem is real, it is
urgent, and it is well-documented.
It has been more than a decade since the U.S. Judicial Conference
and the ABA issued reports on the widespread problem of incompetent and
underfunded capital defense counsel.
It has been eight years since this committee held a hearing on
``Innocence and the Death Penalty,'' where witness alter witness
described the same problem.
In March 2000, the Justice Department released a report on indigent
defense services across the country. The report concludes that
``indigent defense in the United States today is in a chronic state of
crisis,'' resulting in ``legal representation of such low quality to
amount to no representation at all, delays, overturned convictions, and
convictions of the innocent.''
In June 2000, Professor Jim Liebman and his colleagues at the
Columbia Law School released the most comprehensive statistical study
ever undertaken of modern American capital appeals. They found that
serious errors were made in two-thirds of all capital cases. The most
common problem: Grossly incompetent defense lawyering.
Today in Alabama, there are 42 prisoners on death row who have no
lawyer to pursue appeals. Today in Texas, one out of every four death
row inmates was defended by a lawyer who has been disciplined,
suspended, or disbarred. Today in America, there are people awaiting
execution whose lawyers slept through parts of their trials. This is
unjust, shocking and unacceptable.
The other argument I have heard against our bill goes something
like this. ``Maybe some states could do a better job providing counsel
for indigent defendants. Maybe some states do skimp on funding. Maybe
this has resulted in a few innocent people being sentenced to death
here and there. But that is no reason for the Congress to get
involved.''
In fact, it is a reason for Congress to get involved. I would go
farther than that. I think that we have a duty to get involved--to try
to contain the crisis--before an innocent person is put to death.
Congress has a duty to get involved because the crisis is national
in scope. Since 1973, 96 people who were sentenced to death have been
exonerated--one for every seven or eight who have been executed. These
96 exonerations span 22 different states, which is a substantial
majority of the states that have the death penalty.
In Illinois, the Republican governor imposed a moratorium on
executions because of the state's dismal record of sending innocent
people to death row. But this is not just an ``Illinois problem'' or a
``Texas problem.'' This is a national problem.
It is a problem that calls into question the legitimacy of criminal
convictions and undermines public confidence in the integrity of the
criminal justice system as a whole. If mistakes occur when a life is at
stake, what happens when the crimes and penalties are less severe?
Witnesses, juries and judges become more skeptical about how well the
police and prosecutors are doing their jobs. That skepticism makes
their jobs harder.
We must also remember that when all innocent person is put in
prison, then the person who committed the crime stays free. In 1955.
Rolando Cruz and Alejandro Hernandez were wrongly convicted and
sentenced to death for the murder of a 10-year-old girl. DNA tests
ultimately linked another man to the little girl's death, but only
after he had committed another murder.
This is a national problem, and as a nation, we need to step up to
the plate and deal with it.
The question is not whether Congress should act, but when. Last
year, we passed the Paul Coverdell National Forensic Sciences
Improvement Act. I was proud to cosponsor this bipartisan legislation,
which aims to improve the quality and credibility of our nation's crime
labs. Many of us are still working to fully fund this new law.
When the Senate took up the Paul Coverdell bill, I proposed a Sense
of Congress amendment, which the Senate adopted. In it, we resolved to
work with the states to improve the quality of legal representation in
capital cases through the establishment of counsel standards.
Congress has already gone on record in recognizing what has to be
done. Now it is time to do it.
Chairman Leahy. Senator Hatch, would you like to speak now
or break for the vote? It is your call.
Senator Hatch. Why don't I see if I can get through what I
would like to get through and then we will go vote?
Chairman Leahy. Fine.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman. Good morning to
everybody who is here. Before I begin, I would just like to say
how much I appreciate the chairman's leadership on this
important issue. He has worked tirelessly both in the Senate
and in the media to raise public awareness on this important
topic and I want to commend him for his hard work.
The death penalty is an issue that engenders great passion
both among its supporters and among its opponents. There are
those among us who sincerely believe that the power of the
state simply should never, under any circumstances, be used to
put someone to death. There are others who believe that some
crimes are simply so heinous, so evil, that there is no
punishment short of death that will adequately express the
outrage of society at the perpetrator of such a crime.
Each of us must make our own decision on this issue. It is
a matter of personal conscience. There can be no question,
however, that the imposition of the death penalty is an awesome
power. And with that awesome power comes a solemn
responsibility, a responsibility to ensure that the death
penalty is imposed only on those criminals who are truly guilty
of these horrible crimes, and only on those criminals who have
the benefit of all the procedural protections provided by our
centuries-old system of justice.
In this vein, I believe it is important to acknowledge the
study that was recently completed by the United States
Department of Justice, which revealed no racial bias in the
administration of the death penalty by the Federal Government.
That important study, which found that a minority defendant
was actually slightly less likely to be subject to the death
penalty when facing a capital charge, has helped to alleviate
the concern that the death penalty is being implemented in a
racially biased fashion. The study reaffirmed the preliminary
conclusion reached late last year by Janet Reno's Justice
Department.
The concern that is the subject of today's hearing is
equally important: whether capital defendants are being
systematically deprived of their right to competent counsel.
Obviously, we can only have confidence in our criminal justice
system if every defendant, whether they are charged with a
capital crime or even a simple misdemeanor, has the benefit of
representation by an able attorney.
Today's hearing is not about whether defendants charged
with capital crimes are entitled to competent counsel. The
right to a competent attorney is already guaranteed by the
Sixth Amendment to the United States Constitution and by
innumerable decisions of our own U.S. Supreme Court.
A defendant who does not feel that he has received adequate
legal representation has numerous avenues of relief. The
defendant may raise his concern to the trial judge prior to or
after the trial. If convicted, the defendant may raise on
appeal a claim of ineffective assistance of counsel. If his
appeal is denied, the defendant may challenge his conviction in
Federal court on a writ of habeas corpus. If the writ is
denied, the defendant may appeal that decision, and if that
appeal is denied, the defendant may bring his case all the way
to the U.S. Supreme Court.
Thus, at an absolute minimum, a defendant has an
opportunity to persuade five different courts that he has
received ineffective assistance of counsel. Five different
courts have an obligation of ensuring that the defendant's
attorney has provided competent representation.
Is the system working? Some would say that it is not. Such
people point to several highly publicized instances in which a
capital defendant has not received the effective assistance of
counsel. We have all heard the horror stories of the attorney
who fell asleep during his client's trial and the attorney who
showed up for trial intoxicated.
Some opponents of the death penalty seek to portray these
stories as par for the course. This view ignores the hundreds,
if not thousands, of capital cases in which no flaw was found
in the quality of the legal representation. It also ignores the
hundreds of capital cases in which defendants were either
acquitted or sentenced to a penalty less than death due at
least in part to the vigorous efforts of their able attorneys.
Far more often than not, a capital defendant is represented
by multiple outstanding attorneys. Some of this Nation's finest
legal talent is attracted to the challenging, high-stakes arena
of capital case defense. As several of today's witnesses will
testify, the prosecution team in a capital case often finds
itself overwhelmed by defense teams funded by a combination of
public and private sources.
More importantly, what opponents of the death penalty would
have us ignore is that those defendants represented by sleeping
or intoxicated attorneys, or attorneys who fall below the level
of acceptable lawyering for whatever reason, routinely have
their convictions overturned either on appeal or on habeas
corpus review.
Make no mistake, it is completely unacceptable for any
criminal defendant to be represented by a sleeping or
intoxicated or incompetent attorney. But as unfortunate as
these rare cases are, they do demonstrate unequivocally that
the appellate system and our system for habeas review remain
robust and entirely capable of identifying and rectifying
instances of deficient legal representation. The examples that
the distinguished Senator from Vermont has shown are all
examples of horrible situations. There is no question about
that, and they should not have occurred.
Currently, each of the States that chooses to implement the
death penalty has different qualifications for attorneys
assigned to represent defendants in capital cases. This makes
sense, given the different number of criminal lawyers in
various jurisdictions, the different frequency that the death
penalty is sought from State to State, and the differing
systems that the States have established for assigning lawyers
to indigent defendants.
Obviously, a rural jurisdiction with few lawyers in a State
that requests the death penalty relatively infrequently will
have different requirements for capital case attorneys than
those of an urban jurisdiction with many criminal lawyers in a
State that seeks the death penalty more often.
The legislation that is the subject of this hearing would
seek to paper over the differences between the States and
create a one-size-fits-all national standard for capital case
attorneys. If I believed this was a good idea, and I do not, I
cannot see how it would address the supposed problems in
capital case representation that are trumpeted by the opponents
of the death penalty.
No legislative scheme we enact will be able to predict
prior to trial whether a particular lawyer will asleep during
trial or whether he or she will develop a problem with
alcoholism. That is why our current system is designed the way
it is, to evaluate after the trial whether a lawyer has
provided competent representation to his or her client.
Capital representation standards already exist in nearly
every State that has implemented the death penalty. There has
been a recent movement in many States to make such standards
more exacting, and I agree with that. Yet, incompetent
attorneys still slip through the cracks, and regardless of
their good intentions, capital representation standards simply
cannot ensure that every defendant will receive competent
representation. That assurance will continue to be provided, as
it is now, by the appellate process and by the system for
habeas corpus review.
My concern is that the only group likely to benefit from
the legislation we are discussing today are those individuals
intent on eliminating the death penalty altogether. Capital
representation standards could easily be written so that many
isolated jurisdictions would have no attorneys judged capable
of handling death penalty cases. A system already renowned for
its glacial pace would experience further massive delays as the
few death-penalty-eligible attorneys are rationed out among
competing jurisdictions.
Mr. Chairman, I share your concern that the innocent must
be protected. It is intolerable for even one innocent person to
reside on death row, much less that we ever allow an innocent
person to be actually executed.
We have reached substantial agreement on some important
reforms that would go a long way toward protecting the
innocent. We agree that potentially exculpatory DNA testing
must be provided to inmates on death row who did not have
access to such testing at the time of their trial. We agree
that the Nation's forensic laboratories must receive increased
funding to enable them to process evidence more expeditiously,
leading to exoneration for some defendants and in some cases to
the arrest of the actual perpetrator.
We agree that increased funds must be provided for the
treatment and prevention of drug abuse to break the cycle of
addiction which underlies many of these violent crimes. And
with respect to capital representation standards, I have no
problem with the Federal Government providing the States with
financial assistance available on a voluntary basis to ensure
competent counsel at trial.
With all due respect, Mr. Chairman, I basically cannot
support the provisions that are the subject of today's hearing,
but I want to work with you and I want to acknowledge your
outstanding leadership on this issue. We are in complete
agreement as to the goal for which we must be striving that our
criminal justice system operate fairly and efficiently and that
no innocent person be wrongfully convicted.
While I disagree with the approach that is being debated
today, I hope that we will be able to continue to work together
on this important issue. So I want to thank you, Mr. Chairman.
I ask unanimous consent to submit my full written statement
for the record. I want to thank you for your efforts in this
regard. I fully respect them. I respect your experience in
these types of cases and in prosecutions in general, and I
intend to work with you to make sure that we resolve these
problems in ways that bring American together and not keep us
apart, and hopefully in ways that will prevent any innocent
person from ever being convicted, let alone being sentenced to
death going to death under our current laws or laws in the
future.
So I will work with you and will see what we can do to
resolve these problems. I just think we can do better a job and
I am going to do everything in my power to see that we do.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hatch follows:]
Opening Statement of Hon. Orrin G. Hatch, a U.S. Senator from the State
of Utah
Before I begin, I would just like to say how much I appreciate the
Chairman's leadership on this important issue. He has worked
tirelessly, both in the Senate and in the media, to raise public
awareness on this important topic, and I want to commend him for his
hard work.
The death penalty is an issue that engenders great passion, both
among its supporters and among in its opponents. There are those among
us who sincerely believe that the power of the state simply should
never, under any circumstances, be used to put someone to death. There
are others who believe that some crimes are simply so heinous, so evil,
that there is no punishment, short of death, that will adequately
express the outrage of our society at the perpetrator of such a crime.
Each of us must make our own decision on this issue as a matter of
personal conscience.
There can be no question, however, that the imposition of the death
penalty is an awesome power. And with that awesome power comes a solemn
responsibility--a responsibility to ensure that the death penalty is
imposed only on those criminals who are truly guilty of these horrible
crimes, and only on those criminals who have had the benefit of all the
procedural protections provided by our centuries-old system of justice.
It is incumbent on us in the federal government, as well as in the
states themselves, to remain eternally vigilant to ensure that our
system of administering the death penalty is completely fair and
respectful of the rights of the accused.
In this vein, I believe it is important to acknowledge the study
that was recently completed by the United States Department of Justice,
which revealed no racial bias in the administration of the death
penalty by the federal government. That important study, which found
that a minority defendant was actually slightly less likely to be
subject to the death penalty when facing a capital charge, has helped
to alleviate the concern that death penalty is being implemented in a
racially biased fashion. The study reaffirmed the preliminary
conclusion reached late last year by Janet Reno's Justice Department.
The concern that is the subject of today's hearing is equally
important--whether capital defendants are being systematically deprived
of their right to competent counsel.
Obviously, we can only have confidence in our criminal justice
system if every defendant, whether they are charged with a capital
crime, or even a simple misdemeanor, has the benefit of representation
by an able attorney.
Today's hearing is not about whether defendants charged with
capital crimes are entitled to competent counsel. The right to a
competent attorney is already guaranteed by the Sixth Amendment of the
United States Constitution, and by innumerable decisions of the United
States Supreme Court.
A defendant who does not feel that he has received adequate legal
representation has numerous avenues of relief. The defendant may raise
his concern to the trial judge prior to, or after, the trial. If
convicted, the defendant may raise on appeal a claim of ineffective
assistance of counsel. If his appeal is denied, the defendant may
challenge his conviction in federal court on a writ of habeas corpus.
If the writ is denied, the defendant may appeal that decision, and if
that appeal is denied, the defendant may bring his case all the way to
the United States Supreme Court.
Thus, at an absolute minimum, a defendant has an opportunity to
persuade five different courts that he has received ineffective
assistance of counsel. Five different courts have an obligation of
ensuring that the defendant's attorney has provided competent
representation.
Is the system working? Some would say that it is not. Such people
point to several highly publicized instances in which a capital
defendant has not received the effective assistance of counsel. We have
all heard the horror stories of the attorney who fell asleep during his
client's trial, and the attorney who showed up for trial intoxicated.
Some opponents of the death penalty seek to portray these stories
as ``par for the course.'' This view ignores the hundreds of capital
cases in which no flaw was found in the quality of the legal
representation. It also ignores the hundreds of capital cases in which
defendants were either acquitted, or sentenced to a penalty less than
death, due, at least in part, to the vigorous efforts of their able
attorneys.
Far more often than not, a capital defendant is represented by
multiple outstanding lawyers. Some of this nation's finest legal talent
is attracted to the challenging, high stakes arena of capital case
defense. As several of today's witnesses will testify, the prosecution
team in a capital case often finds itself overwhelmed by defense teams
funded by a combination of public and private sources.
More importantly, what opponents of the death penalty would have us
ignore is that those defendants represented by sleeping or intoxicated
attorneys--or attorneys who fall below the level of acceptable
lawyering for whatever reason--routinely have their convictions
overturned, either on appeal, or on habeas corpus review. Make no
mistake--it is completely unacceptable for any criminal defendant to be
represented by a sleeping or intoxicated attorney. But as unfortunate
as these rare cases are, they do demonstrate unequivocally that the
appellate system, and our system for habeas review, remain robust and
entirely capable of identifying and rectifying instances of deficient
legal representation.
Currently, each of the states that chooses to implement the death
penalty has different qualifications for attorneys assigned to
represent defendants in capital cases. This makes sense, given the
differing number of criminal lawyers in various jurisdictions, the
differing frequency that the death penalty is sought from state to
state, and the differing systems that the states have established for
assigning lawyers to indigent defendants.
Obviously, a rural jurisdiction, with few lawyers, in a state that
requests the death penalty relatively infrequently, will have different
requirements for capital case attorneys than those of an urban
jurisdiction, with many criminal lawyers, in a state that seeks the
death penalty more often.
Whatever method a state uses to appoint capital case attorneys, the
standard for their performance is exactly the same from state to state.
An attorney must provide effective assistance of counsel as defined by
the United States Supreme Court.
The legislation that is the subject of this hearing would seek to
paper over the differences between the states and to create a one-size-
fits-all national standard for capital case attorneys. Even if I
believed this was a good idea, and I do not, I cannot see how it would
address the supposed problems in capital case representation that are
trumpeted by the opponents of the death penalty.
No legislative scheme we enact will be able to predict, prior to
trial, whether a particular lawyer will fall asleep during trial, or
whether he will develop a problem with alcoholism. That is why our
current system is designed the way that it is--to evaluate after the
trial whether a lawyer has provided competent representation to his or
her client.
Capital representation standards already exist in nearly every
state that has implemented the death penalty. There has been a recent
movement in many states to make such standards more exacting. Yet
incompetent attorneys still slip through the cracks. Regardless of
their good intentions, capital representation standards simply cannot
ensure that every defendant will receive competent representation. That
assurance will continue to be provided, as it is now, by the appellate
process, and by the system for habeas corpus review.
My concern is that the only group likely to benefit from the
legislation we are discussing today are those individuals intent on
eliminating the death penalty altogether. Capital representation
standards could easily be written so that many isolated jurisdictions
would have no attorneys judged capable of handling death penalty cases.
A system already renowned for its glacial pace would experience
further massive delays as the few death-penalty-eligible attorneys are
rationed out among competing jurisdictions.
As I said at the beginning of this statement, the death penalty is
a subject that engenders great passion. Although a substantial majority
of the American public remains solidly in favor of the death penalty,
there is a vocal minority that is passionately opposed to the
imposition of the death penalty under any circumstances.
I fear that the adoption of national capital representation
standards, although undoubtedly well-intentioned, would provide a
mechanism for those who would thwart the will of the majority of
American citizens, and achieve what the minority failed to achieve at
the ballot box--the complete evisceration of the death penalty.
While it is true that a small proportion of capital defendants do
not currently receive effective assistance of counsel, it is also true
that in these rare cases, the convictions do not withstand appellate
and collateral review. If national capital representation standards are
established, the situation will not be changed--there will still be a
small proportion of capital defendants who do not receive effective
assistance of counsel. What will be changed, is that opponents of the
death penalty will be handed yet another procedural tool with which to
manufacture delay.
Mr. Chairman, I share your concern that the innocent must be
protected. It is intolerable for even one innocent person to reside on
death row, much less, God forbid, that an innocent person ever be
executed.
We have reached substantial agreement on some important reforms
that would go a long way towards protecting the innocent. We agree that
potentially exculpatory DNA testing must be provided to inmates on
death row who did not have access to such testing at the time of their
trial. We agree that the nation's forensic laboratories must receive
increased funding to enable them to process evidence more
expeditiously, leading to exoneration for some defendants and, in some
cases, to the arrest of the actual perpetrator. We agree that increased
funds must be provided for the treatment and prevention of drug abuse,
to break the cycle of addiction which underlies many of these violent
crimes. And with respect to capital representation standards, I have no
problem with the federal government providing the states with financial
assistance, available on a voluntary basis, to ensure competent counsel
at trial.
With all due respect, Mr. Chairman, I cannot support the provisions
that are the subject of today's hearing. The provisions are harmful to
the efficient administration of justice; they are harmful to the rights
of the states to order their own affairs; and above all, they are
harmful to the victims, and their families, who are entitled to a fair
and speedy justice being meted out to the perpetrators of these heinous
crimes.
Mr. Chairman, I want again to acknowledge your outstanding
leadership on this issue. We are in complete agreement as to the goal
for which we must be striving: that our criminal justice system operate
fairly and efficiently, and that no innocent person be wrongfully
convicted. I hope that we will be able to continue to work together on
this important issue.
Chairman Leahy. Well, I thank the Senator from Utah. He and
I have worked closely together for over 20 years on many
different issues and I am sure we will continue to work
together on this one. I also thank him for bringing members of
his family here today.
We are going to recess for about 10 minutes while Senator
Hatch and I go to vote, and then we will be back and resume the
hearing.
[The committee stood in recess from 10:49 a.m. to 11:15
a.m.]
Chairman Leahy. Senator Hatch is on his way back. I just
checked, and we will start. I see Senator Sessions, of Alabama,
is here, and we will begin with the Attorney General of
Alabama, William Pryor.
We will give 5 minutes to each of the witnesses. They will
be able to put their full statements in the record. When
Senators get the record back, they understand that you will be
able to expand it. You will all have a chance to see your
transcript. If you find that there is something you want to add
or detract from your statement, feel free.
Attorney General Pryor?
STATEMENT OF HON. WILLIAM H. PRYOR, JR., ATTORNEY GENERAL,
STATE OF ALABAMA, MONTGOMERY, ALABAMA
Mr. Pryor. Thank you, Mr. Chairman and members of the
committee, Senator Sessions. Thank you for inviting me to
comment on the problems posed by S. 486, which has been
referred to as the Innocence Protection Act of 2001.
As the Attorney General of Alabama, my office defends the
death sentences in capital murder cases and all direct appeals,
State post-conviction proceedings, and Federal habeas corpus
proceedings. My office also occasionally prosecutes capital
murder charges at the trial level.
In my 4 1/2 years as Attorney General, 10 capital murders
have been executed, after pursuing an average of 16 years and 5
months of appeals and other post-conviction proceedings. Our
process is much longer and involves more levels of review than
the relatively speedy execution of Timothy McVeigh.
My concerns about the legislation before you are that it
would lengthen and complicate an already byzantine system,
create perverse incentives for the criminal justice systems of
each State, and harm the real innocents in this process. The
real innocents, of course, are the families of victims of
capital murderers and the future victims of those murderers who
either escape justice or are not deterred by a system that
fails to punish swiftly and adequately the most heinous crimes
in our society.
If your concern is to protect the innocent from being
executed, then you need not worry. It is not occurring and it
is highly unlikely to occur. As Professor Paul Cassell of the
University of Utah School of Law has stated, ``The death
penalty system in America is the most accurate criminal
sanction in the world.''
Consider first how this legislation would cause
unreasonable delays and complications. Section 201 would shift
the appointment of defense lawyers in capital cases from the
independent judges of the State to a so-called independent
appointing authority. The evaluation of fitness to practice as
defense counsel in capital cases would shift from the State bar
and courts to the independent appointing authority.
I am concerned that this authority might be captured and
staffed by attorneys who favor the abolition of capital
punishment and therefore are not independent. It is
unreasonable and contrary to basic constitutional principles of
federalism to expect that an independent authority would be
more objective, balanced and diligent than the judges of the
State courts who now appoint counsel in capital cases. Judges
are independent. For that matter, so are prosecutors whose
ethical duty, in contrast with the defense attorneys, is to
pursue truth and justice.
A group of anti-death penalty lawyers would have many
incentives to set the performance standards and qualifications
of attorneys on their roster unreasonably high so that few
lawyers would be placed on the roster. This perverse incentive
would then mean that indigents who face capital murder charges
would not have competent counsel for trial. The system created
by this legislation could become a self-fulfilling prophecy
where capital murder trials come to an abrupt end because of an
alleged lack of competent counsel.
Moreover, this legislation could empower attorneys who
favor the abolition of capital punishment to inflict real harm
on the corrections system of each State. Under the guise of
serving as the independent appointing authority, these
attorneys could ensure that each State that administers capital
punishment fails to meet the standards set by the attorneys,
and as a result the State loses Federal funds for prisons.
States that desire to forgo the burdens of this legislation
would also have to forgo the benefits of Federal funds for the
prisons of that State, which many States would do, to the
detriment of inmates, the vast majority of whom are not on
death row, and victims of criminals who could be released from
prison. In my State, the amount of Federal funds at stake this
year is over $1.3 million.
Finally, this legislation would create incentives for
States to abolish post-conviction proceedings for capital
murderers. Currently, under the Anti-Terrorism and Effective
Death Penalty Act of 1996, States with post-conviction
proceedings receive deference for the determinations made by
their courts in respect of fundamental principles of
federalism.
By removing the benefits of AEDPA, this legislation would
offer the States no incentive to maintain post-conviction
proceedings, which are not required by the U.S. Constitution.
With the elimination of these proceedings after a trial and
direct appeal, an inmate on death row would have access only to
Federal courts and habeas corpus proceedings as a process for
review of his death sentence. This disincentive for access to
State post-conviction proceedings runs directly contrary to the
entire purpose and rationale for AEDPA.
In 1996, Congress wisely concluded that the Federal process
for review of death sentences should accord deference to State
courts and be streamlined to make capital punishment a more
effective deterrent of heinous crimes and a better system of
justice for the innocent families of victims of capital murder.
I have also made available to you today for filing with my
statement my written remarks that I gave last year to the Board
of Bar Commissioners of the Alabama State Bar to defend our
system of capital punishment against charges of unfairness and
the alleged risk of executing an innocent person.
I want to thank you again for this opportunity on this most
important issue. I look forward to answering any questions you
have about the matter.
[The prepared statement and an attachment of Mr. Pryor
follow:]
Statement of Hon. Bill Pryor, Attorney General of the State of Alabama
Mr. Chairman and Members of the Committee:
Thank you for inviting me to comment on the problems posed by S.
486, which has been referred to as the Innocence Protection Act of
2001. As the Attorney General of Alabama, my office defends the death
sentences in capital murder cases in all direct appeals, state post-
conviction proceedings, and federal habeas corpus proceedings. My
office also occasionally prosecutes capital murder charges at the trial
level. In my four and a half years as attorney general, ten capital
murderers have been executed after pursuing an average of 16 years and
5 months of appeals and other post-conviction proceedings. Our process
is much longer and involves more levels of review than the relatively
speedy execution of Timothy McVeigh.
My concerns about the legislation before you are that it would
lengthen and complicate an already Byzantine system, create perverse
incentives for the criminal justice systems of each state, and harm the
real innocents in this process. The real innocents, of course, are the
families of victims of capital murderers and the future victims of
those murderers who either escape justice or are not deterred by a
system that fails to punish swiftly and adequately the most heinous
crimes in our society. If your concern is to protect the innocent from
being executed, then you need not worry; it is not occurring and is
highly unlikely to occur. As Professor Paul Cassell of the University
of Utah School of Law has stated, ``The death penalty system in America
is the most accurate criminal sanction in the world.'' Marcia Coyle,
66% Error Rate Found In Death Case Study: Author Calls Serious Problems
``Epidemic,'' Nat' L.J., June 19, 2000, at A1 (col.2).
Consider first how this legislation would cause unreasonable delays
and complications. Section 201 would shift the appointment of defense
lawyers in capital cases from the independent judges of the state to a
so-called independent appointing authority. The evaluation of fitness
to practice as defense counsel in capital cases would shift from the
State Bar and courts to the independent appointing authority. I am
concerned that this authority might be captured and staffed by
attorneys who favor the abolition of capital punishment and, therefore,
are not independent.
It is unreasonable and contrary to basic constitutional principles
of federalism to expect that an independent authority would be more
objective, balanced, and diligent than the judges of the state courts
who now appoint counsel in capital cases. Judges are independent. For
that matter, so are prosecutors whose ethical duty, in contrast with
defense attorneys, is to pursue the truth and justice. A group of anti-
death penalty lawyers would have many incentives to set the performance
standards and qualifications of attorneys on their roster unreasonably
high so that few lawyers would be placed on their roster. This perverse
incentive would then mean that indigents who face capital murder
charges would not have competent counsel for trial. The system created
by this legislation could become a self-fulfilling prophecy where
capital murder trials come to an abrupt end because of an alleged lack
of competent counsel.
Moreover, this legislation could empower attorneys who favor the
abolition of capital punishment to inflict real harm on the corrections
system of each state. Under the guise of serving as the independent
appointing authority, these attorneys could ensure that each state that
administers capital punishment fails to meet the standards set by the
attorneys and, as a result, the state loses federal funds for its
prisons. States that desire to forego the burdens of this legislation
would also have to forego the benefits of federal funds for the prisons
of that state, which many states would do to the detriment of inmates,
the vast majority of whom are not on death row, and victims of
criminals who could be released from prison. In my state, the amount of
federal funds at stake this year is $1,389,635.
Finally, this legislation would create incentives for states to
abolish post-conviction proceedings for capital murderers. Currently,
under the Anti-Terrorism and Effective Death Penalty Act of 1996,
states with post-conviction proceedings receive deference for the
determinations made by their courts in respect of fundamental
principles of federalism. By removing the benefits of AEDPA, this
legislation would offer the states no incentive to maintain post-
conviction proceedings, which are not required by the U.S.
Constitution. With the elimination of these proceedings, after a trial
and direct appeal, an inmate on death row would have access only to
federal courts in habeas corpus proceedings as a process for review of
his death sentence. This disincentive for access to state post-
conviction proceedings runs directly contrary to the entire purpose and
rationale for AEDPA. In 1996, Congress wisely concluded that the
federal process for review of death sentences should accord deference
to state courts and be streamlined to make capital punishment a more
effective deterrent of heinous crimes and a better system of justice
for the innocent families of victims of capital murder.
The entire rationale for the competency requirements in this
legislation is flawed. After many years of review, capital murderers
are executed because they are guilty, not because their counsel is
incompetent. Take, for example, in my state, the case of Phillip Wayne
Tomlin, who last year was tried by prosecutors in my office, convicted,
and sentenced to death for the fourth time for the murders of 19 year
old Ricky Brune and 15 year old Cheryl Moore on January 1, 1977. None
of the reversals of his first three convictions was related to
competency of defense counsel. He received a death sentence for the
fourth time even though he was represented by Stephen Bright, who is
testifying today because of his expertise as a defense lawyer and
opponent of capital punishment.
I will also make available to you written remarks that I gave last
year to the Board of Bar Commissioners of the Alabama State Bar to
defend our system of capital punishment against charges of unfairness
and the alleged risk of executing an innocent person.
Thank you again for this opportunity and I look forward to
answering any questions you may have about this matter.
Additional Statement of Hon. Bill Pryor, Attorney General of the State
of Alabama
President Rumore, members of the Executive Committee, and
Commissioners, I appreciate this opportunity to speak to you today
regarding a proposed death penalty moratorium in this State. The death
penalty has the support of a majority of Americans and a large majority
of Alabamians. Depending on which poll you view, the death penalty in
this state is supported by anywhere from 65% to 80% of our State's
citizens.
The public support for the death penalty is for good reason. The
statistics kept by the FBI show that there is a strong correlation
between murder rates and capital punishment. When these statistics are
graphed, a trend is reflected showing that when executions go up,
murder rates go down and vice versa. A graph reflecting this trend is
included in a handout my office has prepared for you which will be
available after my remarks. Even if you don't believe statistics,
because--as the saying goes--figures lie and liars figure, it is still
clear that the death penalty has overwhelming public support for good
reason. As Professor McAdams of Marquette University put it:
``If we execute murderers and there is in fact no deterrent effect,
we have killed a bunch of murderers. If we fail to execute murderers,
and doing so would, in fact, have deterred other murders, we have
allowed the killing of a bunch of innocent victims. I would much rather
risk the former. This, to me, is not a tough call.''
The truth of this statement is irrefutable and opponents of the
death penalty know it. That is why the attack on the death penalty no
longer focuses on its deterrent effect, but instead focuses on the
alleged risk that we will execute an innocent person or that we have
executed an innocent person. Make no mistake about it, the death
penalty moratorium movement is headed by an activist minority with
little concern for what is really going on in our criminal justice
system. You need look no further than the origin of this moratorium
movement to see that. This movement started in the American Bar
Association, from which I resigned eleven years ago. The moratorium
issue was placed before the ABA's House of Delegates not by the
Criminal Justice Section, but by the ABA's Section on Individual Rights
and Responsibilities.
The Criminal Justice Section of the ABA is defense-oriented. A
study on the ABA's Criminal Justice views, written by a board composed
of former U.S. Attorney General Edwin Meese, former U.S. Attorney
General Richard Thornburgh, and the Attorneys General of Idaho,
California, and Colorado examined how defense-oriented the ABA'
Criminal Justice Section is. They found that between 1994 and 1996, 11
of the 15 positions taken before Congress through the CJS's lobbying
were defense-oriented. The remaining 4 issues were neutral, such as gun
control where prosecutors and defense attorneys can agree without
regard to their positions in our legal system. The defense-oriented
positions included favoring the de novo review of state court decisions
in habeas corpus, and abolishing, through legislation, exceptions to
the exclusionary rule established by U.S. Supreme Court precedent. The
study also found that of 20 articles between the spring to 1995 and
winter of 1997 in the CJS's publication, 11 articles took defense-
oriented positions, 3 too a prosecutor's side, and the remaining
articles were neutral. The various amicus curiae briefs filed by the
CJS with the U.S. Supreme Court on the behalf of the ABA also Section
of the ABA.
The revealing factor, however, is that despite its defense-
orientation, the Criminal Justice Section did not report the moratorium
issue to the House of Delegates. Instead, the even more liberal Section
on Individual Rights and Responsibilities did. One need only look at
the ABA's proposal to see how liberal its moratorium proposal is.
The proposal is to adopt a moratorium until certain standards can
be imposed to ensure fairness in the system. Insuring fairness in the
system would involve the following:
1) the ABA would not allow experienced capital appellate
attorneys to represent capital defendants at trial, even as
second chair. Attorneys experienced in trying capital cases at
the federal habeas corpus level would also be excluded from
representing defendants in state trials, even as second chair.
2) Even more revealing is that, under the ABA's plan, former
prosecutors who have tried capital cases for years would be
barred from representing capital de3fendants in state trials,
even as second chair, because the lack the necessary
``defense'' experience. Again, this is one of the many areas
where the ABA is consistently anti-prosecution in its views.
3) Under the ABA moratorium proposal, the procedural bars
enacted by Congress and our legislature would not be recognized
in habeas proceedings. Never mind the will of the people as
expressed through their elected representatives. The public
supported these actions, such as the Anti-terrorism and
Effective Death Penalty Act, which made federal habeas corpus
proceedings more efficient and reflected the constitutional
principles that our State courts are able to address
constitutional claims as well as, if not better than, federal
courts, something the Section on Individual Rights and
Responsibilities deliberately ignores.
4) the ABA moratorium proposal rejects the presumption of
correctness of state court findings of fact under the AEDPA.
Before I return to why the proposed moratorium is not needed in
Alabama, allow me to offer you one lesson the ABA is learning the hard
way. The ABA has always billed itself as the representative of the
nation's lawyers. In the past 20 years, however, the ABA has started
taking more and more politicized views, and as I mentioned earlier, has
started supporting more and more criminal defense-oriented and liberal
positions. Today, there are an estimated 900,000 to 1,000,000 lawyers
in the United States. Of that number, the ABA says it represents
approximately 400,000, or less than 50%. Of that number, many are
first-year lawyers taking advantage of the ABA's free year of
membership.
In 1991-1992 the ABA;s retention rate was 92%. By 1995-1996, the
retention rate had fallen to 83.9%. The ABA's decision to take on
political issues that have nothing to do with advancing the legal
profession has resulted in its decline. This year, there are reports
that the ABA lost money on its annual conference. The ABA is losing
members because it is turning into a political action committee.
Although you might think to yourself that membership in this
organization is mandatory, so the Alabama State Bar cannot suffer the
same fate, that is not true. The decision that this body makes COULD
deprive this organization of its status as an integrated bar, but I
will explain that later.
Recently, a report from Columbia University written by a liberal
professor named James Liebman has been touted as proof that our system
is broken and that we run the great risk of an innocent person being
executed. Overlooking, for the moment, that the study's conclusion is a
non sequitur, there are several problems with this study. First this
study is skewed because it covers the time period in which Beck v.
Alabama was decided by the United States Supreme Court, resulting in 48
reversals in Alabama, without covering the past five, practically
flawless, years. The Beck decision, for those of you unfamiliar with
Alabama's capital system, invalidated Alabama's entire capital statute
in 1980. The study covers the Beck period yet it stops in 1995,
although Alabama's error rate in the past 5 years is less than 5%.
These are concerns about the validity and motivation of the study, but
they are not even the most glaring irregularities.
I am sure all of you are familiar with the United States Supreme
Court's Daubert analysis, used for determining the admissibility of
scientific evidence at a trial. One of the Daubert factors is whether
the expert's methodology has been subjected to peer-review. If you
apply that test to the Liebman study, you will find that the study does
not define ``error rate.'' If you call Liebman, he cannot tell you what
he used as the basis for qualifying something as ``error.'' He cannot
supply you with a list of the names of all of the cases he considered.
He cannot prove to you that he examined every case in Alabama where the
death penalty was imposed. Liebman cannot give you a baseline of non-
capital cases with which to compare his error rate.
Finally, Liebman cannot defend his conclusion that the high error
rate he found--even if he could prove it was accurate--means that there
is a risk of an innocent person being executed, as opposed to being
evidence that the Alabama judiciary is doing a fine job of giving these
cases serious review.
The Liebman study is more evidence of the ideological nature of
this issue. if there is a high error rate--presumably meaning a high
number of reversals or other corrective actions by appellate courts at
the State and federal level--the anti-death penalty movement argues
that there is a high level of risk that an innocent person will be
executed. If there is a low error rate, the argument then becomes that
the reviewing courts are simply ``rubber stamping'' these cases and
they are not receiving meaningful review. You cannot have it both ways,
however.
In the spirit of ``put up or shut up,'' I am going to put up. I
have brought with me today handouts for each of you. In these handouts
you will find the procedural histories of the 281 cases in which the
death penalty has been imposed since 1975. To the best of my office's
knowledge, this represents all of the cases. You can review these cases
for yourself and decide if the 80% error rate cited by Liebman is
illustrative of the fact that his study is propaganda or if you think
he was right. In any case, the State of Alabama is doing what the
author of this study cannot or will not do; we are giving you the
information from which our opinion has been reached.
Our list reveals 281 individuals sentenced to death since 1975. Our
first important statistic is that our error rate, the number of
innocent people executed by the State of Alabama is 0%. Because there
are no cases of actual innocence, we must turn to the more practical
outcome-based analysis. Of the 281cases, 23 people have been executed.
Another 180 of those cases represent active cases that my office is
currently involved in. Because they are active, meaning still moving
towards an execution date, it cannot be said that there is error in
those cases. Of those 180 cases, we are awaiting execution dates from
the Alabama Supreme Court on 2 of the cases. Another 10 individuals
have died while on death row. One person's sentence was commuted by the
Governor FOB James. Four people settled their cases for sentences less
than death.
Of all of these cases, no court found error resulting in the
reversal of the conviction or sentence. Thus, there can be no legal
error cited as to these cases. That leaves, of the original 281 cases,
63 cases. Even if the remaining 63 cases were legally flawed, the
resulting error rate would still only be 22.4%.
But of the remaining 63 cases, we know that 47 of them received a
sentence of less than death. Most of these sentences were life without
parole or life, or in the case of Dudley Wayne Kyzer, a 10,000-year
sentence. Thus, the error was not with the guilt or innocence of the
individual, but involved sentencing. Defining these cases as error
would be understandable. The risk of executing an innocent person,
however, is not increased by having a death sentence later decreased to
10,000 years, or life without parole, if the inmate is guilty. Thus,
these cases should be subtracted from the remaining 63 cases to which I
referred earlier. This leaves 16 cases. Our ``error rate'' when we are
left with 16 problematic cases after we started with 281 cases is 6%,
if you round the number up. Of those 16 cases, 8 are awaiting new
trails. If any of these 8 cases are retired and a new death sentence is
imposed, there is arguable no error. If history is any guide, and I
will get to this in a moment, at least 4 of these cases will result in
a new death sentence. Using history as a guide, at least 7 of these 8
cases will be retried and will result in death or life in prison
without parole.
Thus, the number of cases where it can be said there is error can
probably be decreased to about 10 of the original 281 cases. That
results in an error rate of 4%, if you round the numbers up.
There are eight cases that are unaccounted for. We do not know what
happened after they were reversed. Of these 8 cases, 5 were Beck
reversals from the 1980-1981 time period, which is why they are
difficult to track. Another case is twenty-one years old and involved a
fatal variance between the indictment and the jury's verdict, which is
why is was difficult to find any records documenting the ultimate
disposition of this case.
Even if you do not look at individual cases and outcomes, and
instead rely on reversals by higher courts, the Liebman study is
inaccurate. First, it would not be wise to base a study on the number
of times an appellate court reverses a particular defendant's case.
There are several persons who have been executed whose cases had been
reversed and then were re-sentenced to death. The reversal had nothing
to do with the person's guilt or innocence. The risk of executing an
innocent person, if you recall, is the reason the Liebman study's error
rate was considered so important. Phillip Wayne Tomlin, for example,
has been tried and convicted of capital murder and sentenced to death 4
times. The total number or reversals, then, is not persuasive evidence
of a problem in our system. If we executed Phillip Wayne Tomlin
tomorrow after 4 trials, four guilty verdicts, and four death
sentences, the risk of executing an innocent person would be minimal,
though Liebman's study asks you to assume otherwise. To be fair, I will
also discuss what my office has discovered in regard to the overall
number of reversals.
Our findings are that there have been 136 reversals of cases since
1975. Of that number, 24 of those sentences were later reinstated by a
higher appellate court, reducing the total number of actual reversals
to 112. Of the 112 reversals, 46 of the cases were re-sentenced to
death. Another 47 were sentenced to a punishment less severe than
death, ordinarily life without parole. Another 8 cases are awaiting new
trials, so they cannot be included in determining the percentage of
cases that are later re-sentenced to death. Another 47 were sentenced
to a punishment less severe than death, ordinarily life without parole.
Another 8 cases are awaiting new trials, so they cannot be included in
determining the percentage of cases that are later re-sentenced to
death or less than death. That leaves a total of 104 reversals. Of 104
reversals, 89% of the reversals later resulted in the new death
sentences or sentences of less than death.
Interestingly, of the 136 overall reversals, 48 were the result of
the United States Supreme Court's Beck decision. That is 35.3%.That is
why the starting date of 1975 and cut-off date of 1995 skewed Liebman's
study and reflects the bias behind the study. Another 9 of those
reversals were due to Batson violations, which have absolutely nothing
to do with the defendant's guilt or innocence. An additional 36
reversals were as to the defendant's sentence only. Again, this shows
that the reversals had noting to do with the defendant's guilt or
innocence. These 45 reversals make up 33% of the total number of
reversals.
If anyone still believes that the overall number of reversals is
relevant, then there is a final statistic to consider. Of the 281 cases
mentioned, we have compiled record of 1145 instances of review by
courts. This compilation does not include ordered remands where the
court does not undertake a review of the case. This compilation also
does not count the pending reviews in courts at both the federal and
state levels. This compilation includes only reviews where the courts
were presented with an opportunity to reverse the sentence of
conviction of an inmate. Finding error in 136 of these 1145 reviews
would mean out error rate is approximately 11.9% If you discount the
reversals that were later reversed by a higher court, using the 112
actual reversals, our error rate in those 1145 instances of judicial
review falls to 9.8%.
The bottom line is this: If you look at the persons who have been
sentenced to death and what has happened in each of their cases, you
will see that the system in Alabama is not flawed but is working. In
fact, it is getting better.
1. Attorneys at the trial level are paid $60/hour in court and $40/
hour out-of-court on these cases, plus overhead. With overhead, the
hourly rate easily exceeds $100 per hour. There is not cap on these
fees.
2. The law in Alabama guarantees you an attorney with five years
criminal trial experience if you are appointed an attorney.
3. Death row inmates are routinely represented in post-conviction
proceedings by the top law firms in the nation, including Wall Street
law firms.
Jimmy Davis, for example, is represented by the law of Chadbourne
and Parke, LLP. This is a law firm with offices in New York, Los
Angeles, Washington, DC., Hong Kong, Moscow, and London. This law firm
has over 2000 attorneys. In addition to Chadbourne and Parke, Davis is
also represented by Foley and Lardner, a Law firm with offices in
Brussels, Chicago, Los Angeles, Washington, D.C., San Francisco, San
Diego, Sacramento, Tampa, and West Palm Beach. Foloey and larder
employs over 750 attorneys. Another inmate, Joseph Hooks is represented
by Palmer & Dodge. This law firm in Chicago employs more then 190
lawyers. Another inmate, Christopher Less Price, is represented by
Ropes & Gray. This law firm over 325 attorneys has offices in Boston,
Providence and Washington, D.C.
These are not isolated cases. Huge corporate, high-powered law
firms get involved in a majority of these cases. You, the State Bar,
review and retain the pro hac vice requests on these case. Look them up
and see what is happening in these cases. You can easily see that these
inmates are well represented at all levels of review. Most of us in
this room could not afford to pay these to do work for use, yet our
death row inmates get representation from them. The system is working.
4. One Large, out-of-state law firm recently spent $100,000 solely
to investigate an inmate's claims for a Rule 32 proceeding.
5. A majority of the death row inmates in Alabama are represented
by Bryan Stevenson's organization, the Equal Justice Initiative.
Stevenson was recently named one of the top 100 lawyers in the Nation
by the National Law Journal. Additionally Stevenson has been named the
public interest Lawyer of the Year, has been awarder the ABA Wisdom
Award for Public Service, the Thurgood Marshall Medal of Justice, and
the ACLU Medal of Liberty.Those who are not represented by Stevenson or
his organization are represented by lawyers, found by Mr. Stevenson,
who rely heavily on his expertise. I understand that you have heard
already a presentation by Mr. Stevenson, Who is an able and articulate
supporter of abolishing capital punishment.
6. Many Alabama death row inmates are also represented, at some
point, by Stephen Bright and his organization, the Southern Center for
Human Rights. In Williams v. Head, 185 F.3d 1223 (11th Cir.
1999), the Eleventh Circuit had this to say about Stephen Bright,
singling him out in the opinion of the court:
Mr. Bright is a nationally known expert who has been litigating
against the death penalty for twenty years. He has taught on
that and related subjects at Harvard, Yale, Georgetown, Emory
and other universities, has written numerous law review
articles on the subject, and has testified extensively about it
before committees of Congress and many state legislatures. For
his efforts and dedication, Mr. Bright was awarded the Roger
Baldwin Medal of Liberty by the American Civil Liberties Union
in 1991, the Kutak-Dodds Prize by the National Legal Aid &
Defenders Association in 1992, and last year he received both
the American Bar Association's Thurgood Marshall award and the
Louis Brandeis Medal given by the Brandeis Scholars at Brandeis
School of Law at the University of Louisville.
7. Death row inmates are given at least 10 opportunities to present
their claims to Alabama and federal courts after a death sentence is
imposed.
8. Governor Siegelman has offered to grant DNA testing for any
inmate for whom the test could be determinative of guilt or innocence.
May office will not deny DNA test to any inmate who presents a valid
claim of innocence, if they present the claim in a timely manner, not
on the eve of execution.
9. In case reviewed by the Alabama Court of Criminal Appeals and
the Alabama Supreme Court, oral argument is granted usually as a matter
of right. I have an attorney in my division who has been in practice
for 1 year who has argued in the Alabama Supreme Court 3 times and the
Court of Criminal Appeals 11 times. How many of you know lawyers who
have had oral arguments granted in non-capital cases that many times in
their careers, let alone in one year of practice?
10. Although the trend in Alabama is for Rule 32 petitions in non-
capital cases to be dismissed or denied without an evidentiary hearing,
capital cases often involve evidentiary hearings that last from 2 days
up to a week in length. That is longer than many non-capital trials in
this State.
11. Although non-capital cases are bound by the ``contemporaneous
objection'' rule requiring lawyers to preserve error for appellate
review, in Alabama we allow courts to notice any plain error at any
stage of the direct appeal proceedings. BY law, we require the Court of
Criminal Appeals to search the record for error, even if the error was
not preserved by the defendant.
12. Earlier this year, the Supreme Court of Alabama unanimously
adopted a change in Rule 39 of the Rules and Appellate Procedure that I
and Governor Siegelman proposed to streamline appeals of death
sentences, which have received more scrutiny in Alabama than in any
other state. The Supreme Court obviously believe the system is working.
There is no crisis or problem in our capital system. We do not need
a moratorium to fix the system, because the system is not broken. This
brings me to my final point.
Keeping in the tradition of saving the best for last, here is the
best reason why you should not get involved with the moratorium issue:
Keller v. State Bar of California, 496 U.S. 1 (1990).
Should you choose to move this organization away from its purpose
of regulating the legal profession and into the realm of taking
political and ideological positions on issues, you invite a legal
challenge to the status of our Alabama State Bar as an integrated bar.
The decision to take an ideological position will invite a federal
lawsuit challenging the use of compelled dues to finance this
organization, which would be departing from its purpose.
Even to invite an unsuccessful Keller challenge would cause
hardship to this group. According to Keller, a challenge would require
placing the challenging members' dues into an escrow account while an
accounting is given. If successful, the challenge would result in the
loss of those dues.
Consider the question left unresolved by Keller: Can an integrated
bar be totally disbanded based on freedom of association grounds? In my
office there are 10 attorneys who prosecute the 180 cases currently
moving towards execution of their sentences. In addition, there are
dozens of district attorneys and their hundreds of assistants who
regularly integrated bar be totally disbanded based on freedom of
association grounds? In my office there are 10 attorneys who persecute
the 180 cases currently moving towards execution of their sentences. In
addition, there are dozens of district attorneys and their hundreds of
assistants who regularly try these capital murder cases. If the Bar
adopts the proposed resultion in favor of a moratorium, you will
declare that you believe the system is flawed and that we run a grave
risk of executing an innocent person. That declaration would imply that
you believe that the district attorneys, their assistants, my assistant
attorneys general and I would violate our duty to see justice done if
we sought to allowed an execution to proceed. You cannot expect the
prosecutors of Alabama to be forced to join an organization that
impugns our integrity. You will invite a challenge by those who wish
not longer to be forced to associate and contribute financially to a
group that insults our professional work. Such a challenge might very
well succeed.
For several reasons, this body should drop this moratorium
proposal. First, This body cannot and should not go against the will of
a majority of the citizens of this state on this political issue. I
again mention public support for capital punishment for this reason:
the public holds capital punishment in higher esteem than the members
of our profession. I believe the low regard of the public of our
profession is too often deserved. If you want death row inmates to
obtain better representation, then encourage more members of the Bar to
perform that public service. If you desire to enhance the image of our
profession, then you should reject the proposed resolution before you.
Second, regardless of what ideologies say in their studies while
hiding their underlying data, there is no problem in Alabama's capital
system as the handout my office has prepared evidences. Our defense
attorneys are paid reasonable fees and two of the top lawyers in the
national are continuing to represent these death row inmates, along
with some of the top law firms in the United States. The appellate
courts scrutinize these cases with a fine-toothed comb under the plain
error standard. Finally, because we are an integrated the Alabama State
Bar has absolutely no business taking a position on this political and
ideological issue.
Thank you for your time.
Chairman Leahy. Thank you. I should also note for the
record that General Pryor follows in distinguished footsteps.
He was appointed to fill the vacancy as attorney general when
his predecessor left the power and glory of that office for the
anonymity of the U.S. Senate. But you did follow in
distinguished footsteps, Mr. Pryor, following Senator Sessions.
I would also note that Kurt Bloodworth, one of the
exonerees mentioned earlier, is now here with his wife, Brenda.
I appreciate them joining us today.
Senator Sessions. Mr. Chairman, if I could just add----
Chairman Leahy. Sure. Do you want to contradict my
statement about distinguished footsteps?
Senator Sessions. No. He has carried the office to greater
heights. Bill Pryor was appointed when I was elected to the
Senate. He has been reelected by the people of Alabama. He has
a wonderful family. He is committed to the rule of law as
deeply as any person I know. He is a great constitutional
scholar, a man who is running his office in an extraordinarily
fine way, and such things as editor of the Tulane Law Review
when he was in college and just the kind of person that we are
proud to have in law enforcement.
Chairman Leahy. Thank you.
Senator Rodney Ellis is a State senator from Texas
representing Houston in his fifth term in office, I believe. He
had served as chief of staff to the late U.S. Congressman
Mickey Leland. One of his colleagues in that office, Leah
Gluskoter, then also of Harris County, is now a key staff
member in my office.
Senator Ellis has fought to improve the indigent criminal
justice system and to ban the execution of the mentally
retarded. His most recent effort in the Texas Legislature to
ban the execution of mentally retarded inmates passed the Texas
Legislature, but was vetoed 10 days ago by the Governor of
Texas.
Senator Ellis, go ahead, sir.
STATEMENT OF HON. RODNEY ELLIS, TEXAS STATE SENATOR, AUSTIN,
TEXAS
Mr. Ellis. Thank you, Mr. Chairman and members. I
appreciate being invited here and I applaud your efforts.
I make my living as an investment banker, and I am also a
corporate lawyer, not a criminal lawyer. From the State
legislative standpoint, I know how difficult it is to take
these issues on. They are not issues where there is generally
an organized constituency.
I chair the Senate Finance Committee in the State of Texas.
We have a very bipartisan body. In fact, I was named as Chair
by a Republican lieutenant Governor. It is a body that has 16
Republicans and 15 Democrats, so anything we pass out of the
senate has to have bipartisan support.
During the legislative interim, I served as president pro
tem of the Senate, not because I am so bright; we do it by
rotation. It was my term. Under the Texas Constitution, the
president pro tem is the person who serves as Governor of the
State of Texas when the Governor and the lieutenant Governor
are out of the State. Obviously, our Governor was busy during
the interim, and the lieutenant Governor was out of the State a
bit as well, so I served as Governor of Texas for a total of 50
days. During that period, I had the awesome responsibility of
presiding over three executions and granting one reprieve.
I support the death penalty. Some of my critics, because of
the legislation I carry, have wondered if I support the death
penalty. I am one of a handful of people who work in the Texas
State capital who has both filed death penalty legislation--I
did it in my freshman term as a senator--and who has had the
dubious distinction of presiding over an execution. It changes
one's life and I think gives one greater commitment to a number
of these issues.
While I remain a supporter of the death penalty, as I
stated, that experience has changed me and has made me to fight
to ensure greater fairness in our death penalty system in
Texas, particularly Texas because we are the global leader on
executions in the world.
We need to ensure that only competent counsel and adequate
funding handle these life-and-death cases. We need to make sure
that cases receive full and fair judicial review. In addition,
we must ensure that execute only the most culpable. I applaud
the Innocence Protection Act of 2001 for its embodiment of
these ideals.
In Texas, I have been working to see similar reform
enacted. In each of the last two legislative sessions and, in
fact, over the last decade, I have authored numerous bills to
promote increased fairness in our criminal defense system in
Texas, particularly in capital punishment cases.
I proposed and cosponsored the post-conviction DNA testing
bill that has been signed into law by our Governor. I passed a
bill to increase compensation for people who have been
wrongfully convicted. This will be one area where Texas, I
guess, will be on the cutting edge and ahead of many other
States. As you mentioned, I passed a bill to ban executing
persons with mental retardation that was unfortunately vetoed.
But perhaps the most significant and far-reaching reform
that I have championed in Texas is the Texas Fair Defense Act.
It is the culmination of nearly a decade of work to reform our
tattered indigent defense system in Texas. We have 254 counties
in Texas. The counties have the primary responsibility for our
indigent defense system, so that means that in the second
largest State in the country we have 254 different ways of
administering the indigent defense system in our State. We have
over 500-some-odd trial court judges, and under the current
system, prior to enactment of the bill, each judge essentially
determines the indigent defense system in his or her courtroom.
The effects of the bill that we passed will be felt for
years to come and, in my judgment, should lay the foundation
for a criminal defense system in Texas that is both tough and
fair. For some time now, the Texas criminal justice system has
been under the glare of the national spotlight. I guess some of
my colleagues would say I have done a little bit to fan that
flame occasionally.
This attention provided us with many examples of how the
poorest among us are treated in Texas. From sleeping lawyers to
allowing a person's race to be used as a reason for execution,
we saw that poor Texans were being sentenced to a poor defense
as well.
I, like many of my colleagues, both Democrats and
Republicans, was outraged by the problems that we were alerted
to by that media spotlight; for example, a recent report on how
in the Ricardo Aldape Guerra case defense lawyers fought to get
authorization for the court to pay $700 for an investigation
matter and were denied it. Meanwhile, the prosecution spent
$7,000 alone on a pair of mannequins depicting the suspects.
Seventeen years later, after $2 million of work by a large law
firm in the State on a pro bono basis, Guerra was freed from
death row based on a finding of police and prosecutorial
misconduct. The Harris County district attorney's office
declined to re-prosecute the individual.
Since that case, some changes have been made in the Texas
criminal justice system, but recent reports reveal that funding
for investigations remains minimal in our State. I think we
have a long way to go. The Texas Fair Defense Act addresses
several critical concerns--timeliness of appointment, method of
appointment, reporting of data regarding indigent defense
services, experience requirements for defense attorneys in
capital cases, and development of statewide standards for
provision of indigent defense services through an appointed
task force.
I worked for 2 years with everyone involved in the system
because the previous bill that I passed was vetoed. I worked
with judges, prosecutors, defense lawyers, legislators, the
State bar and a number of advocacy groups to craft a strong,
effective and bipartisan reform bill.
But I must emphasize that the bill is a compromise,
something that I am sure you are accustomed to doing even in
this great body. As a result, Texas has launched a series of
reforms that will eliminate the worst abuses and provide some
State oversight of our tattered system, without bankrupting our
counties or mandating a one-size-fits-all approach.
That means, members of the committee, that in Texas we made
a good start. What it does not mean is that we have finished
the job. Still more must be done to ensure a completely fair
system of indigent defense in our State. The Innocence
Protection Act provides safety measures that will fill many of
those gaps that are left in State law.
I know my time is ending, so I appreciate being invited and
I will obviously submit the rest of my testimony.
[The prepared statement of Mr. Ellis follows:]
Statement of Rodney Ellis, Texas State Senator, Austin, Texas
Good morning, Chairman Leahy and members of the committee. Thank
you for conducting this hearing, and for inviting me to lend my support
to the need for minimum standards for attorneys in capital cases. I
sincerely appreciate your efforts.
I am especially pleased to appear today because of the enormous
respect I have for the U.S. Congress. As you may know, prior to my
becoming an elected official, I had the honor of serving as Chief of
Staff for the late Congressman Mickey Leland. It was an eye-opening
experience and it gave me the opportunity to witness, firsthand, the
many responsibilities and challenges each of you faces every day.
Today, I am serving my fifth term as a member of the Texas Senate,
where I am Chairman of the Senate Finance Committee as well as a member
of the Jurisprudence and Redistricting Committees. During the last
interim, I served as President Pro Tempore of the Texas Senate. Under
the Texas Constitution, the President Pro Tempore becomes the Acting
Governor when the Governor and Lieutenant Governor are out of state.
During the 50 days that I served as Acting Governor, I had the
unenviable task of presiding over three executions and granting one 30-
day reprieve. Like many who must take the grim responsibility for
overseeing executions, the experience made me reflect deeply on the
entire practice of executing our citizens. While I remain a supporter
of the death penalty, that experience made me even more committed to
ensuring fairness in our death penalty system. We need to ensure that
only competent counsel with adequate funding handle these life and
death cases. We need to make sure that cases receive a full and fair
judicial review. In addition, we must ensure that we execute only the
most culpable. I applaud the Innocence Protection Act of 2001 for its
embodiment of these ideals.
In Texas, I have been working to see similar reform enacted. In
each of the last two legislative sessions, I authored numerous bills to
promote increased fairness in the criminal defense system, particularly
the capital punishment system. I proposed and co-authored the post-
conviction DNA testing bill that has been signed into law in Texas. I
passed a bill to increase compensation for people who have been
wrongfully convicted in Texas. I passed a bill to ban executions of
persons with mental retardation in Texas, which unfortunately was
vetoed by Governor Rick Perry.
But perhaps the most significant and far-reaching reform I
championed was Senate Bill 7, the Texas Fair Defense Act. It was the
culmination of nearly a decade of work to reform Texas's tattered
indigent defense system. The effects of this bill will be felt for
years to come and should lay the foundation for a criminal defense
system that is both tough and fair.
For some time now, Texas's criminal justice system has been under
the glare of the national spotlight. This attention provided us with
many examples of how the poorest among us are treated. From sleeping
lawyers to allowing a person's race to be used as a reason for
execution, we saw that poor Texans were being sentenced to a poor
defense. I, like many of my colleagues, was outraged by the problems we
were alerted to by that spotlight.
For example, a recent report related how in the Ricardo Aldape
Guerra case, defense lawyers fought to get authorization from the court
for payment of $700 for investigation. Meanwhile, the prosecution spent
$7,000 alone on a pair of mannequins depicting the suspects. Seventeen
years later, after $2 million of work by a large private law firm,
Guerra was freed from death row based on a finding of police and
prosecutorial misconduct. The Harris County District Attorney's Office
declined to re-prosecute him. (Source: A State of Denial: Texas Justice
and the Death Penalty, published by Texas Defender Service in 2000.)
Since that case, some changes have been made to the Texas criminal
justice system. But recent reports reveal that funding for
investigations remains minimal. We still have a long way to go.
The Texas Fair Defense Act addresses several critical concerns:
1) timeliness of appointment of attorneys for indigent persons
accused of crimes;
2) method of the appointment;
3) reporting of data regarding indigent defense services;
4) experience requirements for defense attorneys in capital
cases; and
5) development of statewide standards for provision of indigent
defense services through an appointed task force.
I worked for two years with everyone involved in the system--
judges, prosecutors, defense attorneys, legislators, the State Bar and
advocacy groups--to craft a strong, effective, and bipartisan reform
plan.
But I must emphasize that the plan is a compromise. It goes too far
for some and not far enough for others. As a result, Texas has launched
a series of reforms that will eliminate the worst abuses and provide
some state oversight of the system, without bankrupting our counties or
mandating a one-size-fits-all approach. What that means, members of the
Committee, is that we have a good start in Texas. What that does not
mean is that we have finished the job. Still more must be done to
ensure a completely fair system of indigent defense in Texas.
I have said that I had to make a lot of compromises in Senate Bill
7, and I have said that some of those compromises kept me up at night.
Stronger enforcement mechanisms could be in place to require adherence
to the task force standards. We could have gone farther on the capital
standards. And more needs to be done on fees. In one large urban
county, compensation for out-of-court time is limited to 60 hours, a
tiny fraction of the average time needed to defend a capital case.
(Sources: Texas Appleseed Fair Defense Project, The Fair Defense
Report: Analysis of Indigent Defense Practices in Texas (2000);
Subcommittee on Federal Death Penalty Cases of the Committee on
Defender Services, Federal Death Penalty Cases: Recommendations
Concerning the Cost and Quality of Defense Representation (1998).)
The Innocence Protection Act includes provisions that will ensure
gaps in state law get addressed. For example, the Texas Fair Defense
Act, by design, focuses on trial-level representation and does not
address adequate counsel for appeals and on habeas corpus writs. But we
know the stage at which most innocent people get freed on the basis of
new evidence is the habeas stage. When it comes to these areas of
critical national concern, it is useful for Congress to make sure all
states are on an equal footing. I welcome the federal government's
standard-setting in the area of capital qualifications and pay.
When the state or federal government takes the life of a person
using the immense power of the government, we must be ever-vigilant in
protecting the rights of those individuals and check that the criminal
justice system operates correctly throughout the process. Having
carried out three executions and been engaged on this issue in Texas, I
must say that I have serious concerns with how the death penalty is
applied and believe we can and should do much more to ensure fairness
in the system. I think we have seen that states can achieve positive
improvements on some issues. For example, each state can determine
appropriate local rates for attorneys. On the other hand, we ought to
have a national statement of the national consensus that the death
penalty is not appropriately applied to the mentally retarded. And we
should have a national panel that ensures that no state fails to
provide adequate and well-funded counsel to a citizen facing the
ultimate penalty.
Title II of the Innocence Protection Act establishes the National
Commission on Capital Representation to give us that assurance we need
as a nation. As a supporter of the death penalty, I want to sleep at
night, even nights when an execution is taking place. I need to be
satisfied that we are doing everything we can to keep the system honest
and fair. I believe that the Commission established by the Innocence
Protection Act is a good first step to achieve this with respect to
capital counsel standards. I believe that low standards and pay for
capital defense counsel has been a problem in all states with the death
penalty, and the problem needs to be solved across the board. I urge
the members of the Committee to support the establishment of the
Commission, and the entire Innocence Protection Act.
Thank you for giving me the opportunity to share the experiences of
Texas with you today. I will gladly answer any questions you might
have.
Chairman Leahy. Thank you very much, Senator Ellis. With
you and General Pryor traveling this far, it must seem awfully
arbitrary to have a 5-minute limit. But I can't emphasize
enough how important it is that you are here. Your experience
with your legislation in Texas, the fact that you were acting
Governor during executions, and everything else is extremely
important to us.
Stephen Bright is the H. Lee Sarokin Director for the
Southern Center for Human Rights and, in fact, has directed
that organization since 1982. The Center provides legal
representation to defendants facing the death penalty and works
to ensure that they have qualified attorneys.
He has written widely on this subject. He teaches courses
on the death penalty and criminal law at both Yale and Emory
Law Schools. I wanted to mention Emory because my oldest son
graduated from law school at Emory.
Mr. Bright?
STATEMENT OF STEPHEN B. BRIGHT, DIRECTOR, SOUTHERN CENTER FOR
HUMAN RIGHTS, ATLANTA, GEORGIA
Mr. Bright. Mr. Chairman, thank you. Thank you for having
me, Senator Hatch, Senator Feingold, Senator Sessions. It is an
honor to be here to testify about this Act because it is
urgently needed.
Mr. Chairman, you said earlier that the need was urgent,
real and well-documented. I just want to say Powell v. Alabama
was decided in 1932. That case said, in capital cases, that
people had a right to a lawyer. That was 70 years ago. Gideon
v. Wainwright was decided in 1963. It said people had a right
to a lawyer.
Senator Hatch, in your opening statement you said there is
not a systematic denial of counsel. What there is in many
States is a systematic failure to provide counsel. That is the
problem we have. I think what a lot of people don't realize is
how many States there are that still don't have public defender
offices.
We have offices that specialize in the prosecution of these
cases. They have lawyers there who are trained, who are
veterans, who know what they are doing, who bring an expertise
to the table when they try these cases. Then on the other side,
often we have a general practitioner or somebody like that
representing people.
I will give you just one recent example, which is Gary
Drinkard, one of our clients, Mr. Chairman, just 3 weeks ago
acquitted at a capital trial. Mr. Drinkard is sitting right
here directly behind me. What happened to him is typical, I am
afraid, of too many cases in our system.
Gary Drinkard was at home with his family the night the
crime took place. He had been to the doctor that day because he
had had a disk problem and was in such pain he couldn't have
committed this crime, physically couldn't have committed this
crime. But he was appointed lawyers, one who was a collections
and commercial lawyer with virtually no criminal experience,
another lawyer who represents creditors in foreclosures and
bankruptcies. That is the kind of representation people often
get. A foreclosure lawyer should not be representing somebody
in a death penalty case.
What happened was they never called the doctor to testify
about his medical condition. They just dumped the medical
records into the evidence. The jury didn't know what to do with
that. There was nobody to explain, nobody to talk about the
pain, nobody to talk about how disabling it was. So the jury
didn't have that critical information.
There was a man about 70 years old who was just by the home
that evening, didn't even know Mr. Drinkard, was there with
somebody else who was there with him during the crime went
down, the most objective person never called as a witness.
Now, fortunately, Mr. Drinkard was represented at his
retrial by Richard Jaffe, a very distinguished and good lawyer
from Birmingham, Alabama; John Mays, a lawyer from Decatur; and
Chris Adams from our office. The two people who investigated
that case are also here today, Kate Weisberg and Jason Marks.
But that is the exception, Mr. Chairman.
Most people in Alabama, and I notice the attorney general--
I will mention that I tried a case there, the Tomlin case. I
tried the Tomlin case because I went to Mr. Tomlin's earlier
trial and I watched the two court-appointed lawyers trying that
case and I said after the case was over, if this case gets
reversed, I am going to come back here and try this case,
because the lawyering was just dreadful.
By the way, it said that Tomlin four times got the death
sentence. Actually, in Mr. Tomlin's case the jury unanimously
give him a life sentence. Judges in Alabama are allowed to
override the jury, and they have. About a fourth of the death
row, as I am sure Senator Sessions and Mr. Pryor know, are
cases where juries in Alabama gave life, but the judges
overrode and gave the death penalty.
That judge, Farrell McRae, was a judge who ran for office
showing on his TV commercials all the people he had sentenced
to death on the TV commercials. Now, that is the same judge who
appoints the lawyers in these cases, which is why we need an
independent appointing authority. Judges who run for election
and who unfortunately can't resist sometimes the temptation to
demagogue on some of these issues should not be appointing
either the prosecutor or the defense. The judge ought to be
fair and impartial.
There are other cases: Anthony Porter, who came within 2
days of execution in Illinois. His execution was stayed 2 days
before it was to take place only because there was a question
of whether he was mentally competent to be executed, only
because it wasn't clear he could understand why he was being
executed.
It was only after that that the journalism class at
Northwestern became involved. And as I have often said, thank
goodness those students decided to take journalism that
semester instead of chemistry, because if they had taken
chemistry, Anthony Porter would have been executed and we would
never know. We would be saying no innocent people have been
executed.
Look at Earl Washington, who is sitting right here beside
me. Mr. Washington is a man who confessed to a crime he didn't
do. It is a classic example of the vulnerability of some of the
mentally retarded people who come into our criminal justice
system. But for so many people, there is no journalism class,
there are no lawyers like the ones that Senator Ellis
described, the Guerra lawyers who come in and take the case.
I want to mention one other thing. It was said earlier that
the sleeping lawyer cases are routinely thrown out. There have
been three cases where the lawyers slept during the trial out
of one jurisdiction alone, and that is Houston. And in all
three of those cases, Senator Hatch, they have been upheld by
the courts.
I was at the Fifth Circuit in January and saw 14 life-
tenured United States judges agonizing over the question of
whether the lawyer who slept during Calvin Burdine's trial
denied him a fair trial. The panel held two to one that he was
not denied, that in an 18-hour trial--that is all it took--that
the fact that his lawyer slept through the trial didn't deny
him a fair trial. Now, that is what it means to get the dream
team if you are poor in this country. And that lawyer, Joe
Cannon, put 14 people on death row.
I will say this: the judges in Houston are not appointing
Mr. Cannon anymore, but I think it is only because he is no
longer in life. I am not sure that that would be the case
otherwise.
We need programs to provide competent legal representation,
lawyers who are trained, who know what they are doing. They
need to be independent. It has been suggested with this parade
of horribles here, well, what if we get people who zealously
want to defend these people? Well, the cases are zealously
prosecuted. Why shouldn't they be zealously defended? My
understanding is that is what the Constitution and what the
Canons of Ethics require, is that the case be zealously
defended.
Thank you, Mr. Chairman.
Chairman Leahy. You would agree with Senator Ellis, if I
might paraphrase him, that poor defendants should not be
sentenced to a poor defense?
Mr. Bright. Well, I wrote an article one time that said the
death sentence for the worst lawyer, not for the worst crime.
That is the system we have in Georgia, Alabama, Mississippi,
Texas. In a number of the States that are sentencing the vast
majority of people to death row, Mr. Chairman, in this country
people are getting the death penalty not because they committed
the worst crime, but because they often have lawyers who have
no more business trying a death penalty case than I would have
trying an antitrust case. That is just not right.
And somebody said we shouldn't have one-size-fits-all. The
Constitution doesn't come in different sizes. Everybody, no
matter where they are charged--whether it is Tupelo,
Mississippi, or Mobile, Alabama, or Atlanta, Georgia, everybody
is entitled to competent legal representation, with the
resources necessary to investigate the case and present it.
Thank you.
[The prepared statement of Mr. Bright follows:]
Statement of Stephen B. Bright, Director, Southern Center for Human
Rights, Lecturer, Yale, Harvard and Emory Law Schools
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to address the committee regarding
Title II of the Innocence Protection Act of 2001, which is absolutely
essential to minimizing the risk of executing innocent people.
I have been interested in the quality of legal representation for
the poor for over 25 years, as a public defender, as the director of a
law school clinical program here in the District of Columbia, for the
last 19 years as director of the Southern Center for Human Rights, and,
since 1993, as a teacher of criminal law, including the right to
counsel, at Yale, Harvard and Emory Law Schools. I have testified as an
expert witness on the subject in the courts and have written a couple
of law review articles on the subject.\1\
---------------------------------------------------------------------------
\1\ ``Counsel for the Poor: The Death Sentence Not for the Worst
Crime but for the Worst Lawyer,'' volume 103 of the Yale Law Journal,
page 1835 (1994) and ``Neither Equal nor Just: The Rationing and Denial
of Legal Services to the Poor When Life and Liberty Are at Stake,''
Volume 197 of the New York University Annual Survey of American Law,
page 783 (1997) Both available at http://www.schr.org.
---------------------------------------------------------------------------
People are wrongfully convicted because of poor legal
representation, mistaken identifications, the unreliable testimony of
informants who swap their testimony for lenient treatment, police and
prosecutorial misconduct and other reasons. Unfortunately, DNA testing
reveals only a few wrongful convictions. In most cases, there is no
biological evidence that can be tested. In those cases, we must rely on
a properly working adversary system--in which the defense lawyer
scrutinizes the prosecution's case, consults with the client, conducts
a thorough and independent investigation, consults with experts, and
subjects the prosecution case to adversarial testing--to bring out all
the facts and help the courts find the truth. But even with a properly
working adversary system, there will still be convictions of the
innocent. The best we can do is minimize the risk of wrongful
convictions. And the most critical way to do that is to provide the
accused with competent counsel and the resources needed to mount a
defense.
I.
We have been very fortunate that the innocence of some of those
condemned to die in our courts has been discovered by sheer
happenstance and good luck. A few of many examples illustrates the
point.
Anthony Porter came within hours of execution before his innocence
was established by the journalism class at Northwestern. Porter had
been convicted by a jury. He had been sentenced to death. His case had
been reviewed and affirmed on appeal by the Illinois Supreme Court. He
had gone through the state and federal post-conviction processes and
every court had upheld his conviction and sentence. He was scheduled to
be executed.
However, a question arose as to whether Porter was mentally
competent to be executed; that is, whether he understood that he was
being put to death as punishment for the crime of which he had been
convicted. A person who lacks the mental ability to understand this
relationship cannot be executed, but is instead treated until he is
``restored to competency.'' When he has improved to the point that he
can understand why he is being executed, he is put to death. Anthony
Porter was a person of limited intellectual functioning and mental
impairments. Because there was a question about whether he could
understand why he was being executed, a court stayed his execution in
order to determine his competency to be executed.\2\
---------------------------------------------------------------------------
\2\ Pam Belluck, ``Class of Sleuths to Rescue on Death Row,'' New
York Times, Feb. 5, 1999, at A14.
---------------------------------------------------------------------------
After the stay was granted, the journalism class at Northwestern
University and a private investigator examined the case and proved that
Anthony Porter was innocent. They obtained a confession from the person
who committed the crime. Anthony Porter was released from death row.\3\
He was the third person released from Illinois's death row after being
proven innocent by the journalism class at Northwestern.\4\ Since
Illinois adopted its present death penalty statute in 1977, thirteen
people sentenced to death have been exonerated and twelve have been
executed.\5\
---------------------------------------------------------------------------
\3\ Jon Jeter, ``A New Ending to an Old Story,'' Washington Post,
Feb. 17, 1999, at C1.
\4\Don Terry, ``DNA Tests and a Confession Set Three on a Path to
Freedom in 1978 Murders'', New York Times, June 15, 1996, at A6.
\5\ Ken Armstrong & Steve Mills, ``Ryan Suspends Death Penalty:
Illinois First State to Impose Moratorium on Executions,'' Chi. Trib.,
Jan. 31, 2000, at 1.
---------------------------------------------------------------------------
In 1994, the governor of Virginia, Douglas Wilder, commuted the
sentence of a mentally retarded man, Earl Washington, to life
imprisonment without parole because of questions regarding his
guilt.\6\ Six years later, DNA evidence--not available at the time of
Washington's trial or the commutation--established that Earl Washington
was innocent.
---------------------------------------------------------------------------
\6\ Brooke A. Masters, ``Missteps On Road To Injustice: In Va.,
Innocent Man Was Nearly Executed,'' Washington Post, Dec. 1, 2000, at
A1.
---------------------------------------------------------------------------
Frederico Martinez-Macias was represented at his capital trial in
Texas, by a court-appointed attorney paid only $11.84 per hour.\7\
Counsel failed to present an available alibi witness, relied upon an
incorrect assumption about a key evidentiary point without doing the
research that would have corrected his erroneous view of the law, and
failed to interview and present witnesses who could have testified in
rebuttal of the prosecutor's case. Martinez-Macias was sentenced to
death. Martinez-Macias received competent representation for the first
time when the Washington, D.C., firm of Skadden, Arps, Slate, Meagher &
Flom volunteered to take his case and represented him without charge.
After a full investigation and development of facts regarding his
innocence, Martinez-Macias won federal habeas corpus relief. A grand
jury refused to re-indict him and he was released after nine years on
death row.
---------------------------------------------------------------------------
\7\ Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992).
---------------------------------------------------------------------------
Similarly, volunteer lawyers from the Houston firm of Vincent &
Elkins established in federal habeas corpus proceedings that Ricardo
Aldape Guerra had been convicted in violation of the Constitution and
was innocent. He was released and he returned to Mexico.
Gary Nelson was represented at his capital trial in Georgia by a
solo practitioner who had never tried a capital case. This court-
appointed lawyer, who was struggling with financial problems and a
divorce, was paid at a rate of only $15 to $20 per hour. His request
for co-counsel was denied. The case against Nelson was entirely
circumstantial, based on questionable scientific evidence, including
the opinion of a prosecution expert that a hair found on the victim's
body could have come from Nelson. Nevertheless, the appointed lawyer
was not provided funds for an investigator and, knowing a request would
be denied, did not seek funds for an expert. Counsel's closing argument
was only 255 words long. The lawyer was later disbarred for other
reasons.
Nelson had the good fortune to have some outstanding lawyers
volunteer to represent him in post-conviction proceedings, who devoted
far more time to the case than had the court-appointed lawyer and spent
their own money to investigate Nelson's case. They discovered that the
hair found on the victim's body, which the prosecution expert had
linked to Nelson, lacked sufficient characteristics for microscopic
comparison. Indeed, they found that the Federal Bureau of Investigation
had previously examined the hair and found that it could not validly be
compared. As a result of such inquiry, Gary Nelson was released after
eleven years on death row.
But for the vast majority of those sentenced to death, there are no
journalism students or volunteer lawyers who come forward and examine
their cases.
For example, Exzavious Gibson, a man whose IQ has been tested
between 76 and 82, was forced to represent himself at his state post-
conviction hearing in Georgia because he could not afford a lawyer.
There are dozens of people on death row in Alabama who do not have
lawyers to represent them in post-conviction proceedings. And the
statute of limitations is running on them.
Some of the lawyers provided in post-conviction proceedings are
worse than no lawyer at all. Ricky Kerr was assigned a lawyer by the
Texas Court of Criminal Appeals who had been in practice only four
years, had no capital experience and suffered serious health problems.
Federal Judge Orlando Garcia said the appointment of the lawyer
``constituted a cynical and reprehensible attempt to expedite [the]
execution at the expense of all semblance of fairness and integrity.''
If the journalism class had not become involved in Anthony Porter's
case, he would have been executed and we would never know to this day
of his innocence. Those who naively proclaim that no innocent person
has ever been executed would continue to do so, secure in their
ignorance. If Martinez-Macias, Guerra, Nelson and others had been left
without any post-conviction representation, as was Exzavious Gibson in
Georgia, or had been provided a lawyer like the one assigned by the
Texas Court of Criminal Appeals to represent Ricky Kerr, they would be
dead and their innocence would have gone to the grave with them.
We should not count on luck to discover the innocent. We do not
know how many Anthony Porters have been put to death and we never will.
We can be confident that innocent people will be convicted and
sentenced to death so long as those accused receive inadequate
representation at trial and equally inadequate representation--or no
representation at all--during post-conviction review.
Some have said that the fact that Anthony Porter and others have
been released shows that the system works. However, someone spending
sixteen years on death row for a crime he did not commit is not an
example of the system working. When journalism students prove that
police, prosecutors, judges, defense lawyers and the entire legal
system did not discover a man's innocence and instead condemned him to
die, the system is not working. And it is not a system of justice. It
is a cruel lottery.
II.
The major reason that innocent people are being sentenced to death
is because the representation provided to the poor in capital cases is
often a scandal. The state legislatures have been unwilling to provide
the resources and structure necessary to provide competent legal
representation. And the courts have been willing to tolerate
representation that is an embarrassment to our legal system and the
legal profession.
In at least four cases in Georgia, counsel referred to their
clients before the jury with a racial slur. A woman in Alabama was
represented by a lawyer so drunk that her trial had to be suspended for
a day and the lawyer sent to jail to sober up. The next day, both
lawyer and client were produced from jail and trial resumed. Defense
lawyers in Alabama and Missouri cases had sexual relations with clients
facing the death penalty. There have been far too many cases in which
defense lawyers defending capital cases were impaired by alcohol, drugs
or infirmity.\8\ In case after case, defense lawyers for people facing
the death penalty are denied investigators and funds for expert
assistance.\9\
---------------------------------------------------------------------------
\8\ See Jeffrey L. Kirshmeier, Drink, Drugs and Drowsiness: The
Constitutional Right to Effective Assistance of Counsel and the
Strickland Prejudice Requirement, 75 Nebraska Law Review 425, 455-60
(1996) (citing cases in which convictions were upheld even though
defense lawyers were intoxicated, abusing drugs, or mentally ill).
\9\ Numerous examples are collected in Stephen B. Bright, ``Counsel
for the Poor: The Death Sentence Not for the Worst Crime but for the
Worst Lawyer,'' volume 103 of the Yale Law Journal, page 1835 (1994)
(also available at http://www.schr.org.)
---------------------------------------------------------------------------
Last January, 14 judges of the United States Court of Appeals for
the Fifth Circuit earnestly considered the issue of whether a death
sentence can be carried out in a case in which the one lawyer appointed
to defend the accused slept through much of a trial that lasted only 18
hours. The Texas Solicitor General's office argued that Calvin
Burdine's conviction and death sentence should be upheld because a
sleeping lawyer is no different from a lawyer who is intoxicated, under
the influence of drugs, suffering from Alzheimer's disease or having a
psychotic break. The judges engaged the assistant solicitor general on
this argument, asking whether there was not some difference between a
lawyer who was merely impaired by alcohol and a lawyer who was
completely unconscious. A panel of three members of that court had
previously concluded in a 2-1 opinion that sleeping did not violate the
right to counsel. The two judges in the majority held that the record
did not show that the lawyer slept through an important part of the
trial.\10\ Of course, the person responsible for making the record was
the lawyer. And he was asleep. The entire Court is now reconsidering
the case.
---------------------------------------------------------------------------
\10\ Burdine v. Johnson, 234 F.3d 1339 (5th Cir. 2000), reversing
Burdine v. Johnson, 66 F. Supp. 2d 854, 866 (S.D. Tex. 1999).
---------------------------------------------------------------------------
The standard for counsel is so low that Judge Alvin Rubin of the
U.S. Court of Appeals for the Fifth Circuit, once observed that, ``The
Constitution, as interpreted by the courts, does not require that the
accused, even in a capital case, be represented by able or effective
counsel.'' \11\ A trial judge in Houston put it even more bluntly,
saying that while the Constitution guarantees a lawyer, ``[t]he
Constitution doesn't say the lawyer has to be awake.'' That judge
presided over the case of George McFarland, another of the three
capital cases tried in a single city, Houston, in which the defense
lawyers slept through trial. The Houston Chronicle described
McFarland's trial as follows:
---------------------------------------------------------------------------
\11\ Riles v. McCotter, 799 F.2d 947, 955 (5th Cir. 1986) (Rubin,
J., concurring).
Seated beside his client--a convicted capital murderer--defense
attorney John Benn spent much of Thursday afternoon's trial in
apparent deep sleep.
His mouth kept falling open and his head lolled back on his
shoulders, and then he awakened just long enough to catch
himself and sit upright. Then it happened again. And again. And
again.
Every time he opened his eyes, a different prosecution witness
was on the stand describing another aspect of the Nov. 19,
1991, arrest of George McFarland in the robbery-killing of
grocer Kenneth Kwan.
When state District Judge Doug Shaver finally called a recess,
Benn was asked if he truly had fallen asleep during a capital
murder trial.
``It's boring,'' the 72-year old longtime Houston lawyer
explained.
Court observers said Benn seems to have slept his way through
virtually the entire trial.\12\
---------------------------------------------------------------------------
\12\ John Makeig, ``Asleep on the Job; Slay Trial Boring, Lawyer
Said,'' Houston Chronicle., Aug. 14, 1992, page A35.
The Texas Court of Criminal Appeals affirmed McFarland's conviction
and death sentence, as it did in the cases of Calvin Burdine and Carl
Johnson.\13\ Johnson was executed by Texas in 1995.\14\
---------------------------------------------------------------------------
\13\ Burdine v. Johnson, 66 F. Supp. 2d 845 (S.D. Tex. 1999).
\14\ A full description of the case is provided by David R. Dow in
his article, ``The State, the Death Penalty, and Carl Johnson,''
published in volume 37 of the Boston College Law Review page 691
(1996).
---------------------------------------------------------------------------
For poor people facing the death penalty, this is what is means to
be represented by the ``dream team.''
The old adage ``you get what you pay for'' applies with particular
force in the legal system, and many states pay very little to lawyers
appointed to defend capital cases. Studies of capital cases in
Illinois, Kentucky and Texas have found that about one-third of those
sentenced to death in those states were represented by lawyers who were
later been disbarred, suspended or convicted of crimes.\15\
---------------------------------------------------------------------------
\15\ Ken Armstrong & Steve Mills, ``Inept defense cloud verdicts,''
Chicago Tribune, November 15, 1999 (reporting that in 33 of the 285
cases in which death was imposed in Illinois the defense lawyers were
later disbarred or suspended); Steve Mills & Ken Armstrong, ``Flawed
trials lead to death chamber,'' Chicago Tribune, June 11, 2000
(reporting that in 43 of the 131 most recent executions in Texas prior
to publication of the story the defendants were represented by an
attorney who was later disbarred, suspended or otherwise sanctioned).
---------------------------------------------------------------------------
States also fail to provide a structure, such as there is on the
prosecution side, so that lawyers defending the poor are trained and
supervised and develop an expertise in criminal law and the sub-
speciality of capital punishment law. The lawyer who defended Wallace
Fugate at his capital trial in Georgia had never heard of Furman v.
Georgia, the case which declared Georgia's death penalty law
unconstitutional in 1972, or Gregg v. Georgia, the case which upheld
Georgia's current death penalty law in 1976. He could not recall ever
having had an investigator in over 40 years of defending people in
court-appointed cases and thought he may have had an expert on one
occasion. He failed to find out that the gun, which his client said had
fired accidentally, had a design defect that made it susceptible to
accidental discharge.
Another lawyer who handled the cases of a several people sentenced
to death in Georgia, when asked to name all the criminal cases with
which he was familiar, answered, ``the Miranda and Dred Scott.'' (Dred
Scott was not a criminal case.)
These are only a few of the most egregious examples of the poor
quality of legal representation that one sees every day in states that
lack a structure for providing indigent defense, that fail to provide
the resources to defend a case properly and that fail to provide for
the independence of defense counsel from the judiciary. But they tell
you how urgently this legislation is needed.
Unfortunately, many jurisdictions--including many which are sending
large numbers of people to their death rows--still do not have a
working adversary system, even in cases in which a person's life is at
stake. In those states, it is better to be rich and guilty than poor
and innocent because the poor are represented by court-appointed
lawyers who often lack the skill, resources, and, on occasion, even the
inclination to defend a case properly.
There are exceptions. Some states, like Colorado and New York, not
only have public defender offices, but capital defender offices that
specialize in the defense of capital cases. But other states, such as
Alabama, Georgia, Mississippi, Texas and Virginia have no state-wide
public defender system. There are some outstanding lawyers who will
occasionally take a capital case, but they find those cases drain them
emotionally and financially. In states where at any one time there are
hundreds of people facing capital trials and hundreds more on death row
whose cases are under review in the courts, there are not nearly enough
good lawyers willing to take the cases for the small amount of money
paid to defend them. There are also lawyers who, although lacking in
experience, training and resources, make conscientious efforts to do
the best they can in defending people in capital cases, but many find
it simply impossible to overcome these disadvantages in these complex
and difficult cases. And, unfortunately, there are too many lawyers who
are taking court-appointed cases because they can get no other work and
do not even make conscientious efforts.
III.
One of the very important provisions of Title II is the requirement
of an independent authority for appointing attorneys in capital cases.
Lawyers are ethically, professionally and constitutionally required to
exercise independent professional judgment on behalf of a client.\16\
The appointment of counsel by judges creates--at the least--the
appearance that lawyers are being assigned cases to move dockets and
that lawyers may be more loyal to the judge than to the client. A
lawyer's conduct in a case should not be influenced in any way by
considerations of administrative convenience or by the desire to remain
in the good graces of the judge who assigned the case. However, because
some lawyers are dependent upon judges for continued appointments--
which, in some cases, are the only business the lawyer receives--a
lawyer may be reluctant to provide zealous advocacy for fear of
alienating the judge. Some lawyers have remarked that one way to avoid
being assigned indigent cases is to provide a vigorous defense in one.
---------------------------------------------------------------------------
\16\ American Bar Association, Canons of Ethics, Canon 5.
---------------------------------------------------------------------------
Almost half of the judges in Texas, responding to a survey, said
that an attorney's reputation for moving cases quickly, regardless of
the quality of the defense, was a factor that entered into their
appointment decisions.\17\ One-forth of the judges said an attorney's
contribution to the judge's campaigns was a factor in appointing
counsel. When the judges were asked whether contributions influenced
appointments by other judges they knew, over half said that judges they
knew based their appointments in criminal cases in part on whether the
attorneys were political supporters or had contributed to the judge's
political campaign. The perception of lawyers and court personnel is
that the influence of campaign contributions on elected judges
decisions is even more significant, with 79 percent of the lawyers and
69 percent of the court personnel saying they believe campaign
contributions effect judges' decisions.
---------------------------------------------------------------------------
\17\ See Allan K. Butcher & Michael K. Moore, Committee on Legal
Services to the Poor in Criminal Matters, Muting Gideon's Trumpet: The
Crisis in Indigent Criminal Defense in Texas (Sept. 22, 2000),
available at http://www.edu/pols/moore/indigent/whitepaper.htm. Judges
in the survey were specifically asked to discount their experiences in
capital cases, but there is no reason to believe that their motivations
for appointment decisions would vary depending on the type of case.
---------------------------------------------------------------------------
The same factors influence some judges in other states. But even if
a judge appoints laywers based their reputation for providing competent
representation, there is the danger that some lawyers may not always
provide the zealous representation that the Constitution requires
because of the fear--whether justified or not--that the lawyer risks
losing future appointments from the judge. For lawyers whose entire
practice is made up of appointments from the court, such fears may
considerably chill their performance.
This is a system riddled with conflicts. A judge's desire for
efficiency conflicts with the duty to appoint indigent defense counsel
who can provide adequate representation; a lawyer's need for business
taints the constitutional and ethical requirement of zealous advocacy.
And later, if there is a claim of ineffective assistance, the judge who
appointed the lawyer is the one to decide the claim. This is not a good
way to run a system of justice. Judges do not appoint prosecutors to
cases. Judges should be fair and impartial. They should not be managing
the defense.
Accordingly, Standard 5-1.3 of the American Bar Association's
Criminal Justice Standards, provides:
(a) The legal representation plan for a jurisdiction should be
designed to guarantee the integrity of the relationship between
lawyer and client. The plan and the lawyers serving under it
should be free from political influence and should be subject
to judicial supervision only in the same manner and to the same
extent as are lawyers in private practice. The selection of
lawyers for specific cases should not be made by the judiciary
or elected officials, but should be arranged for by the
administrators of the defender, assigned-counsel and contract-
for-service programs.
(b) An effective means of securing professional independence
for defender organizations is to place responsibility for
governance in a board of trustees. Assigned-counsel and
contract-for-service components of defender systems should be
governed by such a board. Provisions for size and manner of
selection of boards of trustees should assure their
independence. Boards of trustees should not include prosecutors
or judges. The primary function of boards of trustees is to
support and protect the independence of the defense services
program. Boards of trustees should have the power to establish
general policy for the operation of defender, assigned-counsel
and contract-for-service programs consistent with these
standards and in keeping with the standards of professional
conduct. Boards of trustees should be precluded from
interfering in the conduct of particular cases. A majority of
the trustees on boards should be members of the bar admitted to
practice in the jurisdiction.
The Innocence Protection Act will bring jurisdictions to where they
should have been long ago in having independent defender programs whose
primary concern is providing zealous and effective representation to
those facing the death penalty so that the adversary system can work
properly.
CONCLUSION
The states have received enormous amounts of federal funds to
improve their law enforcement and prosecution functions. But they have
failed to develop and maintain a properly working adversary system in
criminal cases involving poor defendants. Many states--those I have
mentioned and many others--lack the key elements of an effective
indigent defense system: a structure, independence from the judiciary
and the prosecution, and adequate resources.
It is much easier to convict a person and obtain the death penalty
when the defendant is represented by a lawyer who lacks the skill and
resources to mount a defense. And it is much easier to execute people
who are not adequately represented in post-conviction proceedings. But
there is a larger question than whether adequate indigent defense
systems make it harder for prosecutors to obtain convictions and for
attorneys general to carry out executions swiftly. There is the
question of fairness. It is not supposed to be easy to convict someone.
Under our system required by our Constitution, the prosecution's case
is supposed to undergo a vigorous adversarial testing process.
The American people are realizing that we have sacrificed fairness
for finality and reliability for results. They want protection from
crime, but they want fairness. The system is woefully out of balance.
The many exonerations from DNA evidence as well as the release of over
95 people those sentenced to death shows that the system is broken. A
major component, the defense function, lacks the structure,
independence and resources to contribute to a fair, reliable and just
result. It is not unreasonable for Congress to require the states as a
condition of receiving millions of federal dollars to implement an
adequate indigent defense system to protect the innocent at least in
capital cases.
Chairman Leahy. I want to make sure that General Pryor gets
a chance to give us his views on that, too.
To give you an example of what happens, Michael Graham was
wrongly convicted of murder. He spent 14 years on death row in
Louisiana. The majority of U.S. Senators have not served here
in the Senate for 14 years. Last December, after a 9-month
investigation, the Louisiana Attorney General dismissed the
charges against Mr. Graham and his co-defendant, who had also
been sentenced to death, citing the total lack of credible
evidence linking either of them to the crime.
Mr. Graham?
STATEMENT OF MICHAEL R. GRAHAM, ROANOKE, VIRGINIA
Mr. Graham. Thank you, Mr. Chairman. It is an honor to be
here.
My name is Michael Graham. In 1986, I was 22 years old,
working as a roofer and living with my mom and my two little
brothers in Virginia Beach. That summer, I met a family from
Louisiana and became friends with their son, Kenneth. They
suggested that I return with them to Louisiana for a vacation
and I took up their offer.
While down in Louisiana, Kenneth and I got arrested for
writing some bad checks. I wasn't an angel back then, but I
never physically hurt anyone and was never accused of hurting
anyone, that is until a couple of months later. While in jail
for the bad checks, I was arrested for the brutal murders of an
elderly couple. I couldn't believe it and I told the police
that I didn't know anything about the murders and I had never
met the couple. All the time, I was sure that the truth would
come out and I would be found innocent. It seems funny now, but
I even asked one of my public defenders if he would represent
me in a false arrest lawsuit.
My trial was in early 1987. One of my two lawyers had some
criminal law experience, but had never tried a death penalty
case. My other lawyer just graduated from law school. The State
didn't have any physical evidence against me. Basically, all it
had was three witnesses, including a jailhouse snitch with a
history of serious mental illness.
The lawyers had a tough time at the trial. They didn't
investigate the snitch's deal with the prosecution. They didn't
know the rules of evidence. They didn't object to a jury
instruction that I later learned was totally illegal under
Louisiana law. They did nothing to prepare for my sentencing
phase. They didn't ask my mother to come down and testify on my
behalf.
My trial only lasted a few days. When the jury convicted me
of capital murder, I was stunned. So was my experienced lawyer,
who disappeared. That left with my inexperienced lawyer, just 1
year out of law school, to handle the sentencing hearing by
himself.
When the jury sentenced me to death, I could hardly talk
and I was in a state of shock. A few months later, my co-
defendant, Albert Burrell, was also convicted and given the
death sentence. I understand that his lawyers were even worse
than mine.
I will never forget my first night on death row. The night
before, the State had executed another inmate and I was given
his cell. During the night, I looked down on the floor and
completely freaked out. I thought I saw a pool of blood and it
turned out to be rusty water. That pretty much set the tone for
the next 14 years.
I spent 23 hours a day in my 5-by-10-foot cell alone. I was
allowed out 1 hour a day to shower and walk up and down the
tier. Three times a week, I could go outside and spend an hour
by myself in an exercise yard. Whenever I left my tier, my
hands and legs were shackled. Everyone in my world was either a
prison guard who considered me an animal or a condemned man.
The guards told me when to wake up and when to go to sleep,
and just gave me a few minutes to eat. I tried not to go crazy
by reading and praying to the Lord. I also passed the time by
trying to keep up on my case and what was happening in the
outside world. I studied for the GED, but the prison ended the
program right before I was going to take the test.
Each day, I would beg the Lord to make sure nothing
happened to my family. My family was poor, and my mother was
only able to visit me twice. My brothers never made it. The
Lord answered my prayers, but my co-defendant wasn't so
fortunate. My co-defendant's mother died while we were on death
row. One of the guards told me that it was the hardest thing he
has ever had to do.
As in many cases, there was no DNA evidence to exonerate me
and Albert, but we were two of the lucky ones. We both had pro
bono lawyers who worked diligently for us and stuck with our
cases for many years. If we had depended on State lawyers, we
probably would still be on death row, or worse.
After years of hard work, my attorneys got me a new trial
on March 3, 2000. It was the second greatest day of my life. My
lawyers proved that the prosecution had withheld evidence
showing I was innocent. They also proved that the jailhouse
snitch was a pathological liar. They got sworn statements from
the two other witnesses recanting their testimony. They even
got a statement from the prosecutor saying that the case should
never have been brought to trial to begin with because the
evidence was too weak.
Ten long months later, in December, the State dismissed the
case against me and Albert. The attorney general said that
there was a total lack of credible evidence linking us to the
crime. On December 28, 2000, the best day of my life, I was
released from Louisiana's death row, where I had spent close to
14 years for two murders I did not commit. I was the 92nd
innocent person released from death row since 1973. My co-
defendant was released a few days later and became the 93rd
innocent person released.
Half of my adult life had been taken from me. I had been
falsely branded as a murderer in connection with horrible
crimes. Meanwhile, the suffering family of the victims was
misled into believing that the crime was solve when, in fact,
the real murderer or murderers had not been brought to justice.
In compensation, the State gave me a $10 check and a coat
that was five sizes too big, not even the price of a bus ticket
back to Virginia. My lawyers had to buy that for me.
At first when I got back to my family in Virginia, I was
afraid to go out. I thought people would guess from my
complexion that I had just come out of prison. I couldn't stop
guzzling down my food and pacing the floor. Men in uniform
freaked me out. Nowadays, I am just trying to put my life back
together. I am getting to know my family again, including my
brothers, who are now young men. I have a job as a roofer and I
am getting married in October.
During my 14 wasted years on death row, I always hoped that
my nightmare would count for something. That is why I am here
today. Mistakes like my nightmare are real. I never figured
that this could happen to an innocent person before it happened
to me, and I am sure that many people listening today feel the
same way. I ask you to listen to my story and to the many
others like mine and do what you can to fix the process.
Thank you.
[The prepared statement of Mr. Graham follows:]
Statement of Michael Graham, Roofer, Virginia Beach, Virginia
My name is Michael Graham. In 1986, I was 22 years old, working as
a roofer, and living with my mom and my two little brothers in Virginia
Beach. That summer, I met a family from Louisiana and got friendly with
their son, Kenneth. They suggested that I return with them to Louisiana
for a vacation. I took up their offer.
While down in Louisiana, Kenneth and I got arrested for writing
some bad checks. I was no angel back then, but I never physically hurt
anyone, and was never accused of hurting anyone.
That is, until a couple of months later. While in jail for the bad
checks, I was arrested for the brutal murders of an elderly couple. I
couldn't believe it. I told the police that I didn't know anything
about the murders and had never met the couple.
All the time, I was sure that the truth would come out and I would
be found innocent. It seems funny now, but I even asked one of my
public defenders if he would represent me in my false arrest lawsuit.
My trial was in early 1987. One of my two lawyers had some criminal
law experience, but had never tried a death penalty case. My other
lawyer had just graduated from law school. The state didn't have any
physical evidence against me. Basically, all it had was three
witnesses, including a jailhouse snitch with a history of serious
mental illness.
My lawyers had a tough time at the trial. They didn't investigate
the snitch's deal with the prosecution. They didn't know the rules of
evidence. They didn't object to a jury instruction that I later learned
was totally illegal under Louisiana law. And they did nothing to
prepare for my sentencing phase. They
didn't even ask my mother to come down and testify on my behalf.
My trial only lasted a few days. When the jury convicted me of
capital
murder, I was stunned. So was my experienced lawyer, who
disappeared. That left my inexperienced lawyer, just out of law school,
to handle the sentencing hearing by himself. When the jury sentenced me
to death, I could hardly talk - I was in such a state of shock.
A few months later, my co-defendant, Albert Burrell, was also
convicted and given a death sentence. I understand that his lawyers
were even worse than mine.
I'll never forget my first night on death row. The night before the
state had executed another inmate, and I was given his cell. During the
night, I looked down at the floor and completely freaked out. I thought
I saw a pool of blood. It turned out to be rusty water.
That pretty much set the tone for the next fourteen years. I spent
23 hours a day in my 5 by 10 foot cell, alone. I was allowed out one
hour a day to shower and walk up and down my tier. Three times a week I
could go outside and spend an hour by myself in an exercise yard.
Whenever I left my tier, my hands and legs were shackled. Everyone in
my world was either a prison guard who considered me an animal or a
condemned man. The guards told me when to wake up and when to go to
sleep, and just gave me a few minutes to eat.
I tried not to go crazy by reading and praying to the Lord. I also
passed the time by trying to keep up on my case and what was happening
in the outside world. I studied for a GED, but the prison ended the
program right before I was going to take the test.
Each day I would beg the Lord to make sure nothing happened to my
family. My family is poor and my mother was only able to visit me
twice. My brothers never made it down. The Lord answered my prayers.
But my co-defendant wasn't so fortunate. Albert's mother died while we
were on death row. One of the guards told me that telling Albert his
mother was dead was one of the hardest things he ever did.
As in many cases, there was no DNA evidence to exonerate me and
Albert. But we were two of the lucky ones. We both had pro bono lawyers
who worked their tails off for us and stuck with our cases for many
years. If we had depended on state lawyers, we probably would still be
on death row, or worse.
After years of hard work, my attorneys got me a new trial on March
3, 2000. It was the second greatest day in my life. My lawyers proved
that the prosecution had withheld evidence showing I was innocent. They
also proved that the jailhouse snitch was a pathological liar, and got
sworn statements from the other two witnesses recanting their
testimony. They even got a statement from the prosecutor saying that
the case should never have been brought in the first place because the
evidence was too weak.
Ten long months later, in December, the state dismissed the case
against me and Albert. The Attorney General said that there was ``a
total lack of credible evidence'' linking us to the crime.
On December 28, 2000 - the best day in my life - I was released
from Louisiana's death row, where I had spent close to 14 years for two
murders I did not commit. I was the 92nd innocent person released from
death row since 1973. Albert was released a few days later, and became
the 93rd innocent person released from death row.
Half of my adult life had been taken from me. I had been falsely
branded as a murderer in connection with horrible crimes. Meanwhile,
the suffering family of the victims was misled into believing that the
crime was solved, when in fact the real murderer or murderers had not
been brought to justice.
In compensation, the state gave me a $10 check and a coat that was
five sizes too big. Not even the price of a bus ticket back to
Virginia. My lawyers had to buy that for me.
At first, when I got back to my family in Virginia, I was afraid to
go out. I thought people would guess from my complexion that I had just
come out of prison. I couldn't stop guzzling down my food and pacing
the floor. Men in uniforms freaked me out.
Nowadays, I am just trying to put my life back together. I am
getting to know my family again, including my brothers who are now
young men. I have a job as a roofer, and I am getting married in
October.
During my 14 wasted years on death row, I always hoped that my
nightmare would count for something. That's why I'm here today.
Mistakes like my nightmare are real. I never figured that this could
happen to an innocent person before it happened to me, and I am sure
that many people listening today feel the same way. I ask you to listen
to my story and to the many others like mine, and do what you can to
fix the process.
Chairman Leahy. Thank you very much, Mr. Graham, and I wish
you and your fiancee well. I met her earlier this morning.
Mr. Graham. Thank you.
Chairman Leahy. I will submit for the record a letter I
received from Mr. Charles Lloyd, who represented your co-
defendant, Albert Burrell. Mr. Lloyd took the case pro bono
after Burrell was convicted and sentenced to death. The letter
describes the shocking incompetence of Burrell's trial lawyers,
who were just a few years out of law school, apparently did
little investigation before the trial, were ineffective during
the trial, and did nothing to prepare for the penalty phase.
Mr. Burrell was sentenced to death, both of his lawyers were
indicted and convicted, one on a drug charge, the other for
stealing client money. Both were later disbarred.
Ronald Eisenberg is the Deputy District Attorney in
Philadelphia. He previously served as chief of the Appeals Unit
in Philadelphia, an office where he began work as a prosecutor
in 1981. Mr. Eisenberg served on the Task Force on Death
Penalty Litigation of the Third Circuit Court of Appeals. He is
a member of the Pennsylvania Supreme Court's Criminal Rules
Committee.
Mr. Eisenberg, thank you for taking the time to come down
and join us today.
STATEMENT OF RONALD EISENBERG, DEPUTY DISTRICT ATTORNEY,
PHILADELPHIA, PENNSYLVANIA
Mr. Eisenberg. Thank you, Mr. Chairman, and members of the
committee. I would like to touch briefly on two points from my
written testimony that I have submitted to the committee.
First, one of the arguments that has been made in favor of
Federal intervention into the State appointment process in
capital cases is that there is a chronic lack of funding for
lawyers in State capital cases, and that, in fact, previous
Federal funding for those cases, for assistance in State
capital cases, was cutoff by Congress in 1996.
In fact, however, while that money was cutoff in the form
of one program, it was then paid out again ever since in the
form of another program administered by the United States
courts. And in fiscal year 2001, over $20 million was paid by
the Federal Government to lawyers for assistance and training
in State capital cases, not Federal cases like the McVeigh
case, but State capital cases.
Now, I know that the argument will be made that, well, if
they were paying out that money and we still have a bad system,
it must not be enough money. The point is that for opponents of
capital punishment, and I understand their position, there is
no amount of money or Federal intervention that is ever going
to be enough to solve the problem as long as juries in State
capital cases, on review of all the evidence, keep returning
death penalties in some cases.
Chairman Leahy. So your position is totally the opposite of
what the three Members of Congress testified earlier, that it
is not a question of whether you are for or against the death
penalty, and it is totally different from that of the position
of the pro-death penalty Members of Congress who have supported
this legislation?
Mr. Eisenberg. Senator, my point was that I understand that
for people who are opponents of the death penalty--and as we
have acknowledged, there are many who are and I can understand
their position--the amount of money or the nature of the
standards will not be enough, whatever they are, and that leads
me to my next point about standards.
Chairman Leahy. So you do not accept the testimony of
Congressman LaHood, for example?
Mr. Eisenberg. I don't think it is a contradiction,
Senator.
Chairman Leahy. OK.
Senator Sessions. He is simply saying if you oppose the
death penalty, Senator Leahy, deeply and personally and so
greatly, nothing is going to make you satisfied with the
system.
Chairman Leahy. I just wanted to make sure I understood
him.
Mr. Eisenberg. Thank you, Senator.
On the issue of standards, there has been a lot of talk
about the absence of standards in State courts. The reality is
that most death penalties arise in States that do have
standards for the appointment of counsel. In fact, those
standards are in most cases much stricter, much higher, than
the standards that the Federal Government itself imposes for
appointment of counsel in Federal capital cases such as the
McVeigh case.
The Justice Department, not the current Justice Department
but the previous Justice Department, did a study reviewing
standards for appointment of counsel in capital cases and
collected all of this information. Those States have been doing
that, have been promulgating these standards on their own,
without Federal compulsion, for many years.
Now, there has been talk about State courts today and about
the claim that we can't trust the State courts, that there are
a lot of errors found in death penalties, reference to the
study by Professor Liebman. While I certainly believe that the
numbers in his study are greatly exaggerated, there is no
question that death penalty cases are reversed at a
significantly higher rate than other cases, even cases that
were tried under identical circumstances but simply resulted in
the end in a non-capital verdict rather than a death penalty
verdict, and that significant numbers of those reversals occur
in the State courts.
Now, the question arises, I believe, that if the State
legislatures and courts are already out in front in many areas
in the standards that they have promulgated, and if the State
courts are already out in front in the number of death penalty
cases that they are reversing, that they are reviewing and
reversing, I think it is quite questionable whether it is
necessary for the Federal Government then to come in and
mandate different standards for those States and different
procedures than they have already been following.
I understand the argument--and I believe that this is
Professor Liebman's argument--that if lots of cases are being
reversed in the State courts, then there must be lots more that
should have been reversed. In other words, in effect, what we
are saying is we can trust the State courts completely to the
extent they reverse death penalty cases, but they must be wrong
as to the cases they are not reversing.
I think really that the argument goes the other way that if
we are going to trust the State courts are properly reversing
in the cases where they are, then we should trust the results
in the cases where, after years of review, they do not reverse
those cases.
The argument has been made that because of the alleged
politically biased nature of those same State courts that are
reversing so many death penalty cases, we can't let those
courts appoint counsel; we have to have an independent
appointing authority that will be run by zealous advocates
against the death penalty. After all, it is argued, prosecutors
can be zealous advocates for the death penalty.
Well, an independent counsel-appointing authority is not
performing a function of an advocate; it is a performing a
function of the court, of a neutral arbitrator and it controls
access to the system. That access can have a great effect on
the ability of the capital litigation system to proceed or not.
In California, for example, death penalty cases are
routinely delayed for 3 and 4 years at the appellate stage
after the conviction merely to wait for the court to try to
find lawyers to take the cases. So if the access of available
lawyers is restricted, these cases can't proceed and delay
results.
We already have, on average, 10 and 20 years of delay in
these cases. If we put the access to the system in the hands of
lawyers whose job it is to be against the death penalty, we
cannot assume a proper result. The appointment process is a
function that we put in the hands of a neutral body, the court
system. People can make complaints about the court system, but
certainly it is far more neutral, we can assume, than either
adversary on either side. And if we want the system to be able
to function at all, we have to make sure that that neutrality
remains.
The current proposal, as I understand it, would penalize
the States or not adopting such a proposal. It would penalize
the States for not paying defense lawyers, for example, at
local markets rates, which in my jurisdiction for lawyers for
complex litigation may be $200, $300, $400 an hour.
One of the penalties that the States will suffer is the
elimination of various provisions for Federal habeas corpus
review of State courts. Right now, the Federal courts that have
these cases, after three and sometimes four appeals in State
courts, are required to abide by the factfinding and give
deference to the legal rulings of the State courts.
The argument is made that if the State courts aren't
following mandated Federal standards, we can't trust their
results, and the Federal courts therefore should ignore them.
As I have said, however, we trust the State courts to reverse
death penalty cases that we know they are doing in large
numbers. We trust the State courts to appoint counsel on
standards which are higher than the current Federal standards.
I think that if we want to encourage a system, as Attorney
General Pryor said, where the States provide this process, we
must continue current law that gives effect to the process that
occurs in the State courts.
Thank you very much.
[The prepared statement and an attachment of Mr. Eisenberg
follow:]
Statement of Ronald Eisenberg, Deputy District Attorney, Philadelphia,
Pennsylvania
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to address the Committee on the
important issue of competency of counsel in state capital proceedings.
I believe there is no real disagreement on this goal; I know of no
prosecutor who does not desire an active, ethical capital defense bar
pursuing clients' interests. Such quality representation is necessary
to achieve justice, public confidence, and efficiency.
The real question here is whether it is appropriate and productive
for the federal government to intervene in the states' processes for
appointing counsel in state criminal proceedings. I would like to
address two points that may bear on that question: the existence of
federal funding for state capital litigation, and the existence of
standards for appointment of counsel.
Existing federal funding. Capital punishment opponents charge that
defense lawyers in state capital cases are chronically underfunded.
Much of the impetus for the complaint stems from the so-called
defunding of the capital resource centers, set up by Congress in 1994
to provide legal advice, training and assistance in state death penalty
cases. While it was largely unreported, however, federal assistance for
state capital defense was not actually cut off. Instead, the funding
was picked up by the Administrative Office of United States Courts.
This reallocation process began at the end of 1995, before the resource
center cutoff date, so that new funding would be immediately in place.
There was never any gap, and many of the new federal court-funded
attorneys were the very same lawyers who had worked for the resource
centers.
Each year, the funding level has risen. In FY 2001, the total
amount was over $20,000,000. The money went to many of the most active
capital litigation jurisdictions: California, Pennsylvania, Georgia,
Oklahoma, Arizona, Nevada, and Tennessee. The federal office
administering the program reports that no defender organizations in
other states have been refused funding. (The list does not include
states such as Florida and New York that have independently established
highly-funded statewide capital defense organizations.)
Ostensibly, this money is to be used for representation of state
capital defendants in federal habeas proceedings, after the case has
already moved through the state courts. In my jurisdiction, however,
capital defense lawyers paid by the federal government have spent at
least as much of their time in state court as in federal court.
At the very minimum, the federal millions free up considerable
resources for direct use in state court, at the trial, appeal, and
post-conviction level. Undoubtedly, capital defense lawyers will still
claim it is not enough. (I am not personally aware of any government-
funded lawyers, at least at the state and local levels, who believe
they have enough resources to perform their jobs optimally.) But the
existence of this funding stream surely impacts on the question of
whether Congress need impose new federal mandates on the states, with
significant financial and legal penalties for those jurisdictions that
devise their own different solutions to the problem.
Existing counsel standards. Opponents of the death penalty claim
that the system is unfair because lawyers are not sufficiently
qualified. The deficit can be redressed, it is argued, only if the
federal government steps in to force states to adopt federal standards
for appointment of counsel in capital cases.
Under the previous administration, however, the Department of
Justice performed a study finding that most state death penalty cases
arise in jurisdictions that have already adopted standards for
appointment of capital counsel. And in most cases, those standards
exceed the qualifications that Congress chose to require for
appointment of counsel in federal capital cases.
The Clinton Justice Department study can be found on the internet
at http://www.ojp.usdoj.gov/indigentdefense/compendium/pdftxt/vol3.pdf.
It concluded that at least 17 states have by statute or court rule
promulgated standards for appointment of counsel at various stages of a
capital case. These states include California, Florida, Georgia,
Missouri, New York, North Carolina, Ohio, and Utah. (The list does not
include Pennsylvania, which does not have statewide standards, but does
have detailed standards for Philadelphia, which represents the majority
of capital cases in the state.)
At least 14 other states, according to the study, have public
defender systems for capital representation. These states include
Colorado, Delaware, Maryland, New Jersey, New Mexico, Oklahoma, and
Oregon. (The study predates the recent establishment of a statewide
indigent defense system in Texas.)
Standards for appointment of counsel in federal cases carrying a
potential death sentence are set forth in 21 U.S.C. Sec. 848(q)(4)(A)
and (5)-(7). They provide only that the court appoint one (and for good
cause shown, a second) attorney, who has been a member of the bar for
five years and has three years of felony trial or appellate experience.
Unlike many of the state appointment standards, the federal standards
do not require experience in any prior capital cases, or any training
in capital litigation.
This discussion of counsel appointment standards is not to suggest,
however, that particular standards necessarily result in reduced claims
of attorney error. Experience is actually to the contrary. In
Philadelphia, for example, where capital appointment standards were
adopted a decade ago, I am unaware of any capital case that does not
involve claims of ineffective assistance of counsel. Frequently,
counsel whose ineffectiveness is raised will testify that they did
indeed err in some fashion. Of course, a lawyer who avoids a death
sentence for his client by confessing his own ineffectiveness is,
paradoxically, supremely ``effective.''
But if the goal is to achieve effective counsel in the
constitutional sense, rather than simply to reduce the number of
successful capital prosecutions, then it is unclear that any particular
appointment methods are optimal whether or not Congress chooses to
punish states that diverge from federally mandated provisions.
District Attorney's Office
Philadelphia, Pennsylvania 19102
July 5, 2001
Hon. Patrick Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510-6275
Dear Chairman Leahy,
I was a witness at the June 27, 2001, Judiciary Committee hearing
exploring issues related to competency of counsel in state capital
proceedings. During the hearing, you read from the posed questions to
me concerning an April 2001 report by Janice L. Bergmann entitled ``The
Crisis in Post-Conviction Representation in Capital Cases Since the
Elimination by Congress of Funding for the Post-Conviction Defender
Organizations.''
Because I was previously unaware of the report, I would like to add
to my responses to your questions, which focused on the report's
discussion of post-conviction capital litigation in the Commonwealth
Pennsylvania.
At page 75, the report alleges that Pennsylvania fails ``to provide
trained legal counsel for indigent death row prisoners.'' The report
attempts to justify this charge with several assertions.
First, the report states that the post-conviction capital defender
organization originally funded by the federal government in 1994 was
downsized and eventually forced to close entirely in 1999. In reality,
as I mentioned at the hearing, federal funding for post-conviction
capital defense in Pennsylvania never ended; on the contrary, it has
increased ten-fold since 1994.
It is true that the organization originally called the Pennsylvania
Capital Case Resource Center has changed its name several times--but
not its function. The resource center changed its title to the
Pennsylvania Post-Conviction Defender Organization, and then, after the
so-called ``defunding,'' to the Center for Legal Education, Advocacy,
and Defense Assistance.
At the same time that the CLEADA title emerged, however, so did
another; the Capital Habeas Unit of the Federal Defenders Office for
the Eastern District of Pennsylvania. This was the entity that
officially received the continuing federal funding for post-conviction
capital defense in Pennsylvania. The report acknowledges that this
organization was created ``not long after'' the ostensible defunding of
the resource center. In reality, there was no gap at all; the
Administrative Office of United States Courts Defender Services
Division officially acted, months before the ``defunding,'' to
appropriate money to the new Capital Habeas Unit.
The overlap between the resource center and the Capital Habeas Unit
was more than temporal. The staff of the habeas unit largely consisted
of attorneys who had, until the moment of the unit's creation, been
resource center lawyers. Indeed, while two of the resource center's
lawyers worked under the separate letterhead of CLEADA, the remainder
officially became employees of the capital habeas unit.
But these lawyers did not have to go far to communicate. CLEADA and
the capital habeas unit shared offices on the same floor of the same
building. While they had different suite and telephone numbers, lawyers
from these offices answered the phones and used the face machines
interchangeably, regardless of their official title. (The rest of the
Federal Defenders Office, of which the Capital Habeas Unit was
officially a part, was housed in a different location.)
Most importantly, however, all of these lawyers continued to work
together on state capital cases. The Bergmann report implies that
lawyers of the Capital Habeas Unit represent capital defendants only in
federal court, after state post-conviction proceedings have been
completed. That is flatly false. Lawyers employed by the Capital Habeas
Unit represent capital defendants in the majority of--indeed, in almost
all--post-conviction proceedings in state court. My colleagues deal
with these lawyers, in writing and in person and in state court, every
day.
So when in 1999 CLEADA chose to end its independent existence,
there was no question what would happen to its lawyers and state court
caseload. All were immediately assumed by the Capital Habeas Unit
staff. The report carefully asserts that, when CLEADA dissolved, ``no
state entity in Pennsylvania'' was available for capital defense. The
author seemingly was aware that an entity did indeed exist, although it
had been created and funded by the federal government though the AOUSC.
And that entity has flourished. In 1995, the Defender Services
Division allocated $1,590,744 to the Capital Habeas Unit for the
portion of FY96 following the upcoming resource center ``cut-off'' date
of March 31--apparently far more federal funding than the resource
center ever received as such. For FY97, the Division allocated
$2,327,600. In FY98, the allocation was $2,485,100. In FY99, the unit
received $2,904,800. And for FY2000, Capital Habeas Unit funding jumped
to $5,565,000. When the Pennsylvania resource center was supposedly cut
off, there were four federally funded lawyers providing assistance,
training, and most of all, direct representation of state capital
defendants. Today, there are at least fifteen. The report says none of
this.
The report misrepresents Pennsylvania conditions in other respects
as well. The report implies that capital defendants go unrepresented,
stating that the Commonwealth adopted a one-year filing deadline for
state post-conviction petitions (as Congress did for federal post-
conviction petitions), yet has no state standards for appointment or
funding of post-conviction counsel. In reality, Pennsylvania has a
guaranteed right to appointment of counsel for one full round of post-
conviction counsel, but to the effective assistance of post-conviction
counsel, to be judged on Strickland standards. No court can dispose of
the first post-conviction petition without appointing counsel, even if
the one-year filing deadline has passe. I am aware of no case in which
an unrepresented capital defendant was time-barred from an initial
State post-conviction petition. The report says none of this.
As to appointment standards and funding, the report makes no effort
to gauge conditions. Instead it simply takes the position that, since
these functions are not mandated at the state level in identical,
centralized terms for all of Pennsylvania's 67 counties, they must be
performed inadequately. Astonishingly, the report fails to discuss
practices in Philadelphia, which accounts for roughly three fourths of
all homicides in Pennsylvania, and two-thirds of the capital cases.
As I mentioned at the hearing, Philadelphia has for more than a
decade had in place appointment standards that far exceed federal
standards. The standards apply not just for appointment of trial and
direct appeal counsel, but for appointment of post-conviction counsel
as well. They require that the court appoint at least one attorney (and
two attorneys if the case presents numerous or complex issues). The
attorney must have at least five years of litigation experience, must
have handled at least ten trials or hearings to final factual
resolution, must have taken training within the previous two years
focusing on capital post-conviction litigation, and must submit an
adversary writing sample and questionnaire to a screening committee of
defense lawyers. The report says none of this.
All these commissions are not surprising. The report states that it
was prepared ``with the assistance of local practitioners.' I know of
no Pennsylvania prosecutors, however, who were consulted under the
auspices of the report, or who were even informed of its existence
after completion.
The report's author is identified as ``a federal defender staff
attorney.'' It is unclear to me from this description whether the
author is a direct employee of the Defender Services Division of AOUSC,
or whether she is in fact a practicing capital defense attorney; at the
least, as a Westlaw search shows, her training and experience are as a
capital defense attorney. What is clear, then, it that this report is
hardly an objective analysis by a neutral government agency. It is an
advocacy document, written by an advocate.
Still, the existence of the report underscores two points made at
the hearing: that many state and local governments are now taking great
efforts to provide competent capital defense counsel, and that, in many
areas, their primary opponent in defending capital convictions is an
agency of the federal government. I hope that this more complete
discussion of the Pennsylvania experience in capital litigation will
aid the Committee in the consideration of the issues before it.
Thank you for this opportunity to supplement the record of the
hearing.
Sincerely,
Ronald Eisenberg
Deputy District Attorney
Chairman Leahy. Unfortunately, in Illinois, we had to trust
some teenage or just-out-of-their-teens journalism students to
do what the courts and the whole criminal justice system had
not done--to find innocent people.
Beth Wilkinson, our next witness, was the lead prosecutor
in the Oklahoma City bombing case. She delivered the closing
arguments in the sentencing phase of the McVeigh case--in which
he received the death penalty--and delivered also the arguments
in the Nichols trial.
She began her legal career as a captain in the U.S. Army,
where she served as an assistant to the general counsel for the
Office of the Army General Counsel. She has also served as an
Assistant U.S. Attorney in New York and as the principal deputy
chief of the Terrorism and Violent Crime Section at the
Department of Justice. She is now a partner with Latham and
Watkins here in Washington, and serves as co-chair of the
Constitution Project's Death Penalty Initiative.
Ms. Wilkinson, I thank you very much for taking time in
what I know has already been a very busy day to be here with
us. Go ahead.
STATEMENT OF BETH WILKINSON, CO-CHAIR, CONSTITUTION PROJECT'S
DEATH PENALTY INITIATIVE, WASHINGTON, D.C.
Ms. Wilkinson. Thank you very much, Mr. Chairman. It is a
privilege to be here with you; Senator Hatch, to see you again;
Senator Sessions and Senator Feingold to speak about something
that is so important to, I believe, everyone on this panel.
I come to you today not just in my personal capacity as a
former Federal prosecutor, but also as the co-chairman of the
Death Penalty Initiative that made its recommendations public
this morning. We are a bipartisan group of people who are in
favor and oppose the death penalty, and have worked in a
similar way that I think you, Senator Leahy, and you, Senator
Hatch, are trying to do on these very important issues.
We have brought together people as diverse as Paula
Kurland, who is here today, who is a mother of a victim of a
murder who actually witnessed the execution of her daughter's
murderer. Her daughter, Mitzi, was murdered at age 21.
We are also joined on our committee by Judge William
Sessions, the former Director of the FBI, a proponent of the
death penalty and a strong supporter of DNA evidence and
analysis.
On the other side of the aisle is David Bruck, a prominent
capital defense lawyer who has chosen in his career to defend
many people who have faced capital punishment. We even are
joined by Reverend James Andrews, who represents a variety of
the clergy, including the Presbyterian Church, who oppose the
death penalty.
We took the time to come together with our divergent views
and make 18 recommendations for what we saw as the minimum
standards that States and jurisdictions across the country
needed to employ to ensure that capital litigation was improved
in our country.
Today, we have announced those recommendations, and three
are directly related to the topic of your hearing today and
that is the competency of counsel. I personally believe there
is nothing more important in any type of litigation, but
especially in capital litigation, that defendants receive good
and zealous representation.
It is important for obvious reasons, to protect the system,
to protect the victims who want to know that the right person
was convicted fairly, to streamline the appellate process so we
don't have the long delays that some of the other panelists
have alluded to this morning, and so that we know our system is
working properly and is tested at every level.
As a former prosecutor, I found great comfort in
participating in the McVeigh case knowing that Mr. McVeigh and
Mr. Nichols were represented by very fine, experienced
advocates. In the end, when Mr. McVeigh challenged most
recently his death penalty conviction and sentence, I think
Judge Matsch and the rest of us found great comfort in knowing
that there had been a thorough investigation, a thorough pre-
trial process, extraordinary resources expended by the defense
that left no doubt that Mr. McVeigh was the perpetrator of the
crime.
I believe that most people who participate in the system
want to know on both sides that the defendant is being
represented zealously. Unfortunately, that doesn't happen in
our system in very many instances. While States across the
country do have standard, as Mr. Eisenberg noted, few or any of
them are enforced on a regular basis. It does us no good to
have those standards if those counsel that represent indigent
defendants are not actually accomplished, experienced criminal
lawyers. As Mr. Bright was saying, many of these lawyers have
no experience in criminal law.
What the Constitution Project's Death Penalty Initiative
recommends to you, and is consistent with the legislation that
we support, the Innocence Protection Act, is that three main
fixes be made in the system.
First, there is an independent authority that appoints
counsel, sets the standards, and ensures that each individual
defendant has adequate and well-trained counsel. Now, Mr.
Eisenberg noted that if such an independent authority were
established, it might be taken over by people who are zealous
anti-death penalty advocates.
Well, first of all, I think most people who defend death
penalty defendants are opposed to the system. Few other people
would ever take on that type of representation. It is
emotionally exhausting, it is intellectually challenging, and
it is not well-paying. So I don't think that it should surprise
anyone that if there is an independent authority that the
people who actually take on the representation would oppose the
death penalty. That should make no difference in how they
zealously represent the defendants. In fact, if it improves
their skills--that is, if they receive more training and they
have more experience--that is only to all of our benefit.
Second, we want to ensure that all of the counsel who
represent individuals in this system are paid properly.
Everyone knows and has heard of the stories of people who
receive $20 to $40 an hour in Alabama, Tennessee where there is
a $20 to $30 limit, and in Mississippi a $1,000 cap. No
attorney, no matter how zealous, who has to pay their bills,
pay back their law school loans, can afford to take on those
types of representations.
It is essential that attorneys are well compensated, and
that not only are they compensated but that their investigators
and experts can be paid so that they can pursue all of their
rights under the system.
Finally, the third recommendation we make is that the
current standard under the Supreme Court precedent of
Strickland v. Washington for competency of counsel be changed
for capital litigation. The idea that you can have effective
assistance but fatal assistance, as we have heard described
here so dynamically by Mr. Graham, is shocking. We should hold
defense counsel who represent capital defendants to a higher
standard.
I come here today to thank all of you for all the hard work
that you have been doing, and I know you will continue to do on
this bipartisan issue, and to provide the support of our
committee and me personally for the Innocence Protection Act. I
look forward to answering any questions you may have.
[The prepared statement of Ms. Wilkinson follows:]
Statement of Beth Wilkinson, Co-Chair, Constitution Project's Death
Penalty Initiative
Good morning, Mr. Chairman and Members of the Committee. My name is
Beth Wilkinson. I presently serve as co-chair of the Constitution
Project's Death Penalty Initiative. I am here today to speak on behalf
of the Committee and personally, as a former federal prosecutor, about
the importance of competent counsel for defendants facing capital
punishment.
The members of the Committee are supporters and opponents of the
death penalty, Democrats and Republicans, conservatives and liberals.
We are former judges, prosecutors, and other public officials, as well
as victim advocates, defense lawyers, journalists, scholars, and other
concerned Americans. We disagree on much, including whether abolition
of the death penalty is warranted. But we agree that insufficient
safeguards are in place to assure fairness in the administration of
capital punishment. We have come together not to abolish the death
penalty, but to improve the administration of capital litigation.
We have conducted extensive research and have deliberated long and
hard about the issues presented today, seeking consensus because we
recognized the need to overcome past divisions. For too long, society
has cast the death penalty debate as one between ``liberals'' and
``conservatives,'' those who are ``soft on crime'' and those who ``care
about victims of crime.''
This morning our Committee announced to the public some of the
minimum reforms essential to a fair and just death penalty system. One
of our paramount concerns is competent counsel for indigent defendants
facing the death penalty. All of our citizens, regardless of ability to
pay, and especially those facing capital punishment, should be well
represented.
As a prosecutor in the federal system and specifically, as a
prosecutor in the Oklahoma City bombing case, this is especially
important to me. Timothy McVeigh and Terry Nichols were defended by
highly skilled teams of lawyers, experienced in capital cases. All of
the participants in the process wanted a fair trial, and with talented
and zealous counsel, McVeigh and Nichols indeed received fair trials.
Far too few capital defendants have quality defense attorneys at
trial, and while not every defendant may be entitled to a dream team of
defense lawyers, every defendant facing the death penalty is entitled
to qualified counsel who meet minimum qualifications.
As a prosecutor, I wanted both Timothy McVeigh and Terry Nichols to
be represented by a good defense lawyer for many reasons. First and
foremost, a competent defense lawyer is essential in getting at the
truth. I wanted the defense to do a thorough investigation to make it
easy for the appellate court to decide there had been a fair trial.
Substandard counsel is likely to result in an inadequate trial record,
through failure to investigate and failure to preserve objections. I
also wanted the families of the victims to rest knowing the
perpetrators were punished. When a defendant has ineffective counsel
the state, the families of victims, and society all suffer. Litigation
becomes protracted, complicated and costly, putting legitimate
convictions at risk. This subjects the victims' families to continuing
uncertainty, and deprives society of the knowledge that the real
perpetrator is behind bars. This means that ensuring competent counsel
to defendants facing the death penalty benefits not only the defendant,
but also victims and society at large.
We have all heard the stories of wrongful convictions involving
defense lawyers who lacked the appropriate experience and resources. We
hear that sometimes, capital defense lawyers were under the influence
of alcohol or drugs, or slept through parts of a trial; and that there
have been a number of capital defense lawyers who were subsequently
disbarred or otherwise cited for serious ethical violations.
For example, in 1986 in Georgia, defendant Aden Harrison, Jr. was
all but abandoned by his court-appointed attorney James Venable. Not
surprising since Harrison was a black man and his attorney was a former
imperial wizard of the Ku Klux Klan who was later disbarred.
In 1992 in Texas, defendant George McFarland's attorney admitted to
sleeping through parts of the trial. The judge permitted the trial to
continue saying ``the Constitution guarantees the right to an attorney.
It doesn't say the lawyer has to be awake.'' McFarland is currently on
death row.
The state of Oklahoma paid approximately three thousand dollars for
Ronald Keith Williamson's defense. His lawyer conducted no
investigation and failed to mention to the jury that another man had
confessed to the killing.
These cases highlight the need for death penalty reform on a
National level. Today we announced to the public a number of
recommendations for reform, including three provisions dealing
specifically with representation of capital defendants.
First, we recommend every jurisdiction create an independent
authority to screen, appoint, train, and supervise capital defense
attorneys, and to set minimum standards for capital representation.
Without such a process, as numerous studies have shown, competent
representation becomes more a matter of luck than of constitutional
guarantee. The independence of the authority and its freedom from
judicial or prosecutorial conflicts is crucial to ensure that its
members can act without partisanship and in a manner consistent with
the highest professional standards.
Instead, many states award capital cases by contract or
appointment, employing explicit or implicit incentives to these
attorneys to keep their costs low and their hours on the case few. The
attorneys may be chosen based on friendship with the judge, a desire
not to ``rock the boat,'' their willingness to work for low wages,
their presence in the halls of the courthouse, or other factors poorly
correlated with competent representation. Many of them have little
knowledge of capital litigation or even criminal law in general. Many
have little experience or skill in the courtroom. A disproportionate
number have records of disciplinary action, even disbarment.
Establishing independent appointing authorities to alleviate many of
these problems is a crucial and central recommendation of this
committee.
All jurisdictions should adopt minimum standards for the provision
of an adequate capital defense at every level of litigation. The
standards for qualified counsel will vary according to the requisites
of the particular stage of proceedings. There is some flexibility as to
which minimum standards a jurisdiction ought to adopt. However, we
suggest that minimum standards should, at the least, require two
attorneys on each capital case, and at the trial level that: (1) the
lead attorney have at least five years of criminal litigation
experience as well as experience as lead or co-counsel in at least one
capital case; (2) co-counsel have at least three years of criminal
litigation experience; (3) each counsel have significant experience in
jury trials of serious felony cases; (4) each attorney have had recent
training in death penalty litigation and (5) demonstrated commitment
and proficiency. Similar standards should be met at the appellate and
post-conviction stages, although at these stages the type of relevant
prior experience will vary. The important thing is that a set of
stringent and uniform minimum standards should be adopted, implemented
and enforced.
Second, we recommend that each jurisdiction adopt standards
ensuring adequate compensation of counsel appointed in capital cases,
as well as adequate funding for expert and investigative services. Many
jurisdictions impose shockingly low maximum hourly rates or arbitrary
fee caps for capital defense (Alabama $20-40 an hour, up to $2000 cap,
meaning that an attorney devoting 600 hours to pretrial preparation in
Alabama would earn $3.33 an hour; Tennessee, $20-30 an hour;
Mississippi, a $1000 cap). Courts often will not make funds available
for reasonable expert, investigative, support or other expenses that
are crucial to the adequate preparation for both trial and sentencing
in capital cases. Attorneys should not be forced to choose whether to
spend a severely limited pool of funds on their own fees or on experts
and investigators. Failure to provide adequate funding and resources is
a failure of the system which forces even the most committed attorneys
to provide inadequate assistance.
Third, we recommend that the current standard of review for
ineffective assistance in capital sentencing be replaced with a more
stringent standard better keyed to the particulars of capital
representation.
The current Supreme Court (Strickland v. Washington, 466 U.S. 688
(1984)) standard for effective assistance of counsel permits
``effective but fatal counsel.'' Every state that permits the death
penalty should adopt a more demanding standard to replace the current
test for effective assistance of counsel in the capital sentencing
context.
In support of the Death Penalty Initiative, my law firm, Latham &
Watkins, took on a research project of death penalty laws in 6 states.
All of the states, Texas, Virginia, Indiana, Pennsylvania, Tennessee,
California, have laws governing standards for counsel in capital cases.
Yet, stories like Aden Harrison, Jr., George McFarland, and Ronald
Keith Williamson are rampant. This is why it is so important to address
this issue on a National level with an enforcement mechanism to ensure
counsel standards are actually met.
There are very few ways to ensure from a federal perspective that
indigents facing the death penalty have effective counsel. We all can
agree that there is a problem. The question becomes how can the federal
government help enforce and resolve the problem. The reforms proposed
today, coupled with the Innocence Protection Act of 2001, will ensure
that minimum standards for competent counsel will be met in all States.
This is why the Committee and I, personally, am such a strong supporter
of this legislation.
The Act rightly enforces standards for qualified counsel through
monetary incentives, both through award and withholding of grants; and
through the invocation of certain procedural advantages in federal
habeas corpus review for those states that provide competent counsel to
capital defendants. Unless these standards are enforced in ways that
assure compliance, the mere adoption of standards is meaningless.
The lack of adequate counsel to represent capital defendants is
likely the gravest of all problems, which makes the death penalty
arbitrary, unfair, and rife with error. I urge the Congress to support
the reforms establishing a National standard for competent counsel in
death penalty cases. These reforms will benefit not only defendants,
but also victims and society at large.
In closing, I urge the Congress to pass the Innocence Protection
Act of 2001 in order to fulfill the Constitutional guarantee of
effective assistance of counsel to all defendants.
I look forward to answering any questions that you might have.
Thank you.
Chairman Leahy. Thank you, Ms. Wilkinson. You never taught
me how to hold on to some of these props, Senator Hatch. You
were supposed to teach me some of these things before I took
over the chairmanship.
Senator Hatch. I would just like you to share them with the
Minority, because we asked for it yesterday and still don't
have a copy.
Chairman Leahy. I got this about a half hour ago and I will
be glad to give you my copy, if you would like.
Senator Hatch. If you would, we would be glad to have it.
Ms. Wilkinson. I would be happy to provide one.
Chairman Leahy. Why don't you bring it up right now?
Senator Hatch. We will send somebody down.
Chairman Leahy. I just want to make sure you get it. I have
not read it.
Kevin Brackett is the Deputy Solicitor of the 16th Judicial
Circuit in South Carolina. You have been there for 10 years.
You have prosecuted capital cases, you have trained colleagues
in handling such cases. You were named the Ernest F. Hollings
Prosecutor of the Year in 1998.
Mr. Brackett, I appreciate you taking the time to come
here, and I hope while you are here you have a chance to stop
by and say hello to both of your Senators. For one you have an
award named after him; the other, Senator Strom Thurmond, is a
member of this committee.
STATEMENT OF KEVIN S. BRACKETT, DEPUTY SOLICITOR, 16TH JUDICIAL
CIRCUIT, YORK, SOUTH CAROLINA
Mr. Brackett. Thank you, Mr. Chairman, Senator Hatch,
members of the committee. As Chairman Leahy has said, my name
is Kevin Brackett, and I am honored and pleased to be here to
participate in this discussion on this very important topic.
I have been a prosecutor for nearly 10 years and I have
been serving the citizens of York and Union Counties in South
Carolina. I have prosecuted the last five capital murder cases
that have occurred in our jurisdiction. Prior to my employment
with the solicitor, I worked as a law clerk with the Richland
County Public Defender's Office, which is down in Columbia, the
capital city of South Carolina. And while employed there, I was
privileged to participate in the defense of a capital murder
case in which the defendant was sentenced to life in prison. I
feel that my experience on these issues on both sides gives me
a good perspective on some of the issues that we are discussing
here today.
My written statement which I have submitted for the
consideration of the committee details my thoughts on the
necessity of this legislation in the State of South Carolina.
In sum, I believe that South Carolina already complies with any
reasonable standards which the proposed commission may choose
to suggest. Minimum standards of competence for counsel in
capital cases are already in place.
This year's budget provides $2.75 million to compensate
counsel and for the purpose of retaining experts and
investigative services in capital cases. In addition, that
$2.75 million is augmented by a special levy that is attached
to every fine imposed in any court in the State of South
Carolina. If a fine is given of $50, there is an additional $50
levy that is placed on that. Eleven percent of that levy goes
into the fund for the defense of indigents. So the $2.75
million is just the baseline funded by the legislature.
Additional funds are available throughout the year as these
fines and fees are paid.
I believe if the committee's proposals are reasonable, I
don't think that Title II of the Innocence Protection Act is
really going to have any kind of noticeable impact on capital
case processing in South Carolina.
I would point out that we just finished a capital case
about 3 months ago, State v. Bobby Lee Holmes. It was a
retrial. It was a 10-year-old murder case and Mr. Holmes was
represented by two very capable counsel, one of whom is
basically a specialist in defending capital cases, defends them
all across the State, and the other of whom has approximately
15 years' experience on both defense and prosecution.
In addition to these two lawyers, they were supported by a
phalanx of attorneys. I think there were four or five other
attorneys who were volunteering pro bono to assist in this
case. There were investigators in the courtroom at all times.
They had numerous experts. Six, eight, ten experts testified,
and there were other experts who were retained to assist who
never testified.
There is no shortage of assistance to indigent capital
defendants in South Carolina, and the system there I believe
works to give them every opportunity. In fact, were I charged
with a capital murder in South Carolina, I would divest myself
of every asset I have and ask to be given indigent
representation so that I could access this quality of
representation because I could not afford to mount the defense
that Mr. Holmes mounted 3 months ago.
Nobody can quibble with the contention that capital
defendants are entitled to competent representation and
adequate resources to help assist in their defense, hiring
experts and investigators. That notwithstanding, I cannot
support or endorse Title II of the Innocence Protection Act as
it is proposed.
First, while there may be isolated incidents of
incompetence and insufficient funding for capital defendants,
there is already a mechanism in place to remedy the problem. It
is called the Sixth Amendment and the Due Process Clause.
The courts do a fine job. They are in the best position to
evaluate these situations on a case-by-case basis and determine
whether there is any merit to these claims. I submit that the
courts do an excellent job of this, and this legislation only
tends to indicate a lack of faith in their ability.
Second, Title II appears to put the cart before the horse
by accepting that there is a need for change prior to
undertaking an objective assessment of the situation and the
system. The Act is premised on the supposition that
incompetence and underfunding are rampant through the system. I
know that this is the position taken by those who are opposed
to capital punishment under any circumstances.
I do not believe that an objective study of capital
punishment in this country would support this premise, however.
It would be much more practical to undertake a thorough,
objective assessment of the system first and then proceed to
recommend positive changes.
Finally, if the Congress feels it is necessary to mandate
changes--in other words, if we must do this, if we are going to
make these changes, it should resolve to correct as many of the
flaws in the system as it can. Perhaps it would be prudent to
rename the bill the Truth Protection Act.
As our Supreme Court noted in Oregon v. Haas, we are, after
all, engaged in a search for the truth. Mandating safeguards
for the truth-seeking function of the courts of this country
achieves the goal of protecting the innocent. The truth will
also set the innocent man free. It also has the added benefit
of ensuring that the guilty are held accountable.
A Truth Protection Act could embrace all the concerns
addressed in the Innocence Protection Act. It could mandate
minimum standards of competence and experience for all capital
counsel, but this should also include, however, a requirement
that any defense attorney found to be ineffective in more than
a set number of habeas proceedings, or grossly ineffective in
just one, should be barred from ever representing capital
defendants again. Currently, there are no ramifications for
such a finding, and thus no deterrent to prevent an over-
zealous defense attorney from falsely confessing to
incompetence to secure a new trial for his client.
It could also set reasonable standards for the
appropriation of expert and investigative funding for indigent
defendants. This should include a requirement that any experts
retained be required to generate reports, to be turned over to
the State, to preclude expert witness-shopping and frivolous
expenditures of public money. This should be mandated for non-
indigent defendants as well.
These are not the only areas of the system that need
attention. Most Americans would be appalled to learn that a
criminal defendant is required to be given the entire State's
file and access to all the evidence prior to deciding what his
defense will be. Originally intended to prevent trial by
ambush, the criminal discovery laws now serve only to frustrate
the search for the truth by allowing the defendant to conform
his defense to the State's evidence. This is an example of
another problem that a Truth Protection Act could address.
There are problems on both sides and they both need to be
addressed.
In conclusion, I submit that the issues this bill addresses
are more complex than they may first appear. I urge the
committee to study the matter more carefully before acting, and
if action is taken, the committee should resolve to take a more
comprehensive approach to the system's problems.
I would ask that my statement be made part of the record.
Thank you again, Mr. Chairman, for this opportunity to be here
today and I look forward to answering your questions.
[The prepared statement of Mr. Brackett follows:]
[Additional material is being retained in the Committee
files.]
Statement of Kevin S. Brackett, Deputy Solicitor, 16th Judicial
Circuit, York, South Carolina
I am honored to be here today to participate in this important
debate on the quality of our criminal justice system as it relates to
capital murder trials. I have been a prosecutor for ten years now and
have participated in the prosecution of six capital murder trials in
South Carolina. While in law school I also enjoyed the experience of
participating in the defense of an individual on trial for capital
murder. Additionally, I was witness to the first execution in South
Carolina by lethal injection. More than this though, I think a lot
about what I do. The prosecution of capital cases demands a great deal
of sober reflection: This is a business with no room for regrets.
I take no exception to the goals of Title II of the Innocence
Protection Act. Who, after all, could be opposed to protecting the
innocent? In fact, I believe that I come from a jurisdiction that will,
in all likelihood, probably be found to already meet any standards set
by the proposed commission:
I am not aware of any sleepy or drunken capital defense attorneys
in South Carolina. No judge I know would tolerate it.
Nor have I seen any incompetent attorneys take up the cause of a
man on trial for their life. South Carolina already imposes minimum
standards for capital defense counsel and the judges are required to
find affirmatively that any prospective capital defense attorney is
qualified. Five years of recent felony trial experience is the minimum
requirement for the lead attorney. In most cases the actual level of
experience far surpasses this. South Carolina law requires indigent
defendants be appointed at least two attorneys.
I have also had the pleasure of meeting many fine defense experts
over the last 10 years. South Carolina provides ample funding for
retaining expert witnesses and private investigators. This year's
budget provides $2.75 million for use in paying appointed counsel and
hiring experts and investigators. In addition, state law allows for
part of every dollar paid in criminal fines to be deposited into the
same account. When you consider that South Carolina tries approximately
15 capital cases per year you realize that our legislature is not
stingy in this regard.
In short, I believe that Title II of the Innocence Protection Act
won't really have much of an impact on my state. South Carolina should
have an impact on the Innocence Protection Act though. Consider this
case study:
Three months ago our office concluded the retrial of Bobby Lee
Holmes. Mr. Holmes was being retried for the rape and murder of 86-
year-old Mary Stewart. He was granted a new trial after a post-
conviction relief hearing in which he asserted that he was denied a
fair trial because the judge led him to believe that he OR his attorney
could make a closing argument instead of he AND his attorney. Had he
realized that both he and his attorney could have addressed the jury he
asserted that he would have spoken in his own defense. Both of his
experienced attorneys from the first trial conceded at the hearing that
they had failed to properly advise Mr. Holmes of his rights. The court
granted his request.
The evidence against the defendant was straightforward: Blood from
the victim (who was sodomized) was found on the defendant's underwear,
the defendants bodily fluids were found on a paper towel in the victims
apartment. Fibers consistent with the defendant's clothes were found in
the apartment and fibers consistent with the victims bedding were found
on the defendant's clothes. Finally, the defendants palm print was
found in the victim's apartment. The defendant told the police he had
never been in the apartment.
Mr. Holmes was represented by at least five attorneys. I say at
least because I am still not sure who at the defense table was an
attorney and who was not. The ``lead'' attorney specialized in capital
murder litigation in South Carolina and his co-counsel has
approximately 15 years felony trial experience. I don't know who paid
for the other attorneys.
During jury selection there appeared to be a jury consultant
working with the defense. Throughout the trial there was a social
worker/therapist by the defendants side at almost all times. There was
at least one investigator in the courtroom at all times. Possibly two.
During the defendants case in chief numerous experts from various
parts of the country were called on his behalf. An expert on DNA, an
expert from New Mexico on laboratory standards, one hair and fiber
expert from Alabama, a fingerprint expert from South Carolina, an
expert on criminal investigation from North Carolina, a professor of
neuro-psychology from the University of South Carolina, a psychiatrist
from the Medical University of South Carolina, the former Director of
the Indiana State Department of Corrections and a social worker all
were paid to give testimony on the defendants behalf. There were at
least four other experts who were retained yet never used.
The first point to be made concerns the attorneys who represented
Mr. Holmes in his first trial. There are no apparent consequences in
South Carolina for being found to be an ineffective attorney in a post
conviction relief hearing. It is close to impossible to prove but it is
the opinion of many prosecutors who spend any time in capital
litigation that some defense attorneys will deliberately infect a
record with error or, confess to error at a later habeas hearing in
order to secure a new trial for their client. A competent prosecutor
worries not only about their own case but also must be vigilant to
protect the record to ensure that the conviction can withstand
appellate and habeas scrutiny.
If Congress intends to compel the states to maintain rosters of
qualified capital defense attorneys they should establish as a criteria
for determining competence the number of times the attorney has been
adjudicated ineffective. This should then be tracked to guarantee
continued competence.
The second point concerns effective allocation of resources.
Everyone agrees that an indigent defendant should be entitled to the
reasonable resources needed to present his defense. But consider the
defense in Mr. Holmes' case. How many Americans could afford to mount
such an extravagant defense?
Unfortunately this sword has two edges. If we spend the money then
the cost of the death penalty is cited as a reason for it's
abolishment, if we don't then the battle cry becomes ``No justice for
the poor''.
The solution to the problem has to lay in stricter accountability.
The law allows for ex parte applications for funding. These must be
explicitly detailed by defense counsel and then more carefully
scrutinized by the judiciary. In addition, no funds should be disbursed
until a detailed report from the expert or investigator is tendered to
the court. The report should include the results of any testing done
along with a strict accounting of the time spent. Lastly, judges should
not hesitate to limit the amount that any expert can charge. The former
director of the Indiana Department of Corrections was paid five hundred
($500.00) dollars per hour to testify in the Holmes case. Would he have
refused to participate if the court had told him that he could only
charge $150.00 per hour? How about if they had capped his total payment
at $2000.00?
A balance must be struck between the need to provide adequate
resources to indigent defendants and the need to prevent frivolous
expenditures of public funds. The Constitution guarantees every
criminal defendant to equal access to justice. This does not absolve
the legislatures or the courts of their responsibility to regulate the
spending of these monies.
In conclusion it is my opinion that while the goals of the
Innocence Protection Act are laudable I am concerned about the methods
that will be employed to achieve these goals. We don't know what
conclusions or recommendations the proposed commission will make.
Perhaps it would be a more intelligent use of our time and resources to
commission the study first and then draft the legislation needed to
address the problems the commission identifies. The scope of the study
could be widened to include an investigation into the issue of
incompetent counsel and inadequate resources. Our course could then be
charted based on reliable information rather than anecdotal evidence
and reports issued by individuals and organizations with a known bias
towards the death penalty.
Chairman Leahy. I thank you for making the trip to
Washington to do this. I appreciate it very much.
Senator Hatch has a scheduling conflict. Normally, I would
begin questioning, but to accommodate him, of course, I will
yield to him first.
Senator Hatch. Well, thank you, Mr. Chairman. I only intend
to take a minute or so.
I apologize for not being here for your testimony, General
Pryor, and yours, Senator Ellis. I apologize for that, but I
have really appreciated this whole panel. Each of you has, I
think, presented your case very persuasively and well.
Let me also say I want to make a point about the cases
Chairman Leahy mentioned in his opening statement. Many, if not
all, of these individuals were released because of DNA testing,
not all, but many of them. Senator Leahy's bill contains two
major parts, one dealing with DNA testing, and the other
addressing competency of counsel. As you can tell, the
competency of counsel provisions are controversial.
The DNA provisions, however, are similar to a bill I
introduced last year and a bill Senator Feinstein recently
introduced. Indeed, DNA legislation enjoys nearly universal
support in this committee. I notice Mr. Scheck here, for whom I
have a great deal of respect, who has been a great advocate on
this and has been persuasive to me.
Now, I am confident that we could reach an agreement on DNA
immediately. We very quickly could get it through both Houses
of Congress. I think we could have done this 2 years ago, to be
honest with you, or at least a year ago, on the DNA provisions.
I am equally confident the House would move quickly on such a
bill. This would ensure that innocent individuals in prison
have the opportunity to prove their innocence, and immediately,
not while we argue this other part.
I am also concerned about this other aspect. I think all of
you have made good cases, but I am concerned about competency
of counsel. Let me just say that I will commit to continue to
work with the chairman of this committee on the issues related
to competency of counsel, but let us at least accomplish what
we can to help remedy some of the injustices that the
distinguished chairman has described, and let's do that right
away.
I think we should have done this a couple of years ago and
we were just unable to, but I would like to offer that to the
chairman and get that done, and then make a good-faith effort
to try and solve the competency of counsel difficulties that
all of you have spoken eloquently about on both sides.
In particular, I am very happy to have your report, Ms.
Wilkinson. I appreciate the work that you have done and I
appreciate the bipartisan nature of your testimony, and we will
read that very carefully and see what we can do to help here.
So, I would like to have that done. It is something that
can be done now, and the other we may be able to do also, but I
don't think that it can happen as quickly as we can solve the
DNA problem. So I just want to make that good-faith offer here
so that we don't waste another day not providing this type of
resource, help from the Federal Government, in both State and
Federal cases in ways that will help to alleviate and remedy
some of these problems. And then I commit to work on the
competency of counsel aspect in good faith and try and see what
we can do, taking into consideration all of the testimony and
the evidence to see what can be done in that particular area.
But thank you, Mr. Chairman. I will get out of your hair.
Chairman Leahy. It is very easy to get out of my hair with
my hair line. But if you could hold just for a moment, do we
agree that DNA evidence should be available? Of course, we all
do on this panel. That is not an issue.
Senator Hatch. But every day we delay----
Chairman Leahy. That is not an issue. But let's not fool
ourselves. You have got to have competent counsel to know when
and how to ask for DNA evidence and determine whether it is
available. It is not so that the person charged can prove their
innocence. That is not their burden. The burden is on the state
to prove their guilt beyond a reasonable doubt. The burden is
on the state in this case.
I would remind everybody--every prosecutor and former
prosecutor knows this--a lot of the cases aren't going to have
DNA evidence of any sort anyway, just like a lot of cases don't
have fingerprints. I recall once when I was prosecuting cases,
I had to put an investigator on the stand to testify that, one,
he or she didn't find any fingerprints at the scene; second,
they had investigated several hundred cases; and, third, it is
not unusual that there are no fingerprints. In the large
majority of the cases they investigated, there were no
fingerprints. Well, in the large majority of cases that are
going to be raised here, there is not going to be any DNA
evidence.
An easy example is somebody goes into a bank to rob the
bank. On the way out, they shoot the guard and the guard dies.
We have got a Federal case against this bank robber. In most
States, it would be a felony murder; if the State had the death
penalty, it would carry the death penalty. But it would be
awfully hard to think where there was going to be DNA there.
Now, there may have been three people who identify somebody as
being the perpetrator. Then you go in to question everything
from alibi to eyewitnesses, and so on.
In Mr. Graham's case, a man who served years upon years
upon years on death row, who was finally released with a check
for $10 and a suit that was too big, there was no DNA. So we
want access to DNA, of course; to fingerprints, of course; to
blood samples, of course. But you are not going to get any of
these things unless you have competent counsel.
Senator Hatch. If the Senator would yield, I am, of course,
talking about post-conviction DNA for people who already may be
unjustly convicted. I think we could start that tomorrow and I
think we could get it through both Houses even before we leave
this week, if we really wanted to do it.
Why not do that, and at the same time accept by good-faith
offer to try and resolve the competency of counsel issue,
taking into consideration all these respective points of view
that are sincere and educated and well thought through?
That is my point. There is no reason to continue to hold
post-conviction DNA from being enacted when we can do that
right off the bat. And hopefully we can solve this other
problem, too, because I am concerned about it; anybody with
brains would be concerned about it. But there are two sides to
that issue. That is my point, and both sides have good
arguments. I think we have got the ability on this committee to
resolve these conflicts and to try and do what is in the best
interests of people.
I don't think you need to hold up the passage of post-
conviction DNA solutions in order to solve trial competency
problems, but I do think it is going to take more effort to
solve the competency of counsel problems. We can do the post-
conviction DNA stuff, like I say, right now.
Well, I need to leave, but I want to thank you for letting
me make that statement.
Chairman Leahy. I appreciate it, and I will continue to
work with you on that. Obviously, post-conviction DNA is a
small part of this problem. We can work on achieving that. We
should also make sure that if we are going to have post-
conviction DNA, we also have counsel competent enough to know
when to ask for it.
We will start questions on 5-minute rounds.
Ms. Wilkinson, you described your committee's
recommendations regarding competence counsel, and I am going to
submit for the record the executive summary of your committee's
report.
What are some of the other recommended reforms, if you
could just briefly mention them?
Ms. Wilkinson. Yes, Mr. Chairman. Some of them are so
basic, I think they are recommendations that many people would
hope are already in place across the jurisdictions, but they
are not.
For example, we recommend that no one who is mentally
retarded or a juvenile who commits the crime under 18 be
subject to the death penalty. We did that because, as we saw
most recently in Texas, jurisdictions have refused to set that
standard, and so we think that is a minimal standard that
should be set in all jurisdictions.
We have also asked for things like the felony murder rule
to be limited in capital cases so that a felony defendant who
had no intent to commit the murder or did not commit the murder
would not be subject to the death penalty, even though they
would under the precedent of the felony murder rule in many
jurisdictions.
We made recommendations about the roles of prosecutors and
judges. We asked that judges ensure that every capital
defendant be provided with a jury instruction to jurors to
choose between death and life without parole, meaning truly
life with no reduced sentence, and that juries understand what
those sentencing options are, just like a judge would if he or
she were to make that determination.
We talked about open-file discovery, which I know Mr.
Brackett was saying has been used by some defense counsel in
nefarious ways. I found just the opposite. I found that as a
prosecutor in the McVeigh and Nichols cases what really saved
our conviction at the very end was that we did have open-file
discovery, and that the defense has access to all the
information that honestly we couldn't have known at some points
whether it was Brady or not. And only by sharing all of it with
the other side were we able to know that they could pursue
whatever they thought was appropriate during the pre-trial
phase.
So those are some of the recommendations that we made as a
committee. There are 18 recommendations that we are going to
send obviously not just to you, but to State legislatures and
policy advocates around the country, hoping that other
jurisdictions will pursue these recommendations.
Chairman Leahy. I appreciate that. When I looked at the
list of people who were there, you went about as far across the
spectrum on this issue as possible, people with a lot of
experience, and I commend you in reaching the agreement that
you did.
Mr. Bright, I was taking some notes here. I was wondering
if you could respond to Mr. Eisenberg's statements about what
he calls the de-funding of the Federal resource centers.
Mr. Bright. Yes, Mr. Chairman. I must say both from my own
practical observations and also from reading some of the
reports that have been done, I don't understand those comments.
It is true that some Federal defender offices have provided
some representation in Federal post-conviction. In Georgia, for
example, there is only one defender, obviously, and that is in
the Northern District of Georgia. So for a small number of
cases that are in the Northern District of Georgia, the Federal
defender may be involved in the Federal post-conviction.
In the Middle and Southern Districts, which is where most
of the death cases come from, there is no Federal defender
office. It is a court-appointed system. There is no provision
at all. Those lawyers are not providing any assistance in State
court. The result of that is a man named Exzavious Gibson, with
an I.Q. measured on various tests at 76 to 82, represented
himself in his first State post-conviction case. The result of
that in Alabama is that there have been a number of people for
whom the statute of limitations ran who were not represented at
all just simply because the time ran out.
There is a report here, Mr. Chairman, ``The Crisis in Post-
Conviction Representation Since Elimination of Funding.'' I
would ask, Mr. Chairman, to make this a part of the record, if
you would like. It was issued in April of 2001 and describes
this in much greater detail than I can here.
Basically, there is a real crisis particularly in those
States that have not been willing to provide lawyers at the
post-conviction stage. I mean, Alabama theoretically does; it
will pay $1,000, but you don't get much of a lawyer for $1,000.
Georgia doesn't pay anything at all. Some of the lawyers
appointed in Texas have missed the deadlines.
Federal Judge Orlando Garcia, in San Antonio, said in one
case that the lawyer who was appointed, who was a kid right out
of law school with no experience and was very, very ill--that
the appointment of this lawyer to handle post-conviction was a
cynical and reprehensible attempt to expedite his execution
without even the pretense of fairness. Now, that is a Federal
judge getting this case when it comes into the Federal court.
There is a tremendous crisis in this area, and I don't
quite understand how someone objectively could claim to the
contrary.
Chairman Leahy. Thank you.
Mr. Graham, could I ask you a question? You spent 14 years
on death row waiting to be executed for a crime you did not
commit. When it was finally admitted that you shouldn't have
been on death row, you said that the State of Louisiana gave
you $10 and a coat that was a few sizes too big.
Did the State of Louisiana do anything else? Did they
apologize to you or to your family, or compensate you or your
family for locking you up for 14 years?
Mr. Graham. A couple of delegates from the legislature
apologized, but as far as compensation, nothing.
Chairman Leahy. Senator Ellis, one of the criticisms of the
Texas system of appointed counsel includes allegations that
some judges appoint specific counsel who, for example, will
move cases quickly and cheaply through the system, or who
contribute to the judge's reelection campaign coffers.
You acknowledge that the Texas Fair Defense Act does not go
as far as you would like in establishing a neutral system of
appointment for indigent counsel. Does it address the conflict
of interest problem?
Mr. Ellis. No, it does not, Mr. Chairman, directly, and
that would have been very difficult to do. Obviously, judges
jealously guard that prerogative of appointing lawyers. The
judges are elected in our State; a good number are appointed
and then run for election. But nobody in their right mind would
run a campaign for a judge, not even me, on the notion of
fairness. You run on the notion of efficiency. For whatever
reason, the word ``fairness'' denotes coddling to criminals.
You run on efficiency, and efficiency generally means that
you want people who work the docket. I mean, I don't think it
is really fair to criticize the judges directly. I criticize
the system because the system just breeds that kind of
cynicism, but the bill does not directly address it.
I think the spotlight on the issue nationally and the
spotlight that will remain in the local press make it more
difficult for judges to appoint people just because people gave
them contributions. But obviously, you wouldn't necessarily,
even if you or I were a judge, appoint someone that you thought
would be financing your opponent's campaign. That is just not
how the system works.
Chairman Leahy. Thank you, Senator Ellis.
Senator Sessions, you have been waiting patiently and I
appreciate your time. You are also a former prosecutor, and
that has been very valuable to all of us here on this
committee.
Senator Sessions. Thank you, Mr. Chairman.
Mr. Graham, your story is something that touches all of us.
Anybody in the criminal justice system who is involved in a
circumstance where an innocent person has been charged has got
to be affected, also, and all of us who believe in law, who
believe in the justice system, the jury system and the criminal
justice system have got to be extremely troubled to hear your
story. I think truly it is an unusual event, but that it
happens at all is something that should give us all cause for
pause.
I know I used to tell my prosecutors on my staff if they
believed a defendant was innocent or the did not believe they
had sufficient evidence to proceed with the case, they should
never proceed with it; come tell me about it, but never
prosecute a case you don't believe in. That would be a horrible
thing to do, and to convict someone who is innocent is a great
and tragic event.
These cases are for the most part, in my background, pretty
aggressively defended--Mr. Brackett, you have testified about
that--and pretty intense sometimes. I have a quote here from
one defense lawyer: ``Sometimes, counsel should file motions
just to make trouble. It is part of a capital defense
attorney's job to do that. If the prosecution wants to kill the
client, they have to go through the defense attorney. File
motions for money for special investigations, for opinion polls
of the community; file all kinds of motions, support them as
much as possible with affidavits or proffers that can be
introduced in evidentiary form. Constantly make a record and
constantly make trouble.'' That is a quotation from an article
by the head of the Illinois Capital Resource Center, a defense
attorney.
Was that what you were referring to? Is that the kind of
aggressiveness that you see?
Mr. Brackett. Well, sir, I have certainly experienced what
that article describes, and I have had capital murder cases
where the motions come piling in and a lot of them have very
little merit. We have had cases where 20 or 30 motions were
filed, and on the day of trial when these motions were to be
heard a great number of them were abandoned.
It seems to be part of the strategy, and whether it is
legitimate or not I am not going to debate. But it seems to be
part of the strategy to make capital litigation as expensive as
possible because that is one of the things that you can then
argue. Is it worth the cost? I think that the courts need to
step in and take a more active role in monitoring the expense
of capital cases to ensure that the moneys that are being
expended are being expended wisely.
Senator Sessions. Well, I think there is something there.
It does appear to me that there are groups--I know Mr. Bright
is very talented, and certainly not timid about expressing his
views and defending people in criminal cases. That is healthy.
It does not bother me that attorneys who are absolutely
opposed to the death penalty are hired to defend the cases. It
doesn't bother me at all. I am troubled, Mr. Chairman, by
funding organizations who are advocacy organizations in many
ways against the death penalty. That troubles me.
I will ask Mr. Eisenberg and General Pryor, are you aware
of any other criminal legal system in which a lawyer, an office
of the court, is appointed by some advocacy or independent,
non-legal organization to represent somebody at the taxpayers'
expense? Are you aware of anything like that?
Mr. Eisenberg. Senator, I am not aware of anything like
that, but I will say, to echo these comments, that in death
penalty cases specifically we are essentially fighting against
the Federal Government, in the sense that our opponents in
virtually every case, from the point of the death penalty
verdict onward for years, are funded by the Federal Government.
It has been commented that those lawyers don't come into
State court. I can tell you they do. I see them everyday in
State court, in court itself and in legal filings. It has been
commented that a lot of jurisdictions don't have those kinds of
federally funded lawyers. Well, the Administrative Office of
U.S. Courts says that they have given funding to every defender
organization under this program that has asked for it.
Senator Sessions. So they are getting money now? Mr.
Bright's group is----
Mr. Bright. Senator, my group has never, ever gotten a
penny of State or Federal money, ever.
Mr. Eisenberg. I am not talking about Mr. Bright's group.
In addition to all those privately funded organizations and in
addition to all those non-profit corporations, et cetera, there
are lawyers that are hired in the same manner as Federal public
defenders are in Federal criminal cases, but whose job is to
litigate State capital cases. That is the $20 million-plus that
I referred to in my testimony earlier.
I agree with you, there is nothing wrong with zealous
attorneys representing the defendants in capital cases. They
should be zealous. The question is whether we should hand them
administrative control over the appointment process.
Senator Sessions. General Pryor, do you want to comment on
that?
Mr. Pryor. I do.
Senator Sessions. First, the historic uniqueness of a plan
to allow that to happen.
Mr. Pryor. Well, that is exactly what I wanted to refer to,
Senator. I am not aware of anything like this, and I think that
the most troubling aspect of this legislation as it pertains to
the competency of counsel is the notion that we are totally
rejecting the perspective that judges are independent, that
they do not perform their sworn duty.
They take oaths of office to uphold the Constitution and
the rule of law. The overwhelming majority of judges in our
system do that work diligently and honestly and with integrity,
and the entire premise of this legislation is that they do not.
Senator Sessions. General Pryor, can you see this chart
from where you are?
Mr. Pryor. Yes.
Senator Sessions. You have good eyes. This is a chart I put
together to deal with the appellate process. I do think that we
could do a better job with trial attorneys. I think every State
needs to look at that. That is the most critical phase of it. I
know Ms. Wilkinson would agree that is the most critical phase,
but these cases receive extraordinary review.
This is a typical appeal of a criminal case in Alabama.
Would you run through real briefly--my time is expired--how
that appellate process would work?
Mr. Pryor. Yes, it is typical capital case, which is quite
different from a typical criminal case. After a trial where you
have two attorneys--the lead attorney would have to have at
least 5 years' criminal trial experience. The payment for the
attorneys, in contrast to what was said earlier, is there are
two kinds of payments, $60 for in-court work, $40 for out-of-
court work, plus overhead, which really works out to be an
effective rate of about $100 an hour. There is no cap. We have
been doing more work to make that a better system.
Senator Sessions. You are working on improving it?
Mr. Pryor. Yes, we have done that in recent years and I
have been supportive of it.
Then there is an appeal to the Alabama Court of Criminal
Appeals, a direct appeal. At that level, two lawyers each
receive $2,000, plus the overhead. Then there is an appeal to
the Supreme Court of Alabama. By the way, I favored raising
that to $15,000 per lawyer; again, the same method of payment.
Then there is an appeal to the Supreme Court of the United
States. Then there are State post-conviction proceedings under
Rule 32 which go to the circuit court, the Court of Criminal
Appeals, the Alabama Supreme Court and the U.S. Supreme Court.
Now, in many of those instances which Mr. Bright referred
to the $1,000 cap, there are international law firms, Wall
Street law firms representing inmates on death row in Alabama.
Then there is the Federal habeas process in the Federal
district court, the Federal court of appeals, and the U.S.
Supreme Court. Of course, there is taxpayer-financed
representation throughout that system. So there are ten levels
of appellate review and post-conviction review of death
penalties.
Senator Sessions. Are you aware of any of the cases, unless
the defendant just insisted it be short-cut, that those ten
steps at least did not occur?
Mr. Pryor. Yes, there have been a couple of recent
instances, and this Congress passed a law that was meant to
streamline the death penalty appeals process and provide a
statute of limitations. Despite that statute of limitations,
two executions in Alabama have been stayed without real regard
to what the statute of limitations is.
Senator Sessions. Well, at any rate, it is a remarkable
appellate process. When I was attorney general, I think there
were two executions. One had been to the U.S. Supreme Court
three times and had a long history of appellate review. They
are given a great deal of scrutiny, but perhaps if we did a
better job at the trial, we wouldn't have as much fussing on
appeal.
Chairman Leahy. Am I correct, General Pryor, that the two
people whose executions were stayed obtained those stays
because they didn't have any lawyers at all?
Mr. Pryor. No, that is not the reason for the stays,
Senator.
Chairman Leahy. Did they have lawyers?
Mr. Pryor. Well, they certainly did when they obtained the
stays.
Chairman Leahy. But had they not had lawyers before?
Mr. Pryor. There were some periods in which--let me take
the two cases. One is Thomas Arthur. Mr. Arthur has been tried
three times and convicted. At his last trial, he testified that
he wanted the death penalty; he asked the jury to give him the
death penalty because he wanted the heightened scrutiny and
additional counsel that the system provides. He was
represented, of course, until the Rule 32 stage. He did not
file a Rule 32 petition, despite his great experience with the
death penalty system. He has been tried three times.
Chairman Leahy. So that qualified him as a good lawyer. Is
that what you are saying?
Mr. Pryor. No, I didn't say it qualified him as a lawyer.
Chairman Leahy. Well, anyway, we are going into Senator
Feingold's time. I will come back.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
First of all, in his opening statement Senator Hatch spoke
briefly about the Federal system and he said that the
Department of Justice has confirmed that there is no evidence
of bias in the Federal death penalty system. But he didn't
mention that the Department of Justice has a renewed commitment
to studying racial and geographic disparities.
So I would like to correct the record at this point and
note that at the subcommittee hearing that I held on this issue
following the release of the June report, the Justice
Department announced that it would proceed with a thorough
examination of these disparity issues. Deputy Attorney General
Thompson acknowledged that the June report was not the
Department's final word on this matter. So I simply want to
clear the record on that.
Mr. Chairman, I want to thank you for this hearing. It has
been extremely good. I want to commend you for your efforts on
this issue overall. I think it is one of the finest legislative
efforts I have witnessed since I have been in the U.S. Senate
and I am grateful to you for it.
Chairman Leahy. Thank you.
Senator Feingold. I wish every American could hear Mr.
Graham's words and the words of other people in the room that I
have met and the stories that they have to tell.
Mr. Chairman, I would ask that my full statement be placed
in the record.
Chairman Leahy. Without objection.
[The prepared statement of Senator Feingold follows:]
Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin
Mr. Chairman, I commend you for holding this hearing. I am proud to
be an original cosponsor of your bill, the Innocence Protection Act. I
am very pleased that this Committee--and, more importantly, our
nation--is beginning to re-examine the administration of the ultimate
punishment a society can impose, the death penalty.
Mr. Chairman, the American people are becoming increasingly
uncomfortable with the fact that our criminal justice system runs the
very real risk of executing innocent people. Many believe that we have
already executed innocent people. Since 1973, close to 100 people who
were sentenced to death were later found innocent and released from
death row. And the number of innocent people walking free keeps
growing.
We know that one of the primary factors resulting in wrongful
convictions across the country is the fact that all too often,
incompetent counsel defend those needing the best legal representation,
and at a very minimum, competent representation. It is clear, to even
the most cursory observer of our nation's death penalty system, that
the standards for competent counsel and the process for assigning
counsel to capital cases is in dire need of repair. I hope the national
attention brought to this issue by this hearing will do much to begin
to repair that breach.
Mr. Chairman, I think Congress should pass your bill. But Congress
should do even more, and I think the American people expect more. A key
part of the Innocence Protection Act focuses on the need for a national
commission to develop standards for competent counsel in death penalty
cases. I think this is such a good idea that I propose Congress go a
step further. A national, blue ribbon commission can not only provide
excellent guidance for counsel standards but can provide Congress and
the American people with a thorough, top-to-bottom review of all the
flaws in the administration of the death penalty at the state and
federal levels. There are a number of additional issues that can be
addressed by a commission--issues like racial disparities, geographic
disparities and other questions of arbitrariness in the application of
the death penalty, police or prosecutorial misconduct, and the
fallibility of eyewitness testimony.
I hope my colleagues would agree that a matter as grave as the risk
of executing innocent people should be reviewed at the highest levels
of our government, with input from experts. An independent, blue ribbon
commission could do just that.
Furthermore, if we are prepared to acknowledge that our death
penalty system is broken, we should not go forward with executions. As
most Americans have come to realize, a suspension of executions while a
thorough study is undertaken is the fair and just approach. It is time
we had a time-out on executions and review of why basic fairness and
due process are sometimes ignored. Yes, we should consider legislation
like the Innocence Protection Act but as part of a broader program that
includes a thorough review of the death penalty system at the state and
federal levels and a suspension of executions while it takes place.
That is why I encourage my colleagues to join me on the National Death
Penalty Moratorium Act.
Mr. Chairman, I thank you again for holding this hearing, and I
look forward to hearing from the witnesses.
Senator Feingold. I would also like to commend Ms.
Wilkinson. I am very impressed with the report of your group,
the Death Penalty Initiative group. It is a thoughtful set of
recommendations to improve our criminal justice system and,
very importantly, reduce the risk that innocent people are
executed.
The recommendations touch on a number of areas that are in
dire need of reform and some of the issues that are addressed
in the Innocence Protection Act, like competent counsel, access
to DNA testing, and the right to an informed jury. I, of
course, am a proud cosponsor of the Innocence Protection Act.
The Death Penalty Initiative's report clearly and unequivocally
makes the case for why this has to become law, and I hope the
Congress takes up this legislation soon and passes it.
I also believe that the Innocence Protection Act is part of
a broader program to ensure fairness and restore public
confidence in our criminal justice system. In fact, I believe
that, given the grave issues we are confronting--obviously, the
risk of executing innocent people--that the work of the
Initiative should be elevated to the national level. I have a
bill that would do that.
The National Death Penalty Moratorium Act would create a
national blue-ribbon commission to review the fairness of the
administration of the death penalty, and I believe it is time
for Congress to create a commission to thoroughly review the
State and Federal death penalty systems.
Mr. Chairman, in the couple of minutes I have, I would like
to ask a couple of questions, first, of Mr. Brackett.
You mentioned that you witnessed, I believe, a lethal
injection. Was that the execution of Sylvester Adams on August
18, 1995?
Mr. Brackett. Yes, it was.
Senator Feingold. Now, the Adams case, I am told, arose
from your home county of York. Is that right?
Mr. Brackett. That is correct.
Senator Feingold. Isn't it true that no mitigation evidence
was presented to the jury by Adams' court-appointed attorneys,
even though his I.Q. scores were in the mentally retarded
range?
Mr. Brackett. Well, I didn't come prepared to discuss that
in any detail, but I did review the file before I went down to
see the execution. I wanted to know exactly what it is that I
was going to witness, so I took the time to go to the police
department and review the file. I did not have a copy of the
transcript, so I couldn't read the transcript of the trial so I
don't know exactly what took place there.
However, I also went and reviewed the physical evidence in
that case. It involved the kidnapping of a 12-year-old boy from
his home. He was taken out back into the woods and a piece of
cloth tied around his neck. A stick was stuck inside the piece
of cloth and twisted like a tourniquet until he was choked to
death. He was then buried under a pile of leaves and sticks.
Mr. Adams then went to a telephone and attempted to ransom the
boy to his mother. Apparently, they believed that the family
had money, and they did not. The police----
Senator Feingold. Is that your way of suggesting that his
I.Q. was not in the mentally retarded range?
Mr. Brackett. Well, no, sir. In the course of investigating
the case and making these determinations, I wanted to give you
some background on the crime. But I did review some of the
files and it appeared from the files that the individual who
tested his I.Q. at the Department of Disabilities and Special
Needs found him to be malingering when they were attempting to
determine what his I.Q. was.
The expert that was appointed by the court to evaluate his
I.Q. said that basically I can't tell you what is I.Q. is
because he appears to be attempting to fake the results to this
test to possibly get an advantage. I think that is indicative
that perhaps he was not mentally retarded.
Senator Feingold. Mr. Chairman, I would ask if we could
supplement the record subsequently with information regarding
this individual.
Chairman Leahy. Yes. In fact, the record will remain open
for a week and further questions from Senators can be submitted
until Thursday, July 5.
Senator Feingold. Let me ask you one other question, sir,
about this case. Isn't it true that on the day you watched Mr.
Adams die, his lead defense attorney at his trial was sitting
in Federal prison?
Mr. Brackett. I have no knowledge of that. I know Mr.
Bruck, who is seated in the room here, was standing behind me.
And I suppose that Mr. Bruck was involved in his defense, but I
have no knowledge of who his defense counsel were at the
various stages of the proceedings or where they might have
been. I know that he was allowed to have one attorney in the
chamber with him, and then ultimately Mr. Bruck stepped out of
the chamber and was standing behind me. I assumed that he was
the counsel for Mr. Adams.
Senator Feingold. Now, I would like to ask Beth Wilkinson
and Stephen Bright, how do you respond to the argument that the
fact that innocent people have been freed from death row is a
sign that the system is working and that there is no need for
the Innocence Protection Act and other legislation to ensure
fairness?
We will start with Ms. Wilkinson.
Ms. Wilkinson. Well, just simply I think it is a red
herring and really doesn't get to the point that we are trying
to get to today. The fact that the system somehow, through
efforts of individuals like college journalism students or pro
bono lawyers who come in at the last minute and find that there
are facts, obvious facts in some cases, that would free
individuals like Mr. Graham, only tells me that with more
diligence and better representation, we will find that there
are more of these problems, not less.
So I don't understand the argument that somehow, because
the system has thankfully freed people like Mr. Graham, it is
working properly. I don't think anyone sitting here today
believes that these stories of sleeping counsel, drunk counsel,
or lack of investigation, lack of mitigating evidence is
something any of us should be proud of. We shouldn't here one
of those stories in capital litigation.
Senator Feingold. Mr. Bright?
Mr. Bright. Well, I would just echo that. I think somebody
spending 16 years on death row for a crime they didn't commit
is not an example of the system working. I think when
undergraduate journalism students--and I should have pointed
out when I talked about Anthony Porter that he was the third
person freed from Illinois' death row by the journalism
students, not by the police, not by the prosecution, not by
defense lawyers, not by judges, but by journalism students who
took this on as a class project. I would also point out that
Illinois is a State that provides a much better quality of
representation than a lot of the States in the Death Belt where
so many people are sentenced to death.
It has been suggested that the notion of an independent
appointing authority would somehow be unusual. Florida,
Tennessee, Kentucky--there are a number of States where the
defense function is independent of the courts. In fact, we
recently had hearings in Georgia where the public defenders in
both Florida and Tennessee came and said the judges were
relieved not to have that responsibility anymore. And the
system was working a lot better; it was a real adversary
system. So it is not true.
The ABA standards say that the appointment function should
be independent. In Illinois, for example, the Cook County
public defender's office has an excellent capital defender unit
where people are represented by lawyers who really specialize
and who know what they are doing, investigate the cases, and
you don't have these sorts of things happening.
Not a single one of the 13 innocent people freed from death
row in Illinois was represented by that public defender's
office. It shows what a difference and how fundamental counsel
is. Counsel is the most fundamental because DNA doesn't apply
in the vast majority of cases. So what Senator Hatch was saying
about DNA--in the small number of cases where there is
biological evidence that is very helpful, but really what is
fundamental is that people be adequately represented by real
lawyers who know what they are doing.
Senator Feingold. I thank you for that.
Mr. Chairman, I just have one more question, if I could.
Chairman Leahy. Go ahead.
Senator Feingold. Ms. Wilkinson, the Justice Department, as
I pointed out, recently renewed its commitment to continue a
study by the NIJ on racial and geographic disparities in the
Federal death penalty system.
As a former Federal prosecutor, were you troubled by the
Justice Department's September 2000 report on the Federal death
penalty system that related to these issues of racial and
geographic disparities, and do you support a thorough
examination of these disparities to be conducted by the
National Institute of Justice?
Ms. Wilkinson. I do, and I am glad that finally this
Justice Department has supported that, although belatedly, this
new and more thorough investigation. I believe last year when
the initial report came out, Ms. Reno and the rest of the
Justice Department recognized that we needed a more thorough,
extensive study.
One of the recommendations that we put forward as the
bipartisan Committee for the Death Penalty Initiative was to
look at racial bias. People who are much more experienced than
I am who have lived through the system in the 1950's, 1960's,
1970's, former prosecutors and defense attorneys, all say they
are very troubled by the history of racial bias in capital
litigation. So I think it is something we should pursue
vigorously and I am happy, although it is belated, that the
Justice Department has authorized the study.
Senator Feingold. Thank you very much. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you.
Senator Sessions?
Senator Sessions. Well, Ms. Wilkinson, a study had already
been done in great depth by Attorney General Reno, who opposes
the death penalty herself, and this was just an additional
study that focused, I think, on one additional aspect. Isn't
that correct?
Ms. Wilkinson. That is part of it, but I don't believe that
the study was exhaustive. As you know, there are very few
Federal defendants on death row, and so it makes a statistical
study very difficult to pursue. And I think Ms. Reno and others
determined that there was additional research that needed to be
done, and I am sure most people----
Senator Sessions. And that is being done by General
Ashcroft. But let me ask you, just basically on the death row
and death penalty charges in Federal court, you have to do, as
a prosecutor, a prosecutorial memorandum to the Department of
Justice, and a committee reviews that for objectivity and
fairness and legal soundness. Isn't that correct?
Ms. Wilkinson. Yes, that is right.
Senator Sessions. The individual prosecutors don't have
that authority.
Ms. Wilkinson. No, they don't have the authority to make
the ultimate decision, but obviously they are, with the Federal
agents that are normally involved in the State, law enforcement
agents, conducting the investigation, developing the facts that
they would put forward in the memorandum. As we all know,
prosecutors have extraordinary discretion, and that includes
how they develop the case and present it to the Justice
Department.
Senator Sessions. One more thing, General Pryor and Mr.
Eisenberg. You work on appeals, do you not, Mr. Eisenberg?
Mr. Eisenberg. Yes, Senator.
Senator Sessions. My question is simply this: do you have
an opinion, Mr. Eisenberg, on generally what percentage of the
appeals actually focus on guilt or innocence as a primary part
of the appeal, and what percentage of the appeals focus on
issues such as ineffective counsel or other issues of that
kind?
Mr. Eisenberg. In our capital cases, Senator, I would be
surprised if it is even more than 1 or 2 percent. In fact, the
Department of Corrections in Pennsylvania----
Senator Sessions. Only 1 or 2 percent focus on guilt or
innocence?
Mr. Eisenberg. On issues related to guilt or innocence.
In Pennsylvania, the Department of Corrections wanted to
take DNA samples from every death row inmate in the State.
There are over 200. The lawyers for those defendants opposed
that effort to have DNA samples taken from those death row
inmates. We have only had one case in my experience, death
penalty case, where the defense lawyers asked for DNA testing.
We agreed to that testing. The testing was done by the defense
and they then refused to turn over the results to us, as they
had previously promised to do.
Senator Sessions. General Pryor, is that somewhat
consistent with your experience?
Mr. Pryor. Yes.
Senator Sessions. You handle all the appeals in Alabama?
Mr. Pryor. We do, and some trials as well. I don't know if
I would characterize it as less than 1 percent, but it is a
very small percentage.
Senator Sessions. Mr. Chairman, I think in many of these
cases lawyers defend them aggressively and it is a question of
whether death should be the jury verdict or other questions.
But for the most part, most cases that come to a trial of this
kind, the guilt or the innocence of the defendant is pretty
plain, almost undisputed.
Chairman Leahy. All those ``guilty accused,'' is that it,
as a former Attorney General once said?
Senator Sessions. Well, the evidence is overwhelming many
times. I mean, sometimes the murders are committed, filmed by
the cameras in the 7-Eleven store and things of that kind.
Chairman Leahy. I understand. Like you, I prosecuted my
share of murder cases, and I think most prosecutors do want to
make sure they are convinced in their own mind of the guilt of
the accused, before they go pursue a charge. But we also know
of a number of people on death row who were about to be
executed. Suddenly somebody says, ``Wait. We made a mistake''.
But it is usually not the prosecutor who says, ``wait.'' It is
usually not the judge. Typically, it is somebody on the outside
that makes that statement. This is a cause for worry.
I will let his Mr. Eisenberg's testimony speak for itself.
But I would like to point out that it gives the impression that
there are no problems. I read a very recent report by the
Administrative Office of the U.S. Courts about Pennsylvania.
Allow me to read this.
In that report it says, ``The Commonwealth of Pennsylvania
has long been widely regarded as having one of the worst
systems in the country for providing indigent defense services.
Indeed, Pennsylvania's death penalty representation crisis has
been recognized for years. As early as 1990, the Joint Task
Force on Death Penalty Litigation in Pennsylvania warned of a
problem of major proportions in the provision of legal
representation to indigent death row inmates, and noted several
series problems including the shortage of qualified counsel to
assist inmates in State and Federal post-conviction
proceedings, the lack of standards governing the qualifications
for capital counsel or the appointment of counsel at any stage
of State capital proceedings, the lack of standards for the
compensation of counsel, the lack of State funding for
investigation of capital cases, and the lack of any mechanism
for the identification and recruitment of qualified counsel. In
the decade since the Task Force report, little in Pennsylvania
has changed.''
Mr. Eisenberg. Senator, I would like to comment on those
points briefly.
Chairman Leahy. Of course. Please go ahead.
Mr. Eisenberg. Well, thank you.
Chairman Leahy. I would not present this material without
giving you a chance to respond.
Mr. Eisenberg. Thank you, Senator. Pennsylvania is a State
where appointment of counsel standards funding is done at the
county level rather than on a uniform statewide basis. So that
report, when it referred to, for example, an absence of State
standards, what it meant was not that there were no appointment
standards; it meant that the standards are implemented at the
county level rather than the State level.
Let me tell you briefly about the standards for appointment
of counsel in Philadelphia, which represents over two-thirds of
the death penalty cases in the State. They were promulgated in
1991. To get appointed to a murder trial, any murder trial,
since it could be capital, you have to have 5 years of trial or
appellate criminal law experience. You have to have previously
been the sole or lead counsel in 10 serious criminal jury
trials.
You have to have previously been the sole or lead counsel
in at least one homicide case that went to verdict, or assisted
in two homicide cases that went to verdict. And you have to
have taken continuing legal education classes within the
previous 2 years focusing on capital cases. You are then
screened by a committee of defense lawyers in order to get on
to the roster for appointment by the court. Those standards are
well in excess of the standards that the Federal Government
implemented for appointment of counsel in Federal death penalty
cases.
Chairman Leahy. It is interesting, with those standards,
that they still say the Commonwealth of Pennsylvania has long
been widely regarded as having one of the worst systems in the
country for providing indigent defense services. Pennsylvania's
death penalty representation crisis has been recognized for
years.
Mr. Eisenberg. Based, Senator, on the technicality that
those standards are implemented at the county level, and the
Commonwealth is the Commonwealth, the State. The report that
you mention makes no reference to the kind of protections that
I have just outlined. It doesn't dismiss them. It doesn't say
that they weren't good enough. It just doesn't talk about them.
Chairman Leahy. The executive summary of that report will
be part of the record.
General Pryor, is your office seeking execution of any
people who have never had State or Federal post-conviction
review of their cases?
Mr. Pryor. Well, in our earlier colloquy that we were not
able to finish that Senator Feingold began----
Chairman Leahy. That is why I wanted to give you a chance
to respond.
Mr. Pryor. There are two cases where we have moved to set
execution dates where, at least after the last conviction,
there had not been--there had been, of course, the direct
appeal process with an appeal to the Court of Criminal Appeals.
Chairman Leahy. Was there any State or Federal post-
conviction review?
Mr. Pryor. There had not been a Rule 32 proceeding in the
State courts as to Mr. Arthur. There had been an evidentiary
hearing and a Rule 32 as to Mr. Barber. There was no appeal
taken from that, and neither filed a petition for a Federal
writ of habeas corpus within the statute of limitations. They
did so outside of the statute of limitations and Federal courts
have stayed both of those executions.
Chairman Leahy. Let me ask you this, and then I will go
back to that other question. Do you have any death row inmates
in Alabama who are currently not represented by lawyers?
Mr. Pryor. That is a difficult thing for us and the
prosecution to know.
Chairman Leahy. Are you aware of any death row inmates in
Alabama who are currently not represented?
Mr. Pryor. I am aware that Brian Stevenson, who heads the
Equal Justice Initiative of Alabama, sometimes claims that
there are not attorneys for some inmates.
Chairman Leahy. Are you aware of any inmates on death row
in Alabama who do not have lawyers? Are you aware of any?
Mr. Pryor. No, I am not, because I don't represent inmates.
Chairman Leahy. Is it your understanding that all death row
inmates in Alabama are represented?
Mr. Pryor. It is my understanding that all inmates on death
row in Alabama can obtain counsel and have counsel appointed by
the courts at all stages, including Rule 32 stages.
Chairman Leahy. Notwithstanding your earlier comment to me
suggesting that if one went through a death penalty case as a
defendant, one would have a pretty good understanding of the
system--would it be fair to say that if you really wanted to
file for post-conviction relief in State or Federal court, with
the standards required in State and Federal court, you had
better have a lawyer to do it for you, a lawyer who is
competent in such post-conviction relief acts?
Mr. Pryor. I think the obsessions with Federal and State
post-conviction proceedings is a bad one. I think that we need
to spend much more of our resources at the trial and direct
appeals stage.
Chairman Leahy. I must be having a difficult time conveying
my question to you, and it is probably my Vermont accent. I
apologize for that. I don't think you understand my question,
so I will ask it again.
Is it your understanding that if somebody wants to take a
post-conviction relief act remedy in State or Federal court
that they are hampered at the very least in that effort unless
they are represented by counsel who has some experience in that
type of post-conviction relief act?
Mr. Pryor. They are certainly assisted by counsel, Senator.
Chairman Leahy. Mr. Bright, what do you think?
Mr. Bright. I think having just any lawyer in town
represent somebody in a death penalty case is sort of like if
someone in town brain surgery and you say, well, we don't have
any brain surgeons in this town, but there is a chiropractor
down the street, so we will just take this person down to the
chiropractor and have him do the brain surgery.
The Barber case is a good example of that, Mr. Chairman.
Barber was given a local lawyer who had no idea what he was
doing. The lawyer showed up for a little evidentiary hearing.
He didn't even file the notice of appeal.
A few years ago, Mr. Chairman, the idea of a person not
having a lawyer during the post-conviction process and being
executed because they were too poor to afford a lawyer would
have been unthinkable, absolutely unthinkable. Now, we have got
two people, and there are more in the pipeline in Alabama, who
have missed the statute of limitations. Or in Barber's case,
the lawyer shows up for this hearing, doesn't file a notice of
appeal, and then misses the Federal statute. So this fellow has
no post-conviction review at all. That is unthinkable in any
system that says we are going to have equal justice. If he had
been a person of means, he would have had State post-conviction
review and he would have had Federal post-conviction review.
I agree there is a need to provide lawyers at trial for
people, and the quality of representation at trial is a scandal
and something has to be done about it and this bill is a small
first step toward that. But people have to be represented all
the way through this process if this system is going to be
fair.
I will give you another example, Walter McMillan, the
innocent man who was freed in Alabama by Brian Stevenson, first
with our office and then with the Equal Justice Institute.
Walter McMillan would have never been freed if he had not had
post-conviction review. Brian Stevenson got his case. He proved
that Walter was in another community at the time the crime took
place, and he was ultimately exonerated and released from death
row after a number of years.
Mr. Chairman, one other thing that I just think is
important to point out here. Brian Stevenson's office, the
Equal Justice Institute, and our office, the Southern Center
for Human Rights, receive no State or Federal money. We simply
are there providing representation to people because there are
people that desperately need legal assistance that don't have
any other source of it.
The lawyers from law firms that provide pro bono assistance
are recruited by the American Bar Association or by our office
to provide that representation, but none of these people are
paid anything. The State of Alabama has no system for providing
people, and some people that we represent or the firms
represent do get good representation. Many other people don't
get any representation at all, and that is just a cruel lottery
that says that one person, because their number comes up, gets
competent legal representation, and the next person the statue
of limitations expires on because they are not represented at
all.
Chairman Leahy. Mr. Pryor, I don't want you to feel that
you were treated unfairly. Did you want to respond to that?
Mr. Pryor. Whenever Stephen speaks, there are so many
things I would like to respond to, but the notion that Walter
McMillan would have been executed had he not had post-
conviction proceedings is not true. His conviction was
overturned in the direct appeal stage, in the first level of
review, where we ought to spend most of our considerable
resources in this system, and do.
Chairman Leahy. Do you disagree with the article in the New
York Times which said the lack of appeals lawyers in Alabama is
one reason the State has the fastest growing death row in the
country and the second largest number of condemned prisoners
per capita?
Mr. Pryor. Yes, I disagree, and I was, I think, quoted in
that article.
Chairman Leahy. I would note in the article that you were
quoted as saying the State should increase the money paid to
trial lawyers for indigent defendants, which is consistent with
what you have said here.
Mr. Pryor. Right, trial and direct appeals.
Chairman Leahy. I understand, and I will put that article
in the record.
Well, General Pryor and Senator Ellis and Mr. Bright and
Mr. Graham and Mr. Eisenberg and Ms. Wilkinson and Mr.
Brackett, we have kept you here a long time. I appreciate you
being here. I realize we have gone back and forth with some of
you, and I am sure each of you can think of other things you
would like to say. I will keep the record open for a week. I
will keep it open to Senators for additional questions until
Thursday, July 5.
I think everybody agrees that there is a need to have
evidence of all kinds available to both the prosecution and the
defense. I think there is a need to have standards for
competent counsel throughout the country.
When I prosecuted cases I wanted the best counsel possible
on the other side because I didn't want the case to be remanded
5 or 6 years later for lack of competent counsel. Every
prosecutor knows it is extraordinarily difficult to retry a
case 5 or 6 years later. You want to get it right the first
time.
I hope that if any of you have further material you want to
add, you will do so. If you feel that you were not given
adequate time to answer any of the questions and want to add to
your answers, feel free to do that.
We have several statements that have been submitted for the
record and we will include them in the record at this point.
With that, we stand in recess.
[Whereupon, at 1:06 p.m., the committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
QUESTIONS AND ANSWERS
Responses of Kevin S. Brackett to questions submitted by Senator Leahy
Question 1: South Carolina law provides that ``only attorneys who
are licensed to practice in [South Carolina] and residents of [South
Carolina] may be appointed by the court and compensated with funds
appropriated to the Death Penalty Trial Fund in the Office of Indigent
Defense.'' S.C. Code Ann. Sec. Sec. 16-3-26(1) and 17-3-330(C). (A) Did
you or anyone in your office support passage of this law? (B) Isn't the
effect of this law to prevent poor defendants who are on trial for
their lives from getting the best lawyer available?
Answer 1:
(A) Neither I nor anyone in my office lobbied for passage of this
law. I do not recall being aware of the law until some time after its'
enactment.
(B) I believe that for a South Carolina defendant on trial for a
capital offense in South Carolina the ``best lawyer available'' would
be a South Carolina lawyer. A South Carolina lawyer would be most
familiar with the South Carolina rules of court and legal precedent,
more in tune with the cultural background and temperament of the
jurors, and more familiar with the judiciary of the state.
The question is troubling because it has two false premises:
First, the questioner seems to assume that indigent capital
defendants are entitled to have the modern equivalent of
Clarence Darrow represent them. The Constitution does not
require this and the public purse cannot afford it. An indigent
capital defendant is not entitled to more than a non-indigent,
middle-class capital defendant.
My second problem with this question is the implication that
the ``best lawyer available'' couldn't possibly come from the
South Carolina bar. On behalf of my many very talented friends
in the South Carolina criminal defense bar I take exception to
this assumption.
Question 2: Does South Carolina's ``5-year/3-year'' standard for
counsel in capital cases prevent the appointment of attorneys with no
experience, training, or background in capital defense litigation?
Answer 2:
The standard makes no comment on the need for experience in capital
litigation. It only requires a certain amount of experience in the
trial of felony cases and a minimum length of time as a lawyer.
I do not believe that mandating prior experience in capital cases
is necessarily going to insure that a capital defendant will always get
quality representation. Even the most brilliant attorney can have an
off day. One of the finest and mast talented criminal defense lawyers I
know has never tried a capital case yet I would prefer his service over
two or three others I know that have tried several.
One of the major problems I perceive as affecting indigent
representation in South Carolina (capital and noncapital) is our
Inability to attract and retain attorneys to serve in this area.
Congress would strike a more effective blow by passing legislation that
allows for student loan forgiveness for public defender's and public
prosecutors. Too many offices lose experienced and talented attomeys to
the private sector because the attorney's cannot afford to pay their
student loans on the meager salaries offered. I have had many alumni of
my office tell me that they would have stayed forever if they could
only have afforded to. I suspect the public defenders experience the
same problem.
Question 3: The South Carolina Bar has proposed standards for
appointed counsel in capital cases, which the South Carolina Supreme
Court has refused to adopt. The proposed standards would ensure that at
least one of the lawyers have (a) experience as lead counsel in at
least one capital case that was tried to verdict and sentence, or (b)
experience as lead counsel in at least three non-capital murder cases
which were tried to verdict, or (c) experience as lead counsel in at
least nine felony cases that were tried to verdict. The proposed
standards would also require both lawyers to have completed, within two
years prior to appointment or to trial, specialized training in the
defense of persons accused of--capital offenses, and ``have
demonstrated that level of knowledge, skill and commitment to the
defense of indigent persons expected of defense counsel in capital
cases.'' Do you support or oppose these proposed standards?
Answer 3:
I have no problem with that portion of the standard that delineates
the trial experience necessary to defend a capital case. I do have a
problem with the portion that requires specialized training and a
``demonstrated. . .level of knowledge, skill and commitment. . .''. I
generally favor--standards in matters such as these but I think it is
appropriate to require more specificity than vague assertions of
minimum levels of competence that can later be interpreted to exclude
all but a small handful of people. Or worse, later be interpreted to
justify habeas relief because the hazy notion propounded hasn't been
satisfied. I would like to know what kind of training would be required
and what criteria are used to determine whether someone satisfies the
standard. Also, who decides when the standard has been met?
As regards the requirement for specialized training, how can we
require attorney's to attend that class instead of another one? If only
a small number of lawyers go to the class then the pool of qualified
lawyers might be too small to draw from to allow for representation In
all the capital cases that occur. This would result in backlogs and
delayed justice for victims.
Responses of Stephen B. Bright to questions submitted by Senator Durbin
Question: Do you agree that there are disparities in resources
available to prosecutors verses defenders? How would you recommend we
address these disparities?
Answer: I agree. There are vast disparities between the resources
available to prosecutors and defenders. Legislatures tend to be very
generous in appropriating money for prosecutors, law enforcement, crime
laboratories, specialized units (such as prosecutors for domestic
violence or drug courts), and loan forgiveness for law enforcement
officers and prosecutors, but many state legislatures have been
reluctant or even unwilling to provide funding for the defense of poor
people accused of crimes. Congress contributes to this problem by
providing for grants to the states for law enforcement without
requiring that some of those funds be used to insure an adequate
defense for the increasing number of people being prosecuted. For
example, in many states not a single penny of Byrne Grants goes to the
defense function. As a result, the disparities between the prosecution
and defenders continue to grow.
As Attorney General Robert F. Kennedy once pointed out, the poor
person accused of a crime has no lobby. There is still great resistance
by many states to the Supreme Court's decision in Gideon v.
Wainwright,\1\ guaranteeing a lawyer to poor people accused of crimes.
Not only has there been insufficient funding for indigent defense, many
states have yet to set up even a structure for providing indigent
defense and to make the defense function independent of the judiciary.
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\1\ Gideon v. Wainwright, 372 U.S. 355 (1963).
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For example, Texas leaves indigent defense up to each of its 254
counties. Georgia leaves indigent defense up to each of its 159
counties. Funding for indigent defense comes primarily from the
counties in those states and some others. The counties employ a
hodgepodge of methods, ranging from contracting with individual lawyers
who submit the lowest bid to represent indigents, to having judges
appoint individual lawyers to cases and paying them modest--if not
token--amounts, to setting up public defender offices. Thus, even the
limited resources that are available are not efficiently utilized in
many places because of the absence of any organization. In a survey of
Texas judges, over half said that other judges they knew based their
appointments to defend indigent defendants in part on whether the
attorneys were political supporters or had contributed to the judge's
political campaign. Almost half of the judges with criminal
jurisdiction admitted that an attorney's reputation for moving cases
quickly, regardless of the quality of the defense, was a factor that
entered into their appointment decisions.\2\
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\2\ Michael K. Moore, The Status of Indigent Criminal Defense in
Texas: A Survey of Texas judges (1999) (prepared for the State Bar of
Texas Committee on Services to the Poor in Criminal Matters).
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The result is that in many states, prosecutors' offices are staffed
by full-time, trained and supervised lawyers who specialize in criminal
law, and are supported by several law enforcement agencies. On the
other hand, the poor may be defended by lawyers who may have had no
training, may not even specialize in criminal law, may not know the law
and may lack investigative and expert assistance. Many of these lawyers
are forced to handle so many cases at one time that they can give only
a few minutes to each client. This is not legal representation; this is
a processing of people through the system. And it means that there is
no system in place to provide an adequate defense to a capital case
when one is brought. The same lawyers who are handling the cases of
indigent defendants on a part time basis may be appointed to defend
someone facing the death penalty.
To address these disparities, elected officials and other leaders
must recognize that indigent defense is essential to a fair and
reliable determination of guilt and punishment. They must recognize the
urgency of the situation: the courts are convicting innocent people and
giving harsher punishments to people who are not adequately
represented. Gideon v. Wainwright was not a ``dream'' or a ``promise'';
it is a constitutional mandate. The routine violate of this mandate by
the very institutions which are responsible for upholding the law
undermines public confidence in the courts and the rule of law. Elected
officials must provide leadership by standing up for fairness and the
constitutional right to counsel without being afraid of being labeled
``soft on crime.''
Senator Durbin's bill providing loan forgiveness is critical to
reducing this disparity. I teach at three law schools--Yale, Harvard
and Emory. Two--Harvard and Yale--have very large endowments and
provide full loan forgiveness for students who take public interest
jobs. We have graduates from Yale and Harvard law schools working at
the Southern Center for Human Rights for $30,000 per year. But many
other law schools have no loan forgiveness program and their graduates
leave with huge debts than cannot be paid on a public interest salary.
If we want to involve these graduates in achieving the goal of equal
justice by being public defenders, they must be provided with loan
forgiveness.
In addition, any grants made by Congress to the states for law
enforcement or prosecution purposes should include requirements that
some of those funds be used to ensure an adequate defense and fair
trial for those accused.
Congress must recognize the failure of many states to provide
structure for providing legal representation to the poor and the need
for that structure to be independent of the executive and judicial
branches. Grants, such as those provided for in the Innocence
Protection Act, are needed to encourage states to establish the
structure and provide for the independence of the lawyers appointed to
defend the poor.
Responses of Stephen B. Bright to questions submitted by Senator Leahy
Question 1: During the hearing, Senator Sessions and Attorney
General Pryor expressed--confidence in the ``extraordinary review''
given to Alabama's capital convictions, and Senator Hatch stated that
``the appellate system and our system for habeas review remain robust
and entirely capable of identifying and rectifying instances of
deficient legal representation.'' Do you share these views of the
review process? Please explain.
Answer: The review provided on appeal and in post-conviction is
neither ``extraordinary'' in any positive sense nor ``robust and
entirely capable of identifying and rectifying instances of deficient
legal representation.'' There are several reasons this is the case.
First, the worse the legal representation at trial, the less review
a case receives on appeal and in post-conviction proceedings. The
failure of the trial lawyer to put on evidence or to protect the legal
rights of the client will be deemed ``waiver'' of the right to present
that evidence or assert that right in the review process. For example,
Wallace Fugate was sentenced to death after a two-day trial in Georgia,
in which he was represented by a lawyer who had never heard of Gregg v.
Georgia, the case that upheld the current death penalty law in Georgia,
Furman v. Georgia, the decision that declared the death penalty
unconstitutional in 1972, or any other case. Not surprisingly, given
this complete ignorance of the law, there was not a single objection
during the entire two-day capital trial. There was no motions practice
and no requests for jury instructions. Thus, no issues were preserved
for review on appeal or in post-conviction proceedings.
Second, the lawyer's failure to present evidence at trial will not
be corrected on appeal or in post-conviction review. For example, the
jurors who condemned Horace Dunkins to die were never presented
evidence that he was mentally retarded. Before Dunkins was executed by
Alabama in 1989, a juror, upon learning that Dunkins was mentally
retarded, said she would not have voted for the death sentence if she
had known of his condition. She and other members of the jury had not
been informed of this compelling mitigating circumstance because the
lawyer assigned to defend Dunkins did not present school records or
other evidence of his retardation. Dunkins was executed.
Third, the representation provided on appeal is often provided by
the same court appointed lawyer who defended the accused at trial. His
lack of knowledge will be as fatal to the client on direct appeal as at
trial. For example, the brief on direct appeal to the Alabama Supreme
Court in the case of Larry Eugene Heath consisted of only one page of
argument and cited only one case. It would not have received a passing
grade in a first year legal writing class, or even a college (and
perhaps high school) English class. The lawyer did not show up for oral
argument. Nevertheless, the Alabama Supreme Court accepted this
nonperformance as good enough; it did not appoint a new lawyer to brief
the issues or to appear before the Court and argue a case involving
whether a man would live or die. It simply affirmed. In post-conviction
proceedings, the courts held that all of the issues raised were
precluded from review because they had not been raised at trial or on
direct appeal. Larry Heath was executed by Alabama.
Fourth, a convicted person, even one condemned to death, has no
right to a lawyer for state post-conviction proceedings. In Alabama,
there are around 30 people condemned to death who have been unable to
obtain post-conviction review because they have no lawyers. For some of
them, the deadline for filing in both state and federal courts has
expired, so they will get no post-conviction review at all, ``robust''
or otherwise. The State of Alabama has tried to execute two people in
this situation. Although the courts granted stays in both cases, it is
unclear whether either will receive any review. In Georgia, Exzavious
Gibson, a man with an I.Q. in the 80s, was forced to represent himself
in state post conviction proceedings because Georgia does not provide
counsel at this stage of the process. Gibson's evidentiary hearing
started as follows:
The Court: Okay. Mr. Gibson, do you want to proceed?
Gibson: I don't have an attorney.
The Court: I understand that.
Gibson: I am not waiving my rights.
The Court: I understand that. Do you have any evidence you want
to put up?
Gibson: I don't know what to plead.
The Court: Huh?
Gibson: I don't know what to plead.
The Court: I am not asking you to plead anything. I am just
asking you if you have anything you want to put up, anything
you want to introduce to this Court.
Gibson: But I don't have an attorney.
Nevertheless, the court went ahead with the hearing. The state was
represented by an Assistant Attorney General who specialized in capital
habeas corpus cases. After his former attorney had been called as a
witness against him, Gibson was asked if he wanted to conduct the
cross-examination:
The Court: Mr. Gibson, would you like to ask Mr. Mullis any
questions?
Gibson: I don't have any counsel.
The Court: I understand that, but I am asking, can you tell me
yes or no whether you want to ask him any questions or not?
Gibson: I'm not my own counsel.
The Court: I'm sorry, sir, I didn't understand you.
Gibson: I'm not my own counsel.
The Court: I understand, but do you want, do you, individually,
want to ask him anything?
Gibson: I don't know.
The Court: Okay, sir. Okay, thank you, Mr. Mullis, you can go
down.
Gibson tendered no evidence, examined no witnesses and made no
objections. The judge denied Gibson relief by signing an order prepared
by the Attorney General's office without making a single change. The
Georgia Supreme Court held that Gibson had no right to counsel and
affirmed the denial of relief.\3\
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\3\ Gibson v. Turpin, 513 S.E.2d 186 (Ga.1999), cert. denied, 120
S.Ct. 363 (1999).
---------------------------------------------------------------------------
Fifth, because Congress eliminated funding for the capital resource
centers and post conviction defender organizations, even those who do
have lawyers may not be represented by lawyers knowledgeable in the
areas of criminal, capital and post-conviction law. For example, some
of those condemned to die in Texas could not have done any worse had
they represented themselves than they did with the lawyers assigned to
them by the Texas courts after the Texas Resource Center, which had
employed lawyers specializing in capital post-conviction litigation,
was closed due to the elimination of federal funding.
Many of the lawyers assigned by the courts have lacked experience
and expertise in post-conviction litigation. Several have missed
deadlines for filing their applications, thereby forfeiting any post-
conviction review.\4\ In refusing to consider one untimely application,
the court noted that the ``screamingly obvious'' intent of the Texas
legislature in setting a time limit has been ``to speed up the habeas
corpus process.'' \5\ Judge Charles Baird took issue with the
majority's conclusion that ``speed should be [the court's] only concern
when interpreting the statute,'' and argued in dissent that the court
had failed ``to accept [its] statutory responsibility for appointing
competent counsel.'' Judge Morris Overstreet, also dissenting, said the
court's action ``borders on barbarism because such action punishes the
applicant for his lawyer's tardiness.''
---------------------------------------------------------------------------
\4\ See Ex parte Skinner, No. 20,203-03 (Tex. Crim. App. Dec.
2,1998) (dismissed because petition filed one day late); Ex parte
Smith, 977 S.W.2d 589 (Tex. Crim. App. 1998) (petition dismissed
because filed nine days late); Ex parte Colella, 977 S.W.2d 621 (Tex.
Crim. App. 1998) (petition filed because 37 days late).
\5\ Ex parte Smith, 977 S.W.2d at 611.
---------------------------------------------------------------------------
Ricky Eugene Kerr was assigned an attorney who had been in practice
for only two years, had never tried or appealed a capital case even as
assistant counsel, and had suffered severe health problems that kept
him out of his office in the months before he was to file a habeas
corpus application on behalf of Kerr. The lawyer so misunderstood
habeas corpus law that, as he later admitted, he thought he was
precluded from challenging Kerr's conviction and sentence--the very
purpose of a post-conviction petition. As a result, the lawyer filed a
perfunctory application that failed to raise any issue attacking the
conviction. Even though prosecutors did not object to a stay, the Court
of Criminal Appeals denied Kerr's motions for a stay of execution and
for the appointment of competent counsel.\6\ Judge Overstreet, warning
that the court would have ``blood on its hands,'' dissented in order to
``wash [his] hands of such repugnance,'' saying:
---------------------------------------------------------------------------
\6\ See Ex parte Kerr, 977 S.W.2d 585, 585 (Tex. Crim. App. 1998).
For this Court to approve of such and refuse to stay this
scheduled execution is a farce and travesty of applicant's
legal right to apply for habeas relief. It appears that the
Court, in approving such a charade, is punishing he applicant,
rewarding the State, and perhaps even encouraging other
attorneys to file perfunctory ``non-applications.'' Such a
``non-application'' certainly makes it easier on everyone--no
need for the attorney, the State, or this Court to consider any
---------------------------------------------------------------------------
potential challenges to anything that happened at trial.
United States District Judge Orlando L. Garcia found that the
appointment of the inexperienced lawyer with serious health problems to
represent Kerr ``constituted a cynical and reprehensible attempt to
expedite [Kerr's] execution at the expense of all semblance of fairness
and integrity.'' \7\
---------------------------------------------------------------------------
\7\ Kerr v. Johnson, Order of Feb. 24,1999 at 20 (W. D. Tex. No.
SA-98-CA-151-OG (Feb. 24, 1999). Further discussion of this and other
similar examples is contained in Elected Judges and the Death Penalty
in Texas: Why Full Habeas Corpus Review by Independent Federal Judges
IsIndispensable to Protecting Constitutional Rights, 78 Texas Law
Review 1805 (2000), (also available at www.schr.org under ``Articles
and Reports '').
---------------------------------------------------------------------------
Sixth, state court judges are elected and, in many cases, will be
signing their own political death warrants if they grant relief in a
capital case. In Alabama, state court judges typically allow the
Attorney General's office to write the order denying relief. The judges
sign these orders no matter how one-sided they may be.\8\
---------------------------------------------------------------------------
\8\ For numerous examples, please see Bright & Keenan, Judges and
the Politics of Death: Deciding Between the Bill of Rights and the Next
Election in Capital Cases, 75 Boston University Law Review 759, 803-811
(1995) (also available at www.schr.org under ``Articles and Reports
'').
---------------------------------------------------------------------------
Seventh, as the members of this Committee know, not long after
eliminating funding for the resource centers, Congress passed the Anti-
terrorism and Effective Death Penalty Act of 1996, which placed new,
unprecedented restrictions on habeas corpus review, including a one-
year statute of limitations, and limits the power of federal courts to
conduct evidentiary hearings and to grant the writ even when
constitutional violations are shown.\9\
---------------------------------------------------------------------------
\9\ I have elaborated on these points in a lecture, Is Fairness
Irrelevant? The Evisceration of Federal Habeas Corpus Review and Limits
on the Ability of State Courts to Protect Fundamental Rights, 54 WASH.
& LEE L. REV. 1 (1997) (also available at www.schr.org under ``Articles
and Reports'').
---------------------------------------------------------------------------
What is ``extraordinary'' about the review is that constitutional
error--no matter how egregious--is often not corrected because of
procedural barriers, impossible burdens and other impediments to the
review. The starkest example are the three cases out of one city,
Houston, in which defense lawyers slept during capital trials. All
three have been upheld, although the U.S. Court of Appeals for the
Fifth Circuit is reconsidering one of those cases en banc. In that
case, a panel of the court held that Calvin Budine was not denied his
right to counsel even though his lawyer slept through various parts of
a trial that lasted only 18 hours.\10\ But even if the full court
reverses the panel, the fact that 14 federal judges are agonizing over
whether this violates the Constitution speaks volumes about what passes
for sufficient lawyering in capital cases. The same lawyer who
represented Burdine, also represented Carl Johnson and slept during
Johnson s trial. There will be no relief for Carl Johnson. After
appellate and post-conviction review, he was executed on September 19,
1995.\11\
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\10\ Burdine v. Johnson, 231 F.3d 950, 965 (5th Cir. 2000), vacated
and rehearing en banc ordered, 234 F.3d 1339 (5th Cir. 2000).
\11\ See David R. Dow, The State, the Death Penalty, and Carl
Johnson, 37 B.C. L. Rev. 691, 694-95 (1996), for a full description of
the case. Neither the state nor federal courts published an opinion in
the case.
Question 2: The Anti-Terrorism and Effective Death Penalty Act of
1996 created incentives for states to set up procedures for the
appointment, compensation and payment of reasonable litigation expenses
of competent counsel in state post-conviction proceedings brought by
indigent death row inmates. In your experience, has the AEDPA done
anything to improve the quality of representation in these proceedings?
Answer: No. For the most part, states have not adopted the
incentives, such as providing counsel in state-postconviction
proceedings, because the other provisions of the AEDPA are so favorable
to the states and so limit review, that they can take advantage of the
limits of the Act without doings things like providing or compensating
counsel and litigation expenses.
Question 3: Attorney General Pryor suggested in his testimony that
it would be unprecedented for the capital defense function to be
independent of the state courts, as is proposed by the Innocence
Protection Act. Please provide some examples of jurisdictions that use
independent appointing authorities to select lawyers for death penalty
cases. Are you aware of any jurisdiction in which an independent
appointing authority impeded the prosecution of capital murder cases by
setting performance standards and attorney qualifications unreasonably
high?
Answer: In New York, the capital defender is appointed by a board
made up of three people, one appointed by the Chief Judge of the Court
of Appeals, one by the Temporary President of the Senate and one by the
Assembly Speaker. The person selected as capital defender operates art
office that specializes in the defense of capital cases at trial,
funded at about $4.5 million. The lawyers in that office usually
represent those facing death. However, it also selects and trains
private lawyers who defend capital cases when there are multiple
defendants or the capital defender office is unable to represent the
accused for some other reason. The person designated as capital
defender decides which lawyer is to represent a person facing the death
penalty and it has been very effective in promptly getting counsel for
those facing the death penalty.
There are similar models in other states, although it may be that
the public defender, who is appointed by a board or other authority,
designates a person to direct the capital trial unit and assign lawyers
within that unit to defend people facing the death penalty. For
example, Colorado has an excellent capital trial unit that operates
within its state-wide public defender system. The Cook County Public
Defender in Chicago has an excellent homicide unit that defends capital
cases, as does a similar unit in the office of the Philadelphia Public
Defender. North Carolina recently passed legislation providing for a
state-wide public defender system, governed by a board of directors.
The public defender assigns lawyers to defend capital cases.
In Florida and Tennessee, public defenders are elected within the
judicial circuits. The elected public defender decides who within the
office will represent a person facing the death penalty. (Judge may
still appoint lawyers to cases which are not handled by the public
defender.)
This list is certainly not exhaustive, but it shows that
representation provided by an independent defender program is not at
all uncommon.
I am not aware of any jurisdiction in which an independent
authority impeded the prosecution of capital cases by setting
performance standards and attorney qualifications unreasonably high.
Quite to the contrary, the offices with which I am familiar have done
an outstanding job in recruiting qualified lawyer to defend capital
cases, in training other lawyers, and in serving as a resource to
lawyers defending capital cases.
One witness at the hearing mentioned the delay in providing lawyers
for capital appeals in California, but appointments are handled by the
California Supreme Court, not an independent appointing authority.
If there are any additional questions, I will be glad to answer
them.
Response of Rodney Ellis to a question submitted by Senator Leahy
Question: In Texas and many other states, the level of funding
available to counsel for indigent defendants is woefully inadequate.
There may be caps on the total amount available per case, resulting in
minimum-wage levels of compensation. There are often limits to the
amount that can be spent on expert witnesses. You struggled with this
issue in negotiations over the Texas Fair Defense Act. How do you
recommend that we address this issue, which is critical to ensuring
that real criminals are convicted, but is always a politically
unpopular expenditure of state funds?
Answer: It is critical that compensation of appointed defense
attorneys is increased, as well as compensation for expert fees and
investigations. But it is also true that it is a politically unpopular
expenditure. Some states have done much better than others at striking
a balance between defense and prosecution costs. I think it is
important to view defense costs as part of the entire criminal justice
system that the states are sustaining. And part of that system, as the
question points out, aims to convict the right persons and acquit the
wrong ones. There must be a reasonable fee structure if we wish to
minimize unfairness in the system and prevent innocent people from
being convicted. While we do not necessarily expect to achieve parity
between the prosecution and the defense, Texas has taken a big step in
recognizing that funds are needed to shore up a sagging system.
Before the passage of the Fair Defense Act, Texas was one of only
four states that put no state money into its indigent criminal defense
system. Because Texas does not have a unified court system or a
statewide prosecution unit, the counties are seen as the focal points
of the criminal justice system in the state. As a result, there was no
state mandate or set of requirements for how counties or local judges
could adequately compensate attorneys that represented indigent
clients.
The Texas Fair Defense Act maintains the local control aspect of
the indigent criminal defense systems in Texas, but requires the judges
of each county to come together to devise a fee schedule that takes
into account ``reasonable rates.'' Each fee schedule is to take into
consideration ``reasonable and necessary overhead costs and the
availability of qualified attorney willing to accept the stated
rates.'' In essence, the law will allow each county to come up with a
reasonable fee schedule that takes into account local conditions. A
judge has the ability to disapprove an attorney's fee request, but the
judge must make written findings stating the amount approved and the
reason for disapproving the requested amount.
The modest amount of money (about $20 million) that the state put
into the Fair Defense Act will be used to supplement county
expenditures for indigent defense services. If counties can demonstrate
that the services that they are providing (i.e. more timely appointment
of counsel, fairer system of appointment, more investigative services)
actually make their system of indigent criminal defense better, then
those counties will be eligible to receive the supplemental state
money.
I believe that any federal legislation that addresses the issue of
indigent defense must recognize the diverse systems throughout the
country. I think that any legislation should provide as much local
control and flexibility as possible. We must, however, attempt to
ensure that attorneys are adequately compensated so that we can expect
and maintain quality services.
To ensure that the real criminals are convicted, it is important
that attorneys who agree to take on indigent clients have the training
and experience necessary to properly defend their clients. In Texas we
were able to put some state money into the Court of Criminal Appeals to
strengthen the training programs that are provided by the criminal
defense bar. More importantly, though, the Task Force on Indigent
Defense will be responsible for bringing consistency, quality control,
and accountability to all aspects of indigent defense practices in
Texas.
I would hope that any federal legislation would contain an
oversight committee or board that would be responsible for making sure
that the provisions of the bill are adhered to. Oversight of indigent
defense practices will help ensure that individuals are not wrongfully
convicted.
Responses of William H. Pryor, Jr. to questions submitted by Senator
Durbin
Question: In Illinois, Governor Ryan declared a moratorium on the
death penalty after 13 death row accused were found to be innocent
during the same time that 12 people were executed by the state. How can
you be so certain of a system which fails so often when the most severe
punishment is involved?
Answer: Senator, I do not purport to be an expert regarding the
Illinois system of capital punishment and the problems that led
Governor Ryan to declare a moratorium. I do not know the details of
each of the cases upon which your question is based and you have
provided none. If recent articles regarding the subject in the Chicago
Tribune are accurate, I would not dispute the existence of problems
within that system. I disagree, however, that the existence of
corruption, incompetence, and malfeasance in your state--and, in fact,
primarily within a single county of your state--constitutes a
legitimate basis upon which to enact comprehensive national
legislation. Governor Ryan has, as you note in your question, suspended
executions in Illinois and steps are being taken, within the state
government, to remedy the problems.
This committee should additionally consider the underlying basis of
your question in the context of the proposed legislation. Leaving aside
the DNA aspect of the proposed act--indeed, the release of death row
inmates due to DNA technology refutes the need for federal legislation
mandating such testing--the rationale for the competency requirements,
as I stated in my prior testimony, is flawed. Senator Durbin, as you
are no doubt aware, many of the problems in your state are not a result
of the quality of representation received by death row inmates. Rather,
they are a result of corruption and malfeasance of some law enforcement
officers of Chicago. ``Charges of police misconduct--from manufacturing
evidence to concealing information that could help clear suspects--are
central to at least half of the 12 Illinois cases where a man sentenced
to death was exonerated.'' (Steve Mills and Ken Armstrong, ``A tortured
path to Death Row,'' The Chicago Tribune, November 17, 1999); see also
Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1094 (N.D. Ill. 1999) (``It is
now common knowledge that in the early to mid-1980s Chicago Police
Commander Jon Burge and many officers working under him regularly
engaged in the physical abuse and torture of prisoners to extract
confessions. '') It simply does not make sense to base national
legislation mandating competency of counsel requirements on wrongful
convictions that did not result from inadequate representation.
Any problems of competency that do exist in Illinois, may be
attributable to the fact that your state has had no requirements
regarding the appointment of counsel in a capital case. Again, to rely
upon competency problems in Illinois as a basis upon which to enact
national legislation is dubious, especially considering the fact that
your state is taking steps to improve this aspect of its capital
litigation process. According to the Chicago Tribune ``a study
committee created by the Illinois Supreme Court submitted a report
recommending establishment of a capital litigation trial bar that would
mandate minimum standards for both prosecutors and defense attorneys.''
(Ken Armstrong and Steve Mills, ``Inept defenses cloud verdict,''
Chicago Tribune, November 15, 1999) Unlike Illinois, however, Alabama
has no need for such mandatory minimum requirements as they already
exist. Specifically, pursuant to Ala. Code section 13A-5-54 (1975),
appointed counsel in a capital case must have ``no less than five
years' prior experience in the active practice of criminal law.''
Moreover, in almost every instance, two attorneys are appointed to
represent an individual charged with capital murder--at least one
having met the statutory requirement quoted above.
Legislation aimed at setting national standards for defense counsel
in capital cases, therefore, seeks to remedy a problem that, at least
in my State, does not exist. Since 1990, only two Alabama capital cases
have been reversed due to a finding of ineffective assistance of
counsel, despite the fact that such claims are raised in essentially
every death penalty case without any apparent regard for the existence
of merit. Additionally, in most instances, such claims are directed at
all conceivable aspects of the representation received. The quality of
the attorneys, including their level of experience, appears to be
irrelevant to those asserting such claims on behalf of death row
inmates. For example, my office has routinely had to defend the
representation provided by the Equal Justice Initiative--an
organization that is opposed to the death penalty in all circumstances
and almost exclusively represents death row inmates on appeal--during
post-conviction proceedings against claims of ineffective assistance of
appellate counsel. The lawyers for the Equal Justice Initiative have
even made claims of ineffective assistance of appellant counsel and
attacked the quality of a brief actually ghost written for another
attorney by members of their own office.
Moreover, the extremely low percentage of cases being overturned
during post-conviction review in Alabama is not due to incompetent
representation at that stage of the process. Indeed, many of the
individuals on Alabama's death row are represented by some of the most
prestigious law firms in the country. These firms allot enormous
resources and monies to the case. Rather, the low percentage of cases
reversed on post-conviction in Alabama is due to fact that--despite the
existence of a fair trial, quality representation, and significant
resources--the defendants are guilty of heinous crimes. The legal
representation received by those charged with capital murder is not, as
a general matter, inadequate. I am well aware that many on the other
side of this issue strongly disagree with this statement. I would ask
the Committee to keep in mind, however, that, for the most part, these
are the same individuals who contend that every resident of Alabama's
death row is a victim of ineffective assistance of counsel, and their
contentions are routinely rejected by state and federal courts. As
Attorney General, I acknowledge that incompetent representation on some
rare occasions infects the capital litigation process. The extensive
review process applied to death penalty cases is, however, more than
adequate to identify those few and far between cases where such has
occurred.
Finally, the release of 13 men from death row in Illinois does not
change the fact that no credible evidence exists that an innocent
individual has been executed since the reinstatement of the death
penalty. Rather, it demonstrates that, when credible evidence of
innocence does exist, an inmate is given a forum to present that
evidence and it is taken seriously by the courts. Although I certainly
acknowledge the tragedy that occurs when any innocent individual is
convicted of a crime, it appears that the State of Illinois is
attempting to remedy the problems that resulted in the wrongful
convictions referenced within your question.
It is my hope that the Innocence Protection Act of 2001 is well
intentioned and not driven by death penalty abolitionists as a means of
achieving what they candidly admit is their ultimate goal. As stated
during my previous testimony I am, however, concerned that the
independent appointing authority created by this legislation will be
staffed by attorneys who oppose capital punishment in all
circumstances. For example, Stephen Bright, who testified before this
Committee, is one such attorney who might be considered for placement
on the appointing authority due to his perceived expertise in the area
of capital defense. I again ask that the Committee not lose sight of
the truly innocent, the families of victims of capital murderers and
the future victims of those murders who either escape justice or are
not deterred by a system that fails to punish swiftly and adequately
the most heinous crimes in our society.
Responses of William H. Pryor, Jr. to questions submitted by Senator
Leahy
Question 1: In your testimony, you stated that after a direct
appeal in state court, an appeal to the United States Supreme Court is
part of the process in death penalty cases. In Alabama, who is
responsible for making sure that certiorari petitions for death row
prisoners are properly prepared and timely filed at the United States
Supreme Court on direct appeal? What state resources are allocated to
fund this responsibility?
Answer: Although filing a petition for writ of certiorari in the
United States Court after a direct appeal in state court is part of the
process in death penalty cases, it is not considered a state court
appeal. No state resources, therefore, are allocated to pay an attorney
to file such a petition. As this Committee knows, the United States
Supreme Court receives many thousands of such petitions in a given year
and grants certiorari in less than one hundred cases. This proceeding
is, however, before a federal court and no state resources are
allocated by the state legislature to represent a death row inmate in a
federal court. A conviction is considered to be final in state court
upon the certificate of judgment being issued pursuant to Rule 41 of
the Alabama Rules of Appellate Procedure. The filing of a petition for
writ of certiorari in the United States Supreme Court is a
discretionary review that takes place after the state courts have
entered the certificate of judgment. No state resources are available
to pay lawyers to file a discretionary appeal in a federal court.
Question 2: Under Alabama law, it appears that considerable time
and resources must be spent before filing a state postconviction
petition. To satisfy Alabama's pleading requirements, new facts must be
investigated, legal research must be conducted, and witnesses must be
interviewed. Who is responsible for providing death row prisoners with
lawyers to do the work necessary before a petition is filed? What state
resources are allocated to this function?
Answer 2: In Alabama, a death row inmate can file a post-conviction
petition under Rule 32 of the Alabama Rules of Criminal Procedure. The
issues typically litigated in a Rule 32 petition are allegations of
ineffective assistance of counsel and allegations that the prosecutor
suppressed evidence. Your question assumes that it takes considerable
time and resources to prepare a post-conviction petition. I do not
necessarily agree with that assumption.
As I stated in my testimony before this Committee, the trial of the
defendant is the main event, and state post-conviction proceedings are
collateral to the trial. State post-conviction proceedings, among other
things, determine whether the inmate failed to receive the effective
assistance of counsel. It does not necessarily take ``considerable time
and resources'' to formulate a Rule 32 petition as your question
suggests. A lawyer who represents a death row inmate in state
collateral proceedings should read the transcript of the trial so that
a determination can be made whether any issues regarding trial
counsel's performance should be raised. In preparing a petition, the
postconviction lawyer should also consult with the inmate and ask what
the inmate told trial counsel regarding any possible guilt-phase
defense. Hypothetically speaking, if the inmate told his trial counsel
about an alibi defense that turned out not to have been properly
investigated, then post-conviction counsel should certainly raise that
issue in a postconviction petition. The same is true for any matters
relating to the penalty phase of a capital proceeding. This type of
investigation should not take a considerable amount of time.
Your question also assumes that Alabama's pleading requirements
require that ``new facts must be investigated, legal research must be
conducted, and witnesses must be interviewed.'' Alabama's pleading
requirements for state post-conviction petitions only require that each
claim be pleaded with full disclosure of the facts underlying that
claim. It is, therefore, incorrect to assume that Alabama's pleading
requirements require what your question suggests. That is not to say
that new evidence (if there is any) should not be investigated or that
legal research should not be done. This can be done, however, by the
postconviction lawyer reading the transcript of the trial and talking
to the inmate and also to the trial counsel to determine what claims
can be raised in a state post-conviction petition.
Even though little compensation ($1000 per case) is paid for
representing a death row inmate during Rule 32 proceedings in the trial
court, the reality is that death row inmates are typically represented
by large out-of-state law firms and death penalty resource centers. (In
addition to the legal compensation, $5000 per case is available for
expert witnesses per case in the Rule 32 trial court.) These law firms
and resource centers typically present evidence during Rule 32
proceedings in an effort to show that trial and appellate counsel were
constitutionally ineffective. Despite having more financial resources
than my office has, they have had little success in proving ineffective
assistance of counsel. Since 1990, two death row inmates have received
a new trial or penalty phase based upon ineffective assistance of
counsel. My office still has an appeal pending in one of these two
cases. It is remarkable that, in all of the cases litigated during the
state and federal post-conviction stages by these large out-of-state
law firms and death penalty resource centers, they have established, in
only two instances, that trial counsel was constitutionally
ineffective.
Question 3: If a death row prisoner files a state postconviction
petition (Rule 32) which fails to allege new claims (claims that could
not have been raised at trial or on appeal), or fails to allege facts
with adequate specificity, does your office take the position that such
petitions should be dismissed?
Answer 3: The first part of the question asks whether my office
seeks to dismiss a petition that fails to allege new claims which the
question defines as ``claims that could not have been raised at trial
or on appeal.'' I understand this part of the question asking whether
my office seeks to dismiss a claim that alleges newly discovered
evidence. Rule 32.1(e)(1)-(5) of the Alabama Rules of Criminal
Procedure lists five requirements that a Rule 32 petitioner must
establish before evidence is considered to be newly discovered. The
fifth element is that the newly discovered evidence establish innocence
or that he should not have received a death sentence. As long as a Rule
32 petitioner pleads a claim alleging newly discovered evidence with
the factual specificity required by the Rules of Criminal Procedure my
office does not seek dismissal of that claim due to deficient pleading.
The second part of this question asks whether my office seeks
dismissal of a claim that ``fails to allege facts with adequate
specificity.'' The answer to that question is an emphatic yes. The
Rules of Criminal Procedure require that each claim state the full
factual basis. If a claim does not comply with these rules that were
promulgated by the Alabama Supreme Court, then my office seeks a
dismissal. Because amendments to Rule 32 petitions are freely allowed,
even until the time of the final order, a Rule 32 petitioner can amend
his petition to comply with the Rules by disclosing the factual basis
for the claim. My office does not generally oppose such amendments as
long as they are made in a timely fashion. It might interest this
Committee to know that even petitions drafted by lawyers employed by
death penalty resource centers, the socalled ``experts'' in capital
case litigation, are routinely dismissed because of deficient pleading.
Question 4: If Alabama death row prisoners do not know how or where
or when to file a state postconviction petition, who is responsible for
making sure that such death row prisoners do not forfeit their rights
by failing to properly or timely file a petition? What state resources
are allocated to this function?
Answer 4: The division of my office that handles capital appeals
tells me that they have not received a truly pro se Rule 32 petition
from a death row inmate. Therefore, even if it were true that a death
row inmate may not know where or when to file a Rule 32 petition (I do
not believe that statement), that fact is irrelevant because only
lawyers representing death row inmates are filing the Rule 32
petitions. It has been my experience as Alabama's Attorney General that
prisoners, whether under a death sentence or under a sentence for a
term of years, do not seem to have trouble finding a way to file pro se
post-conviction petitions in state and federal courts. I reject any
suggestion, however, that a Rule 32 petition should be filed in every
capital case. This petition is often abused but is supposed to be
reserved for extraordinary circumstances. Most Rule 32 petitions in
capital cases are frivolous.
Your question asks who is responsible for making sure that death
row prisoners ``do not forfeit their rights'' by failing to file a
petition. First and foremost, the death row inmate is responsible for
failing to file properly or timely a petition. The Equal Justice
Initiative, a group of lawyers who represent death row inmates and are
located in Montgomery, claim that they track every death penalty case.
Presumably, they can counsel a death row inmate who may be facing a
deadline to file either a state or federal post-conviction petition.
Question 5: (A) If death row prisoners file pro se state
postconviction petitions and request counsel, does your office seek
adverse rulings against the unrepresented death row prisoners before
counsel is appointed? (B) Has your office ever filed a pleading which
requested rulings adverse to a death row prisoner who was seeking
counsel and who, at the time you filed the pleading against him, was
proceeding pro se?
Answer 5: As stated in my answer to question four, my office has
not received a pro se petition from an Alabama death row inmate. My
capital litigation division has received Rule 32 petitions that are
signed only by the inmate which might lead one to believe they are pro
se petitions. These petitions, however, are typewritten and number over
100 pages. I think we can all agree that such petitions were ghost
written for the death row inmate by a lawyer, most likely one from an
anti-death penalty activist group. The answer to the first part of your
question, therefore, is that my office has not sought an ``adverse
ruling'' against a pro se petitioner since there have been no true pro
se petitioners.
This fact is also true for the second part of the question since my
staff is not aware of a death row inmate proceeding in a pro se
fashion. In addition, the second part of your question asks whether my
office will seek an ``adverse ruling'' against a pro se petitioner
seeking counsel. Under Rule 32.7(c) of the Alabama Rules of Criminal
Procedure, a death row inmate can request that counsel be appointed for
the purpose of filing a Rule 32 petition. As long as this request is
made within the two year statute of limitation period for filing such a
petition, my office will not seek an ``adverse ruling.''
Question 6: Under Alabama law, attorneys representing inmates in
state postconviction proceedings at the trial level are paid $40 an
hour. The statutory cap on such compensation is $1,000. Do you think 25
hours is a reasonable amount of time for an attorney to spend working
on a state postconviction case?
Answer 6: As stated in previous responses, a lawyer representing a
death row inmate should read the trial transcript and interview the
death row inmate and the trial counsel to prepare a Rule 32 petition.
In most cases, those tasks cannot be completed in 25 hours. In Alabama,
however, death row inmates are represented by large out-of-state law
firms and death penalty resource centers that have more resources than
my office can provide. In a recent case, a Portland, Oregon law firm
paid an investigator approximately $100,000 to investigate a case. It
is fair to say that this investigator billed that law firm for more
than 25 hours. Most of the Rule 32 petitions received by my office very
likely required more than 25 hours to prepare. One must keep in mind,
however, that lawyers--who apparently feel the need to raise every
conceivable issue without regard for merit--prepare the majority of
these petitions.
I recently attended a capital case symposium that was attended by
both prosecutors and anti-death penalty activist lawyers and also
judges from the state and federal bench. One of the speakers was a
lawyer from Florida that represents death row inmates. In Florida, the
taxpayers fund a state-wide office that provides representation to
death row inmates at the state post-conviction level. This lawyer
stated that on average it takes 2000 hours to prepare a post-conviction
petition. In other words, this lawyer stated that it takes
approximately one year to prepare a state post-conviction petition.
From listening to the reaction of the audience in the room, it was
apparent that everyone, with the exception of the anti-death penalty
activist lawyers, was shocked by the statement that it takes a year to
prepare a state post-conviction petition.
The main purpose of the state post-conviction proceeding is to
determine whether trial and appellate counsel were constitutionally
ineffective. This is the stage when anti-death penalty activist lawyers
such as Stephen Bright, who testified before this Committee, become
involved. The type of evidence that lawyers like Stephen Bright present
do not support the argument that a considerable amount of time is
necessary to litigate a post-conviction petition. In the typical Rule
32 case, lawyers such as Stephen Bright generally present evidence in
an effort to show that trial counsel was ineffective at the penalty
phase of the trial. This is the phase of the trial when the jury and
the trial judge determine whether the defendant should be sentenced to
life without parole or death. The evidence that is typically presented
is testimony from family members who did not testify at the death row
inmate's trial.
Additional evidence is also presented by a social worker who
testifies about the family dynamics of the death row inmate. Additional
evidence is usually presented by a psychologist who testifies about the
mental health of the death row inmate. Lawyers such as Stephen Bright
are usually unsuccessful in proving ineffective assistance of counsel.
Since 1990, only two cases, one of which is still on appeal, have been
reversed due to ineffective assistance of counsel. In any event, the
reason for the detail in this answer is to show that a considerable
amount of time is not ordinarily necessary to litigate a case on behalf
of a death row inmate in the Rule 32 trial court.
Question 7: In your testimony, you stated that you were not aware
of any inmates on death row in Alabama who do not have lawyers. Can you
confirm that every inmate on Alabama's death row does have a lawyer?
Answer 7: Generally speaking, when the direct appeal stage of
review ends, there is some amount of time before a death row inmate is
able to locate counsel. It is my understanding that the Equal Justice
Initiative attempts to link the death row inmate with a death penalty
resource center or an out-of-state law firm. As I stated in my
testimony before this Committee, I am not aware of any death row inmate
that does not have a lawyer. If a death row inmate does not have
lawyer, however, they can request that one be appointed for them
pursuant to Rule 32.7(c) of the Alabama Rules of Criminal Procedure.
Again, I reject the notion that every capital murderer should file a
Rule 32 petition. For those inmates who do not have a reasonable ground
to seek collateral review of their sentence, they do not need a lawyer.
Question 8: The New York Times recently reported that dozens of
prisoners on Alabama's death row have no lawyers to pursue appeals.
(See David Firestone, ``Inmates on Alabama's Death Row Lack Lawyers,''
The New York Times, June 16, 2001.) You indicated during the hearing
that you were familiar with this article. Did it concern you? Has your
office taken any steps to verify the information in the article or to
remedy the situation?
Answer 8: The New York Times article makes reference to 30 death
row inmates not having lawyers to represent them in their collateral
appeals. As stated previously, I do not have personal knowledge whether
that is true or not. My staff, however, tells me that they are unaware
of a death row inmate who is not presently represented by counsel. It
is possible that a death row inmate who has completed the direct
appeals process does not have a lawyer for a period of time before a
Rule 32 petition is filed. I was accurately quoted in this article
regarding my opinion of post-conviction appeals: ``These appeals are
crucial only for Mondaymorning quarterbacks who try to second-guess
things and create issues that were probably not real in the first
place. It's an abuse of the habeas corpus process to retry the case
after it's already been tried and appealed.''
As an additional matter, the New York Times article erroneously
implies that Christopher Barbour and Thomas Arthur, two inmates who
were recently scheduled for execution, made a showing of factual
innocence to the federal district judges who granted stays only hours
before the scheduled execution. In the Barbour case, his lawyers
requested DNA testing to show Barbour did not rape the victim, even
though neither the State's argument nor Barbour's own confessions state
that he raped the victim. I certainly disagree with any journalist who
suggests that this claim raises reliable evidence of factual innocence.
In the Arthur case, the federal district judge granted the stay only
because Arthur's counsel filed a habeas petition six days before the
scheduled execution, which did not give the judge enough time to review
the petition. The federal district judge in the Arthur case noted that
he was skeptical of Arthur's ability to meet the high burden imposed on
a habeas petitioner who claims he is actually innocent. The federal
district judge dryly noted that Arthur was making a claim of factual
innocence despite the fact that he had been convicted three times by
three separate juries.
In the order granting a stay of execution, United States District
Judge Edwin Nelson responded to the argument that Arthur would be the
first person executed without being afforded collateral proceedings in
federal court. Although much of Judge Nelson's comments are directed
specifically to the Arthur case, his words can also be applied to the
argument that it is wrong to apply the federal statute of limitation to
death row inmates seeking relief in federal court:
While this argument [that Arthur may become the first
involuntary defendant to be put to death in Alabama without
having the opportunity to litigate a federal habeas petition]
has some appeal to the human side, in a society such as ours
where the rule of law prevails, it is entirely irrelevant. The
court cannot help but observe that the petitioner's current
predicament is largely of his own making. It was he who, having
twice achieved reversals of prior convictions and death
sentences who prevailed upon the trial judge to allow him to
engage in some sort of hybrid representation at trial and on
appeal. It was he who intentionally and affirmatively sought
the death penalty once he was convicted because he believed as
a death row inmate his living conditions would be better, he
would have greater access to the law library, and his
conviction would receive more intense scrutiny on appellate
and, presumably, collateral review. There are far greater and
more compelling reasons for reviewing the decision of the State
of Alabama to take the life of one of its citizens than the
foolish and seemingly manipulative conduct of that person or
appeals to emotion by some acting in his behalf. It is exactly
because we are a nation of laws with a Constitution that
protects and defends the rights of even the hardest core, most
foolish, and decadent criminals among us, that we apply the law
evenly and stringently, even if it requires the execution of
one who has not received the review that he might, in ordinary
circumstances, be entitled to receive. Mr. Arthur will get the
review from this court that the law entitles him to receive-not
one bit less and not one bit more, and if he should eventually
be executed, never having his conviction and sentence reviewed
on federal collateral proceedings, it will be because the law
and his failure to comply with its requirements disentitle him
to such review.
Arthur v. Haley, Order Granting Stay of Execution, at p.8 n.6, CV-
O1-N00983-S.
The New York Times article inaccurately claims that Congress passed
habeas reform in 1996 because prisoners were winning too many lawsuits.
In the legislative history of the Anti-terrorism and Effective Death
Penalty Act of 1996 (AEDPA), I do not see any reference to passing this
legislation because prisoners were winning too many habeas cases. In
fact, AEDPA does not prohibit a death row inmate from filing a habeas
petition, but does limit, in most cases, an inmate to only one habeas
petition and enacts a statute of limitation. The journalist's
statements are also refuted by the low number of cases that are being
reversed in Alabama's federal courts. Since 1990, only four inmates
have received a new trial/penalty phase by federal courts reviewing a
habeas petition.
Question 9: To effectively manage death penalty litigation in
Alabama, cases must be monitored to determine when death row prisoners
must file state and federal postconviction petitions to comply with
applicable statutes of limitations. Should the State of Alabama assume
responsibility for monitoring death penalty cases and for providing
counsel to unrepresented death row prisoners so that there is an
opportunity to comply with applicable statutes of limitations?
Answer 9: No, the State of Alabama should not assume responsibility
for monitoring death penalty cases. First, I would disagree with an
underlying premise of this question, which assumes that counsel is
necessary to have an opportunity to comply with the statute of
limitations. The ``pro se'' petitions filed by death row inmates in
Alabama are ghost written by lawyers from anti-death penalty activist
organizations. In contrast, an overwhelming majority of the pro se
petitions filed by non-capital inmates are truly pro se. Thus, it
cannot be said that only inmates, whether on death row or not, need the
assistance of counsel to avoid missing a statute of limitations
deadline.
Second, this question makes the additional assumption that all
death row inmates should file state and/or federal post-conviction
petitions. At least in the case of state post-conviction review, this
assumption is not true. State post-conviction review is available for
the purpose of raising the constitutional claim of whether trial
counsel was effective in the Sixth Amendment sense. These proceedings
are also available for claims concerning newly discovered evidence or
concerning the jurisdiction of the trial court to oversee the original
proceedings. These post-conviction appeals are not opportunities to
retry a criminal case.
The assumption that post-conviction petitions should be filed as a
routine matter overlooks the mandatory legal presumption that trial
counsel acted in a reasonable manner in defending a capital case. In
its leading case on the subject of ineffective assistance of counsel,
the Supreme Court of the United States recognized that ``a court must
indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance.'' Strickland v.--
Washington, 466 U.S. 688, 689 (1984). The reality is that ``cases in
which habeas petitioners can prevail [on ineffective assistance of
counsel claims] are few and far between.'' Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc). Thus, unless someone has already
determined for themselves that the prevailing legal standards and
presumptions governing the ineffective assistance of counsel analysis
under the Sixth Amendment are erroneous, one cannot claim or maintain
that post-conviction litigation is required in every single capital
case.
A further problem with this assumption is that it actually harms
the interest of death row inmates. If one is to presume that the goal
of our legal system is to ensure that qualified and competent attorneys
accept appointments to represent indigent defendants (capital or
otherwise), then attacking their competence, dedication, and
decisionmaking as a matter of course after each lost case is a
detrimental activity. Not only do attorneys have to devote their
energies in an effort to save someone's life, even in cases where the
evidence is overwhelming and the crime is heinous, atrocious, and cruel
and where the battle for a life without parole verdict is uphill all
the way, they are subjected to all sorts of derogatory allegations
years later during the post-conviction appeal.
For example, Algert Agricola, a very highly skilled and prominent
attorney in Alabama-he represented the former chief justice of the
Alabama Supreme Court in a successful election contest, worked on a
very high profile case involving the posting of the ten commandments in
a circuit court courtroom, and was involved in litigation surrounding
Alabama's redistricting plan following the 1990 census-represented a
defendant in a capital murder case where the defendant was ultimately
sentenced to death for robbing an elderly woman, locking her in the
trunk of her car in the middle of a parking lot on a 105 degree
afternoon, and then leaving her there for twenty-four hours until the
police found the car and recovered the body. In the subsequent Rule 32
proceedings, Agricola was subpoenaed to appear in court four different
times. In several instances, he cleared his schedule to attend court,
only to have the petitioner seek and gain a continuance at the last
minute. He was contacted by lawyers for both the State and defense and
had to devote time away from his practice to answer questions and
prepare for the hearing, at which he had to defend himself from
allegations of incompetence. Even worse, Agricola was subjected to the
cursing, shouting, and derogatory fits of the capital inmate's attorney
during a six-hour deposition. Although Agricola's treatment at the
deposition was a rare occurrence, the remaining inconveniences caused
by the Rule 32 proceedings are not likely to induce him to seek
actively additional appointments to capital cases.
Thus, anyone who assumes that state post-conviction appeals should
be a routine aspect of capital litigation probably has never been
accused of ineffective assistance of counsel or has never been
responsible for a law practice where time spent preparing to defend
one's self is at the expense of ``billable hours.'' Attacking the
professionalism, work, and competence of every attorney who happens to
lose a capital case, without regard for whether a non-frivolous basis
exists for such an attack, does nothing to promote a fair capital
sentencing system.
Thus, the answer to this question is no. The State of Alabama
provides counsel for inmates, capital and non-capital, who file
postconviction petitions that assert claims that are meritorious on
their face. I disagree with the entire premise of this question. ``To
effectively manage death penalty litigation in Alabama'' presumes that
death penalty litigation necessarily involves the filing of post-
conviction appeals without regard to whether they are frivolous. Thus,
I must answer that the State of Alabama should not have any involvement
in assisting all death row inmates, to the exclusion of all other
inmates in the Alabama Department of Corrections, in the filing of
petitions that attack the qualifications of their trial counsel as a
matter of routine policy.
Question 10: Last year, the Alabama Attorney General's office asked
the Alabama Supreme Court to execute two inmates (Christopher Barber
and Thomas Arthur) who, at the time your motions were filed, did not
have lawyers and whose cases had not been through state or federal
postconviction processes. Is it your policy to continue seeking
execution dates against unrepresented death row prisoners?
Answer 10: Your question asks about the cases involving death row
inmates Christopher Barbour and Thomas Arthur. Since I am sure you do
not know about the facts of these cases, I'll inform you why Barbour
and Arthur are on death row. Christopher Barbour, along with two of his
confederates, gained entry into the home of Thelma Roberts. According
to Barbour's own confession, he and his two friends beat Roberts until
she fell to the floor. Barbour and one of his friends held Ms. Roberts,
while the other friend raped her. Barbour then went into the kitchen,
grabbed a knife, and returned to the bedroom. He got on his knees and
forcibly stabbed the victim with such ferocity that several of the
knife wounds went all the way through the victim's body and pricked her
back. Barbour left the knife in her body, stood up, walked to the
closet, threw some things from the closet around her body, and set them
on fire. All of this information is taken from his videotaped
confession.
Thomas Arthur, for hire, killed the husband of a woman that he was
having an affair with by shooting the victim in the head while the
victim was sleeping. When Arthur committed this murder, he was on work
release for a murder that he had committed several years earlier.
The short answer to your question is that I will use every
available resource of my office to see that a death sentence that has
been upheld as legal and proper is carried out promptly. When my office
sought execution dates for Arthur and Barbour, the relevant state and
federal deadlines had run for filing any appeals/petitions. Both the
Arthur and Barbour cases had been reviewed on direct appeal by the
Alabama Court of Criminal Appeals and the Alabama Supreme Court.
Christopher Barbour had litigated a Rule 32 petition to conclusion in
the Montgomery County Circuit Court but had not filed an appeal from
the denial of that petition.
Both of these cases had no activity for several years and the time
had run for filing a federal habeas petition. Under federal law, a
death row inmate has a statutory entitlement to counsel to file a
federal habeas petition. For whatever reason, neither Barbour nor
Arthur took advantage of this statutory entitlement. They are both
capital murderers who are guilty of heinous crimes and were
appropriately sentenced to death. My office is charged with the
responsibility of seeing that these sentences are carried out. It is my
duty to seek an execution date for a death row inmate that has
completed the appeals process, and to seek an execution date in a case
where deadlines enacted by the Alabama Supreme Court and this Congress
have been violated.
Question 11: To get an understanding of how many resources the
state allocates on the prosecution side of the death penalty appeals
process, please provide a budget for the Capital Litigation Division of
your office. Please include the number of lawyers in the Capital
Litigation Division and their salaries.
Answer 11: As of the filing of these answers, my office has eight
lawyers who handle death penalty appeals and three additional attorneys
will start in August. My office is charged with the responsibility of
litigating all death penalty cases, which involves three stages of
review, each stage involving three to four different courts. The
experience level of these lawyers ranges from one year to thirteen
years of experience. The total amount for salaries to these eleven
lawyers is $674,633.80.
My staff recently requested from the State Comptroller's Office the
total amount paid since October 1, 2000 (the beginning of the fiscal
year), to attorneys representing defendants who have been charged with
capital murder. The Comptroller's Office has stated that it has paid
$1,868,047 to lawyers representing capital defendants at the trial
level since October 1, 2000. This amount does not include compensation
paid to lawyers handling direct appeals or Rule 32 appeals. This amount
obviously does not include the compensation the federal government pays
to lawyers who handle habeas corpus litigation. When the salaries of my
capital litigation staff is balanced against the far greater amount of
money that is paid to lawyers who represent capital defendants at trial
and on appeal and in federal court, it shows that many more financial
resources are being allocated to the side that represents capital
murderers.
SUBMISSIONS FOR THE RECORD
Statement of Administrative Office of the U.S. Courts
Executive Summary
In 1995, during consideration of the federal judiciary's annual
appropriations request, Congress defunded Post-Conviction Defender
Organizations (PCDOs), providing a small amount of fiscal year 1996
money for an orderly termination of the program. Only seven years
earlier, Congress had authorized the federal judiciary to support the
creation of the PCDOs to address a looming crisis in state and federal
post-conviction death penalty cases. There were too few competent
lawyers willing and able to represent the indigent condemned, and too
few resources provided to those who stepped forward. In those states
with large death-row populations, the dearth of qualified counsel
willing to provide representation in capital cases had brought the
process to a standstill.
To address these problems, PCDOs were established in 20 states
where the death penalty is authorized. PCDOs were staffed by counsel
experienced in the intricacies of capital litigation. They provided
numerous death-sentenced individuals with competent representation, and
offered training and assistance to private counsel, thereby increasing
the pool of attorneys willing to accept appointment in capital cases.
In 1995, the federal judiciary concluded that the PCDOs played a vital
role in providing cost-effective, qualified counsel to death-sentenced
individuals.
PCDOs, however, received a harsh reaction from death penalty
proponents. Prompted by criticism of the program from the National
Association of Attorneys General and others, Congress eliminated
funding for PCDOs. With the termination of federal funding, many of the
PCDOs had to dramatically scale back operations; seven of the 20
offices closed their doors entirely. This left hundreds of people
facing the death penalty without adequate representation and some with
no representation at all. The demise of the PCDOs also has made
cooperation of private counsel less forthcoming. Many have refused to
take capital cases without the backup of a PCDO. As a result, a growing
number of cases have entered federal habeas corpus proceedings with no
development of claims, no investigation of facts, and no competent
counsel to continue on the case.
Shortly after defunding PCDOs, Congress passed the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), which created a
statute of limitations that in most states allows one year for filing a
federal habeas corpus petition, usually from the denial of certiorari
on direct appeal. AEDPA also established a scheme whereby if a state
``opts in'' by establishing a mechanism for the appointment and
compensation of counsel in state post-conviction proceedings, it can
obtain certain ``benefits,'' including the reduction of the statute of
limitations for filing a first federal petition from one year to 180
days, and an accelerated process of decision in the federal courts.
Although no state has yet been held to qualify as an ``opt-in'' state
under these provisions, in the wake of the enactment of AEDPA, many
states created new post-conviction processes in an attempt to ``opt
in'' and obtain these ``benefits.'' Thus, while the availability of
counsel was diminishing due to the defunding of PCDOs, the state and
federal jurisprudence became more rigorous and complex.
When PCDOs were defunded, 3,045 individuals were under a state
sentence of death; today more than 3,688 reside on death row. The vast
majority are in states that once had a PCDO. Many of these inmates are
in the state post-conviction process and will soon enter federal court.
Section I of this report traces the history of the PCDOs, from
their creation to their demise. Section 11 describes the post-PCDO
world state-by-state. This review leads to the conclusion that most of
the problems that precipitated the creation of the PCDOs exist once
again, but now there are more cases, fewer experienced attorneys, and
an increasingly complex and accelerated jurisprudence.
i. history of the post-conviction defender organizations.
In 1976, the Supreme Court's decision in Gregg v. Georgia \1\
cleared the way for the reimposition of the death penalty in the United
States. In the years following Gregg, an increasing number of states
passed death penalty laws. This led to a greater number of criminal
trials ending with a defendant sentenced to death and a rise in the
number of death-row inmates who had completed direct appeal \2\ and
post-conviction proceedings \3\ in the state courts. Those inmates
denied relief by the state courts then moved into the federal courts,
seeking federal review of their cases by writ of habeas corpus. The
federal habeas corpus statute \4\ permits a state inmate to obtain
federal court review of his conviction and sentence to determine
whether any violation of the United States Constitution or federal laws
occurred. Historically, habeas corpus has acted as a vital systemic
check upon the state courts and their application of fundamental
federal constitutional protections. This is especially true in cases
where the inmate has been sentenced to death. Of the capital cases
reviewed in federal habeas corpus proceedings between 1973 and 1995,
two out of five (40 percent) were found to have constitutional
error.\5\
---------------------------------------------------------------------------
\1\ 428 U.S. 153 (1976).
\2\ On direct appeal, the defendant contends before state appellate
courts that the trial judge committed an error of law that requires
reversal of the conviction or sentence. Direct appeal is generally
limited to those errors provable on the trial record. If state
appellate courts find no error and affirm the conviction and sentence,
the defendant can petition to the United States Supreme Court for
certiorari review.
\3\ State post-conviction review allows a defendant to raise claims
of error that were not litigated on direct appeal because the
constitutional violation did not appear in the trial record. Generally,
post-conviction review follows the completion of direct appeal,
although some states combine the two processes. In some states, the
post-conviction petition is initially filed in the appellate court; in
others, it is filed in the trial court and any denial of relief is
appealed. At times, factual development of claims at an evidentiary
hearing occurs. If the state courts ultimately deny post-conviction
relief, certiorari review in the United States Supreme Court may be
sought.
\4\ 28 U.S.C. Sec. 2254(a).
\5\ JAMES LIEBMAN, JEFFREY FAGAN & VALERIE WEST, BROKEN SYSTEM:
ERROR RATES IN CAPITAL CASES, 1973-1995, at 4 (2000).
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a. why congress funded pcdos: too few lawyers for the indigent
condemned, stalled cases, and chaotic review.
Little more than ten years after the Gregg decision, the review of
capital cases in federal habeas corpus proceedings had become a
quagmire. As more and more cases entered the federal courts, a greater
number came to the district courts' attention not through the filing of
an ably-written petition, but on a hastily-drafted emergency motion for
a stay of execution filed by volunteer counsel recruited
serendipitously only days before. In some states, emergency motions
were filed by prisoners acting without counsel. Often, federal judges
were forced to put aside scheduled work and consider, sometimes through
the night, such emergency filings.
It soon became apparent why a growing number of state capital cases
were arriving at the federal courthouse door slapped together at the
last minute.\6\ In many states, ill-funded indigent defense systems
failed to provide sufficient numbers of seasoned defense attorneys for
capital trials and subsequent state appeals. As a consequence,
important issues were not litigated properly, or were not litigated at
all, in those proceedings. Moreover, after the direct appeal was
completed, indigent death-sentenced inmates had to fend for themselves
to find pro bono counsel for state post-conviction proceedings.\7\ Few
states had in place a mechanism for matching qualified counsel with
indigent capital inmates so that claims not resolved adequately on
direct review could be promptly and thoroughly reviewed in the state
post-conviction process. Finally, once they reached federal court,
condemned inmates had no right to counsel to pursue habeas corpus
relief; the appointment of counsel was within the discretion of the
federal district court judge.\8\ And even if the district court
appointed federal habeas counsel, the appointment generally occurred
after a habeas corpus petition was already filed, thereby precluding
counsel's assistance at the most critical stage of any habeas corpus
proceeding the preparation of the petition.\9\
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\6\ See generally American Bar Association Task Force on Death
Penalty habeas corpus (Ira P. Robbins, rep.), Toward a More Just and
Effective System of Review in State Death Penalty Cases, 40 AM. U. L.
Rev. 1 (1990) (containing materials produced by the American Bar
Association Criminal Justice Section Project to Study habeas corpus
Review of State Death Penalty Convictions); Report and Proposal of the
Judicial Conference Ad Hoc Committee on Federal habeas corpus in
Capital Cases at 1, 5 (1989) (also called the ``Powell Committee
Report'' after its chair, former Supreme Court Justice Lewis Powell,
Jr.).
\7\ Although there is a constitutional right to counsel at trial,
Gideon v. Wainwright, 372 U.S. 335 (1963), and on direct appeal,
Douglas v. California, 372 U.S. 353 (1963), there is no recognized
constitutional right to counsel in state post-conviction or federal
habeas corpus proceedings. Murray v. Giarratano, 492 U.S. 1 (1989);
Coleman v. Thompson, 501 U.S. 722 (1991).
\8\ U.S.C. Sec. 3006A(g).
\9\ Indeed, in McFarland v. Scott, 512 U.S. 849, 856 (1994), the
Supreme Court noted that in light of the heightened pleading
requirements for habeas corpus petitions, requiring an indigent capital
petitioner to file a petition without the assistance of counsel ``would
thus expose him to the substantial risk that his habeas claims would
never be heard on the merits.''
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During these years, the difficult and time-consuming task of
recruiting and matching willing volunteer counsel with indigent capital
prisoners in state post-conviction and federal habeas corpus
proceedings usually fell to small, non-profit legal services
organizations, national civil rights groups, the American Bar
Association, and individual citizens. But by 1988, the demand for
counsel greatly exceeded the number of volunteers these groups could
identify. Indeed, the American Bar Association noted in 1988 that
``there simply are not, and will not be, enough (qualified attorney)
volunteers'' to handle the death row cases generated by the states.\10\
In those states with large deathrow populations, the dearth of
qualified counsel willing to provide representation in death penalty
cases brought the process virtually to a stand still. And increasingly,
state judges or governors, frustrated with the slow pace of capital
appeals, set execution dates to move the cases through the system.
---------------------------------------------------------------------------
\10\ Linda Greenhouse, Supreme Court Roundup: Right to Death-Row
Lawyer Curbed, N.Y. TIMES, June 24, 1989, at 8 (citing amicus curiae
brief of the American Bar Association in Murray v. Giarratano, 492 U.S.
1 (1989), LEXIs, News Library, NYT File.
---------------------------------------------------------------------------
By this time, concerns over the large number of death penalty cases
in the pipeline, and the limited number of attorneys familiar with the
complexities of both death penalty and federal habeas corpus
jurisprudence, caused the federal judiciary and bar to search for some
vehicle to ensure that trained and adequately supported attorneys could
be found. Without such a mechanism, neither the courts nor the bar
could ensure that the death-penalty review process would continue to
function. In June 1988, in cooperation with the Administrative Office
of the United States Courts, the American Bar Association sponsored a
national conference to address the growing crisis resulting from the
unavailability of counsel in capital post-conviction and habeas corpus
proceedings.\11\ Following this conference, a number of states formed
blue-ribbon panels--comprised of the state and federal judiciary, bar
association leaders, state and local prosecutors, civil rights leaders,
and the defense bar--to study the problem further. These committees
found that the shortcomings within the states' systems were frustrating
both the pace and quality of justice in the federal courts, and that
federal habeas corpus review of state capital cases would continue to
be chaotic and inefficient unless Congress took action to deal with the
crisis realistically. In response, the committees recommended the
creation of death penalty resource centers.
---------------------------------------------------------------------------
\11\ Douglas W. Vick, Poorhouse Justice: Underfunded Indigent
Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329,
333 (1995).
---------------------------------------------------------------------------
Soon thereafter, Congress took two important steps to address the
chronic lack of seasoned and adequately compensated counsel in the
capital process. First, recognizing that early assignment of competent
counsel can greatly reduce both the length of time and the amount of
resources required to litigate a death penalty case to conclusion,\12\
Congress enacted a statutory right to counsel for condemned inmates in
federal habeas corpus proceedings in the Anti-Drug Abuse Act of
1988.\13\ Under section 848(q) of Title 21, federal courts are
obligated by statute to appoint experienced attorneys to represent
financially eligible federal habeas corpus petitioners under a sentence
of death. So that counsel may assist in the preparation of the federal
petition, section 848(q) also allows the inmate to request appointment
before the petition is filed.\14\ And to make such representation more
financially feasible for experienced practitioners, it directs that
appointed counsel handling capital habeas corpus cases be compensated
higher than in non-capital cases.
---------------------------------------------------------------------------
\12\ The Powell Committee Report reached similar conclusions.
\13\ 21 U.S.C. Sec. 848(q).
\14\ McFarland v. Scott, 512 U.S. 849 (1994).
---------------------------------------------------------------------------
Second, and importantly, Congress recognized that the complexity
and demanding nature of capital cases required additional litigation
resources. Following the recommendations put forth by the states' blue-
ribbon panels, it approved the federal judiciary's request for federal
funding of defender organizations to recruit, assist, and support the
private bar with these cases. Congress also understood that the quality
of review afforded in the state system had a direct bearing upon the
cost, speed, and integrity of subsequent federal review. Thus, these
organizations were also encouraged to seek state resources so that they
could likewise aid counsel in state post-conviction proceedings. Such
assistance in state proceedings would enhance the quality of
representation, and thus simplify later federal proceedings. Moreover,
such a system would encourage continuity of representation; lawyers
recruited in the state system would remain with a case as it entered
federal court.
Thus, in a model of cooperation between the federal judiciary,
state governors, state judges, state and local prosecutors, private bar
associations, and Congress, death penalty resource centers were
established in a number of jurisdictions.\15\ These resource centers,
later known as Post-Conviction Defender Organizations (PCDOs), were
structured as community defender organizations pursuant to subsection
(h)(2)(B) of the Criminal Justice Act, 18 U.S.C. Sec. 3006A. PCDOs
received grants upon approval of the United States Judicial Conference,
contingent upon each PCDO's ability to obtain funds to support the
state-court-related work that it intended to perform. In FY 1995,
grants totaling $19,354,400 supported PCDOs in 20 states.\16\
---------------------------------------------------------------------------
\15\ See Roscoe C. Howard, Jr., The Defunding of the Post-
Conviction Defense Organizations as a Denial of the Right to Counsel,
98 W. VA. L. REV. 863, 906-13 (1996).
\16\ FY 1995 was the last year of full funding for PCDOs.
---------------------------------------------------------------------------
PCDOs performed a number of functions. They tracked the status of
the appeals of those on death row so that counsel could be found and
filings could be made in a timely, orderly fashion. They recruited
volunteer attorneys and provided the assistance required to acquaint
attorneys with the complex procedural and substantive aspects of
capital habeas corpus representation. This assistance included training
programs for volunteer and appointed counsel, consultations with
counsel, assistance in investigating and litigating cases, and
providing manuals, sample pleadings, briefs, and other support
materials. Although counsel employed by the PCDOs personally
represented a limited number of capital habeas corpus petitioners,
direct representation was not their primary orientation.
b. the cox committee report: the judiciary recommends continued pcdo
funding with increased direct representation.
Six years after their creation, the federal judiciary concluded
that the PCDOs played a vital role in providing cost-effective,
qualified counsel in capital cases. In 1994, Judge Gustave Diamond,
Chair of the Committee on Defender Services of the United States
Judicial Conference, named three members of the Committee to a
Subcommittee on Death Penalty Representation.\17\ The Subcommittee's
task was to evaluate PCDO performance in assisting the federal
judiciary in meeting its goals of making qualified counsel available
for appointment, and providing quality cost-effective representation in
capital federal habeas corpus proceedings.
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\17\ Judge Emmett Ripley Cox, of the United States Court of Appeals
for the Eleventh Circuit, chaired the Subcommittee. Judge Arthur L.
Alarcon of the Ninth Circuit Court of Appeals and Judge Miriam Goldman
Cedarbaum of the Southern District of New York served as Subcommittee
members.
---------------------------------------------------------------------------
The Subcommittee's ``Report on Death Penalty Representation''
(hereinafter the ``Cox Committee Report,'' after its chair, Judge
Emmett Ripley Cox), concluded that PCDO handing should continue because
PCDOs ``play a vital role in providing representation in capital
cases.'' \18\ The Subcommittee found that the very presence of PCDOs,
and their ability to offer training and expert advice regarding each
step of the habeas corpus process, emboldened private attorneys to
accept assignments in capital habeas corpus cases. ``Private lawyers
who communicated with the Subcommittee almost uniformly expressed the
view that they would not willingly represent a deathsentenced inmate
without the assistance of a PCDO or similar organization. State and
federal judges agreed that PCDO assistance was critical to the
recruitment of private attorneys to represent death sentenced
inmates.'' \19\ Much more importantly, the Subcommittee noted that
PCDOs brought for the first time some coordination in the delivery of
defense services into the state and federal post-conviction process.
These offices were crucial in motivating private attorneys to represent
condemned inmates in state post-conviction proceedings, where often
there is little or no compensation.\20\ Created at a time when the lack
of competent and knowledgeable counsel in state post-conviction and
federal habeas corpus proceedings often resulted in confusion, delay,
and increased costs, the PCDOs dramatically expanded the pool of
qualified counsel willing to accept these demanding cases.
---------------------------------------------------------------------------
\18\ Cox Committee Report at 7.
\19\ Id. at 6.
\20\ Id.
---------------------------------------------------------------------------
However, this reliance on private counsels central tenet of the
PCDO concept caused the Subcommittee concern. It found that ``the
availability of private counsel both pro bono and compensated is
diminishing across the country, despite PCDO assistance.'' \21\ For
example, the Report noted that at the time, 28 condemned inmates were
without counsel in state post-conviction proceedings in Texas. To
address this concern, the Subcommittee recommended that PCDO funding be
continued, but that PCDO counsel represent more death-sentenced inmates
directly, rather than simply providing consultation and training to
appointed counsel. The reason for this recommendation was twofold.
First, because PCDOs received both federal and state resources, PCDO
counsel could work in both state and federal court, thereby providing
quality representation in state post-conviction proceedings and
continuing that representation into federal court two factors that tend
to decrease costs of federal habeas representation. Second, the cost of
experienced salaried counsel employed by PCDOs was less than private
counsel compensated under the CJA. Thus, to the extent PCDO counsel
were able to provide representation in lieu of private appointed
counsel, cost savings in capital cases could be achieved. In September
1995, the United States Judicial Conference approved the
recommendations in the Cox Committee Report.
---------------------------------------------------------------------------
\21\ Id. at 8.
---------------------------------------------------------------------------
c. congress defunds the pcdos.
PCDOs received a harsh reaction from death penalty proponents.\22\
In the spring of 1995, South Carolina Attorney General Charles Condon,
testifying for the National Association of Attorneys General, urged
Congress not to fund PCDOs unless state prosecutors got equal
funding.\23\ Representative Bob Inglis, a Republican from South
Carolina, and Representative Charles Stenholm, a Republican from Texas,
in an open letter to their congressional colleagues in June 1995,
assailed the PCDOs as `` `one of the major reasons that justice is
being frustrated in capital cases around the country' and blamed `the
flow of federal money (to the PCDOs) that goes to finance endless and
fruitless appeals.' '' The two congressmen persuaded the Subcommittee
of the Departments of Commerce, Justice, and State of the House
Appropriations Committee to eliminate funding for PCDOs.\24\ On January
5, 1996, Congress passed H.R.#1358, which called for a budget of
$262,217,000 for the federal judiciary's Defender Services program so
long as none of the funds were expended on PCDOs after April 1,
1996.\25\ With the termination of federal funding, many PCDOs closed
their doors.
---------------------------------------------------------------------------
\22\ PCDOs never had universal support. The Cox Committee heard
complaints that in some states, PCDO staff worked to abolish the death
penalty rather than recruit attorneys or represent inmates. Cox
Committee Report at 6 n.12.
\23\ In fact, a number of studies on the relative resources
available for the prosecution and defense in capital cases have found
that there is a disparity of funding in favor of the prosecution at all
levels of capital cases. For example, in 1991, the American Bar
Association study of the cost of the death penalty in state
jurisdictions, made at the request of Congressman Don Edwards, Chairman
of the Subcommittee on Civil and Constitutional Rights, reached this
conclusion.
\24\ Roscoe C. Howard, Jr., The Defunding of the Post Conviction
Defense Organizations as a Denial of the Right to Counsel, 98 W. VA. L.
REV. 863, 913-14 (1996) (citing Marcia Coyle, Republicans Take Aim at
Death Row Lawyers, NAT'L L. J., Sept. 18, 1995, at A 1, and Lis Wiehl,
Program for Death-Row Appeals Facing Its Own Demise, N.Y. TIMES, Aug.
11, 1995, at A13).
\25\ Act of Jan. 6, 1996, Pub. L. No. 104-91, 110 Stat. 7.
---------------------------------------------------------------------------
ii. post-pcdo problems: all of the old ones plus more cases, fewer
experienced attorneys, and an increasingly complex and accelerated
jurisprudence.
The PCDOs were defunded before they achieved a uniform system of
qualified representation in state post-conviction and federal habeas
corpus cases. Nevertheless, in less than seven years, these offices had
dramatically improved the level of defense services provided to
hundreds of death sentenced inmates. With the withdrawal of PCDO
funding, the national picture of post-conviction representation now
resembles a tattered patchwork quilt.
After Congress eliminated funding for the PCDOs, those in Arkansas,
Florida, Mississippi, Nevada, Oklahoma, Tennessee, and Texas closed
their doors almost immediately. Drastically scaled-back services
survived in Arizona, Alabama, California, Georgia, Illinois, Kentucky,
Louisiana, Missouri, North Carolina, Ohio, Pennsylvania, South
Carolina, and Virginia. In a minority of states, the surviving
organizations receive limited state funds. In only a very few does the
level of funding come close to that previously provided the PCDOs. Many
no longer provide representation or assistance to counsel appointed in
capital habeas corpus proceedings before the federal courts. Federal
defender offices in some states have been called upon to represent
death row inmates in federal habeas proceedings. The resulting
hodgepodge of post-conviction representation since the withdrawal of
PCDO funding has caused the cases of many indigent condemned inmates to
slip through the cracks.
Other recent actions by the states since the defunding of the PCDOs
have also affirmatively deepened the crisis in post-conviction
representation. Many states, frustrated with the slow pace of
executions, enacted new statutes imposing time limitations on the
filing of capital post-conviction petitions. Counsel representing
death-sentenced inmates in Arizona, Georgia, Illinois, Missouri, North
Carolina, Oklahoma, Ohio, Pennsylvania, South Carolina, Tennessee,
Texas, and Virginia must now file post-conviction petitions and
litigate their claims under accelerated timetables. Many private
attorneys are unwilling to accept appointments in light of these
changes. By speeding up the capital post-conviction process, these
states have caused cases that would have worked their way through the
state system over a period of time to become a tidal wave. The result:
too many cases, too few experienced attorneys, and too little time.
But the old problems have hardly gone away. A large number of
states still fail to provide adequate defense services for capital
trial, appellate, and post-conviction proceedings, with some furnishing
none at all after direct appeal. As before, a substantial and growing
number of condemned inmates who have completed direct review have no
legal representation, nor any immediate prospects of being matched with
competent counsel. Once again, in many states the difficult and time-
consuming task of recruiting and matching willing volunteer counsel
with indigent capital prisoners in state post-conviction and federal
habeas corpus proceedings has fallen on nonprofit organizations,
national civil rights groups, the American Bar Association, and
individual citizens, but without the assistance of PCDOs.
For example, in response to the growing crisis in post-conviction
representation following the demise of the PCDOs, the American Bar
Association Death Penalty Representation Project has accelerated its
efforts to recruit volunteer lawyers. The process of recruitment,
however, is a protracted one. Because law firms are aware that capital
cases demand attorney time and resources at a level few other pro bono
cases demand, approval, on average, takes four to six months. In
addition, many of the firms recruited have no previous capital
experience and require the guidance of experienced capital litigators.
But without the support of the PCDOs, this guidance is difficult to
find.\26\ Since early 1998, the Project has successfully recruited some
60 major law firms to represent capital inmates in post-conviction
proceedings. But these efforts cannot come close to meeting the need.
Indeed, in 1997 the American Bar Association called for a moratorium on
executions, noting that the death penalty is administered through ``a
haphazard maze of unfair practices,'' that many defendants facing the
death penalty are represented by inadequately paid or incompetent
lawyers, and that hundreds of the men and women on death row nationwide
have no lawyers to represent.them in post-conviction appeals.\27\ The
call for a moratorium was recently reemphasized by the ABA in light of
mounting evidence of exonerations of death-row inmates, and the role
that inadequate counsel played in their wrongful convictions.\28\
---------------------------------------------------------------------------
\26\ Recognizing that it cannot persuade firms to undertake capital
post-conviction cases without the kind of direction formerly offered by
PCDO lawyers, the Project, through grants and other fund-raising
efforts, now underwrites the salaries of six experienced capital
litigators in Alabama, Georgia, Missouri, Texas, and Virginia who are
designated as ``resource counsel'' to the pro bono firms the Project
recruits. This action is viewed by the Project as a necessary, short-
term response to the current crisis in post-conviction representation.
\27\ Saundra Torry, ABA Endorses Moratorium on Capital Punishment,
WASH. POST, Feb. 4, 1997, at A4, available at 1997 WL 2249666.
\28\ See Bill Rankin, Critics Speak Out on Death Penalty: Citing
Shift in Attitudes on Capital Punishment, Lawyers Continue to Urge
Execution Moratorium, ATLANTA CONST., Oct. 13, 2000, at D1, available
at 2000 WL 5480954.
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One reason for the devastating shortage of qualified counsel is the
failure of most states to provide adequate compensation in capital
post-conviction cases. Some states still provide no compensation for
post-conviction counsel at all. A 1987 study commissioned by the
American Bar Association Death Penalty Representation Project found
that the average time devoted to a case by post-conviction counsel was
2,000 hours.\29\ These figures were gathered before the decade of
United States Supreme Court decisions that substantially increased the
complexity of habeas corpus litigation,\30\ and prior to the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).\31\ More recently, the Spangenberg Group conducted a study of
time and expenses required in Florida capital post-conviction cases. It
concluded that ``the most experienced and qualified lawyers at [one of
Florida's three Capital Collateral Regional Offices] have estimated
that, on average, over 3,300 lawyer hours are required to take a post-
conviction death penalty case from the denial of certiorari by the
United States Supreme Court following direct appeal to the denial of
certiorari'' through that state's post-conviction proceedings.\32\ The
study found that these estimates were ``consistent with'' those
reported by a number of pro bono firms involved in capital post-
conviction litigation that were also surveyed.\33\ In addition, the
ancillary costs expended by volunteer firms ranged from approximately
$14,000 to in excess of $1.5 million.\34\ These reported costs far
exceed those compensated by the vast majority of states. Moreover, the
failure of the states to provide adequate compensation and
reimbursement of costs not only contributes to the unavailability of
lawyers, but also to the poor quality of performance that is actually
rendered.\35\
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\29\ The Spangenberg Group, Time and Expense Analysis in Post-
Conviction Death Penalty Cases, 11, 20 (Feb. 1987).
\30\ See, e.g., League v. Lane, 489 U.S. 288 (1989); Coleman v.
Thompson, 501 U.S. 722 (1991); Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992); Herrera v. Collins, 506 U.S. 390 (1993); Brecht v. Abrahamson,
507 U.S. 619 (1993).
\31\ Pub. L. 104-32, 110 Stat. 1214 (1996).
\32\ The Spangenberg Group, Amended Time and Expense Analysis of
Post-Conviction Capital Cases in Florida, 16 (April 1998).
\33\ Id.
\34\ Id. at 13.
\35\ American Bar Association Task Force on Death Penalty habeas
corpus (Ira P. Robbins, rep.), Toward a More Just and Effective System
of Review in State Death Penalty Cases, 40 AM. U.L. Rev. 1, 78 (1990).
---------------------------------------------------------------------------
And all of these problemsboth new and old have only been
exacerbated by the accelerated timetables and legal complexities
arising from enactment of AEDPA. Several key provisions of AEDPA have
heightened the obligations of counsel in state post-conviction
proceedings. AEDPA has rendered the state post-conviction process more
fraught with peril to the client who does not have a lawyer, or whose
lawyer is unable, because of inadequate funding, to fully investigate,
prepare, and present all claims in the first round of state post-
conviction litigation.
a. aedpa: a swifter, more complicated habeas jurisprudence.
The withdrawal of PCDO funding could not have come at a worse time.
On April 24, 1996, Congress passed the Antiterrorism and Effective
Death Penalty Act of 1996.\36\ Although AEDPA has transformed an
already painfully complex habeas jurisprudence in many ways, exactly
how it has done so is still not entirely clear. Indeed, although five
years have passed since its enactment, the interpretation and
implication of many of AEDPA's provisions are still being litigated.
---------------------------------------------------------------------------
\36\ Pub. L. 104-132, 110 Stat. 1214 (1996).
---------------------------------------------------------------------------
One of the dramatic changes wrought by AEDPA is the creation of a
statute of limitations which in most states allows one year for filing
a federal habeas corpus petition, usually from the denial of certiorari
on direct appeal.\37\ Although AEDPA deals strictly with cases being
litigated in federal court, the statute of limitations provision
creates a de facto statute of limitations for filing a post-conviction
petition in state court. Some federal courts have held that even if the
state post-conviction application would be considered timely under
state law if filed at a later date, AEDPA's limitations period is not
tolled until a state post-conviction application is actually filed in
state court.\38\ Thus, for all practical purposes, death-sentenced
inmates must file their state post-conviction petitions within one
year, or more accurately, early enough to ensure that there will be
time to investigate and prepare a federal habeas petition should the
state challenge fail.
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\37\ 28 U.S.C. Sec. 2244(d)(1) (2000).
\38\ See Webster v. Moore, 199 F.3d 1256, 1259 (11th
Cir.), cert. denied, 121 S. Ct. 481(2000); Bingham v. Anderson, 21 F.
Supp. 2d 639 (S.D. Miss. 1998).
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AEDPA thus creates a dire situation for unrepresented death row
inmates. Once the United States Supreme Court denies certiorari
following affirmance on direct appeal, the limitations period begins
running. But without counsel, these inmates have no ability to
investigate the kind of claims that form the basis of most successful
post-conviction applications, that is, those that are developed from
facts outside the record. Moreover, they have no ability to prepare and
file for post-conviction relief. In an increasing number of cases, the
state courts have appointed post-conviction counsel with only weeks
left in the limitations period to file a state post-conviction
petition, or the federal courts have appointed counsel with only weeks
or days within which to file a federal habeas corpuspetition. In a few
cases, the limitations period has passed without appointment of
counsel.
AEDPA also creates a quid pro quo whereby if a state ``opts in'' by
establishing a mechanism for the appointment and compensation of
counsel in state post-conviction proceedings,\39\ it can obtain certain
``benefits,'' including the shortening of the statute of limitations
for filing a first federal petition from one year to 180 days,\40\ and
an accelerated process of decision in the federal courts.\41\ No state
has yet been held to qualify as an ``opt-in'' state under these
provisions. However, in the wake of the enactment of AEDPA, many states
created new post-conviction processes in an attempt to ``opt in'' and
obtain these ``benefits.'' \42\ Thus, in many states, not only have
post-conviction capital counsel had to unravel the mysteries of AEDPA,
but have also had to learn, and litigate, the meaning of totally new
state post-conviction statutes.
---------------------------------------------------------------------------
\39\ 28 U.S.C. Sec. Sec. 2261, 2265 (2000).
\40\ 28 U.S.C. Sec. 2263 (2000).
\41\ 28 U.S.C. Sec. 2266 (2000).
\42\ See, e.g., ARIZ. REV. STAT. Sec. 13-4041 (1999); ARK. CODE.
ANN. Sec. 16-91-204 (2000) (legislative intent of statute is to obtain
expedited federal review under AEDPA); S.C. CODE ANN. Sec. 17-27160(B)
(1999) (``South Carolina Effective Death Penalty Act of 1996 '').
---------------------------------------------------------------------------
These and many other AEDPA provisions have significantly
complicated and increased the uncertainty inherent in both state and
federal post-conviction practice. Many part-time capital lawyers
appointed in state post-conviction and federal habeas corpus
proceedings who came to depend upon the PCDOs to keep them abreast of
significant legal developments are now required to master these
comprehensive alterations to post-conviction practice in an accelerated
environment. Some have failed to understand AEDPA's implications, and
unwittingly forfeited their clients' right to federal habeas corpus
review.\43\ Many others are simply refusing to represent capital
clients altogether.
---------------------------------------------------------------------------
\43\ See, e.g., Kreutzer v. Bowersox, 231 F.3d 460 (8th Cir. 2000);
Goodman v. Johnson, No. 9920452 (5th Cir. Sept. 19, 1999)
(unpublished), cert. denied, 528 U.S. 1131 (2000); Cantu-Tzin v.
Johnson, 162 F.3d 295 (5th Cir. 1998), cert. denied, 528 U.S. 1091
(1999); Calderon v. United States District Court (Kelly), 127 F.3d 782
(9th Cir. 1997), cert. denied, 528 U.S. 1063 (1998). Spencer Goodman
was executed by the State of Texas on January 18, 2000, and Andrew
Cantu-Tzin was executed by Texas in January 1999.
---------------------------------------------------------------------------
EJI's small staff is unflaggingly dedicated in its attempt to fill
the huge gap in capital representation in Alabama, but it simply cannot
do it all. Although EJI represents almost 100 deathrow inmates,\44\ and
the American Bar Association Death Penalty Representation Project and
other groups have had some very limited success identifying volunteer
counsel willing to represent capital prisoners in Alabama post-
conviction proceedings pro bono, in no way can these resources meet the
need. Approximately 31 Alabama inmates under sentence of death do not
have lawyers to represent them in state post-conviction proceedings.
---------------------------------------------------------------------------
\44\ Rimer, supra, note 46 at Al.
---------------------------------------------------------------------------
Other than EJI, there is no one else to provide these services.
Alabama law does not require appointment of counsel in post-conviction
proceedings.\45\ Resources for capital representation in Alabama are
virtually nonexistent. Alabama has no statewide public defender
system,\46\ nor is any other state or local entity including the state
courts responsible for identifying counsel willing to represent death
row inmates in post-conviction proceedings. No court in Alabama
routinely appoints counsel for death row inmates who have concluded
direct appeal. If a condemned inmate files a post-conviction petition
pro se, the circuit court may appoint a local lawyers.\47\
---------------------------------------------------------------------------
\45\ Ex parte Cox, 451 So.2d 235 (Ala. 1983).
\46\ See Rimer, supra, note 46, at A1 In 2000, legislation to
create a statewide public defender office in Alabama failed to pass.
\47\ In one such case, Henderson v. State, 733 So.2d 484 (Ala.
Crim. App. 1998), an appointed lawyer, who successfully ran for
District Attorney a few months later, told the court that the trial
lawyer was not ineffective as had been alleged in the pro se petition
and that the claim and the petition should be dismissed, which they
were. The client contacted ER on the last day for filing a notice of
appeal and asked for help. An appeal notice was filed and EJI recruited
counsel. The client was nonetheless precluded from further post-
conviction review because of the conduct of appointed counsel.
---------------------------------------------------------------------------
But there are few financial resources to work the case even if
counsel is identified. On October 1, 2000, following the first rate
increase in 18 years, post-conviction counsel in a capital case is now
paid $60 per hour for in-court work and $40 per hour for out-of-court
work, but there remains a $1,000 cap.\48\ There continues to be no
state statutory right to funds for investigative or expert assistance.
Moreover, there are no qualifications for capital post-conviction
counsel required under state law or rule, and no state entity provides
training or resource materials to those attorneys who are
appointed.\49\
---------------------------------------------------------------------------
\48\ ALA. CODE 15-12-23.
\49\ EJI provides these services as its budgetary and staffing
constraints allow.
---------------------------------------------------------------------------
It is therefore not surprising that even if counsel is appointed by
the state court, these attorneys usually have no post-conviction
experience, and rarely investigate claims, gather evidence, or seek
evidentiary hearings.\50\ Even those attorneys recruited by EJI and the
ABA Death Penalty Representation Project rarely have any experience in
capital litigation. Most are pro bono civil attorneys from outside
Alabama who need substantial guidance. At present, the ABA Death
Penalty Project provides limited funding for one EJI attorney to act as
resource counsel to assist pro bono post-conviction counsel, but one
person can only do so much.
---------------------------------------------------------------------------
\50\ Elisabeth Semel, Representing Death Row Inmates at the
Outskirts of the Southern Front, CACJ FORUM, vol. 26, no. 1, at 37, 40.
---------------------------------------------------------------------------
The need to provide guidance to inexperienced capital counsel is
made even more critical by recent events. At the urging of the Alabama
Attorney General and the Governor,\51\ the Alabama Supreme Court
enacted a rule change, made retroactive to pending cases, that
eliminates the Court's automatic review of capital cases, and also
imposes strict deadlines.\52\ In a rather bizarre twist, although the
rule change was made effective in May 2000, the rule was not actually
published until August 2000.
---------------------------------------------------------------------------
\51\ Analysis: Alabama State Officials Continue to Rely on Electric
Chair as Alabama's Primary Means of Execution, (All Things Considered,
NPR radio broadcast, Feb. 17, 2000), available at 2000 WL 21469803.
\52\ See Court Comment to Ala. R. App. P. 39. The May 2000
amendment completely revises Rule 39 to remove the provision in the
former rule that provided that a petition for writ of certiorari in a
death penalty case would be granted as of right. Review is now at the
discretion of the Supreme Court. Rule 39 also requires that a petition
for rehearing be filed in the Court of Criminal Appeals before a
certiorari petition may be filed in the Supreme Court, and that a
certiorari petition be filed within 14 days of the denial of rehearing
by the Court of Criminal Appeals, Rule 39(c). If certiorari is granted,
the briefing on the merits is to be completed by both parties within 28
days of the date the writ issues. Rule 39(h). There is no guarantee
that the Supreme Court will hear oral argument even if certiorari is
granted. Rule 39(1)&(j).
---------------------------------------------------------------------------
There is no doubt that capital post-conviction representation is in
crisis in Alabama. But perhaps most unsettling is the fact that
numerous unrepresented Alabama death row inmates now face the
expiration of the federal statute of limitations. Indeed, in an
unprecedented move, the State recently asked the Alabama Supreme Court
to set execution dates for two unrepresented death row inmates for whom
the federal statute of limitations has run.
Pennsylvania.
At the time of the defunding of the PCDOs, about half of the then
nearly 200 death row inmates in Pennsylvania had no lawyer.\53\ The
Commonwealth has long been widely regarded as having one of the worst
systems in the country for providing indigent defense services. Indeed,
Pennsylvania's death penalty representation crisis has been recognized
for years. As early as 1990, the Joint Task Force on Death Penalty
Litigation in Pennsylvania warned of a ``problem of major proportions''
in the provision of legal representation to indigent death-row inmates,
and noted several ``serious problems'' including: the shortage of
qualified counsel to assist inmates in state and federal post-
conviction proceedings; the lack of standards governing the
qualifications for capital counsel or the appointment of counsel at any
stage of state capital proceedings; the lack of standards for the
compensation of counsel; the lack of state funding for investigation of
capital cases; and the lack of any mechanism for the identification and
recruitment of qualified counsel.
---------------------------------------------------------------------------
\53\ As of July 2000, Pennsylvania had a death row population of
235 men and women, the fourth largest in the nation. NAACP Legal
Defense Fund, Death Row USA, July 1, 2000.
---------------------------------------------------------------------------
In the decade since the Task Force's report, little in Pennsylvania
has changed. The Pennsylvania Capital Case Resource Center (PCCRC) was
founded to address Pennsylvania's systemic and endemic failures to
provide trained legal counsel for indigent death row prisoners. After
more than a three-year delay in the provision of matching state
funding, the PCCRC opened its doors as a federally-funded PCDO in July
1994. In FY 1995, its PCDO grant totaled $621,000. But after Congress
defunded the PCDOs, state funding was also discontinued. After its
defending and substantial downsizing, PCCRC became the Center for Legal
Education, Advocacy and Defense Assistance (LEADA). LEADA received no
governmental sustaining grants, and in 1996 the Legislature twice
defeated measures to fund it.\54\ Finally, because of a shortage of
resources, LEADA closed its doors in June 1999.\55\ At the time, it
represented more than 70 of Pennsylvania's 227 death-row inmates.\56\
When LEADA dissolved, no state entity in Pennsylvania was available to
systematically obtain stays of execution, recruit pro bono counsel for
state post-conviction and federal habeas proceedings, or provide
consulting, training, and support for appointed counsel.
---------------------------------------------------------------------------
\54\ In 1997, while continuing to deny funding for post-conviction
representation for indigent capital inmates, the Pennsylvania
Legislature appropriated $500,000 to create a resource center for
prosecutors in the Attorney General's office to assist with the
opposition of capital post-conviction appeals.
\55\ Elizabeth Amon, No Stay for Pa. Defense Group: A Lack of
Funding Shuts Down Death Row Advocate Group, NAT'L L. J., July 5, 1999,
at A16.
\56\ Charles Thompson, Advocate for Death Row Inmates Closes Its
Doors: Agency that Represented More than 70 Convicted Killers Loses
Battle for Funding, PATRIOT-NEWS (Harrisburg, Pa.), July 4, 1999, at
A7, available at 1999 WL 5144962.
---------------------------------------------------------------------------
Other actions by Pennsylvania affirmatively deepened the crisis in
post-conviction representation. In November 1995, Pennsylvania amended
its post-conviction statute so as to limit to one year the time in
which condemned inmates may initiate collateral review.\57\ But the
Commonwealth still has no standards governing the appointment of post-
conviction counsel, and still provides no statewide funding for
compensation of counsel and reimbursement of expenses in capital post-
conviction cases. Instead, Pennsylvania leaves the funding for such
cases to county governments.\58\ Indeed, 2000 was the first time
Pennsylvania has ever provided any type of funding for post-conviction
work, when the Legislature appropriated $600,000 for capital post-
conviction training. However, this money is for training only. It
cannot be used to compensate post-conviction counsel nor to reimburse
expenses. Moreover, although the Governor's office was placed in charge
of distributing these training funds, it has yet to do so.
---------------------------------------------------------------------------
\57\ 1995 Pa. Legis. Serv. 32 (Spec. Sess. No. 1), Sec. 1, codified
at 42 PA. CONS. STAT. Sec. 9545(b)(I) (2000).
\58\ Amon, supra note 249.
---------------------------------------------------------------------------
Not long after the defunding of the resource center, a capital
habeas unit was created in the Federal Court Division of the Defender
Association of Philadelphia, the federal defender organization for
Pennsylvania. Since its creation, the unit has attempted to take all
new capital habeas corpus cases in the federal courts in Pennsylvania.
This has recently become more difficult. The Pennsylvania Supreme Court
has begun to dramatically reduce its backlog of capital cases, and
headed for federal court is a wave of cases35 are now awaiting decision
before the state supreme court, and another 15 have completed state
evidentiary hearings and are awaiting decision by the trial court. At
present, the unit represents over 50 capital habeas petitioners.
Unfortunately, because of the lack of competent counsel and resources
in state post-conviction proceedings in Pennsylvania, when cases come
to the unit following completion of the state post-conviction process,
usually no discovery has been undertaken and little independent
investigation has been done in the case. The unit must therefore expend
federal resources to uncover all colorable claims to be included in the
federal petition, and must do so within the time constraints of AEDPA's
statute of limitations.
In June 1996, South Carolina enacted the ``South Carolina Effective
Death Penalty Act of 1996.'' \59\ The Act imposed for the first time a
deadline for filing a post-conviction petition in state coup. Now,
counsel in capital post-conviction proceedings in South Carolina must
file an application for post-conviction relief within 60 days of
appointment. The Act also expedites other aspects of South Carolina
capital post-conviction proceedings.\60\ Many South Carolina judges
strictly adhere to the statutory time limits. Moreover, due to fears
that South Carolina may at some point be held to be an ``opt-in'' state
and therefore entitled to the expedited procedures of AEDPA, counsel
are often required to file a state post-conviction application within
only days or weeks of appointment.
---------------------------------------------------------------------------
\59\ 1996 S.C. Acts No. 448, Sec. 1 (eff June 18, 1996), codified
at S.C. CODE ANN. Sec. 17-27-160 (1999).
\60\ S.C. CODE ANN. Sec. 17-27-160(C) (1999) (after the state files
its return, the statute requires the court to hold a status conference
within 30 days and to schedule an evidentiary hearing within 180 days
of the conference, except for good cause shown.).
---------------------------------------------------------------------------
The Act also provides for appointment and compensation of post-
conviction counsel. Indigent death-sentenced inmates are entitled to
the appointment of two attorneys.\61\ Private counsel is compensated at
the statutory rate of $50 per hour for out-of-court work and $75 per
hour for incourt work. The statutory cap is $25,000.\62\
---------------------------------------------------------------------------
\61\ Id., Sec. 17-27-160(B) (1999).
\62\ See Id.; S.C. CODE ANN. Sec. 16-3-26 (1999).
---------------------------------------------------------------------------
Administrative Office of the
United States Courts
Washington, D.C. 20544
July 5, 2001
Hon. Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, D.C. 20510-6275
Dear Mr. Chairman:
I am providing this letter in response to your July 3, 2001 letter
asking that the judiciary clarify the record with regard to testimony
given at the hearing held by the Committee on ``Protecting the
Innocent: Ensuring Competent Counsel in Death Penalty Cases.'' At that
hearing the Committee heard testimony that the federal judiciary is
spending more than $20 million in FY 2001 to fund ``assistance and
training in state capital cases-not federal cases. . . .'' I want to
assure the members of the Committee that this is not the case. The
federal judiciary does not fund representation in state proceedings of
individuals under a state-imposed death sentence, except in rare and
limited circumstances.
Let me provide some background information on this issue. The
federal judiciary is required to appoint and compensate at least one
lawyer for any death-sentenced inmate in a federal habeas corpus case.
See 21 U.S.C. Sec. 848(q). The federal courts provide counsel in one of
two ways. They may appoint an attorney from the private bar (known as a
Criminal Justice Act panel attorney) or they may appoint a federal
defender organization (FDO).
At its December 1998 meeting, the Defender Services Committee of
the Judicial Conference resolved that ``Defender Services appropriation
funds may not be used to represent an individual under a state-imposed
death sentence in a state proceeding unless a presiding judicial
officer in a federal judicial proceeding involving the individual has
determined that such use of Defender Services appropriation funds is
authorized by law.'' The Administrative Office (AO) monitors such
appearances in state court by FDOs.
The most recent data available to the AO indicate that such
appearances in state court are rare. For the period from April 1, 2000,
through March 31, 2001, seven of the 67 FDOs reported a total of 47
state court appearances on behalf of 43 clients. The total cost of FDO
appearances in state court, including out-of-court and in-court
activities, was approximately $157,600. The state court activity was
for specified purposes, including: matters related to exhaustion of
remedies in state court; motions related to a stay of execution in
state court; pleadings related to successor post-conviction litigation;
and motions for release of public records. In accordance with the
Defender Services Committee policy, these activities were pursued at
the direction of a federal judge and in connection with a federal
capital habeas corpus proceeding that had been filed in a federal
court.
The $20 million referenced at the hearing as being available for
state capital case assistance and training is, in fact, limited to use
by FDOs to support the direct representation of petitioners in the
federal review of state capital habeas cases pursuant to 28 U.S.C.
Sec. 2254. As noted above, in a limited number of circumstances, these
FDOs are authorized to use federal funds to represent death-sentenced
inmates in state court proceedings, but only where a federal judge
determines that such use of funds is authorized by law.
We believe that part of the confusion on this point may stem from
the fact that some attorneys represent indigent defendants in both
state and federal capital cases, which may lead to an erroneous
assumption that they are paid only by federal sources. The federal
judiciary only reimburses counsel for representation in a federal
proceeding (except in the circumstances identified above), and other
sources of funding must be found to compensate an attorney appearing in
a state court action. One defender organization, the FDO serving the
Eastern District of Pennsylvania, does receive nonfederal money to
support its staff appearing in state court. That FDO is a community
defender organization receiving grant funds from the judiciary for its
federal court work. It has secured non-federal funds through grants and
private contributions to support state court representations. During
the most recent reporting period, according to this organization's
documents and the independent audit that was done, it did not use
federal resources on state court activity.
I appreciate this opportunity to clarify any confusion about these
issues. I ask that a copy of this letter be made a part of the record
of the hearing. Please let me know if the AO can provide any additional
information on this matter to the Committee.
Sincerely,
Leonidas Ralph Mecham
Director
Administrative Office of the
United States Courts
Washington, D.C. 20544
July 16, 2001
Hon. Orrin G. Hatch
Ranking Member
Committee on the Judiciary
United States Senate
152 Dirksen Senate Office Building
Washington, D.C. 20510-6275
Dear Senator Hatch:
Pursuant to a request from a member of your staff, I am writing to
clarify the record with regard to a document referred to at the hearing
held by the Committee on ``Protecting the Innocent: Ensuring Competent
Counsel in Death Penalty Cases.'' I want to emphasize that the report,
entitled ``The Crisis in Post-conviction Representation in Capital
Cases Since the Elimination by Congress of Funding for the Post-
Conviction Defender Organizations,'' does not represent the official
position or policies of the Administrative Office of the United States
Courts or the Judicial Conference of the United States.
This report was drafted by Janice L. Bergmann, an attorney in a
federal public defender organization, at the request of my staff to
assist the judiciary in responding to its ongoing obligation to provide
lawyers for death-sentenced inmates in federal capital habeas corpus
cases. See 21 U.S.C. Sec. 848(q). In that regard, it has been provided
to Judicial Conference's Committee on Defender Services, as well as to
capital habeas practitioners participating in the judiciary's strategic
planning efforts.
The report was completed in 1999 and updated in 2001. A disclaimer
was incorporated into the report in the hope that it would avoid any
confusion. I regret that it was not more clear.
The opinions, findings, and conclusions expressed in the report are
those of the author. As part of the updating process, portions of the
report were sent to various capital habeas practitioners for fact-
checking purposes in anticipation of having a revised report available
to the Committee on Defender Services at its May 2001 meeting. In order
to meet this deadline, Administrative Office staff incorporated a
number of the suggestions made by these practitioners into the report
when the report's author became unavailable for an extended period this
Spring. This activity, however, did not cause the Administrative Office
to adopt or endorse the report, and I want to reiterate that the report
does not reflect the official position or policies of the
Administrative Office or the Judicial Conference of the United States.
Indeed, the judiciary's policy making process frequently is informed by
materials garnered from a broad range of sources, and their use to
educate judges and others involved in that process about particular
points of view does not constitute an endorsement of either the source
material or the opinions expressed therein.
I appreciate the opportunity to clarify this issue. I ask that a
copy of this letter be made a part of the record of the hearing. Please
let me know if the Administrative Office can provide any additional
information on this matter to the Committee.
Sincerely,
Leonidas Ralph Mecham
Director
Statement of Norman Lefstein, Dean, Indiana University School of Law at
Indianapolis and Member, Standing Committee on Legal Aid and Indigent
Defendants on behalf of The American Bar Association
Mr. Chairman and Members of the Committee:
My name is Norman Lefstein. I am currently Dean and Professor of
Law at the Indiana University School of Law at Indianapolis.
For many years I have dealt extensively with issues concerning the
legal representation of indigent defendants in criminal cases in the
United States, including death penalty cases. I was a reporter for the
American Bar Association in preparing standards dealing with defense
services in criminal cases\1\ and directed a study on the cost and
quality of defense representation in federal death penalty cases for a
committee of the Judicial Conference of the United States.\2\ I also
have been an expert witness in post-conviction death cases in which the
quality of representation furnished by counsel was attacked. Currently,
I am a member of the American Bar Association's Standing Committee on
Legal Aid and Indigent Defendants. Since 1989, I have served as
Chairman of the Indiana Public Defender Commission, which developed
death penalty representation standards for the consideration of the
Indiana Supreme Court, most of which were later adopted.
---------------------------------------------------------------------------
\1\ See ``Providing Defense Services,'' Chapter Five, American Bar
Association Standards for Criminal Justice (2d ed., Little Brown & Co.,
1980).
\2\ See Federal Death Penalty Cases Recommendations Concerning the
Cost and Quality of Defense Representation, Report of the Subcommittee
on Federal Death Penalty Cases of the Committee on Defense Services of
the Judicial Conference of the United States (1998).
---------------------------------------------------------------------------
This statement is submitted on behalf of the American Bar
Association (hereafter ABA or Association). With the exception of its
opposition to the use of the death penalty for the mentally retarded
and for juveniles who committed their crimes when they were under the
age of 18, the ABA has not adopted a position either for or against
capital punishment. In 1997, however, because of its concern that the
death penalty was not being carried out in accordance with due process
principles, and did not adequately minimize the risk of executing
innocent persons, the ABA called for a moratorium on the use of capital
punishment in the United States.
Since the death penalty was held constitutional a quarter century
ago, the Association has adopted policies concerning the administration
of capital punishment. Underlying these policies is a concern for
protecting the innocent. Thus, the ABA has made protection of the right
to effective assistance of counsel a top priority and has developed
standards or guidelines for the effective representation of criminal
defendants in capital cases.
In 1989, the ABA adopted the American Bar Association Guidelines
for the Appointment and Performance of Counsel in Death Penalty Cases.
These guidelines deal with the structure of defense systems for capital
representation, the qualifications of counsel to represent defendants
in capital cases, and the ways in which counsel should perform their
various defense functions. As stated in the introduction to the
guidelines, ``they enumerate the minimal resources and practices
necessary to provide effective assistance of counsel.'' Because the
guidelines are now more than 10 years old and outdated due to numerous
changes in the law, the ABA has recently undertaken to review the
guidelines and to propose necessary changes, which will likely be
considered for adoption by the Association in 2002.
This statement addresses three fundamental issues that are bound up
in the consideration of the Innocence Protection Act of 2001. First,
why are standards for the representation of defendants in capital cases
necessary? Second, what are the essential elements of a system for
capital representation? And, lastly, why is it important that standards
for representation in death penalty cases be enforceable?
i. why are standards for the representation of defendants in capital
cases necessary?
There is an enormous amount of evidence that the quality of legal
representation provided to defendants in capital cases in this country
is woefully inadequate. If proof of this assertion is doubted, one need
only recall that nearly 100 persons have been released from death rows
in this country, with either substantial or incontrovertible evidence
of their innocence. Ours is a country that prides itself on the quality
of its criminal justice system. In the death penalty area, however, it
is clear that something has gone wrong. Too often our adversary system
of criminal justice, which requires that the accused be provided a
vigorous defense, has not operated as intended. It is largely because
of this that the ABA has called for a moratorium on the use of the
death penalty, as noted earlier.
The problems in death penalty representation have been repeatedly
documented in law journal articles, studies, newspapers, and in
decisions of appellate courts. Too often the lawyer who represents the
defendant in a capital case is inexperienced and lacks the requisite
qualifications to defend a person on trial for his life. The lack of
adequate compensation for counsel, experts and investigators sometimes
means that the most qualified attorneys refuse to become involved in
capital defense representation, thus leaving the defendant to be
represented by an inexperienced and untrained attorney. Unfortunately,
such lawyers all too frequently conduct inadequate factual
investigations, fail to keep abreast of the complex and constantly
changing legal doctrines that apply in capital litigation, and make
procedural errors that later preclude review of meritorious claims. The
deficiencies of lawyers in death penalty cases also have included the
failure to make appropriate objections, to present mitigating evidence,
and even to file briefs on appeal.
In one of his last opinions as a member of the United States
Supreme Court, Justice Blackmun identified the lack of standards as one
of the primary reasons why there are so many problems in the area of
defense representation in capital cases. ``The absence of standards
governing courtappointed capital-defense counsel means that unqualified
lawyers often are appointed, and the absence of funds to compensate
lawyers prevents even qualified lawyers from being able to present an
adequate defense. Many states that regularly impose the death penalty
have few, if any, standards governing the qualifications required of
court-appointed capital-defense counsel. . . .'' \3\
---------------------------------------------------------------------------
\3\ McFarland v. Scott, 114 S. Ct. 2785, 2786 (1994)(Blackmun, J.,
dissenting).
---------------------------------------------------------------------------
Justice Blackmun offered this analysis in 1994, but his assessment
of the situation is still accurate in 2001. Although standards for the
appointment of counsel have been adopted by rule or statute in some
states, most are not comprehensive and thus fail to deal with all
facets of capital representation. In about half of the death penalty
states, moreover, there are no court rules or statutes of any kind
governing capital defense representation, and this includes a number of
jurisdictions that have large death row populations.
The importance of standards for capital representation can perhaps
best be understood by recalling what has happened in Illinois. Governor
Ryan, a proponent of the death penalty, imposed a moratorium on the use
of the death penalty in that state because of the release from death
row of numerous defendants determined to be innocent. In these cases,
there was abundant evidence that the lawyers who represented the
defendants were not qualified by either experience or training to do
so. Significantly, until March of this year, Illinois did not have any
standards governing the appointment of counsel in death penalty cases
or any of the other facets of capital representation.
In contrast, Indiana has had since 1994, by virtue of a Supreme
Court rule, one of the more comprehensive provisions governing capital
defense representation in the country.\4\ As a result of this rule,
there is considerable evidence that the quality of defense
representation in capital cases has improved, as documented in a study
that I published in 1996.\5\ The Honorable Randall T. Shepard, Chief
Justice of Indiana, seemingly agrees with this conclusion. As he stated
in a speech, ``[t]he net result of our rule and [state] appropriations
is some very thorough, high quality, and effective representation.''
\6\ Since the adoption of Indiana's rules, no person has been released
from the state's death row because of innocence. Nor has there been a
case in which lawyers were appointed pursuant to the Supreme Court's
rule, complied with its requirements, and were held to be
ineffective.\7\
---------------------------------------------------------------------------
\4\ Ind. R. Crim. P. 24. The rule was originally effective January
1, 1990. Subsequently, it was amended on several occasions. The most
important provisions related to defense representation in capital cases
did not take effect until 1993.
\5\ Lefstein, ``Reform of Defense Representation in Capital Cases:
The Indiana Experience and Its Implications for the Nation,'' 29 Ind.
L. Rev. 495 (1996).
\6\ ``Capital Litigation from the State Court Perspective or
Rushing to Judgment in Fifteen Years,'' Speech by Randall T. Shepard at
Judicial Meeting of the U.S. Court of Appeals for the Seventh Circuit
(May 2, 1996).
\7\ There is one death penalty case in which lawyers appointed
pursuant to the Indiana rule were found to be ineffective. However, the
caseload of one of the lawyers substantially exceeded the caseload
restrictions specified in the Indiana rule. See State v. Prowell, 741
N.E.2d 704 (Ind. 2001).
---------------------------------------------------------------------------
In short, whether contained in court rules or statutes, standards
for capital defense representation can and do make a difference, just
as in other criminal cases requiring counsel for the indigent.
Standards can assure that only attorneys with appropriate experience
and training are appointed to represent defendants. Thus, standards can
be instrumental in assuring that defendants' constitutional rights are
protected, reduce the likelihood of error in proceedings, diminish the
number of appeals and ultimately enhance the efficiency and
effectiveness of the criminal justice process.
The Innocence Protection Act of 2001 contemplates the creation of a
National Commission on Capital Representation to develop standards for
providing adequate legal representation for indigents in death penalty
cases. Although the ABA has never taken a position on the establishment
of such a commission, clearly the approach of the proposed legislation
is fully consistent with the ABA's guidelines on defense representation
in death penalty cases and with other policies of the Association.
ii. what should be the essential elements of a system for capital
representation?
The ABA guidelines on capital defense representation call for an
independent appointing authority to develop qualification and
compensation standards, to recruit and train lawyers to handle capital
cases, to certify them as competent in this specialty area, and to make
the actual appointments of counsel in all cases. The guidelines also
provide that this independent authority should establish standards of
performance for counsel and monitor their conduct to assure that
clients are receiving quality legal representation. In addition, this
independent body should have the authority to remove unqualified
lawyers from the roster of attorneys eligible to receive appointments
in capital cases.
As long as state court judges continue to make capital case
assignments without adequate regard for the qualifications and training
of counsel, the problems of incompetent counsel will surely continue.
Unskilled attorneys will continue to make serious errors during trial;
subsequently, post-conviction counsel will seek to discover those
errors and seek reversals of death sentences imposed; and state
appellate courts and federal courts will bear the brunt of correcting
those errors. The only longterm answer is to conduct trials correctly
in the first place. In the Association's view, this requires
independently appointed, competent counsel.
The recommendation in the ABA's guidelines that the program for
furnishing counsel in capital cases be vested in an independent
appointing authority had its genesis in earlier reports and standards
of the Association. In 1973, for example, the National Advisory
Commission, organized during the Nixon administration and comprised of
criminal justice experts from across the country, expressed the
following viewpoint: ``The method employed to select public defenders
should insure that the public defender is as independent as any private
counsel who undertakes the defense of a fee-paying criminally
accused.'' \8\ This approach for providing defense counsel to the
indigent was spelled out in further detail in the ABA's second edition
of Providing Defense Services, adopted by the Association in 1979.\9\
The current version of these standards, approved by the Association in
1990, reads as follows: ``The plan and the lawyers serving under it
should be free from judicial supervision only in the same manner and to
the same extent as are lawyers in private practice. The selection of
lawyers for specific cases should not be made by the judiciary or
elected officials. . . .'' \10\
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\8\ National Advisory Commission on Criminal Justice Standards and
Goals, Courts 13.8 (1973).
\9\ See supra note 1, Standard 5-1.3.
\10\ ``Providing Defense Services,'' Standard 5-1.3, ABA Standards
for Criminal Justice (3d ed. 1992).
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There are a variety of reasons why judges should not appoint
lawyers in indigent cases, or otherwise be involved in the overall
supervision of indigent defense, and these arguments are even more
compelling when capital cases are involved because the stakes are so
much greater. The paramount reason for not having judges appoint
defense lawyers is to assure that counsel always feels completely free
to act in the client's best interest. While there are obviously many
fine judges who preside over criminal cases, there are occasions when
judges are angered by motions filed by defense attorneys, resent
arguments advanced by counsel, and rule against lawyers insistent upon
continuances. Judges, for example, are understandably concerned with
moving their dockets, but this is not defense counsel's concern and
should never be the reason that a lawyer fails to make arguments or
take actions on the client's behalf.
A lawyer should not have to fear reprisals of any kind from either
the judge before whom he or she is appearing or some other judge before
whom the lawyer might later appear. The power of judges to appoint
lawyers and approve claims for compensation necessarily includes the
power to withhold appointments and to reduce payments for the time
lawyers devote to indigent cases.
A lawyer's advocacy on behalf of an indigent defendant in an
appointed criminal case, especially a capital case, should be no more
inhibited than the lawyer's advocacy in representing a client in a
retained private case. Judges do not select privately retained lawyers
or prosecutors. Judges should not be involved in the selection and
operation of indigent defense programs either. The appointment of
counsel and the oversight of indigent defense by an independent
authority should also alleviate the fear of defendants that the judge
or some other court official in charge of assignments controls the
defense lawyer.
While it was noted earlier that some changes in the Association's
guidelines are likely to be recommended next year, clearly the call for
an independent appointing authority, which is quite central to the
guidelines, will not be one of them. As the foregoing discussion
demonstrates, the call for independence in the operation of indigent
defense predates the development of the ABA's guidelines for capital
representation.
But, in addition to an independent appointing authority, there are
a number of other components deemed essential to a system of capital
defense representation specified in the guidelines. Included among
these are the following:
The appointment of two qualified attorneys at trial,
on appeal, and in post-conviction proceedings, due to the
complexity of capital defense litigation;
Specific, detailed qualification standards to assure
that attorneys appointed to capital cases are capable of
rendering competent representation by virtue of their prior
experience and training;
Adequate support assistance in the form of
investigative, expert, and other services necessary to prepare
and present an adequate defense;
Mandatory training in capital defense representation
as a precondition for continuing to be eligible to receive
appointments in death penalty cases; and
Reasonable compensation paid to defense counsel for
actual time and service performed, based upon a rate of hourly
compensation that is commensurate with the provision of
effective representation and taking into account the
extraordinary responsibilities inherent in death penalty
litigation.
Obviously, there is a good deal of similarity between the ABA's
guidelines for death penalty representation and the provisions of the
Innocence Protection Act of 2001. In the view of the Association, the
proposed statute is absolutely right in declaring that a ``centralized
and independent appointing authority,'' as specified in paragraph (c)
of Title II, should be an element of an effective system for capital
defense. The statute is also correct in granting to the independent
authority broad responsibilities for administering the system of
capital defense representation. The appointment of a National
Commission on Capital Representation to develop national standards
would be a monumental advance in addressing the many problems that
exist in this country in capital defense representation.
iii. why is it important that standards for death penalty
representation be enforceable?
The Innocence Protection Act of 2001 proposes that sanctions be
imposed on states if they fail to maintain a system of capital defense
representation consistent with the National Commission's standards. The
sanctions would take the form of withholding from non-compliant states
a portion of funds under prison grant programs and making habeas corpus
relief more available to petitioners in capital cases from such states.
Although the Association has never addressed withholding funds from
states failing to comply with national standards, in 1990 the ABA
adopted a resolution urging that certain procedural barriers to habeas
corpus review not apply if a state ``failed to appoint competent and
adequately compensated counsel to represent the defendant. . . .'' As
the resolution explained, this would help ``[t]o assure that the state
provides competent representation and to avoid procedural delays as
well as multiple reviews of the same issues. . . .''
In addition, the Association adopted a resolution in 1998 calling
upon state and local jurisdictions ``to adopt minimum standards for the
creation and operation of its indigent defense delivery systems'' based
upon previously approved standards, including the ABA's guidelines for
capital defense representation. The resolution also calls upon
government bodies, which fund indigent defense services, to insist that
minimum standards for representation are being met ``as a condition for
receiving funds.'' As the commentary to the resolution explained,
``standards have the greatest impact when the state or other funding
entity reimburses a jurisdiction's indigent defense program for some or
all of the cost of delivering services, but reimbursement is made only
if the jurisdictions adopt and enforce standards for the delivery of
indigent defense services.''
In the commentary to this ABA resolution, Indiana is the state that
is most prominently cited for linking compliance with standards to the
funding of indigent defense. Pursuant to statute in Indiana, the
Indiana Public Defender Commission is authorized in capital cases to
reimburse counties for SO% of their defense service expenditures if
county officials and the trial court certify compliance with the
Supreme Court's requirements governing death penalty representation.
The standards in Indiana are contained in a rule of the Indiana Supreme
Court, which requires the appointment of two attorneys on trial and
appeal; establishes experiential requirements for lawyers willing to
serve as lead and co-counsel in capital cases at trial and on appeal;
sets caseload limitations for lawyers handling capital cases, as well
as their rates of compensation; and requires that adequate
investigative, expert and other services be provided to the defense.
Because counties do not want to forego 50% reimbursement of their
defense expenditures in capital cases, which are often quite
substantial, there has been almost complete compliance with the rule of
the Indiana Supreme Court on capital defense representation. As noted
earlier, there is also evidence that the system of indigent defense in
Indiana has improved. However, the compliance of counties has not been
100%. Recently, as Chairman of the Indiana Public Defender Commission,
I wrote to the Chief Justice of Indiana to advise him that the
Commission has learned of instances where two attorneys were not
appointed to a death penalty case and of capital cases where caseload
restrictions of lawyers were violated. This leads, therefore, to this
question: if you cannot achieve 100% compliance with a rule of the
state's highest court on capital representation when a county has much
to lose from non-compliance, are there not apt to be far more
violations of requirements for death penalty representation if the
officials have absolutely nothing to lose?
The incentives for a state to comply with requirements aimed at
assuring that every capital defendant is vigorously represented must be
strong. The history of the past 25 years in providing counsel in death
penalty cases shows that many states are quite reluctant to spend the
funds necessary to assure that every capital defendant is effectively
represented. Although many legislators undoubtedly understand what is
needed to improve the system, there is not a strong constituency
advocating for reform of indigent defense in most states. If national
standards are developed as envisioned in the Innocence Protection Act,
the reality is that many state and/or local jurisdictions are going to
ignore them unless they decide it is simply too costly to do so.
The opposite of enforceable standards for capital defense
representation is voluntary standards. Essentially, this is what we
have had in the United States for many years. Ever since 1989 when the
ABA adopted its guidelines for the appointment and performance of
counsel in capital cases, a detailed blueprint has been available to
every state and local jurisdiction to adopt. But this has not happened
in any systematic or organized way, and in many jurisdictions nothing
at all has been done. Meanwhile, enormous problems in the defense of
capital cases have been experienced in virtually all 38 of the nation's
death penalty states.
Statement of Steven D. Benjamin, Benjamin & DesPortes, P.C., Richmond,
Virginia
Introduction
I am a member of the Virginia State Bar, and have practiced in the
Commonwealth of Virginia since 1979. I am admitted to practice in the
United States District Court, Eastern and Western Districts of
Virginia, the Fourth Circuit Court of Appeals, and the United States
Supreme Court. I am a partner in the Richmond, Virginia, firm of
Benjamin & DesPortes, P.C. My partner, Betty Layne DesPortes, and I
limit our practice to the defense and appeal of criminal cases. I am a
director of the Virginia College of Criminal Defense Attorneys and an
active member of the National Association of Criminal Defense Lawyers.
I am an adjunct professor of law at the University of Richmond School
of Law. I present continuing legal education in all phases of criminal
defense.
During my career, I have tried dozens of murder cases. I have
represented as lead counsel approximately 15 to 20 defendants who were
charged with capital murder in the Eastern District of Virginia, the
City of Richmond, Henrico County, Chesterfield County, Fairfax County,
Brunswick County, Henry County, and Ameba County. No defendant
represented by me or Ms. DesPortes at the trial court level has ever
received a death sentence.
In view of my experience and background, I have been asked to
describe and comment generally on Virginia's provision of indigent
defense in capital cases.
Mechanism and Criteria for Appointment
In Virginia, a Public Defender Commission is responsible for
adopting standards for the appointment of counsel in capital cases
which take into consideration the following criteria: (i) license or
permission to practice law in Virginia; (ii) general background in
criminal litigation; (iii) demonstrated experience in felony practice
at trial and appeal; (iv) experience in death penalty litigation; (v)
familiarity with the requisite court system; (vi) current training in
death penalty litigation; and (vii) demonstrated proficiency and
commitment to quality representation. In addition, the Commission is
required to maintain a list of counsel qualified to provide capital
representation. In establishing this list, the Commission's mandate is
to consider all relevant factors, including the Commissions's
assessment of whether the attorney is competent to provide quality
legal representation. In any case in which an indigent defendant is
charged with a capital offense, the trial court judge is directed, but
not required, to appoint one or more attorneys from that list.
To date, the Commission's promulgation of standards has been little
more than a parroting of the statutory criteria. The list of qualified
counsel has been compiled by the implementation of a questionnaire
which requires only that an applicant confirm that he has met the
specified criteria. The most egregious deficiency of this methodology
is that the criteria of demonstrated proficiency and commitment to
quality representation is satisfied on a purely self-reported basis. No
administrative mechanism or procedure exists within the Commission or
elsewhere to subjectively review this requirement or to deny placement
on the list of any attorney who checks-off each of the specified
criteria. Despite the statutory direction, the Commission undertakes no
assessment of an attorney's competence to provide quality legal
representation, and lacks any means to remove an attorney from the
list.
The criteria in Virginia for capital appointment is meaningless and
discretionary. As a consequence, attorneys who are only marginally
competent in routine criminal cases are eligible for appointment even
in those cases where a defendant might be sentenced to death. Because
of a combination of factors in Virginia, the provision of indigent
defense is characterized by the systematic appointment of attorneys who
are either unqualified or too busy and conflicted with other cases to
adequately represent their clients.
Compensation
Virginia's compensation of assigned counsel in non-capital cases is
wretchedly inadequate. Unlike any other state in the country, Virginia
imposes an absolute, unwaivable cap on the compensation which can be
paid to attorneys appointed to represent the poor in criminal cases.
The maximum compensation for the defense of a single felony punishable
up to twenty years is $318. If a felony carries a possible life term,
the maximum compensation is $882. This inflexible disincentive to
zealous representation is immune from pre-trial or post-conviction
systemic review.
The compensation for the defense of cases punishable by death is
not capped. Instead, the amount and rate of pay is left to the
discretion of the trial court. This allocation is questionable, as the
provision of adequate representation can conflict with the management
of an efficient docket. Trial courts may cut the hours submitted for
compensation, leaving attorneys with no opportunity for review.
Attorneys who complain are threatened with the loss of appointed work.
Virginia's trial courts have generally approved compensation to
attorneys in capital cases for all time expended at a rate deemed
reasonable for indigent defense. This practice will soon change. Trial
courts are required by statute to consider any guidelines for
compensation established by the Supreme Court of Virginia. Effective
July 1, 2001, the Virginia Supreme Court has suggested that trial
courts provide compensation at the hourly rates of $75 and $125 for the
respective provision of out-of-court and in-court representation. These
levels represent a substantial reduction in the current rate of
compensation. The (unintended) effect of this reduction will be to
further discourage experienced and competent attorneys from undertaking
the defense of these most serious and unpopular of cases.
Same Pool
In any event, the absence of a cap on fees in capital cases
accomplishes little towards the goal of ensuring the appointment of
truly qualified attorneys. This is because the relatively generous
death penalty fees are used to reward or subsidize the attorneys who
accept the financially devastating non-capital fees. The result is that
the attorneys who are appointed in capital cases are the same attorneys
who depend on court-appointed work for their livelihood. Because the
ordinary fees are hopelessly inadequate, the attorneys who handle the
bulk of court-appointed representation must often carry staggering
caseloads in a number of jurisdictions. Attorneys who are forced to
rely on volume are reluctant to refuse appointment, especially in
capital cases, and quite simply do not have the time to adequately
defend any serious or complex criminal case. Some attorneys are
appointed to defend multiple capital cases at the same time. Not
surprisingly, these are the attorneys with multiple clients on death
row. Regardless of an individual's motive for undertaking such crushing
responsibilities, it is the client who suffers from the inevitable
inattention and neglect. Any system--such as Virginia's--which permits
an attorney to assume the simultaneous responsibility for multiple
lives asks too much, and sets up the innocent for execution.
Efficiency
Another facet of capital appointment in Virginia is the premium
placed on efficiency over zealousness. The attorneys who are appointed
are only rarely known for innovation or indefatigable efforts on behalf
of their clients. Instead, those attorneys are valued who can bring a
capital case to judgment as smoothly and efficiently as possible.
Unfortunately, these are often the same attorneys who file boiler-plate
motions, raise no challenges, miss obvious objections, conduct
ineffective voir dire, seek no forensic or investigatory assistance,
preserve no record for competent counsel to appeal, and make little or
no case for innocence or mitigation. Too often in Virginia the price of
efficiency is the neglect of the client. Attorneys are not encouraged
to rock the boat.
Exceptional Efforts
Some courts diligently seek to provide capital defendants with the
best representation available, and have reached out to a responsive
private bar. In other instances, the quality of representation has been
so manifestly inadequate that courts (or prosecutors) have intervened
to correct an obvious injustice. That judges have done so is a
testament to their commitment to the provision of adequate
representation, and to an uncommon ability to divine omissions from an
otherwise silent record. But a criminal justice system is flawed that
depends on the judiciary or prosecution to discharge the responsibility
of the defense. And a system lacks integrity which permits--as does
Virginia--the continued appointment of attorneys obviously unwilling or
incapable of providing zealous and competent representation. It is
rarely a secret to the bench or the bar who should not be practicing;
it is a shame of unparalleled magnitude that the lives of the indigent
accused should be held in such a precarious balance.
First rate representation is uncommon, and when it occurs, it is
the product of personal sacrifice and extraordinary dedication by an
individual attorney abiding the dictates of his conscience and the
ethics of his profession. Virginia boasts an exceptional bar, but
neither the standards for capital representation nor the logistics of
appointment are designed to draw representation from that bar. The
reality in Virginia is that the provision of appointed counsel is a
haphazard event. The quality of representation is inconsistent at best,
and at times, so abysmally deficient as to amount to a complete
charade.
State of South Carolina
Office of the Solicitor
Sixteenth Judicial Circuit
July 2, 2001
The Honorable Patrick Leahy
U.S. Senate Judiciary Committee
224 Dirksen Building
Washington, DC 20510
Dear Senator Leahy,
During my testimony before the committee on June 27, 2001, Senator
Feingold asked me about an execution that I witnessed in August of
1995. In order for the record to be as complete as possible, I have
researched the issues he inquired about and submit this letter to
supplement my answers to his questions.
Senator Feingold first desired to know whether it was true that the
defendant in that case, Sylvester Adams, had an IQ that was below
normal. I am enclosing the psychiatric and psychological reports from
his evaluation by the state Department of Mental Health in 1979. This
was the agency charged by the court with the responsibility for making
these determinations. These reports were made part of the court's
record in Mr. Adams' Post-conviction Relief Hearings.
As you can see from the reports, the defendant ``answers `I don't
know' to virtually every question and then asks why I am asking
questions in a rather mocking manner''. It goes on to say, his ``entire
demeanor is that of a coy cat and mouse game which he obviously
enjoys''.
The psychologist's scoring of his IQ test did place the defendant
in the range of mild mental retardation, however ``the psychologist
reported) that he was uncooperative and made little effort during
testing so that his intelligence is probably significantly higher than
is reflected by the test data''. In another section the psychologist
puts it thus: ``The lowered score on the performance section (of his IQ
test) is a direct function of his negativism, belligerence and lack of
concerted effort.''
In addition, I also enclose copies of both sentencing reports that
were filed by the two trial judges who presided over the two trials of
this case. The judges in this case had the opportunity to interact with
the defendant in court and both listed his intelligence level as
``average''.
I realize that the defense may tender evaluations performed by
experts they paid to assist them however I do not believe that they are
as credible as the evaluations I am submitting. Their experts have a
financial interest in the matter and also can be chosen by the defense
based on an anti-capital punishment bias. The South Carolina Department
of Mental Health is not in any way beholden to our office and has often
submitted reports and testified that capital defendant's are mentally
ill.
The second area of inquiry focused on the post-trial status of Mr.
Adams' attorney. I did not know who his attorney was at the various
stages of litigation but have since informed myself on the topic. Sam
Fewell represented the defendant at both his first trial and his
retrial. He was also represented by James Boyd.
In the early 1990's, Fewell was convicted in federal court and
sentenced to a term of imprisonment in a federal correctional facility.
I believe this was due to a drug related conviction. I do not know
whether or not he was incarcerated at the time of Adams' execution.
That is irrelevant though as Fewell had no involvement with the appeal
of the case
The question of his attorney's status is calculated to highlight
the issue of attorney incompetence in capital cases. Instead, it only
serves to highlight the type of specious logic employed by the anti-
capital punishment groups to make their case. The fact that Fewell was
convicted in 1991 or 1992 does not lead one to conclude that he was
incompetent in 1981 or 1982. A former professor of mine has since been
disbarred and removed from the faculty at the University of South
Carolina. Should I be required to return my diploma?
In fact, Fewell's conviction in the early 90's was well known for
some years before Adams was executed and if the defense were able to
establish a connection between the two events, they surely would have.
The issue of Fewell's competence was fully litigated and no basis found
to warrant a new trial.
I hope this helps the committee as you grapple with these weighty
and complex issues. If I may be of any further service to you at any
time please do not hesitate to call me.
Sincerely,
Kevin S. Brackett
Deputy Solicitor
Statement of David I. Bruck, Federal Death Penalty Resource Counsel,
Columbia, South Carolina
Chairman Leahy, Senator Hatch, and members of the Committee:
I appreciate the opportunity to submit this statement as the
Judiciary Committee considers the important question of how indigent
capital defendants are represented at trial in the courts of this
country. I would like to focus on the two jurisdictions I know the most
about--the state courts of South Carolina, and the federal courts
throughout the United States.
I have been a criminal defense attorney in Columbia, South
Carolina, for the past 25 years, and have devoted most of that time to
the defense of capital cases. I have served as lead counsel in 17 death
penalty trials in the South Carolina state courts, have argued some
sixty death row inmates' appeals in the South Carolina Supreme Court,
and six before the United States Supreme Court. I have also been a
close observer of the federal death penalty since early 1992, when the
federal defender system contracted with me and a colleague in
Frankfort, Kentucky, to provide expert assistance on as ``as-needed''
basis to federal defenders and court-appointed counsel in federal
capital cases. In the nine-and-a-half years since then I have worked
roughly half-time in assisting counsel who have been appointed to
defend the increasing numbers of federal death penalty prosecutions
brought under the Anti-Drug Abuse Act of 1988, 21 U.S.C. 848(e), and
later under the Federal Death Penalty Act of 1994 (18 U.S.C. Sec. 3591
et seq.). In addition to working with individual court-appointed
lawyers, our responsibilities as Resource Counsel include
identification and recruitment of qualified, experienced defense
counsel for possible appointment by the federal courts in death penalty
cases, and development of training programs and publications, including
a web site, www.caydefnet.org, to assist federal defenders and court
appointed private counsel in death penalty cases.
In a few jurisdictions, the counsel standards in Title II of S.
486, the Innocence Protection Act of 2001, will effect little change,
since these states already furnish highly-qualified and adequately-
compensated counsel in capital cases. Other jurisdictions, however,
have persistently refused to adopt the minimum safeguards that Title II
would encourage. My own state of South Carolina is one of these.
SOUTH CAROLINA
1. the present ``system"
South Carolina enacted its current death penalty statute in 1977.
S.C. Code Sec. 16-3-20 (Supp. 2000). Although from the outset the
statute required appointment of two lawyers for each death penalty
defendant, of whom only one could be a public defender, state law set
counsel fees and litigation expenses at $10 per hour out-of-court and
$15 per hour in-court, with total allowable counsel fees capped at
$1500. Expert and investigative expenses were likewise capped at $2000
per case. S.C. Code Sec. Sec. 16-3-26(B), -(C); 17-3-50 (1985). The
only qualifications for this essentially pro bono service was that one
of the two court-appointed lawyers had to have five years' bar
membership and three years' felony trial experience. Sec. 16-3-26(B).
In 1992, the state supreme court acknowledged the gross inadequacy
of South Carolina's statutory counsel fees, and held that the local
counties where capital prosecutions were brought had to provide
minimally adequate counsel fees and expert funding. Bailey v. State,
424 S.E.2d 503 (S.C. 1992). As a result of Bailey, county officials
were faced for the first-time with the problem of paying substantial
legal bills in death penalty cases, and in 1994 the state legislature
responded by increasing ten-fold the state funds available for
attorney, expert and investigative services. S.C. Code Sec. 16-3-26
(Supp. 2000). Accordingly, current law now provides for payment of up
to $25,000 per attorney (which can be exceeded upon a showing of
necessity) at $50 per hour for out-of-court work and $75 per hour in-
court. Expert and investigative costs are now capped at $20,000 per
case, which limit can also be exceeded for good cause.
Despite increased funding for capital defense during the 1990s,
South Carolina's method of selecting and appointing counsel has
remained essentially unchanged. Every South Carolina county has some
sort of locally-organized public defender system, S.C. Code Sec. 17-3-
60 (Supp. 2000), but this extremely decentralized system includes no
statewide oversight or training. State judges have unfettered
discretion to select and appoint counsel, subject only to the ``five
year/three year'' restriction and a requirement that one of the two
appointed attorneys be a public defender whenever possible. S.C. Code
Sec. 16-3-26(B)(1) (Supp. 2000).\1\ A statewide agency created in 1994
to administer state indigent defense funding, the South Carolina Office
of Indigent Defense, performs no function other than disbursement of
funds, and has no role in identifying, training or selecting defense
counsel in capital cases. S.C. Code Sec. 17-3-330 (Supp. 2000).
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\1\ An additional restriction is that no attorney may be appointed
and compensated in a death penalty case who is not both a South
Carolina resident and a member of the South Carolina Bar. S.C. Code
Sec. 17-3-330(C) (Supp. 2000). This restriction, which applies only in
capital cases, was added as a direct legislative response to the
appointment of Judy Clarke, a distinguished West Coast federal defender
and University of South Carolina law graduate, as co-counsel in the
highly-publicized Susan Smith death penalty case in 1995. Twila Decker,
``Smith Case Spurs S.C. House to Rethink Indigent Defense,'' The State
B-5 (Mar. 9, 1995) (quoting sponsor as explaining amendment: ``If
people come here and kill our citizens, they ought to have to use our
attorneys. '').
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2. South Carolina rejects reform.
In 1997, the South Carolina Bar approved and submitted to the state
supreme court a proposal to create modest experience and training
qualifications for trial counsel in death penalty cases. The Bar
proposal would have required only that one of the lawyers appointed in
a capital case have substantial capital or non-capital trial
experience, and that both lawyers have received some specialized
training in capital defense by the time of trial, and have
``demonstrated that level of knowledge, skill and commitment to the
defense of indigent persons expected of defense counsel in capital
cases.'' The South Carolina Supreme Court summarily rejected the Bar's
proposal. Most recently, as part of a general revision of the court-
appointment process in criminal and civil cases, the state court
(without notice, hearings or public comment) promulgated the following
rule:
certification of attorneys in death penalty cases
(a) Classes of Certified Attorneys. There shall be two classes
of attorneys certified to handle death penalty cases: lead
counsel and second counsel.
(b) Lead Counsel. Lead counsel shall have at least five years
experience as a licensed attorney and at least three years
experience in the actual trial of felony cases. The application
for certification to act as lead counsel shall be on a form
designated by the Supreme Court.
(c) Second Counsel. Second counsel shall have at least three
years experience as a licensed attorney. Second counsel is not
required to be further certified to be eligible for
appointment.
RULE 421, SCACR; SC Order 01-7 (May 29, 2001; effective September
1, 2001).
Given South Carolina's persistent refusal, over nearly 25 years, to
adopt meaningful standards to govern selection of counsel in capital
cases, it should come as no surprise that the actual performance of
appointed counsel has been, to be charitable, uneven. South Carolina
has the eighth-highest ratio of executions to population of the 38
death penalty states, with 25 post-Furman executions and approximately
70 prisoners currently on death row. The cases of South Carolina's
executed and condemned prisoners include:
State v. Mitchell Sims, in which court-appointed counsel began his
penalty-phase summation as follows:
What we've got here is a very simple question of what do we do with
our junk. In a few minutes [the defendant] will speak with you . . .
I'm just going to ask you to listen to the junk that's been produced
and that has done these unspeakable, heinous acts and then consider
what to do. We kill our rabid dogs. And perhaps you may view him as
that . . . . And that's the question: What do we do with our junk?
(Trial transcript at 1488-89).
This lawyer continues to be appointed on capital cases in the
Charleston, South Carolina area; all but one of his capital clients
have been sentenced to death, and two have already been executed.
State v. Joseph Gardner, a highly-publicized and racially-charged
rape-murder case in which, a year prior to his appointment, lead
defense counsel had participated as a prosecutor in a nationwide
manhunt for the perpetrators.
State v. Robert Conyers, in which a 74-year-old parttime public
defender, handling his first death penalty case along with an annual
caseload of 400 other courtappointed clients, advised his client to
waive a jury sentencing by pleading guilty to a murder that he had
committed at age 16. A state circuit judge, reviewing the case,
recently found the attorney's performance inadequate; the state is
appealing.
State v. Johnny Ray, in which defense counsel began preparing for
their client's capital re-sentencing just about a week before it began,
and were later forced to acknowledge that their efforts were
``disorganized, rushed . . . seat-of-the-pants.'' A state judge,
granting sentencing relief, noted that counsel had 11 months notice of
the sentencing hearing, but that ``[i]nexplicably, little or nothing
was done until panic set in about two weeks before . . . .'' and
concluded that if the defense accorded to Mr. Ray were constitutionally
adequate, ``then we should dispense with the legalese and simply admit
that the Sixth Amendment has no meaningful role in capital defense
litigation.'' The state is appealing this ruling.
State v. Edward Lee Elmore is an interracial case involving the
rape-murder of an elderly white woman and based entirely on
circumstantial evidence. The county public defender was battling severe
alcoholism at the time of the trial; his co-counsel, a private lawyer
recruited and paid by other local attorneys hoping to avoid the
appointment themselves, privately referred to his client as ``a red-
headed nigger.'' Neither lawyer challenged questionable physical
evidence, and hair evidence suggesting the defendant's innocence
remained tucked away in a state police locker for some 15 years.
Raymond Bonner, ``Old Evidence Resurfaces, Unsettling '82 Murder,'' New
York Times (Dec. 12, 2000).
State v. Robert Nance. Lead counsel in this capital case, a veteran
public defender who gave up practicing law not long after this trial,
suffered from mental impairment caused by dementia, alcohol abuse,
heart disease, blood sugar fluctuations and four prescription
medications, all of which have psychological side effects including
sedation, disturbance of sleep, and impaired memory and planning
ability.
State v. Ronnie Howard. In this case, a South Carolina circuit
judge solved the problem of whom to appoint by selecting the first two
names--Acker and Anderson--from an alphabetical roster of the
Greenville county bar. Neither lawyer had ever handled a capital case
before, and failed to obtain such basic mitigating information as their
client's school military records in time for the trial. However, their
errors were held insufficiently prejudicial to interfere with Mr.
Howard's execution on January 8, 1999.
This list could go on and on. Of course, not every South Carolina
capital case has been marred by inadequate defense counsel, and some
cases have been very well-defended. My point is simply that in the
absence of any sort of system for identifying and training competent
counsel, and then matching them with the cases where they're needed,
compliance with the Sixth Amendment is hit-or-miss, and will remain so.
There are only between 15 and 20 death penalty cases in South
Carolina in any given year (and, on average, about 5 new death
sentences), so a reliable system for assuring adequate an defense in
each case would not be difficult to create. A statewide capital
defender unit with a staff of five or six lawyers could handle most of
the work, supplemented by appointments (by the statewide capital
defender office) from a small, carefully-screened list of private
counsel. This is exactly the sort of system whose creation would be
encouraged by Title II of the Innocence Protection Act. South Carolina,
like many other states, has given every indication that in the absence
of such encouragement, nothing will change.
The Federal Courts
The relatively small number of capital cases in the federal courts
make it difficult to compare the federal system for assigning counsel
with those of the states. That said, it is notable that the capital-
case counsel provisions of 21 U.S.C. Sec. 848(q) and 18 U.S.C.
Sec. 3005 have worked to ensure that the federal system provides
adequate resources for the defense in such cases. While the federal
system lacks an independent appointing authority, a 1994 amendment to
18 U.S.C. Sec. 3005 that mandates involvement of the Federal Defender
system in the appointment process has provided some of the benefits of
such a system. As a result, the federal courts have avoided replicating
the seemingly chronic problems of under-funded, under-trained and
under-motivated counsel that have plagued so many of the states' death
penalty systems.
As amended by the 1994 Federal Death penalty Act, 18 U.S.C. 3005
provides, in pertinent part:
Whoever is indicted for treason or other capital crime
shall be allowed to make his full defense by counsel;
and the court before which the defendant is to be
tried, or a judge thereof, shall promptly, upon the
defendant's request, assign two such counsel, of whom
at least 1 shall be learned in the law applicable to
capital cases . . . . In assigning counsel under this
section, the court shall consider the recommendation of
the Federal Public Defender organization, or, if no
such organization exists in the district, of the
Administrative Office of the United States Courts.
Reflecting and explicating this statutory provision, Judicial
Conference policy specifies that:
As required by statute, at the outset of every capital case, courts
should appoint two counsel, at least one of whom is experienced in and
knowledgeable about the defense of death penalty cases. Ordinarily,
``learned counsel'' should have distinguished prior experience in the
trial . . . of federal death penalty cases, or . . . in state death
penalty . . . that, in combination with co-counsel, will assure high
quality representation.
Judicial Conference of the United States, Subcommittee on Federal
Death Penalty Cases, Federal Death Penalty Cases: Recommendations
Concerning the Cost and Ouality of Defense Representation (The
``Spencer Committee Report'') http://www.uscourts.gov/dpenalty/
2TABLE.htm (May 1998). While the implementation of this statute has not
been uniform, it has generally meant that in each federal capital case,
the Federal Defender's office undertakes to identify highly-qualified
capital defense counsel ``with distinguished prior experience'' for
appointment. Most often, this effort to identify the best attorneys for
appointment involves the assistance of contract counsel affiliated with
the Federal Death Penalty Resource Counsel Project. The defender's
recommendation is usually accepted by the court. Recruitment of top-
flight capital defense attorneys has been made possible by a fairly
uniform practice of compensating counsel at the statutory maximum rate
of $125 per hour. 21 U.S.C. Sec. 848(q)(10)(A).
It should be kept in mind that the federal death penalty system is
still very small. Only a little over 200 capital prosecutions have been
authorized by the Attorney General since enactment of the first modern
federal death penalty statute in 1988, and most of those cases ended in
a less-than-death sentence without the necessity of a jury trial. Given
the relatively small scale of the federal death penalty to date, and
the fact that federal judges can and do select counsel from the capital
defense bar of the entire nation, it should not be surprising that the
over-all quality of representation has been fairly high. Nevertheless,
the federal experience does demonstrate that by allocating reasonable
funding to the defense as well as the prosecution, and by relying on a
recruitment process that emphasizes skill and experience instead of
expedience or patronage, a court system can ensure that defendants in
capital cases are adequately defended. This is an experience that the
states can and should be encouraged to emulate.
Federal Death Penalty Resource Counsel
Columbia, South Carolina 29201
July 2, 2001
Senator Patrick Leahy
Chairman
Senator Orrin G. Hatch
Ranking Minority Member
Judiciary Committee
United States Senate
Washington, D.C. 20510
Dear Chairman Leahy and Senator Hatch,
At last Wednesday's hearing on Title II of S. 486, the Innocence
Protection Act of 2001, some factual issues arose involving recent
South Carolina capital cases. I write to set forth the relevant facts,
and ask that this letter be accepted as a supplement to the statement
that I previously submitted.
In his written statement, Deputy Solicitor Kevin Brackett of South
Carolina's Sixteenth Judicial Circuit noted that he had personally
attended the first lethal injection in South Carolina. After Mr.
Brackett described the defense furnished to a defendant in one recent
capital case in his circuit, Senator Feingold asked whether the
execution Mr. Bracket had attended was that of Sylvester Adams on
August 18, 1995. Mr. Brackett acknowledged that it was, and that Mr.
Adams' case originated from Mr. Brackett's home county of York.
However, when Senator Feingold then asked whether Mr. Adams had been
sentenced to death by a jury that had heard no mitigating evidence on
his behalf, despite the fact that Mr. Adams' IQ scores were in the
mentally retarded range, Mr. Brackett responded as follows:
Well, I didn't come prepared to discuss that in any detail. But
I did review the file before I went down to see the execution .
. . And it appeared from the files that the individual who
tested his IQ at the Department of Disabilities and Special
Needs found him to be malingering when they were attempting to
determine what his IQ was. The expert that was appointed by the
court to evaluate his IQ said that, basically, ``I can't tell
you what his IQ is because he appears to be attempting to fake
the results to this test to possibly get an advantage.'' But I
think that is indicative that perhaps he was not mentally
retarded.
Sen. Feingold then asked whether ``on the day you watched Mr. Adams
die, his lead defense attorney at his trial was sitting in federal
prison?'' Mr. Brackett responded that he had ``no knowledge of who his
defense counsel were at the various stages of the proceedings or where
they might have been.'' I represented Sylvester Adams in state and
federal post-conviction proceedings, and thus am in a position to
provide the information that Mr. Brackett did not have.
Mental retardation. Prior to Sylvester Adams' first trial, a state-
employed examiner reported that Mr. Adams had a full-scale IQ score of
65.\1\ This examiner did not, as Mr. Brackett claims, accuse Mr. Adams
of ``attempting to fake the results,'' but he did opine that Mr. Adams'
true IQ level might be between 70 and 80. The state's chief forensic
examiner nevertheless determined, and later testified in post-
conviction proceedings, that Mr. Adams suffered from mild mental
retardation. Adams v. Aiken, 965 F.2d 1306, Joint Appendix at 1567 (4th
Cir. 1992) (testimony of Herbert D. Smith, M.D.). After Mr. Adams'
convictions and death sentence were reversed by the state supreme
court, a second trial was held at which the defense presented no
mitigation evidence whatever on Mr. Adams' behalf. He was again
sentenced to death. In 1984, an experienced forensic psychologist
retained by the defense retested Mr. Adams and found him to have a
full-scale IQ of 69--still within the range of mental retardation.
Application for Executive Clemency in the Matter of Sylvester Lewis
Adams, Aug. 9, 1995, Appendix C ] 11 (Affidavit of David R. Price, Ph.
D). As the Charlotte Observer summarized the facts in an editorial two
days before Mr. Adams was executed, ``the jurors who imposed the death
sentence were never told that Sylvester Adams . . . is mentally
retarded. Tests show he has an IQ of between 65 and 69.'' ``Mercy
Denied,'' Charlotte Observer at 10-A (Aug. 16, 1995).
---------------------------------------------------------------------------
\1\ Mr. Brackett erroneously attributes this evaluation to the
South Carolina Department of Disabilities and Special Needs. In
reality, the IQ testing was performed by Mr. T. V. Smith, an employee
of the Department of Mental Health with an M.A. degree in psychology.
---------------------------------------------------------------------------
Defense counsel's subsequent imprisonment. Senator Feingold also
inquired of Mr. Brackett about the whereabouts of Mr. Adams' ``lead
defense attorney at . . . trial'' on the day of his execution. While
Mr. Brackett correctly recalled that I was present when Mr. Adams was
executed, I did not represent him at trial. Mr. Adams' lead defense
counsel at both of his trials was Samuel B. Fewell, Jr. Neither Mr.
Fewell nor the young public defender who served as his co-counsel had
ever tried another death penalty case. By the time of Mr. Adams'
execution, Fewell had been disbarred, and was serving a federal prison
sentence, after pleading guilty in federal court to tax fraud and
possession of cocaine, and in state court to two counts of criminal
conspiracy for having a client provide sexual favors to a family court
judge in exchange for favorable rulings. In the Matter of Samuel B.
Fewell, Jr., 450 S.E.2d 46 (S.C. 1994). Bob McAlister, Mitigating
circumstances are there for Sylvester Adams, too,'' The State
(Columbia, S.C.) A-7 (Aug. 14, 1995).
In my statement to the Committee, I described several South
Carolina capital cases in which the state clearly failed to provide
minimally adequate defense representation. The Adams case was another.
Mr. Brackett points to yet another York County case, State v. Bobby Lee
Holmes, in which the quality of the defendant's legal representation
was good.\2\
---------------------------------------------------------------------------
\2\ Mr. Brackett's account of the Holmes retrial calls for some
additional comments. His claim that a defense correctional expert
received $500 per hour is incorrect. The expert to whom he referred was
paid $125 an hour, and no other witness received anything like the $500
rate about which he complains. His claim that he does not know ``who
paid'' for Mr. Holmes, additional attorneys is hard to credit, since
the trial record plainly reflects that these attorneys were volunteers
from the Washington, D.C. firm of Akin, Gump, Strauss, Hauer & Feld who
were not paid a penny, by anyone, for their unprecedented contribution
to the defense of this indigent South Carolina death row inmate. Mr.
Brackett also failed to note that Mr. Holmes' unusual defense team was
assembled only after the trial judge arbitrarily refused to reappoint
the lawyer who had successfully represented Mr. Holmes in post-
conviction proceedings, former S.C. Death Penalty Resource Center
Director John H. Blume.
Unfortunately, the Holmes case marks the only occasion in at least
the past 25 years in which an out-of-state firm has volunteered to
assist a South Carolina capital defendant at the trial level, and the
appointment (or compensation) of any out-of-state attorney is expressly
prohibited by South Carolina law. S.C. Code Sec. 16-3-26(I) (Supp.
2000).
---------------------------------------------------------------------------
The conclusion that can and should be drawn from this record is
that some capital defendants in South Carolina receive an adequate
defense, and some don't. Until South Carolina and other states like it
adopt some sort of fair and reliable system for identifying, training,
appointing and monitoring the lawyers who represent the poor in death
penalty cases--the sort of system that Title II of S. 486 would
encourage--capital cases will continue to resemble a lottery, in which
the right to counsel and to a fair and reliable trial turns on the luck
of the draw.
Yours truly,
David I. Bruck
Statement of Constitution Project's Death Penalty Initiative,
Washington, DC
Summary of Recommendations
i. effective counsel
Every jurisdiction that imposes capital punishment should create an
independent authority to screen, appoint, train, and supervise lawyers
to represent defendants charged with a capital crime. It should set
minimum standards for these lawyers' performance. An existing public
defender system may comply if it implements the proper standards and
procedures.
Capital defense lawyers should be adequately compensated, and the
defense should be provided with adequate funding for experts and
investigators.
The current Supreme Court standard for effective assistance of
counsel (Strickland v. Washington) is poorly suited to capital cases.
It should be replaced in such cases by a standard requiring
professional competence in death penalty representation.
ii. prohibiting execution in cases involving questionable categories of
defendants and homicides
Mentally retarded persons should not be eligible for the death
penalty.
Persons under the age of eighteen at the time the crime was
committed should not be eligible for the death penalty.
Persons convicted of felony murder, and who did not kill, intend to
kill, or intend that a killing take place, should not be eligible for
the death penalty.
iii. expanding and explaining life without parole (lwop)
Life without the possibility of parole should be a sentencing
option in all death penalty cases in every jurisdiction that imposes
capital punishment.
The judge should inform the jury in a capital sentencing proceeding
about all statutorily authorized sentencing options, including the true
length of a sentence of life without parole. This is commonly known as
``truth in sentencing.''
iv. safeguarding racial fairness
All jurisdictions that impose the death penalty should create
mechanisms to help ensure that the death penalty is not imposed in a
racially discriminatory manner.
v. proportionality review
Every state should adopt procedures for ensuring that death
sentences are meted out in a proportionate manner to make sure that the
death penalty is being administered in a rational, nonarbitrary, and
even-handed fashion, to provide a check on broad prosecutorial
discretion, and to prevent discrimination from playing a role in the
capital decision-making process.
vi. protection against wrongful conviction and sentence
DNA evidence should be preserved and it should be tested and
introduced in cases where it may help to establish that an execution
would be unjust.
All jurisdictions that impose capital punishment should ensure
adequate mechanisms for introducing newly discovered evidence that
would more likely than not produce a different outcome at trial or that
would undermine confidence that the sentence is reliable, even though
the defense would otherwise be prevented from introducing the evidence
because of procedural barriers.
vii. duty of judge and role of jury
If a jury imposes a life sentence, the judge in the case should not
be allowed to ``override'' the jury's recommendation and replace it
with a sentence of death.
The judge in a death penalty trial should instruct the jury at
sentencing that if any juror has a lingering doubt about the
defendant's guilt, that doubt may be considered as a ``mitigating''
circumstance that weighs against a death sentence.
The judge in a death penalty trial must ensure that each juror
understands his or her individual obligation to consider mitigating
factors in deciding whether a death sentence is appropriate under the
circumstances.
viii. role of prosecutors
Prosecutors should provide ``open-file discovery'' to the defense
in death penalty cases. Prosecutors' offices in jurisdictions with the
death penalty must develop effective systems for gathering all relevant
information from law enforcement and investigative agencies. Even if a
jurisdiction does not adopt open-file discovery, it is especially
critical in capital cases that the defense be given all favorable
evidence (Brady material), and that the jurisdiction create systems to
gather and review all potentially favorable information from law
enforcement and investigative agencies.
Prosecutors should establish internal guidelines on seeking the
death penalty in cases that are built exclusively on types of evidence
(stranger eyewitness identifications and statements of informants and
co-defendants) particularly subject to human error.
Prosecutors should engage in a period of reflection and
consultation before any decision to seek the death penalty is made or
announced.
BLACK LETTER RECOMMENDATIONS
i. effective counsel
1) Creation of Independent Appointing Authorities
Each state should create or maintain a central, independent
appointing authority whose role is to ``recruit, select, train,
monitor, support, and assist'' attorneys who represent capital clients
(ABA Report). The authority should be composed of attorneys
knowledgeable about criminal defense in capital cases, and who will
operate independent of conflicts of interest with judges, prosecutors,
or any other parties. This authority should adopt and enforce a set of
minimum standards for appointed counsel at all stages of capital cases,
including state or federal post-conviction and certiorari. An existing
statewide public defender office or other assigned counsel program
should meet the definition of a central appointing authority, providing
it implements the proper standards and procedures.
2) Provision of Competent and Adequately Compensated Counsel at All
States of Capital Litigation and Provision of Adequate Funding
for Expert and Investigative Services
Every capital defendant should be provided with qualified and
adequately compensated attorneys at every stage of the capital
proceeding, including state and federal postconviction and certiorari.
Each jurisdiction should adopt a stringent and uniform set of
qualifications for capital defense at each stage of the proceedings.
Capital attorneys should be guaranteed adequate compensation for their
services, at a level that reflects the ``extraordinary responsibilities
inherent in death penalty litigation'' (ABA Report). Such compensation
should be set according to actual time and service performed, and
should be sufficient to ensure that an attorney meeting his or her
professional responsibility to provide competent representation will
receive compensation adequate for reasonable overhead; reasonable
litigation expenses; reasonable expenses for expert, investigative,
support, and other services; and a reasonable return.
3) Replacement of the Strickland v. Wahsington Standard for Effective
Assistance of Counsel at Capital Sentencing
Every state that permits the death penalty should adopt a more
demanding standard to replace the current test for effective assistance
of counsel in the capital sentencing context. Counsel should be
required to perform at the level of an attorney reasonably skilled in
the specialized practice of capital representation, be zealously
committed to the capital case, and possess adequate time and resources
to prepare. (NLADA Standards) Once a defendant has demonstrated that
his or her counsel fell below the minimum standard of professional
competence in death penalty litigation, the burden should shift to the
state to demonstrate that the outcome of the sentencing hearing was not
affected by the attorney's incompetence. Moreover, there should be a
strong presumption in favor of the attorney's obligation to offer at
least some mitigating evidence.
ii. prohibiting execution in cases involving questionable categories of
defendants and homicides
To reduce the unacceptably high risk of wrongful execution in
certain categories of cases, to ensure that the death penalty is
reserved for the most culpable offenders, and to effectuate the
deterrent and retributive purposes of the death penalty, jurisdictions
should limit the cases eligible for capital punishment to exclude those
involving (1) the mentally retarded; (2) persons under the age of
eighteen at the time of the crimes for which they were convicted; and
(3) those convicted of felony murder who did not kill, intend to kill,
or intend that a killing occur.
iii. expanding and explaining life without parole (lwop)
1) Availability of Life Sentence without Parole
In all capital cases, the sentencer should be provided with the
option of a life sentence without the possibility of parole.
2) Meaning of Life Sentence without Parole (Truth in Sentencing)
At the sentencing phase of any capital case in which the jury has a
role in determining the sentence imposed on the defendant, the court
shall inform the jury of the minimum length of time those convicted of
murder must serve before being eligible for parole. However, the trial
court should not make statements or give instructions suggesting that
the jury's verdict will or may be reviewed or reconsidered by anyone
else, or that any sentence it imposes will or may be overturned or
commuted.
iv. safeguarding racial fairness
Each jurisdiction should undertake a comprehensive program to help
ensure that racial discrimination plays no role in its capital
punishment system, and to thereby enhance public confidence in the
system. Because these issues are so complex and difficult, two
approaches are appropriate. One very important component--perhaps the
most important--is the rigorous gathering of data on the operation of
the capital punishment system and the role of race in it. A second
component is to bring members of all races into every level of the
decision-making process.
v. proportionality review
In order to (1) ensure that the death penalty is being administered
in a rational, non-arbitrary, and even-handed manner; (2) provide a
check on broad prosecutorial discretion; and (3) prevent discrimination
from playing a role in the capital decision-making process, every state
should adopt procedures for ensuring that death sentences are meted out
in a proportionate manner.
vi. protection against wrongful conviction and sentence
1) Preservation and Use of DNA Evidence to Establish Innocence or Avoid
Unjust Execution
In cases where the defendant has been sentenced to death, states
and the federal government should enact legislation that requires the
preservation and permits the testing of biological materials not
previously subjected to effective DNA testing, where such preservation
or testing may produce evidence favorable to the defendant and relevant
to the claim that he or she was wrongfully convicted or sentenced.
These laws should provide that biological materials must be generally
preserved and that, as to convicted defendants, existing biological
materials must be preserved until defendants can be notified and
provided an opportunity to request testing under the jurisdiction's DNA
testing requirements. These laws should provide for the use of public
fimds to conduct the testing and to appoint counsel where the convicted
defendant is indigent. If exculpatory evidence is produced by such
testing, notwithstanding other procedural bars or time limitations,
legislation should provide that the evidence may be presented at a
hearing to determine whether the conviction or sentence was wrongful.
If the conviction or sentence is shown to be erroneous, the legislation
should require that the conviction or sentence be vacated.
2) Lifting Procedural Barriers to Introduction of Exculpatory Evidence
State and federal courts should ensure that every capital defendant
is provided an adequate mechanism for introducing newly discovered
evidence that would otherwise be procedurally barred, where it would
more likely than not produce a different outcome at trial, or where it
would undermine confidence in the reliability of the sentence.
vii. duty of judge and role of jury
1) Eliminating Authorization for Judicial Override of a Jury's
Recommendation of a Life Sentence to Impose a Sentence of Death
Judicial override of a jury's recommendation of life imprisonment
to impose a sentence of death should be prohibited. Where a court
determines that a death sentence would be disproportionate, where it
believes doubt remains as to the guilt of one sentenced to death, or
where the interests of justice require it, the trial court should be
granted authority to impose a life sentence despite the jury's
recommendation of death.
2) Lingering (Residual) Doubt
The trial judge, in each case in which he or she deems such an
instruction appropriate, should instruct the jury, at the conclusion of
the sentencing phase of a capital case and before the jury retires to
deliberate, as follows: ``If you have any lingering doubt as to the
defendant's guilt of the crime or any element of the crime, even though
that doubt did not rise to the level of a reasonable doubt when you
found the defendant guilty, you may consider that doubt as a mitigating
circumstance weighing against a death sentence for the defendant.''
3) Ensuring That Capital Sentencing Juries Understand Their Obligation
to Consider Mitigating Factors
Every judge presiding at a capital sentencing hearing has an
affirmative obligation to ensure that the jury fully and accurately
understands the nature of its duty. The judge must clearly communicate
to the jury that it retains the ultimate moral decision-making power
over whether the defendant lives or dies, and must also communicate
that (1) mitigating factors do not need to be found by all members of
the jury in order to be considered in the individual juror's sentencing
decision, and (2) mitigating circumstances need to be proved only to
the satisfaction of the individual juror, and not beyond a reasonable
doubt, to be considered in the juror's sentencing decision. In light of
empirical evidence documenting serious juror confusion on the nature of
the jury's obligation, judges must ensure that jurors understand, for
example, that this decision rests in the jury's hands, that it is not a
mechanical decision to be discharged by a numerical tally of
aggravating and mitigating factors, that it requires the jury to
consider the defendant's mitigating evidence, and that it permits the
jury to decline to sentence the defendant to death even if sufficient
aggravating factors exist.
The judge's obligation to ensure that jurors understand the scope
of their moral authority and duty is affirmative in nature. Judges
should not consider it discharged simply because they have given
standard jury instructions. If judges have reason to think such
instructions may be misleading, they should instruct the jury in more
accessible and less ambiguous language. In addition, if the jury asks
for clarification on these difficult and crucial issues, judges should
offer clarification and not simply direct the jury to reread the
instructions.
viii. role of prosecutors
1) Providing Expanded Discovery in Death Penalty Cases and Ensuring
That in Death Penalty Prosecutions Exculpatory Information Is
Provided to the Defense
Because of the paramount interest in avoiding the execution of an
innocent person, special discovery provisions should be established to
govern death penalty cases. These provisions should provide for
discovery from the prosecution that is as full and complete as
possible, consistent with the requirements of public safety.
Full ``open-file'' discovery should be required in capital cases.
However, discovery of the prosecutor's files means nothing if the
relevant information is not contained in those files. Thus, to make
discovery effective in death penalty cases, the prosecution must obtain
all relevant information from all agencies involved in investigating
the case or analyzing evidence. Disclosure should be withheld only when
the prosecution clearly demonstrates that restrictions are required to
protect witnesses' safety or shows similarly substantial threats to
public safety.
If a jurisdiction fails to adopt full open-file discovery for its
capital cases, it must ensure that it provides all exculpatory (Brady)
evidence to the defense. In order to ensure compliance with this
obligation, the prosecution should be required to certify that (1) it
has requested that all investigative agencies involved in the
investigation of the case and examination of evidence deliver to it all
documents, information, and materials relevant to the case and that the
agencies have indicated their compliance; (2) a named prosecutor or
prosecutors have inspected all these materials to determine if they
contain any evidence favorable to the defense as to either guilt or
sentencing; and (3) all arguably favorable information has been either
provided to the defense or submitted to the trial judge for in camera
review to determine whether such evidence meets the Brady standards of
helpfulness to the defense and materiality to outcome. When willful
violations of Brady duties are found, meaningful sanctions should be
imposed.
2) Establishing Internal Prosecutorial Guidelines or Protocols on
Seeking the Death Penalty Where Questionable Evidence Increases
the Likelihood That the Innocent Will Be Executed
Because eyewitness identifications by strangers are fallible, co-
defendants are prone to lie and blame other participants in order to
reduce their own guilt or sentence, and jailhouse informants frequently
have the opportunity and the clear motivation to fabricate evidence to
benefit their status at the expense of justice, prosecutors should
establish guidelines limiting reliance on such questionable evidence in
death penalty cases. The guidelines should put that penalty off limits
where the guilt of the defendant or the likelihood of receiving a
capital sentence depends upon these types of evidence and where
independent corroborating evidence is unavailable.
3) Requiring Mandatory Period of Consultation before Commencing Death
Penalty Prosecution
Before the decision to prosecute a case capitally is announced or
commenced, a specified time period should be set aside during which the
prosecution is to examine the propriety of seeking the death penalty
and to consult with appropriate officials and parties.
Statement of Hon. Richard J. Durbin, a U.S. Senator from the State of
Illinois
In the course of the past seventeen months since Governor George
Ryan declared a moratorium on all executions in my home state of
Illinois, a healthy national debate on the topic of death penalty has
ensued. I want to thank Chairman Leahy for continuing to keep this
issue in the forefront of our national agenda by holding this hearing
today.
We cannot understate the importance of having competent counsel
represent a person charged with a crime, especially if that person
faces the ultimate penalty of death. Like prosecutors, defense
attorneys play an integral role in our adversarial process. The
criminal justice system works best when both sides are adequately
represented as this judicial process is the most effective means of
getting at truth and rendering justice.
But we cannot forget that for many criminal defendants, it is
simply not possible to hire the best lawyers in town to represent them.
For them, their only hope is to pray that the public defender or court-
appointed counsel they will end up getting is an experienced lawyer
with competence and conscience. But we have seen that often, this is a
luck of the draw. We have all read about attorneys who were appointed
to defend capital cases even though they have never handled a criminal
case before, or attorneys who sleep through trials, or show up in court
under influence of alcohol.
It has often been said that ``it is better to be rich and guilty
than poor and innocent.'' I hope this statement does not reflect the
real state of affairs in the American criminal justice system. The
witnesses we will hear from today will hopefully tell us that getting
assigned an incompetent counsel is the rare exception rather than the
norm. If not, it is incumbent upon this Senate to act in the best
interest of our criminal justice system by identifying the causes of
these problems, and providing innovative and common sense legislative
solutions.
That is why today, I reintroduced a bipartisan legislation with
Senator Chafee to provide student loan forgiveness for public defenders
under the Federal Perkins Loan program. The Higher Education Act of
1965 already provides loan forgiveness for law enforcement officers,
which the Department of Education interprets to include prosecuting
attorneys. But the Department's interpretation excludes public defense
attorneys. This policy creates an obvious disparity of resources
between public defenders and prosecutors by encouraging talented law
students and lawyers to pursue public service as prosecutors but not as
defenders.
My bill provides parity to full-time public defenders who play an
equally important role in the adversarial process of our judicial
system. Like prosecuting attorneys, public defenders are law
enforcement officers dedicated to upholding, protecting, and enforcing
our laws. Providing loan forgiveness incentive to these attorneys will
lead to a larger pool of competent counsel to defend death penalty
cases, which is consistent with the goals set forth by the Supreme
Court to equalize access to legal resources.
Statement of Equal Justice Initiative, Bryan A. Stevenson,\1\ Executive
Director, Montgomery, Alabama
Thank you for the opportunity to address the much needed
legislation pending before this Committee. The ``Innocence Protection
Act'' is an enormously important step forward in the effort to improve
the administration of criminal justice in the United States. DNA
testing technology has dramatically advanced forensic science and
criminal case investigations. However, unless addressed, the current
crisis surrounding adequate legal assistance to death row prisoners and
capital defendants will seriously compromise any meaningful, reform
which attempts to reduce the incidence of wrongful convictions and
executions through DNA testing.
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\1\ I am the Executive Director of the Equal Justice Initiative
(EJI) in Montgomery, Alabama. I have represented capital defendants and
death row prisoners for nearly 17 years. I am also an Assistant
Professor of Law at the New York University School of Law where I
teach, among other things, Postconviction Remedies, Capital Punishment
Law and Litigation, and Race, Poverty and Criminal Justice. I have
handled dozens of capital cases, conducted postconviction litigation in
the capital and noncapital areas and consulted on these matters for
many years.
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The Innocence Protection Act will do much to restore confidence in
many criminal cases where biological. evidence can resolve lingering
questions about guilt or innocence. Our nation's status as the worlds
leading democracy and our activism on human rights in the international
context requires us to take all steps possible to protect against
wrongful convictions and execution of the innocent. Improved procedures
for postconviction DNA testing will tremendously aid the goal of more
reliable and equitable administration of criminal justice. However, it
is worth emphasizing that DNA testing will influence a relatively small
subset of cases where innocent people have been wrongly convicted.
Improved, access to DNA testing for. prisoners will be useful only in
those cases where (1) biological evidence can determinatively establish
guilt or innocence, most notably rape, rape-murder and sexual assault
cases, (2) the accused is still in prison or on death row and, most
likely, had his case tried before 1994, and (3) the biological evidence
has been preserved and is still available for testing. This is a
relatively fixed and finite universe of cases.
In most instances postconviction DNA testing has required the
assistance of counsel to accomplish the exoneration of an innocent
person who has been wrongly comvicted of a crime. The provisions in the
Innocence Protection Acr for improving defense services to prisoners
who have been wrongly convicted are thus crucial to the effectiveness
of any effort to protect innocent people from wrongful incarceration or
execution.
the crisis surrounding legal representation of death row prisoners
In the last 30 years the number of people incarcerated in the
United States has increased dramatically. In 1972, there were 200,000
people in jails and prisons. Today there are over 2,000,000 people
incarcerated. The dramatic increase in the number of people imprisoned
has presented enormous challenges to the fair administration of
criminal justice.
The extraordinary increase in the number of people prosecuted and
imprisoned has strained the ability of state governments to provide
adequate legal representation to the accused or the indigent and to
protect against wrongful conviction of the innocent.
In the death penalty arena this problem is especially acute. There
are now close to 3,900 people on death row in the United States.
Hundreds of these condemned prisoners have no legal representation. The
ability of indigent death row prisoners to find competent legal
representation throughout the litigation process has created tremendous
uncertainty and raised serious concerns abouc the fairness and
reliability of capital sentencing in many jurisdictions--The problems
involved in providing adequate counsel to capital defendants and death
row prisoners are the primary reasons why the American Bar Association
has recommended that a nationwide moratorium on capital punishment be
implemented.
The Crisis in Alabama
There are now 185 people under sentence of death in Alabama. The
size of Alabama's death row has doubled in the last ten years. In 1989,
there were 90 people under sentence of death, in Alabama. Alabama now
has the third largest death row per capita in the United States and the
number of death sentenced prisoners is growing at a pace that greatly
exceeds other death penalty jurisdictions. In 1998-1999, the last year
for which data is currently available, Alabama sentenced more people to
death per capita than any other state in the country. (See Appendix A)
EJI's records indicate that there are currently over 300 people
awaiting capital murder trials across the state of Alabama. This is an
enormously high number of pending capital prosecutions for a state with
a population of only 4.5 million people.
While lawyers are appointed to handle trials and direct appeals in
Alabama death penalty cases, until recently, compensation to appointed
lawyers in capital cases was capped at $1000 per case for an attorney's
out of couxt time. Most of the people currently under sentence of death
in Alabama were defended by attorneys whose compensation was severely
restricted. The result is that many poor people were convicted of
capital crimes in trials that lasted less than 2 days. Many death row
prisoners were defended by attorneys who have subsequently been
disbarred or suspended from the practice of law due to serious failures
in adequately protecting the legal rights of clients.
Alabama is one of the few jurisdictions in the country that has no
state funded mechanism for providing lawyers to death row prisoners
once a conviction and death sentence is affirmed by state courts on
direct appeal.\2\ If a death row prisoner seeks review of his
conviction and sentence on direct appeal in the United States Supreme
Court, a volunteer lawyer must be found. If state collateral appeals
are to be filed under Rule 32 of the Alabama Rules of Criminal
Procedure, volunteer counsel must also be found.
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\2\ In the other states of the Eleventh Circuit there are state
funded services to assist death row prisoners in the timley filing of
state and federal collateral challenges to their convictions and
sentences. The Georgia Appellate Practice and Educational Resource
Center received nearly $1 million dollars in its 1999 appropriation
from the Georgia legislature. Supreme Court of Georgia, 1998 Annual
Report on the Work of the Georgia Courts, Judicial Branch in Review,
Stare Appropriations for the Judicial Branch; Fiscal Years 1997, 1998
and 1999--Florida's Office of the Capital Collateral Representative
exclusively represents death-sentenced inmates and received over
$8,000,000 in its 1999 legislative appropriation. Mary Smith Judd,
``Changes continue in death sentence appeals arena,'' The Florida Bar
News, June 15, 1998.
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The increasing number of death row prisoners needing counsel for
postconviction appeals has greatly exceeded the supply of volunteer
attorneys willing to take on these difficult cases. Consequently, there
are many death row prisoners who are currently without legal
representation and who have been unable to file appeals under Rule 32
of the Alabama Rules of Criminal Procedure or under 28 U.S.C.
Sec. 2254.
While there is language that permits a trial judge to appoint
counsel after a Rule 32 petition has been filed, Ala. R. Crim. Pro.
32.7(c), state law currently limits compensation to the appointed
counsel to $1,000 per case.\3\ The ridiculously low level of
compensation makes involvement by counsel in these cases effectively
pro bono work. Moreover, since hundreds of hours of work are required
before a petition is filed,\4\ there must be an assignment of counsel
months before a petition is filed and much time-consuming and costly
work undertaken.\5\ Death row prisoners can not safely initiate
litigation pro se with any protection against adverse rulings or
summary dismissals.
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\3\ This compensation was increased from $600 to $1,000 by the
Alabama legislature, elective ,June 10, 1999. Ala. Code 415-12-23
(1975), as amended by Act 99-427 (1999).
\4\ A survey of volunteer lawyers who took on death penalty appeals
found the median amount of work on each appeal was 665 hours. Howard
The Defunding of the Post Conviction Defense Organizations as a Denial
of the Right to Counsel, 98 W.Va--L.Rev. 863, 893 (Spring 1996).
\5\ Preparation and filing of a Rule 32 petition requires a
complete reading of the trial transcript, appellate briefs and
pleadings, an investigation into factual based claims such as
innocence, jury misconduct, discovery violations, ineffective
assistance of counsel anal thorough preparation for a host of complex
procedural issues unique to collateral litigation relating to
exhaustion, retroactiviry, procedural default, res judicata, the Anti-
Terrorism and Effecrive Death Penalty Act (AFDPA) and federal habeas
corpus jurisprudence. The Mississippi Supreme Court has recently
recognized that ``[applications for post-conviction relief often raise
issues which require investigation, analysis and presentation of facts
outside the appellate record. The inmate is confined, unable to
investigate, and often without training in the law or the mental
ability to comprehend the requirements of the [state law]. The inmate
is in effect denied meaningful access to the courts by lack of funds
for this state-provided remedy.'' Jackson v. State, 732 So. 2d 187, 190
(Miss. 1999).
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In some jurisdictions, the state Supreme Court assumes
responsibility for recruiting and assigning counsel to death row
prisoners after the direct appeal is complete. See e.g., Cal. Gov. Code
Sec. 68662 (2000) (``The Supreme Court of shall offer to appoint
counsel to represent all state prisoners subject to a capital sentence
for purposes of state postconvietion proceedings. . .''); Miss. Code
Ann. Sec. 99-39-23(9) (2000).
In many jurisdictions, either a state-wide public defender system
ensures that indigent persons receive access to counsel or state-funded
agencies have been created to provide legal representation to death row
prisoners for state and federal, collateral review procedures. See,
e.g., Fla. Stat. Sec. 27.702 (2000); 2000 Miss. Laws Ch. 569 (H.B.
1228); Tenn. Code. Ann. Sec. 40-30-301-309 (1999); N.C. Gen. Stat. Ann.
Sec. 7A-486-3 (2000); Cal. Gov. Code Sec. 68661 (2000); Ill. Stat. ch.
725 Sec. 5,122-4 (2000); Okla. Stat. tit-22, Sec. 1089 (2000).
Filing postconviction pecid.ons pro se is not a viable option for
death row prisoners who do not have counsel. Alabama courts have
interpreted its procedural rules to require the dismissal of claims
that lack factual specificity. The Alabama Rules of Criminal Procedure
provide that petitioners ``shall have the burden of pleading and
proving by a preponderance of the evidence the facts necessary to
entitle the petitioner to relief.'' Ala. Crim. R. Pro. 32.3.
Rule 32.6(b), requires that Rule 32 petitioners plead each claim by
fully disclosing the factual basis for each claim. Claims not meeting
this burden of pleading are due to be dismissed. Most claims in
petitions filed pro se by indigent death row prisoners necessarily will
be dismissed. Without the ability to investigate claims personally or
pay for someone else to conduct an investigation, it is impossible for
indigent prisoners in a maximum security prison to develop any facts to
provide the required specificity needed to avoid summary dismissal for
most constitutional claims.\6\
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\6\ The Attorney General's Office in Alabama will seek summary
dismissal of claims even though death row prisoners are unrepresented,
seeking counsel and filed petitions pro se. For example, in Donald
Dallas' case, a pro se petition was filed. The trial judge then granted
the State's motion to dismiss most of the claims in the petition
eliminating the possibility of relief. Only months after most claims
had been decided adversely to Mr. Dallas was counsel appointed to
represent him. Donald Dallas' case is still pending in the Montgomery
County Circuit Court. See Dallas v. State, Case No. CC-94-2142.
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The crises surrounding counsel for indigent death row prisoners in
Alabama is likely to get worse. There are forty-two (42) death row
prisoners who currently need counsel. Many of these indigent prisoners
have had their convictions and death sentences recently affirmed by the
Alabama Supreme Court and are months away from deadlines which could
bar their appeals.\7\ There are dozens of other cases which could soon
be affirmed where death row prisoners will need counsel.
---------------------------------------------------------------------------
\7\ See e.g., Exparte Richard Flowers,--So. 2d--, CR-97-1254 (Ala.
Crlin. App. Oct. 27, 2000), cent. deiced, So. 2d--, No. 1000577 (Ala.
Mar. 30, 2001); Ex parte Roy Perkins, --So. 2d--, No. (Ala. Mar. 30,
2001); Ex parte Trace Duncan, So. 2d--, No. 1990652 (Ala. Mar. 30,
2001); Ex parte Andrew Apicella,--So. 2d--, No. 1992273 (Ala. Mar. 30,
2001); Ex parte Joseph Smith,--So. 2d--, CR-98-0206 (Ala. Crim. App.
May 26, 2000), cert. denied,--So. 2d--, No. 1992220 (Ala. Mar. 16,
2001); Ex parte Jarrod Taylor,--So. 2d--, No. 1991307 (Ala. Mar. 9,
2001); Ex parte LaSarguel Gamble,--So. 2d--, CR-97-0698 (Ala. Crim.
App. June 30, 2000), cert. denied,--So. 2d--, No. 1992229 (Ala. Mar. 2,
2001); Ex parte Geoffrey West,--So. 2d--, CR-98-1956 (Ala. Crim. App.
Aug. 25, 2000), cert. denied,--So. 2d--, No. 1000231(Al.a. Feb. 23,
2001); Ex parte Marcus Williams, So. 2d--, No. 1990902 (Ala. Jan. 12,
2001); F -x parte Eddie Powell,--So. 2d--, No. 1990546 (Ala. Jan, 12,
2001); Ex parte Nicholas Acklin,--So. 2d---, CR-98-0330 (Ala. Crim.
.App. Apr. 28, 2000), cert. denied,--So. 2d--, No. 1991908 (Ala. Jan.
12, 2001); Ex harte Joe an les, -So. 2d--, CR-98-2417 (Ala. Crim. App.
Apr. 28, 2000), cert, denied,- So. 2d--, No. 1991959 (Ala. Dec.15,
2000); Ex parte'Ion.yBarhsdale,--So. 2d--, CR-96-07 54 (Ala. Crim. App.
Mar. 31, 2000), cert. denied,-----So. 2d--, No- 1992230 (Ala. Dec. 15,
2000); Ex parte Anthony Tyson,--So. 2d--, CIZ-98-0267 (Ala. Crim. App.
Feb. 4, 2000), cert. denied, ,--So. 2d--, No. 1991309 (Ala. Nov. 17,
2000); Ex parte John Hardy,--So. 2d---- No. 1981646 (Ala. Nov, 3,
2000); Ex parte Jeremiah Jackson,--So. 2d--, CR-97-0998 (Ala. Crim.
App. Mar. 31, 2000), cert. denied, So. 2d--, No. 1991742 (Ala. Nov. 3,
2000); Ex parte Willie Burgess,--So. 2d--, No. 1980803 (Ala. Aug. 25,
2000); Ex parte Casey McWhorter,--So. 2d--, No. 1990427 (Ala. Aug. 11,
2000); Ex parte Robert Melsod, 775 So. 2d--904 (Ala. Aug. 4, 2400); Ex
parte Frederick WoodT1,--So. 2d--, No. 1990867 (Ala. Jan. 12, 2001); Ex
parte Larry Whitehead, 777 So. 2d--854 (Ala. Jun. 30, 2000); Ex parte
Artez Hammonds, , So. 2d--, No. 1.990258 (Ala. juri. 23, 2000); Ex
parte Robert Ingram, So. 2d--, No. 1990282 (Ala. Jun--23, 2000); Ex
parte Joseph Wilson, 777 So. 2d--935 (Ala.--)un. 23, 2000); Ex parte
Kenneth Loggins, 771 So. 2d--1093 (Ala. Jun. 2, 2000); Ex parte Derrick
Mason, 768 So. 2d--1008 (Ma. Apr. 7, 2000); Ex parte Marcus Presley,
770 So. 2d--143 (Ala---- Apr. 7, 2000), and Ex parte Marcus Presley,
770 So. 2d 114 (Ala. Mar. 31, 2000); Ex parte Wayne Travie, 776 So.
2d--874 (Ala. Mar. 31, 2000); Ex parte David Freeman, 776 So. 2d--203
(Ala. Mar. 10, 2000); Ex parte Matthew Hyde, 778 So. 2d--237 (Ala. Mar.
10, 2000); Ex arte Michael Samra, 771 So. 2d--1122 (Ala. Mar. 3, 2000);
Ex parte Lines Borden, 769 So. 2d--950 (Ala. Feb. 4, 2000); Ex parte
Demetrius Frazier, 758 So. 2d--611(Ala. Dec. 30,1999); Ex parte Ronald
Smith, 756 So. 2d--957 (Ala. Jan 21, 2000).
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There is an immediate need to have a system established for
providing adequately trained and compensated counsel to death row
prisoners for postconviction review. Without such a system,
unreliability and unfairness will continue to characterize the
administration of capital punishment and the risk of executing the
innocent will be unacceptably high.
Recent Congressional Enactments Have Exacerbated the Problem
The problem of providing lawyers to death row prisoners for state
and federal post-conviction appeals has been acute for many years. The
problem has been worsened by recent legal developments that have
shortened the period of time by which collateral appeals should be
filed. Under the Anti-terrorism and Effective Death Penalty Act
(``AFDPA ''), there is a one year statute of limitations for prisoners
seeking habeas corpus relief in federal court 28 U.S.C. 2244(d). Under
the AEDPA, the limitations period begins to run at the conclusion of
direct review. 28 U.S.C. 2244(d)(1)(A). While the time during which a
Rule 32 petition is pending does not count toward the federal statute
of limitation period, 28 U.S.C. 2244(d)(2), a death row prisoner must
file his Rule 32 petition within one year, to preserve an opportunity
to appeal his conviction, and sentence in federal court Thus, although
the statute of limitations under Rule 32 is two years, Ala. R--Crim.
Proc. 32.2(c), ALDPA has effectively shortened the statute of
limitations period to one year.
In addition to death row prisoners having one-half of the time
previously available to file a Rule 32 petition, the number of death
row prisoners needing lawyers has dramatically increased since the
passage of AEDPA.\8\ Because neither state courts nor the state
legislature has provided a mechanism for appointing counsel to indigent
death row prisoners, condemned inmates must rely on volunteer lawyers
to come forward to file their appeals. The reduction of time during
which lawyers can be recruited from two years to one year has made the
dependence on volunteer counsel inadequate, the dramatic increase in
the number of prisoners needing lawyers has made finding sufficient
number of volunteer counsel impossible.
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\8\ Increases in the total number of people on death row, many of
whom rely on pro bono legal assistance, has drained the available
number of lawyers to assist Alabama prisoners. Less than 20 percent of
the death row prisoners in Alabama, who have counsel, are represented
by law firms or attorneys who are not members of the state bar.
Moreover, there has been a general decrease in pro bono assistance
among large law firms. In 1992 lawyers at the 100 highest-grossing law
firms volunteered an average of 56 hours a year, in 1999 the lawyers at
those same fines averaged 36 hours a year. Winter, ``Legal Firms
Cutting Back on Free Services for Poor,'' New York Times, Aug--17, 2000
at Al. See also, ``Lack of Lawyers Hinders Appeals in Capital Cases,''
New York Times, July 5, 2001.
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Without greater assurance that indigent death row prisoners will be
provided legal representation, an unacceptable risk is created that
innocent people will be executed.
conclusion
The Innocence Protection Act is desperately needed. Postconviction
DNA testing and improving legal representation for death row prisoners
is absolutely critical if we are to prevent innocent people from being
executed and if we are to provide equal justice for all.
I strongly urge this Committee to recommend passage of this
important legislation.
Bryan Stevenson, Director
Equal Justice Initiative of Alabama
APPENDIX A
Death Sentences Imposed in 1998 and 1999 Combined (Ranking: Death Sentences Per Capita 1998-1999 Combined)
----------------------------------------------------------------------------------------------------------------
Ranking by Death
1998 and 1999 Sentences to Death Sentenced Per Capita
State Population Total Sentenced Per Capita in 1988 in 1998 and 1999
to Death and 1999 Combined
----------------------------------------------------------------------------------------------------------------
Alabama 4,369,862 41 1: 106,582 1
Oklahoma 3,358,044 21 1: 159,907 2
North Carolina 7,650,789 44 1: 173,882 3
Delaware 753,538 4 1: 188,385 4
Louisiana 4,372,035 19 1: 230,107 5
Texas 20,044 141 87 1: 230,392 6
Mississippi 2,768,619 12 1: 230,718 7
Nevada 1, 809,253 7 1: 258,465 8
Arkansas 2,551,373 9 1: 283,486 9
South Carolina 3,885,736 13 1: 298,903 10
Florida 15,111,244 45 1: 335,805 11
Arizona 4, 778,332 12 1: 398,194 12
Georgia 7,788,240 19 1: 409,907 13
Missouri 5,468,338 13 1: 420,641 14
Virginia 6,872,912 16 1: 429,557 15
Ohio 11,256,654 26 1: 432,948 16
Kentucky 3,960,825 9 1: 440,092 17
Pennsylvania 11,994,016 27 1: 444,223 18
California 33,145,121 74 1: 447,907 19
Wyoming 479,602 1 1: 479,602 20
Tennessee 5,483,535 10 1: 548,354 21
Idaho 1,251,700 2 1: 625,850 22
Oregon 3,316,154 5 1: 663,231 23
South Dakota 733,133 1 1: 733,133 24
Ilinois 12,128,370 15 1: 808,558 25
Indiana 5,942,901 5 1: 1,188,580 26
Kansas 2,654,052 2 1: 1,327,026 27
Maryland 5,171,634 3 1: 1,723,878 28
Washington 5,756,361 3 1: 1,918,787 29
Utah 2,129,836 1 1: 2,129,836 30
Connecticut 3,282,031 1 1:3,282,031 31
New York 18,196,601 5 1: 3,639,320 32
Colorado 4,056,133 1 1: 4,056,133 33
New Jersey 8,143,412 2 1: 4,071,706 34
Montana 882,779 0 N/A 35
Nebraska 1,666 028 0 N/A 35
New Hampshire 1,201,134 0 N/A 35
New Mexico 1,739,844 0 N/A 35
----------------------------------------------------------------------------------------------------------------
Article by David Firestone, New York Times, June 16, 2001
Inmates on Alabama's Death Row Lack Lawyers
Montgomery, Ala.--All but two states with the death penalty
guarantee prisoners a lawyer for the full range of appeals allowed by
the legal system. In Alabama and Georgia, however, there is no
guarantee of a lawyer after the direct appeal of a conviction, and
prisoners have only inconsistent access to a legal process that
frequently overturns death sentences.
Thirty prisoners on Alabama's death row have no lawyers to pursue
appeals, by far the largest such group in any state. At a time when
some other states are considering suspending executions, debating
racial disparities in capital convictions or examining the wisdom of
executing mentally retarded prisoners, Alabama officials remain firmly
opposed to changes in the state's death penalty system.
The lack of appeals lawyers in Alabama is one reason the state has
the fastest-growing death row in the country and the second-largest
number of condemned prisoners per capita, after Nevada. With 199 people
sentenced to die, Alabama has twice the percentage of condemned inmates
per capita as Texas. And in such a system, inmates can come close to
execution without exercising all their legal options.
Two of Alabama's 30 death row prisoners without lawyers recently
came within hours of execution because they missed deadlines for
appeals. They won postponements from federal judges, who ruled that the
risk of being wrongly executed without a proper hearing outweighed such
deadlines, particularly when the prisoners were unaware of the
deadlines and could not prepare their own appeals. The prisoners won
stays only after volunteer lawyers from out of state filed emergency
petitions on their behalf.
With volunteers in short supply, opponents of the death penalty
argue that it is only a matter of time before Alabama executes someone
who never had access to the full protection of the legal system.
``We don't provide the resources to give people a full defense,''
said Bryan Stevenson, executive director of the Equal Justice
Initiative of Alabama, a nonprofit group here that represents
prisoners. ``The system puts prisoners in the position of investigating
new facts and presenting claims of legal error, which is a little tough
if you're on death row.''
Attorney General Bill Pryor of Alabama said he saw no need for the
state to pay for death penalty appeals beyond the first when there is
no right to them. Mr. Pryor said the state should increase the money
paid to trial lawyers for indigent defendants. If a defendant gets a
fair trial, he said, there should be no need for several rounds of
appeals.
Since the Supreme Court's 1963 decision in Gideon v. Wainwright,
every defendant has had the right to a lawyer for a trial and a direct
appeal, and Alabama pays for such lawyers for poor people, as every
other state does. Though they are not required to do so by the United
States Constitution, every state with the death penalty, except Georgia
and Alabama, guarantees legal representation to condemned prisoners who
lose their initial appeal.
In these cases, lawyers for death row inmates can ask a state court
judge for a review or ask a federal judge to grant a writ of habeas
corpus, a legal judgment that a defendant is held in custody in
violation of the Constitution. Such an order typically directs state
officials to grant a new trial or sentence hearing.
Strictly speaking, the habeas process is not a appeal, but rather a
new civil case brought by a prisoner to test the constitutionality of a
sentence. In these cases, prisoners can raise issues like new DNA
evidence, and alibi witnesses who were never called. Prisoners were
filing and winning so many such suits--nearly 40 percent of the federal
habeas cases overturned death sentences--that Congress is 1966
restricted prisoners to one habeas petition and limited the time in
which to file them to one year after conviction or the discovery of new
evidence.
Alabama limits such petitions filed in state court to two years.
Under these time limits, if prisoners cannot find a lawyer to file
these civil cases, their habeas rights will expire.
Alabama will pay $1,000 a case for lawyers willing to work on such
appeals, but the amount does little to cover the cost of mounting
complex litigation. A bill to set up a state defender office failed in
the Legislature, and there is currently no political support for
changing the system.
In Georgia, the Legislature appropriates about $700,000 a year for
a nonprofit center the employs six lawyers to prepare death penalty
appeals. In Alabama, Mr. Stevenson's center receives no state money,
relying on private donations.
Speaking of death penalty case reviews beyond the first appeal, Mr.
Pryor, the Alabama attorney general, said: ``These appeals are crucial
only for Monday-morning quarterbacks who try to second-guess things and
create issues that were probably not real in the first place. It's an
abuse of the habeas corpus process to retry the case after it's already
been tried and appealed.''
Gov. Donald Siegelman has also said that the appeals for death row
prisoners take far too long.
One Alabama death row inmate on the verge of losing his rights to
having his case reviewed was Christopher Barbour, convicted in 1993 of
stabbing to death a 40-year-old woman. Mr. Barbour, 31, confessed to
the crime but later said his confession was coerced. Three lawyers
began work on his appeals but dropped the case for various reasons. The
case was dormant for more than two years as the time periods for
appeals expired, and the state set an execution date of May 25.
On May 21, the NAACP Legal Defense and Educational Fund Inc. in New
York filed a request for a stay of execution with the United States
District Court in Birmingham; less than 48 hours before Mr. Barbour's
scheduled electrocution, Judge Myron H. Thompson agreed to the stay.
The judge said the even though the deadlines has expired, Mr. Barbour's
new claims of innocence merited a hearing, particularly relating to new
DNA evidence.
A similar stay was issued on April 25, when another federal judge
ruled that the courts should consider the claims of innocence of Thomas
D. Arthur, who was convicted in 1991 of shooting to death the husband
of his girlfriend. (At the time, Mr. Arthur was on work-release from
prison while serving a 1977 life sentence for another murder.) That
stay was granted two days before the scheduled execution after a lawyer
from the Legal Aid Society of New York filed a late petition.
Both condemned men will now get federal hearings.
Mr. Pryor said that the stays proved that inmates had access to
counsel. ``They can get some of the best lawyers in the country to
represent them'' he said, ``much better than the people of Alabama
could afford if we were paying for it.''
The Legal Aid Society has set up a project to recruit out-of-state
lawyers to represent Alabama prisoners, but legal advocates say they
never know from case to case whether a lawyer can be found for a
prisoner whose execution is near.
Another reason for the size of Alabama's death row cited by many
lawyers here is the ability of state judges to impose death sentences
even after juries have recommended life in prison. Alabama is the only
state where judges routinely overturn such recommendations, and nearly
a quarter of the prisoners on death row were sentenced to death by an
elected judge after a jury voted for a verdict of life.
William Bowen Jr., the former presiding judge of the Alabama Court
of Criminal Appeals, said most judges would prefer not to have this
power, because it heightened the pressure to impose the death penalty.
``Judicial politics has gotten so dirty in this state that your
opponent in an election simply has to say that you're soft on crime
because you haven't imposed the death penalty enough,'' Mr. Bowen said.
``People run for re-election on that basis, because the popular opinion
in the state is, Let's hang 'em.''
Statement of Former Prosecutors, Law Enforcement Officers, and Justice
Department Officials
Dear Member of Congress:
The undersigned individuals are current and former prosecutors, law
enforcement officers, and Justice Department officials who have served
at the state and federal levels. Some of us support capital punishment
and others of us oppose it. But we are united in our support for the
federal Innocence Protection Act 2001 (S 486/HR 912).
Capital cases present unique challenges to our judicial system. The
stakes are higher than in other criminal trials and the legal issues
are often more complex. When the government seeks a death sentence, it
must afford the defendant every procedural safeguard to assure the
reliability of the fact-finding process. As prosecutors, we feel a
special obligation to ensure that the capital punishment system is fair
and accurate.
The Innocence Protection Act seeks to improve the administration of
justice by ensuring the availability of post-conviction DNA testing in
appropriate cases, and would establish standards for the appointment of
capital defense attorneys. The interests of prosecutors are served if
defendants have access to evidence that may establish innocence, even
after conviction, and if they are represented by competent lawyers.
For these reasons, we are pleased to endorse the Innocence
Protection Act. Please feel free to contact any of us to discuss this
matter.
Mr. William G. Broaddus, Esq.
Former Attorney General
Commonwealth of Virginia
Mr. W.J. Michael Cody
Former Attorney General
State of Tennessee
Mr. Lee Fisher
Former Attorney General
State of Ohio
Mr. Scott Harshbarger
Former Attorney General
Commonwealth of Massachusetts
Mr. Charles M. Oberly, III
Former Attorney General
State of Delaware
Mr. Tyrone C. Fahner
Former Attorney General
State of Illinois
Mr. Charles Hynes
District Attorney
Kings County, NY
Mr. Ralph C. Martin, II
District Attorney
Suffolk County, MA
Mr. Terence Hallman
District Attorney
City & County of San Francisco, CA
Mr. E. Michael McCann
District Attorney
Milwaukee County, WI
Mr. Robert M. Morganthau
District Attorney
New York County, NY
Mr. William J. Kunkle, Jr.
Former Prosecutor
DuPage County, IL
Mr. Francis X. Bellotti
Former United States Attorney
Commonwealth of Massachusetts
The Honorable Phillip Heymann
Former United States Deputy
Attorney General
Department of Justice
The Honorable Robert S. Litt
Former Principal Associate Deputy
Attorney General
Department of Justice
The Honorable Irvin Nathan
Former Associate Deputy Attorney
General
Department of Justice
Ms. Laurie Robinson
Former Assistant Attorney General
Department of Justice
The Honorable Harold R. Tyler, Jr.
Former Deputy Attorney General
Department of Justice
The Honorable Gerald Kogan
Chief Justice
Florida Supreme Court (ret.)
Columbia University Law School
July 2, 2001
Senator Patrick Leahy
Chair
Senate Judiciary Committee
United States Senate
224 Dirksen Building
Washington, D.C. 20510
Senator Orrin Hatch
Senate Judiciary Committee
United States Senate
152 Dirksen Building
Washington, D.C. 20510
Re: Hearings on the Innocence Protection Act, June 27, 2001,
Dear Senator Leahy and Senator Hatch:
I understand that Alabama Attorney General Bill Pryor has inserted
into the record of your committee's June 27, 2001 hearing on the
Innocence Protection Act an October 27, 2000 speech at a bar meeting.
General Pryor's speech refers to a study colleagues and I conducted
last summer of rates of serious error in capital cases in Alabama and
elsewhere in the United States. See James S. Liebman, Jeffrey Fagan &
Valerie West, A Broken System: Error Rates in Capital Cases at http://
www.law.columbia.edu/instructionalservices/liebman/liebman final.pdf
(June 2000) [hereinafter, A Broken System], reprinted in part in James
S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases,
1973-1995, 78 TEX. L. REV. 1839 (2000) [hereinafter Capital Attrition].
General Pryor's speech contains inaccurate statements about our
study and a faulty analysis of his own data on Alabama cases. I
therefore respectfully request that you include this letter in the
record of the hearing, immediately following General Pryor's speech, to
set matters straight. I understand that the hearing record remains open
for this purpose until July 5, 2001.
General Pryor's October 27 speech prompts the following nine
responses (among others that would require more extended analysis than
is appropriate here):
1. In our study, we showed that state and federal courts found
serious error in, and reversed, 77 percent of the Alabama capital
verdicts that were imposed and finally reviewed between 1973 and 1995.
A Broken System, supra, at A-9. General Pryor implies that most of the
errors we identified in Alabama occurred in the early part of our 1973-
1995 study period, and that Alabama's rate of serious error in capital
cases improved after that. In fact, the number of serious errors in
Alabama capital verdicts discovered by state and federal courts during
the 23-year study period held fairly steady, at about seven per year,
throughout the entire study period-the beginning as well as the end.
Alabama errors were not, as General Pryor suggests, front-loaded to the
early part of the period.
2. General Pryor also claims that many of the serious errors found
in Alabama cases were due to Alabama's refusal to permit jurors to
consider whether the defendant was guilty of an offense less than
capital murder, thus giving jurors the Hobson's choice of either
convicting the defendant capitally or acquitting him of homicide
altogether. The United States Supreme Court ruled that practice
unconstitutional in Beck v. Alabama in 1980. Why General Pryor believes
the frequency of Beck error in Alabama cases is a point in Alabama's
favor is unclear. Beck errors are serious, because (as the Supreme
Court ruled) they call into question the accuracy and integrity of the
jury's decision that the defendant was guilty of a capital crime. In
any event, for the following reasons, it is inaccurate for General
Pryor to suggest that Beck error was the main reason that 77 percent of
the Alabama capital verdicts that were finally reviewed during our
study period were overturned by the courts:
(A) Most (87%) of the Alabama reversals occurred at the direct
appeal stage, where duly elected members of either the Alabama Court of
Criminal Appeals or the Alabama Supreme Court overturned capital
verdicts because of errors of state or federal law. The single most
common basis for reversal at that stage was not Beck violations (as
serious as they are) but, rather, unlawful practices designed to keep
African-American citizens from serving as jurors in capital cases.
(B) Over half of the remaining Alabama reversals occurred at the
state post-conviction stage, following rulings by either elected
Alabama trial judges or, again, by elected members of the Alabama Court
of Criminal Appeals and the Alabama Supreme Court. At that stage, 67%
of the errors were of three types: incompetent lawyenng, prosecutorial
suppression of evidence or other prosecutorial misconduct, and jury
bias. See A Broken System, supra, at C-6.
(C) The most common source of error at the third and final (federal
habeas corpus) review stage was, again, incompetent lawyering.
As one would expect of the judges elected by the citizens of
Alabama or appointed by the President to uphold the law, their reasons
for overturning more than three-fourths of the state's fully reviewed
death sentences during the 23-year study period were serious and a
cause for concern-not only about each of the cases in which error was
found, but also about the reliability of the capital system as a whole.
3. General Pryor's speech claims that our study ``does not define
`error rate' or ``the basis for qualifying something as `error.' ''
General Pryor did not read our study. (From the moment we issue the
report last June, it has been publicly available for free to all
members of the public on a number of web sites, including: http://
www.law.columbia.edu/instructionalser-vices/liebman/liebman final.pdf).
The study extensively defines both ``error rate'' and ``the basis for
something qualifying as `error.' '' See A Broken System, supra, at 5-6,
25-27 & nn.33, 36, 38, 40, 42; Appendices C and D. As the study
explains:
(A) Our definition of error is the courts' own definition-we made
no subjective judgments of our own, and instead relied entirely on the
courts' own judgments. '
(B) Error defined by the courts as reversible (the only kind we
counted) is serious error, because it requires a finding by a full set
of courts that the defect in the case that required the state or
federal courts to overturn a capital verdict and order a retrial of
guilt-innocence, sentence, or both was ``non-harmlesss,'' ``actually
prejudicial,'' or ``inherently prejudicial'' as the United States and
Alabama Supreme Courts have carefully defined those legal standards.
4. General Pryor suggests that he called us to ask us to define
these two phrases. We never received a telephone call, e-mail, letter
or other inquiry of any sort from General Pryor or any member of his
staff. Had he called, we would have happily supplied him with a copy of
the Report and directed him to the definitions of ``serious error'' and
``error rates'' that are a prominent part of the text and supporting
materials and are cited above.
5. General Pryor says we ``cannot supply you with a list of the
names of all of the cases [w]e considered.'' This is inaccurate. We
have case lists for all 34 states in our study. Those lists will be
posted on a publicly accessible web site maintained by the University
of Michigan when we complete our study late this year or early next
year. In the meantime, we have made the lists available to requesters,
including the press, pursuant to a data-sharing agreement drafted by
the General Counsel of Columbia University.
6. General Pryor says we ``cannot give you a baseline of non-
capital cases with which to compare his error rate.'' General Pryor did
not read our report. The baseline to which he refers was published in
the Texas Law Review (``Capital
Attrition '') at p. 1854, with sources provided in footnote 49.
7. In his speech, General Pryor says we cannot defend our
``conclusion that the high error rate [w]e found . . . means that there
is a risk of an innocent person being executed . . . .'' We would like
to directly study the number of innocent individuals executed in the
United States in the modern era, but no such study is possible because
state attorneys in Virginia and elsewhere have consistently refused to
disclose the information in their files (including DNA samples) that
are indispensable to any such inquiry. See, e.g., Frank Green, DNA
Tests Not Likely after an Execution: Va. Opposing Third Request of its
Kind, Richmond Times-Dispatch, March 26, 2001. Like other Americans,
therefore, we are forced to rely on evidence of risk, because the
evidence of what actually happened is not available. The evidence of
risk is substantial, in Alabama as elsewhere. When jurors are forbidden
to convict defendants of the crime they actually committed and instead
are required either to convict them of a more serious crime, of which
they are innocent, or release them altogether-this being the Beck error
that the Attorney General acknowledges occurred with some frequency in
Alabama-that creates an obvious risk that people who did not commit a
capital crime will be executed. The same is true of defendants denied a
jury of their peers because African-Americans were excluded, defendants
represented by incompetent lawyers, and defendants prosecuted by
officials who withheld evidence of innocence. Yet, these are the very
kinds of errors that were most common in Alabama, as elsewhere, during
our study period. Such error puts a difficult burden on appellate
courts to catch and correct all the problems. When there is so much
error (e.g., in 77 percent of the fully reviewed cases in Alabama), and
when the error is so serious, there is a risk-a real risk-that some of
it will slip through the inspection process and never be caught. If
American Airlines or U.S. Airlines had a 77 percent rate of equipment
failure, we would undoubtedly conclude that the risk of innocent death
is far too high-no matter how good those airlines' inspection
procedures were for catching problems. The same is true here.
8. General Pryor reports his own data about all Alabama capital
cases from the 1970s until October of last year. His figures confirm
our findings. He reports 281 death sentences, of which 180 have not
reached a final outcome in the courts, and 10 more were ended prior to
a final outcome when the prisoners died in prison while the review
process was continuing. Of the 91 remaining death verdicts, which were
finally determined, 63 were reversed by the courts, 4 were abandoned by
prosecutors as the result of settlements after errors were challenged
in court, and only the remaining 124 cases were cleared by the courts.
The reversal rate revealed by General Pryor's own figures thus is 67
(63 + 4) overturned out of 91 fully reviewed, or 74 percent. We found a
77 percent reversal rate for the period through 1995. General Pryor has
carried the study forward through the first half of 2000, and found
that the reversal rate remains about three-quarters, with only a
negligible improvement in the most recent years.
9. General Pryor reports a smaller figure as the reversal rate. He
gets his figure by using the 281 death verdicts imposed in Alabama, not
the 91 verdicts that were actually reviewed by the courts, as his base.
That is not an appropriate way to calculate an error rate because it
inaccurately assumes that 100 percent of the thus far unreviewed cases
(A) have been reviewed, and (B) have all been found to be without
error. When 74 percent of the reviewed cases were found to contain
reversible error, it is not appropriate to assume (as General Pryor
does) that none of the unreviewed cases contain such errors. To use
another example, if an automobile plant manufactured 281 vehicles, but
only subjected 91 of them to inspections, and if 67 of the inspected
vehicles were found too flawed to go to market and had to be sent back
for retooling or scrap, we would not permit the plant to report a 124%
error rate (as bad as that rate would be) by dividing 281 by 67.
Instead, we would demand to know how many of the inspected cars were
found to have serious problems-meaning 91 divided by 67, or 74 percent.
The same applies here.
Thank you very much for the opportunity to insert these comments in
the record of the July 27 hearing.
Sincerely,
James S. Liebman
Simon H. Rifkind Professor of Law
Columbia Law School
Lindquist & Vennum P.L.L.P.
Minneapolis MN 55402-2205
June 26, 2001
Hon. Patrick Leahy
United States Senate
433 Russell Senate Office Building
Washington, D.C. 20510
Dear Senator Leahy:
I have been asked to share with you and the Judiciary Committee
some experience that I have had representing an innocent person who
spent thirteen years on death row in the State of Louisiana. On January
2, 2001, Albert Burrell walked out of the Louisiana State Penitentiary
at Angola a free man. Unfortunately, Mr. Burrell is unable to tell you
his own story using his own words. He is mentally retarded,
schizophrenic and most likely suffered a serious brain injury as a
child. He is also illiterate. Given his disabilities, he most likely
does not know and is probably incapable of understanding the various
ways in which the system failed to protect him.
In the fall of 1987, Mr. Burrell was convicted for murdering two
elderly residents of Northern Louisiana over the Labor Day holiday
weekend in 1986. The day after the jury determined his guilt, they
unanimously agreed that he should die for his crimes. Mr. Burrell was
then sent to death row at Angola. The conviction and death sentence was
unanimously affirmed by the Louisiana Supreme Court. Similarly, two
motions for a new trial were presented to the trial court but were
rejected.
My law firm agreed to represent Mr. Burrell on a pro bono basis in
early 1992. Over the years, as we were slowly granted access to the
State's files on the case, our investigation uncovered substantial
misconduct by law enforcement officers and prosecutors in securing the
convictions of Mr. Burrell and his co-defendant, Michael Graham. Police
investigation reports and witness statements that contradicted both
trial testimony and the State's theory of the case had been suppressed.
The State also withheld information concerning plea agreements with a
jailhouse snitch that, at least with respect to Mr. Burrell, the State
knew was lying. The significant government misconduct involved in Mr.
Burrell's case most likely could fill a separate hearing of your
committee. Nevertheless, in the summer of 1996, a warrant for Mr.
Burrell's execution was issued. When we finally obtained a stay, Mr.
Burrell was only seventeen days from execution.
As if misconduct by the State were not enough, a review of the
record in Mr. Burrell's case also revealed a shocking incompetence by
his counsel. Mr. Burrell was represented at trial by two young lawyers.
The lead attorney, Keith Mullins, had been out of law school less than
four years. His associate, Roderick Gibson, had been in practice less
than two. Neither lawyer had ever tried a capital murder case; in fact
Mr. Mullins had only handled a relatively few felony cases of any kind
in his career.
As an initial matter, the lawyers were woefully unprepared when
they began the trial. They did not investigate Mr. Burrell's
significant mental health history--Mr. Mullins told me many years later
when I interviewed him that he did not realize that Mr. Burrell had
mental health problems. Instead, he simply thought Mr. Burrell was ``a
little slow.'' They did not investigate the long standing child custody
dispute between Mr. Burrell and his ex-wife, a critical prosecution
witness who admitted to me that she lied about Mr. Burrell in order to
regain custody of her son away Mr. Burrell, her ex-husband. They did
not investigate a civil settlement that Mr. Burrell received from his
former in-laws for injuries he received during an assault by his former
father-in-law. The source of this money would have fully explained why
Mr. Burrell supposedly had more money than his ex-wife had ever known
him to have at the time of the murders. The State had advanced a theory
that Mr. Burrell got the money from the victims after he killed them.
The defense team also did absolutely nothing to prepare for the
penalty phase of the case. When it came time for that part of the
trial, the defense called only one witness, Mr. Burrell, and then
elicited no useful or relevant testimony. No effort was made to present
any mitigating facts before the jury. Any lawyer who were to read the
very short transcript of the penalty phase of that trial (it's less
than 20 pages) would be ashamed for the profession.
The defense provided by these lawyers was worse than ineffective;
in many instances, the defense lawyers blundered so badly that they
themselves elicited damaging evidence against their own client,
evidence that in at least one instance could not have been presented to
the jury. For example, during Mr. Mullins' cross examination of law
enforcement officers, he questioned why they had never asked Mr.
Burrell about his alibi. The response was that Mr. Burrell refused to
talk with police without a lawyer being present and that Mr. Mullins
later refused to permit the police to interview Mr. Burrell. The State
could never have even mentioned Mr. Burrell's invocation of his right
to remain silent but for Mr. Mullins pitiful examination. In another
example, after a critical prosecution witness had admitted that the man
she had seen on the night of the murders was not Mr. Burrell, Mr.
Mullins bumbled his way through the remainder of the examinaiton that
by the time it was completed, the witness was claiming that perhaps it
was possible the man she saw was his client. The message that Mr.
Mullins communicated to the jury during that exchange must have been
that he thought his own client guilty.
Mr. Mullins was also unable to demonstrate even basic trial skills,
such as impeaching witnesses. Almost every time he made an attempt at
the impeachment of a witness during the course of the trial (such
opportunities were numerous in a case that the prosecutor had
originally opined should not even be presented to the grand jury), the
State's objections were sustained. Mr. Mullins was not able to follow
the correct procedures. At one point, the trial judge took pity on Mr.
Mullins and actually explained the steps he needed to follow in order
to lay proper foundation for reputation testimony. Even then, Mr.
Mullins was unable to lay the foundation and failed to get the
testimony before the jury. This list of the lawyers' shortcomings is,
by no means, exhaustive. These are just some of the examples.
Incompetence alone, however, does not explain the poor defense that
Mr. Burrell received from the lawyers. After Mr. Burrell's conviction
and death sentence, Keith Mullins was indicted in federal court in
Louisiana for cocaine trafficking. He ultimately pled guilty to a
marijuana charge and was sentenced to serve a prison term. He did,
however, receive a downward departure from the federal sentencing
guidelines because of his own previously undisclosed mental illness. He
was subsequently disbarred from the practice of law.
His associate, Mr. Gibson, was also criminally charged after Mr.
Burrell's conviction. He ultimately pled guility to stealing client
money. He too has been disbarred.
Mr. Burrell never had a chance. Between the unscrupulous
prosecution and the incompetent defense, Mr. Burrell's fate was
certain. Thankfully, we prevented the State of Louisiana from killing
him and were able to secure his release after the State concluded
following its own investigation that there was no credible evidence
tying him to the murders. Today, Albert Burrell lives on a very small
ranch in Texas with his sister.
The Innocence Protection Act is a critical first step to helping
ensure that cases such as Mr. Burrell's do not recur. I strongly urge
its adoption.
Respectfully yours,
Charles J. Lloyd
Statement of Clive Stafford Smith, Director, Louisiana Crisis
Assistance Center
Chairman, Members of the Committee:
Thank you for inviting me to address the problems with the defense
of those charged with capital crimes in the State of Louisiana. As a
lawyer, I have been involved in defending capital cases for 17 years.
Since 1993, I have been the director of the Louisiana Crisis Assistance
Center, a not-for-profit legal services organization founded to address
the crisis in capital defense representation in that state.
There is an old saying in capital defense circles in the United
States that `capital punishment means them without the capital get the
punishment.' Nowhere was this adage more true in 1993 than Louisiana.
At that time, people facing the death penalty were represented by
lawyers paid next to nothing for their work on these complicated and
emotionally difficult cases. The caseload, and lack of resources, of
some of the public defenders had reached such crisis limits that one
lawyer in the western part of the state attempted suicide on the
morning of a capital trial.
Plus ca change, plus ca reste meme. A decade ago, a study
commissioned by the state Supreme Court indicated that a minimum of $21
million was needed to provide basic defense services in Louisiana. Ten
years on, and the vast majority of the funds have not been forthcoming.
The profile of indigent defense in Louisiana is balkanized chaos.
The first major problem is the inadequate funding. Most states fund
indigent defense through a central government. Not so Louisiana, where
the majority of the inadequate funding comes from traffic tickets
issued by the local police. In one parish, when the public defender was
too aggressive, the police stopped writing tickets, bringing the office
close to bankruptcy. The local indigent defender boards are appointed
by the judges, and must ask the judges for any increase on the ticket
assessment. They come under heavy pressure not to rock the political
boat, and 35 of the 41 districts do not even collect the maximum income
permitted, $35 per ticket.
The second problem is the quality of counsel in both capital and
non-capital cases. In the vast majority of Louisiana's 41 districts,
public defenders are part time. This means that they have private
practices on the side--or, to be more honest, they have public defender
jobs ``on the side.'' In New Orleans, for example, a public defender is
permitted to ask a client to retain him (generally, upon the promise
that he can expect better representation that way).
The number of lawyers available is wholly inadequate. We are
currently conducting a study of three of the largest districts, in New
Orleans, Baton Rouge and Lake Charles. In Baton Rouge, public defenders
average 3 80 open cases at any given moment. The numbers that are
opened during a year range to a high of over 700 cases. Given that most
of us do not know that many people in the world, it is obviously
impossible to provide that number of clients with effective
representation. This is all the more true when one considers that even
the director is part time, and most of them probably spend less than
half their time on their indigent work.
Since 1994, there has theoretically been a requirement that lawyers
be ``certified'' for trying capital cases. Unfortunately, when the
regulation was enacted, opponents ensured that a rider was added saying
that the provision would create no rights that could be raised on
appeal. Thus, Dan Bright was sentenced to death for a crime he did not
commit after being represented by a lawyer who was drunk during the
trial. The lawyer only called one witness (Mr. Bright's mother) at the
penalty phase, and asked her only two questions--her name and whether
she knew her own son. Shareef Cousin, a sixteen year old, was likewise
sentenced to death for a crime he did not commit; his lawyer's first
step in preparing for a penalty phase was a phone call made to my home
after the guilty verdict.
Overall resources are pitiful. In Lake Charles, the average time
the lawyers spend visiting their felony clients at the jail (including
capital clients) was 69.6 seconds per year. With only one investigator,
the office generates only one witness interview memo per two hundred
clients. I have never tried a case, capital or non-capital, without
consulting an expert on some subject or other; in Lake Charles, they
average only one expert per two hundred cases.
The lack of investigative assistance is a monumental problem in
capital and non-capital cases alike. No criminal charge, from a car
accident to a capital case, should proceed without a complete
investigation. ``At the heart of effective representation is the
independent duty to investigate and prepare.'' Goodwin v. Balkcom, 684
F.2d 794, 805 (11th Cir. 1982). Yet Lake Charles has one
investigator who is responsible for a current office caseload of
roughly 9,000 cases, including, at the moment, twelve capital cases.
The New Orleans public defenders have only six investigators who are
meant to provide assistance in 16 felony courts, as well as another
dozen juvenile, magistrate and municipal courts. At a most basic level,
the imbalance between prosecution and defense is reflected by the fact
that the Office of the District Attorney has 24 investigators, in
addition to the assistance of the thousands of officers with the NOPD.
The public defenders receive no federal funds, while grants are made
readily available to the prosecution.
Consider the impact of this inequity: In an experiment from January
1999 to June 2000, my office took over the burden of capital
preliminary hearings from the public defenders. We were ultimately
involved in precisely 100 cases where citizens had been arrested for
capital murder, and preliminary hearings were held. Where, before,
there had been no investigation to determine whether the client was
properly charged, we put an investigative team on each case. When we
exposed the truth, the State chose to dismiss the charges against
almost half (49) of these citizens. In that 18 month period, in not one
case where we did the preliminary hearing was the client ultimately
found guilty of first degree murder, let alone receive the death
penalty.
This might be considered a success story; sadly, it is not. First,
we must remember the hundreds of men and women who were arrested before
1999. Angola Penitentiary holds 90 people on Death Row, and over 3,460
serving life without the possibility of parole. The Australian State of
Victoria, with a population roughly twice as large as Louisiana, does
not have that many people in prison for any charge. Yet many of those
serving life or death in Louisiana stem from New Orleans convictions,
and were apparently victims of the earlier system. Second, and perhaps
even more sad, my office's intervention was so successful that we came
under heavy criticism from those committed to the status quo ante, who
prefer that the PD's ineffectual boat remain afloat. We have recently
been forced out of providing this critical service.
The availability of expert assistance is also critical to fairness.
In 1985, the United States Supreme Court held that an indigent capital
defendant has the right to a state-funded expert. Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Louisiana, enormous
problems are posed by scientific evidence that is downright bogus. This
is partly due to the inadequate funding and expertise in the local
crime labs, and partly due to the lack of experts available to the
defense. In one of the smaller parishes, for example, an experienced
public defender admitted to using just one independent expert in twenty
years.
The same is true across the state. Ricky Coston spent two years
awaiting a trial for his life in New Orleans, before being acquitted in
December 1998. The only evidence that purportedly linked him to the
crime was a single fiber. The NOPD crime lab technician simply should
not have been acting as an expert in any kind of criminal case. He
began doing fiber analysis in criminal cases before he had his first
training seminar in the speciality, and initially issued a report
saying that a fiber from Ricky's jacket matched the victim's green
blanket. He amended the report to reflect that it matched a blue
sweater. The sweater turned out to be a pair of socks. My office
secured two independent experts to review the work-apparently, the
first time the defense had ever challenged his findings--and determined
that the picture of the ``matching'' fibers was falsified. I reported
this profound misconduct to the NOPD, which took no action. I filed a
federal civil rights suit on behalf of Mr. Coston, which the NOPD felt
constrained to settle. Still they took no action against the
technician, who is still working on capital cases.
In recent years, the Orleans Parish public defender office has been
faced with several thousand clients, and dozens of people charged with
capital murder every year. The office has a total budget of only $2
million, representing a handful of dollars a case. Faced with a choice
between paying staff salaries and the experts needed for the defense,
the office actively opposes lawyers seeking funds for independent
experts, and the director recently sought to fire a staff attorney for
asking for one.
Across the United States, there is much talk of DNA as a
significant forensic tool. However, it is not relevant to the vast
majority of criminal prosecutions and, even where it might prove
helpful, it is rarely used in Louisiana. My office has been involved in
more than 150 capital cases in the past five years, and DNA has been
used in only one. While a DNA testing bill was passed by the state
legislature this year, it is the same old story: No funds were
appropriated to pay for it, and the legislature refused to include a
provision mandating that the state preserve evidence for possible
testing. The vast majority of those who could benefit are at the Angola
State Penitentiary without lawyers or resources, yet they must prove to
a judge that the evidence can demonstrate innocence before they will
even have a right to testing.
Another major factor, that implicates the lack of resources for a
defense investigation, is the lack of discovery in criminal cases. To
an average citizen, the law must seem bizarre: The contents of the
police file are not discoverable until after the client is on death
row, and has lost his first appeal of right--in other words, until
after it is most needed. Unfortunately, there has been a pattern of
abusing even these limited discovery obligations. New Orleans has a
particularly shocking reputation in this regard. Curtis Kyles was on
death row for several years until the United States Supreme Court
ordered a new trial based on the suppression of evidence. Kyles v.
Whitley, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). And yet his case is by
no means the most extreme example. John Thompson came within days of
execution two years ago before it came to light that the prosecutor had
destroyed blood evidence that categorically excluded him as the
perpetrator of the robbery that enhanced his case to one where the
death sentence would be imposed.
So far, six persons sentenced to death in Louisiana have
subsequently been found innocent by the state process. Shareef Cousin
was, at the age of sixteen, the youngest person sentenced to Death Row
in the world. In 1995, Shareef was charged with a politically sensitive
crime in New Orleans that ``had to be solved.'' A white tourist in the
French Quarter was tragically killed by a group of three black youths.
Not only did defense lawyers fail to call upwards of twenty witnesses
who could have demonstrated beyond any doubt that a videotape of
Shareef playing basketball in a neighborhood gym was being taped at the
precise time of the crime; but the prosecution literally kidnaped four
alibi witnesses and held them in the D.A.'s office until the trial was
over.
Our office took over his case on appeal, and for the retrial. Our
investigation uncovered even greater misconduct on the part of the
police and prosecutors. The authorities knew the identities of the
actual perpetrators just days after the crime, but declined to arrest
and prosecute them. Along with four hundred pages of information that
led directly to the real perpetrators, the prosecution intentionally
suppressed the sole eye-witness's statement in which she said she had
not been wearing her glasses, and could not identify anyone.
Shockingly, one NOPD detective apparently secured the $10,500
Crimestoppers reward by calling in a false tip against Sharee# After we
exposed some of this abuse, the district attorney's office was forced
to dismiss the case.
We were so horrified by the misconduct that permeated the local
authorities that we felt that something had to be done on a systemic
level. However, our research revealed that no local prosecutor had ever
been prosecuted for these kinds of criminal acts-after all, which
prosecutor is going to place a brother or sister prosecutor in prison?
More surprising, no prosecutor from New Orleans has ever been
sanctioned by the bar for such actions. Mr. Cousin's sister reported
the prosecutor who suppressed evidence in that case to the bar
association, and yet no action has been taken on her charges in four
years.
Left with only one option, we filed a federal civil rights suit
against the prosecutors who were responsible. Recently, United States
District Judge Sarah Vance dismissed the suit against them, holding
that prosecutors were ``absolutely immune'' from suit for any actions
taken in the course of the prosecution--including kidnaping witnesses,
falsifying evidence, and acting out of racial animus. What has the
world come to, when a prosecutor can rely on the federal courts to
grant him immunity for the criminal offenses he committed in placing a
child on Death Row for a crime he did not commit? This is very much a
federal concern--the federal courts fashioned this ``immunity'' out of
whole judicial cloth, without any input by Congress, casting a
protective blanket over state prosecutors even when they are guilty of
intentional criminal acts taken in bad faith. It is, with due respect,
Congress that should take that blanket back. Those charged with
defending capital clients in Louisiana, for one, do not have the
resources to keep on fighting this hopeless battle against such
misconduct.
Indeed, there is a desperate need for federal intervention in the
way that federal employees contribute to the imbalance in capital cases
in Louisiana. Two weeks ago, I was conducting a postconviction hearing
in the case of Dan Bright, who was originally sentenced to death in
1996. At the time of the trial, the State knew that the co-defendant
had written statements insisting that Mr. Bright was innocent, but they
manipulated the case so the co-defendant could not be called as a
witness. As I previously mentioned, Mr. Bright was represented by a
lawyer who was inebriated during the capital trial, and an innocent man
was sentenced to death. In post-conviction proceedings, we filed a
Freedom of Information Act request, and the DOJ provided a page of
materials that was heavily redacted. It reflected a statement by an
informant (whose name was likewise redacted) saying:
that daniel bright, aka ``poonie'' is in jail for the murder committed
by ----------------------
The name of the true perpetrator of this murder was blacked out.
Thus, the DOJ knew of a witness who could expose the real killer before
Mr. Bright's state court trial. The DOJ knew Mr. Bright was on trial
for his life, and did not bring this information to the attention of
the state or the defense. Even worse, the United States Attorney is now
actively opposing the defense request for either the name of the
informant or the name of the perpetrator now. The U.S. Attorney has
filed a motion to remove our subpoena to federal court and quash it. He
provides no discussion of why the federal government should suppress
evidence of the real killer, but rather seems to be saying that Might
makes Right: ``We have the power, so therefore we will [ab]use it.''
Indeed, the Fifth Circuit has judicially fashioned a rule of
``sovereign immunity'' that allows any federal agency to refuse to
honor subpoenas issued in state court. State of Louisiana v. Sparks,
978 F. 2d 226, 232-3 (5th Cir. 1992). This is another rule fashioned
out of judicial whole cloth; it is within the power of the federal
government to amend it and, with all due respect, this Committee should
get on with the task.
Another huge factor in the conviction of the innocent in Louisiana
is, sad to say, the number of corrupt police officers. Without meaning
to denigrate the large numbers of fine officers on the beat, the number
of bad apples is frightening. In various capital cases, we secured
judicial findings that New Orleans police officers had committed
perjury. We brought these to the attention of the NOPD hierarchy; they
did not even bother to ask for the documentary evidence. We notified
the NOPD that the lead detective in the Cousin case had apparently
falsified the evidence in order to collect the $10,500 CrimeStoppers
award; they showed no interest. In another capital case, we were
representing a witness who had been told by an NOPD officer that they
had the ``winning'' Crimestoppers number, and she could have it if she
toe'd the right line; we met with representatives of the U.S. Attorney,
with a view to setting up a sting on the officer, but was told that
this, and all our other complaints, were matters for the state
authorities.
The resources in post-conviction are also pitiful. To be sure, this
year the State of Louisiana established a post-conviction office.
However, the legislature refused to fund the new mandate. Rather, the
state simply did away with the fund for expert assistance that had
previously existed, and raided some of the other limited funds that had
been dedicated to capital litigation. Additionally, this came five
years after the elimination of federal funding for a similar office.
Now, then, there are three full-time lawyers for the 90 people who
expect to be in post-conviction over the next couple of years. As a
result, my office is trying to help in seven cases, although we are
told that we will receive not one cent for this work next year.
It is no fun trying to defend a capital client without resources,
and with both hands tied behind your back. Yet the problems of the
defense lawyer are utterly inconsequential compared to the horrors of
facing a capital charge, or sitting on Death Row, for a crime that one
did not commit. I have had the privilege of being involve in the
defense of more than 50 men, women and children who faced death for
something they patently did not do. Even as I prepare this statement
for this Committee, I could name at least two people on Death Row who I
think are almost definitely innocent. I could name half a dozen who are
now serving life without parole. How can we possibly allow such
tragedies to persist?
Statement of Charles J. Press, Director, Mississippi Post-Conviction
Counsel Project
Chairman, Members of the Committee:
I appreciate the opportunity to address the Committee on this
extremely important issue. As an attorney, I have been representing
death row prisoners on direct appeal, state post-conviction, and
federal habeas corpus proceedings for nearly 9 years, both in
California and Mississippi. Since December of 1998, I have been the
Director of the Mississippi Post-Conviction Counsel Project, a two-
person, non-profit office which directly represents death sentenced
prisoners in post-conviction and federal habeas corpus proceedings, and
assists lawyers handling capital cases in all stages of litigation.
Having observed how the judicial system treats capital cases in both
California and Mississippi has given me a unique perspective on how the
amount of resources available to represent those facing the death
penalty is perhaps the single most important factor in ensuring that
the unfathomable never happens: the execution of an innocent person.
Mississippi is the poorest of the 50 states, and the resources
devoted to the defense of those facing the death penalty are a
reflection of that. There is no state-wide public defender system in
Mississippi. Of the 82 counties in Mississippi, only 3 counties have
full-time public defender offices: Hinds County, which includes
Jackson, the largest city in Mississippi; Washington County, which
includes Greenville, the fifth largest city; and Jackson County, which
includes Pascagoula, the ninth largest city. Not surprisingly, of the
63 persons on Mississippi's death row, only 4 of these are from Jackson
County, and none are from either Hinds or Washington County. This is
despite the fact that the homicide rates in Jackson and Greenville are
among the highest in the state, and Jackson has one of the highest
homicide rates in the nation.
The overwhelming majority of people in Mississippi facing the death
penalty, nearly all of whom are indigent, are represented by court-
appointed counsel with little, or no experience in handling death
penalty cases. Mississippi has no standards for appointment of counsel
in capital cases. Recently, a lawyer who had been admitted to the
Mississippi Bar for less than a year was appointed to represent a
criminal defendant facing the death penalty. In fact, his only criminal
experience prior to this appointment was defending HIMSELF on a charge
of driving while intoxicated.
Most attorneys who represent criminal defendants facing the death
penalty have a busy private practice and take criminal appointments in
capital cases to supplement their income. Unfortunately, the income
these attorneys derive from capital cases is scant. In Mississippi,
under Miss. Code Ann. Section 15-17, attorneys handling capital cases
are only entitled to $1,000 as compensation. Furthermore, attorneys are
only entitled to be reimbursed for actual expenses or a presumptive
rate of $25 per hour. See Wilson v. State, 574 So. 2d 1338 (Miss.
1990).
The result of these meager fees is that lawyers spend very little
time preparing for capital cases when they know, at the outset, that
they will only be receiving a flat fee of $1,000. The livelihood of
these attorneys is made by the hourly billing and fees they generate
from paying clients. They simply cannot afford to take time away from
their paying clients to represent their clients who are facing the
death penalty. As a result, they ignore their capital clients and
prepare little, if at all, for their trials.
Some attorneys handling capital cases have contracts with one or
more judicial circuits to handle ALL criminal cases from that circuit.
These contracts are for a fixed fee per year. Many of these contracts
are for $30,000 or less. Attorneys operating under these contracts
often refer to themselves as ``part-time public defenders'' because
they also represent fee-paying clients to supplement their income.
Unfortunately, these attorneys are generally not allowed to refuse
appointments in criminal cases under these contracts. If they do, the
judge can rescind the entire contract. Many attorneys who have
attempted to refuse appointments in death penalty cases because they
were unqualified are told by judges that their contact will be
terminated unless they accept the appointment. Having never represented
a person facing the death penalty is not a valid reason for a refusing
a capital case appointment under this system.
Trial judges in Mississippi have sole discretion over appointing
and compensating lawyers to represent capital defendants. They also
have complete discretion regarding appointment and funding for experts,
and other assistance. Although there are some judges who pay more than
the $1,000 fee for capital cases, the overwhelming majority do not.
Because trial judges are elected by a constituency that overwhelmingly
supports capital punishment, there is extreme political pressure to
ensure that defendants facing the death penalty receive as little money
from the county budget as possible. The fact that many of these
counties are among the poorest in the nation only further ensures that
indigent capital defendants will receive the bare minimum towards their
legal representation. In Quitman County, the County Supervisors had to
raise property taxes on all residents simply to pay for two death
penalty trials. Other counties have reported being unable to purchase a
much needed new fire truck or constructing sewer systems for small
towns where residents still use outhouses. Judges, therefore, do not
want to be put in a position of depleting county funds to pay for a
person charged with a capital crime.
The result of having underpaid, unqualified lawyers representing
capital defendants is clear: defendants facing the death penalty are
not receiving their constitutional right to effective counsel. Capital
trials in Mississippi, from the beginning of jury selection until
sentencing, are usually completed within a week. By contrast, jury
selection in a capital trial in California can often last several
weeks. Per capita, Mississippi has the fifth largest death row in the
nation.
In one recent case, a lawyer handling a death penalty had not
interviewed a single witness the weekend before the trial was to begin.
Neither he, nor co-counsel, had ever tried a capital case before. Lead
counsel was provided with sample motions challenging the DNA evidence,
which was riddled with errors, as well as a motion for a continuance.
Counsel, however, decided not to file any of these motions or ask for
more time to prepare. Jury selection began on Monday morning. By
Wednesday afternoon, the client had been convicted and sentenced to
death.
In July of 2000, Mississippi passed legislation to create a state-
funded capital trial office and authorized the Governor to appoint a
Director. However, because the Governor has yet to appoint a Director
to this new office, it is unclear when the office will open its doors.
Even when it does, it will face significant obstacles. The legislation
provides for a Director, three attorneys, and two investigators. With
dozens of capital indictments pending statewide in Mississippi each
year, the new office, even if it has qualified personnel, will not be
able to provide representation to all defendants facing the death
penalty. Moreover, the legislation did nothing toward creating
standards for the appointment of counsel in capital cases, or raising
the $1000 flat fee also remains. Trial judges retain the authority over
appointment of counsel. Therefore, a trial judge has the power to
refuse appointing the new office to a capital case. Although, on the
surface, it would seem as if a trial judge would prefer to appoint an
office with attorneys who would not seek compensation from the judge's
county, qualified, experienced capital counsel will likely seek expert
assistance, which must still be paid out of county funds. A trial judge
can ensure that his county will not bear the cost of an expensive
capital trial if he appoints a lawyer who does not know to ask for
expert assistance.
The situation regarding appeals and post-conviction for death
sentenced prisoners is hardly better. Under Mississippi law, the SAME
lawyer who represents a client facing the death penalty at trial MUST
represent the defendant on direct appeal. If new counsel represents a
death sentenced prisoner on direct appeal, counsel must raise all
issues of ineffective assistance of counsel in the same appeal, without
the benefit of having the resources provided to post-conviction counsel
for discovery, investigative and expert assistance. Therefore, the
same, unqualified attorney who represented the client at trial is now
representing him on his primary challenge to his conviction and death
sentence. Moreover, counsel is given the same, meager $1,000 as
compensation.
Until 1998, death sentenced prisoners in Mississippi were not
afforded the right to counsel in post-conviction proceedings. However,
under pressure from a federal law suit challenging the lack of post-
conviction counsel, the Mississippi legislature, in July of 2000,
created the Office of Capital Post-Conviction Counsel. This new office,
consisting of a Director, two staff attorneys, and one investigator, is
responsible for either directly representing, or finding alternate
counsel for all 63 prisoners. For those cases where alternate counsel
has been appointed, most of the lawyers are from states other than
Mississippi. While the Mississippi Supreme Court created standards that
counsel must meet before they can be appointed to represent death
sentenced prisoners in post-conviction proceedings, only a handful of
lawyers in Mississippi meet these qualifications. This, of course, is
in large part because the right to counsel did not exist prior to 1998,
so few Mississippi lawyers have ever handed a death penalty case in
post-conviction proceedings.
The Mississippi Supreme Court has also allowed attorneys
representing death sentenced prisoners in post-conviction proceedings
to receive higher compensation than the $1,000 rate, and to seek funds
for investigative and expert assistance. These attorneys, however, must
request these fees from the trial courts. Although the fees are now
being paid from a state fund, many trial judges still continue to
withhold money for investigative and expert assistance, and some post-
conviction lawyers are still being compensated only $1,000 for their
work. The state post-conviction fund must not only cover the funds to
compensate private attorneys, but pay for investigative and expert
assistance in all of these cases, including those cases being handled
by the state office.
There has been much discussion of the many, many prisoners who have
been released from death rows across the country after it was later
determined that they were innocent. One of these prisoners, Sabrina
Butler, is from Mississippi. However, because so many death sentenced
prisoners were represented by lawyers who were underpaid,
inexperienced, and unqualified, there can be little confidence in the
outcome of these trials. A three-day trial is hardly the kind of
adversarial proceeding that is required for the judicial process to
properly function in its truth seeking mission. Whether there are
innocent people presently on death row in Mississippi is unclear.
However, as innocent people have been freed from death penalty states
where the quality of legal representation is much higher, it certainly
cannot be assumed that all 63 prisoners on Mississippi's death row are
guilty of the crimes for which they have been convicted.
Statement of Michael Pescetta, Assistant Federal Public Defender,
Office of the Federal Public Defender
My name is Michael Pescetta. I am an Assistant Federal Public
Defender and I am chief of the Capital Habeas Unit in the Office of the
Federal Public Defender for the District of Nevada. Our unit litigates
most of the federal habeas corpus proceedings resulting from judgments
of death in Nevada state courts, and currently we are providing
representation in twenty-three such cases. We are therefore familiar
with the issues that are routinely presented in these cases and with
the problems arising in state court litigation of capital cases.
I have been litigating capital appeals and habeas corpus cases
since 1983, first in California (initially as an attorney for the
California State Public Defender, and then as Director of Capital
Litigation, overseeing all of the capital cases in that office, from
1988 to 1992) and since 1992 in Nevada. I was the director of the death
penalty resource center for Nevada from 1992 until 1995, when the
resource center was de-funded. I currently litigate only capital habeas
corpus cases.
Nevada is in continuing crisis with respect to representation in
capital cases. The salient factor is that Nevada has the highest death
row population per capita of any state in the nation and the fewest
lawyers per capital case of any state. Currently, approximately 30
lawyers are responsible for representing all of the 85 individuals who
are under capital sentence; and, with the exception of the
approximately 10 to 15 capital trial lawyers in public defender
offices, these are the same lawyers who provide representation in
capital cases at trial. The effect of this situation on the quality of
representation is severe: there are simply too few lawyers who are
willing to provide representation in capital cases, particularly in
habeas proceedings, and many of the lawyers who do provide
representation are woefully unskilled.
The Nevada state system is generally in a position to fund
litigation in capital cases if it wishes to. The county public defender
offices in Clark County (Las Vegas) and Washoe County (Reno) pay
attorney salaries that are competitive with those paid by prosecution
offices. While budgets for ancillary services, such as expert
witnesses, maybe limited by the county commissions, in general public
defender offices have been able to secure funds for such services when
attorneys request them. When private counsel is appointed by the court,
Nevada statutes provide for compensation of counsel at a rate of $75
per hour in capital cases. There is a presumptive cap of $12,000 for
attorney compensation in capital trial cases, and of $750 in capital
habeas corpus cases, and a presumptive cap of $300 for reimbursement
for ancillary services. Nev. Rev. Stats. Sec. Sec. 7.125, 7.135. These
limits are generally recognized as inadequate for competent
representation and they are normally exceeded when counsel requests
additional funds, although the amounts actually authorized vary greatly
among individual trial judges.
Unfortunately, the potential availability of resources for
litigating capital cases does not normally translate into adequate
litigation, primarily due to the quality of counsel. In public defender
offices, the problem is frequently that lawyers fail to recognize the
need for adequate investigation or ancillary services--until last year,
neither of the two county public defender offices had any organized
training programs at all--and have often treated the litigation of
capital cases as routine. In general, the salaries paid in the two
largest public defender offices have contributed to a career civil
service mentality on the part of lawyers and administrators, and a
concomitant unwillingness to antagonize other parts of the criminal
justice system, at the expense of vigorous advocacy on behalf of
clients. Public defender offices also have not historically used their
budgets to hire adequate numbers of investigators to allow them to
conduct sufficient investigation in all capital cases, much less in all
cases. (For instance, until the year 2000, the Clark County Public
Defender's Office had approximately 8 investigators on staff and a
yearly caseload of over 31,000 cases.) It appears that this situation
does affect the vigor of defense advocacy: a recent study conducted by
the Spangenberg Group for the Department of Justice, Bureau of Justice
Assistance, and the American Bar Association showed that the trial rate
for the Clark County Public Defender is under 0.6%, while the national
urban average trial rate is 4-7%.
While the Nevada Supreme Court has imposed experience standards for
counsel, Nev. Sup. Ct. Rule 250(2)(b, c), there is no assessment of the
quality of representation as a basis for appointment. There is also no
formal mechanism for the appointment of counsel other than public
defender offices, and individual judges recruit and select attorneys
for appointment unilaterally. As a result, lawyers who have done
seriously inadequate work on capital cases continue to be appointed to
do more of them. In particular, in state habeas corpus proceedings, in
which only private counsel are appointed, so few lawyers are willing to
accept appointment that courts routinely appoint lawyers whose
representation is so inadequate that subsequent federal proceedings
require significantly greater expenditure of resources on both
procedural and substantive issues. For instance, in over 20% of the
capital cases currently pending in state habeas proceedings,
representation is being provided by lawyers who have never filed a
discovery motion or a motion for funds for ancillary services in any
habeas proceeding. It is not uncommon for these lawyers to attempt to
litigate claims of ineffective assistance of counsel without even
obtaining the files of previous counsel. While these problems have been
drawn to the attention of the Nevada Supreme Court and the state trial
courts, they have been unwilling to intervene or to mandate closer
scrutiny of counsel's actions in state habeas proceedings, and the
emphasis has remained on simply processing capital cases through that
system in any way possible.
Fundamentally, the problem of adequate representation in capital
cases reflects the legal culture in Nevada. Criminal defense lawyers
who provide representation in indigent cases, as opposed to
representing paying clients, are not held in the same respect as other
lawyers, and criminal cases involving indigents are treated with less
concern than others. Some defense lawyers appointed in capital cases
often treat them as routine and simply do not have the interest in or
dedication to this type of work that would motivate them to improve
their skills. The Nevada Supreme Court routinely expresses concern
about the quality of representation in capital cases, but its actions
are often not consistent with its expressed position. For instance, the
court has criticized defense counsel, sometimes vehemently, for not
raising available issues at the first opportunity, see Beiarano v.
Warden, 112 Nev. 1466, 1470, 929 P.2d 922, 925 (1996), but when
thorough counsel attempts to raise all available constitutional claims
on appeal the court seeks to discourage it. See Hernandez v. State,
2001 WL 668460 (June 14, 2001.) The state trial courts act similarly:
they normally do not demand that counsel provide quality representation
in capital habeas cases, and (along with the state bar) routinely
ignore complaints from clients about counsel's actions in failing to
communicate with the client, to raise issues pointed out by the client,
or to conduct adequate investigation.
The low quality of defense advocacy has a pernicious systemic
effect, because the corrective function of a vigorous defense on the
criminal justice system as a whole normally does not occur. For
instance, one of the commonest complaints of the defense bar in Clark
County is the failure of the district attorney's office to comply with
its disclosure obligations under Kyles v. Whitley, 514 U.S. 419 (1995),
despite purportedly maintaining an ``open file'' discovery policy. In
1998 and 1999 the Federal Public Defender conducted depositions of the
records custodians of the district attorney's office and the Las Vegas
Metropolitan Police Department, in a 17-year-old capital case. These
depositions revealed that the district attorney's office has no
institutional mechanism for ensuring that disclosable evidence in the
possession of the police is included in the disclosure to the defense
as required by Kyles. This revelation had no effect on the practices of
the district attorney, which has been found in subsequent cases to have
failed to disclose evidence in the possession of the police; and it has
not changed the motion practice of the majority of defense counsel, who
continue to rely upon the ``open file'' policy. Similarly, in a case
involving a claim of actual innocence, in which evidence relating to
other suspects was concealed by Washoe County authorities for almost 20
years, Mazzan v. Warden, 116 Nev.--, 993 P.2d 25 (2000), the revelation
of the failure to disclose has not had any reported effect on the
discovery policies currently in force or in most defense counsel's
motion practice with respect to discovery. These are only the most
obvious instances in which an absence of vigorous defense advocacy, and
appropriate judicial response to such advocacy, has left the state
system as a whole functioning below acceptable constitutional
standards.
Providing thorough and competent representation at all stages of
all capital cases is currently not a reality in the Nevada state
system. That goal will be attained, if at all, only with the maturation
of the criminal defense bar and with an insistence by the state courts
on vigorous and thorough defense advocacy in capital cases.
Federal Court Division
Defender Association of Philadelphia
Philadelphia, PA 19106
July 5, 2001
Senator Patrick Leahy
433 Russell Senate Office Building
United States Senate
Washington, D.C. 20510
Senator Orrin G. Hatch
104 Hart Senate Office Building
United States Senate
Washington, D.C. 20510
Dear Senators Leahy and Hatch:
I am writing in regard to S. 486 (The Innocence Protection Act). I
am the Chief Federal Defender for the Eastern District of Pennsylvania.
In addition to representing indigent defendants charged with federal
crimes, my office also represents some prisoners in federal habeas
corpus proceedings challenging death sentences imposed by the state
courts of Pennsylvania. As such, I and my staff are familiar with
standards for quality, and compensation, of counsel in the Commonwealth
of Pennsylvania.
I understand that the Innocence Protection Act seeks to insure
minimal standards governing the competency of counsel who handle death
penalty cases in state court. Of Pennsylvania's 67 counties, only one
(Philadelphia) has standards governing appointment of counsel. In this
regard, Senator Leahy quoted the 1990 Joint Task Force on Death Penalty
Litigation in Pennsylvania, that the lack of standards has led
Pennsylvania to having ``one of the worst systems in the country for
providing indigent defense services,'' and has experienced ``problem
[s] of major proportions.''
Indeed, in some cases being handled by my office we have seen stark
examples of inexperienced and unqualified counsel being appointed to
these cases. Scott Blystone was represented by a part-time public
defender who had one year's experience as a judicial law clerk and had
been practicing law for 3\1/2\ months at the time of his appointment
(Fayette County); Carolyn King was represented by a civil practitioner
who specialized in family law who had tried a single criminal case, a
one-day trial on drug charges (Lebanon County); Lawrence Christy was
represented by two lawyers, one who had graduated from law school three
years before trial and had asked for help from the court because he had
never tried a capital case, and the other who had graduated from lave
school two years earlier and had never tried any criminal case; James
Carpenter (York County) was represented on direct appeal by an attorney
who had one year of experience who had never represented a client in
any appellate proceedings prior to this capital case.
While Philadelphia County has standards, that jurisdiction is
responsible for 55% of the Pennsylvania's capital convictions.
According to the Pennsylvania Department of Corrections 117 of
Pennsylvania's death row inmates (45% of the Commonwealth's death row
of 241) are from counties that have no published standards governing
compensation of counsel, provision of investigators and experts, and
qualifications of counsel.
The capital representation crisis in Pennsylvania is not a semantic
question as to whether Pennsylvania provides standards at the county,
rather than state-wide, level. It is that Pennsylvania has no adequate
system for capital appointments and compensation at any level. As Chief
Judge Becker of the United States Court of Appeals for the Third
Circuit found, the issue of whether Pennsylvania provides adequate
standards and resources for capital representation is not amenable to
``county-by county or case-by-case determination.'' The Commonwealth of
Pennsylvania itself admitted ``that Pennsylvania does not meet the
[capital representation] requirements of [the AEDPA] as of January 31,
1997, and that it has not met them previously.'' Death Row Prisoners of
Pennsylvunia v. Ridge, 106 F.3d 35, 36 (3d Cir. 1997).
While it is true that the Philadelphia standards would prevent some
of the more egregious examples of capital non-representation that occur
elsewhere in Pennsylvania, the appointment system is neither neutral
nor effective. The City courts have been sued on numerous occasions by
appointed counsel because of non-payment and underpayment, and--as was
the case at the time of the Task Force report in 1990--many lawyers
have stated that they will not take cases because they cannot afford to
do so. Even an experienced capital defense lawyer cannot be effective
if s/he is not paid adequately for the hours required to properly
handle a case or does not have money for experts or investigators.
Counsel qualified for appointment on Philadelphia's list have been
found ineffective in five recent post-conviction cases for failing to
investigate and present mitigating evidence, and a sixth lawyer who is
on Philadelphia's appointment list was found ineffective for failing to
investigate and present mitigating evidence in a case tried in a
neighboring county.
In short, the observations of the 1990 Task Force report, cited by
Senator Leahy during the hearing, retain their force today,
notwithstanding any isolated suggestions to the contrary made during
the hearing. Pennsylvania would greatly benefit from the adoption of
uniform standards governing these important issues.
I respectfully request that this letter be made a part of the
record.
Respectfully,
Maureen Kearney Rowley
Chief Federal Defender
Statement of Hon. Gordon H. Smith, a U.S. Senator from the State of
Oregon
I would like to thank you, Chairman Leahy, Senator Hatch, and the
rest of my colleagues on the committee for allowing me to speak today.
I would also like to thank you for holding this hearing, which will
help focus the Senate's, and the nation's, attention on importance of
providing competent counsel in death penalty cases.
This subject is important to me because I sit before you today as a
proponent of the death penalty. I believe that some crimes are so
odious, and so heinous that the death penalty is the only appropriate
punishment. I believe further that the death penalty deters crime, and
that it ultimately saves lives as a result. But I can only support the
death penalty in good conscience if I am convinced, and the American
people are convinced, that no innocent person is ever executed, and
that people on trial for their lives have adequate legal
representation. Competent counsel is a minimum requirement for justice
in these cases, and I believe that federal leadership is necessary to
ensure that every person on trial for his or her life receives
qualified legal representation.
Mr. Chairman, we are very lucky in Oregon to have one of the most
progressive systems in America for ensuring adequate legal
representation in capital cases. Defense attorneys undergo a rigorous
state approval process. Prospective capital defense attorneys must have
several years of experience, including experience with murder cases,
must attend regular legal training or education programs on capital
cases, and must be able to provide at least five letters of
recommendation from state judges, defense attorneys, or district
attorneys attesting to the attorney's fitness for defending death
penalty cases. These are all minimum requirements in the state of
Oregon.
In addition, Mr. Chairman, Oregon spends far more defending the
indigent than it does prosecuting them. Next year, Oregon will likely
spend in the neighborhood of $80 million for indigent defense and
approximately $50 million on prosecutions. Oregon has also centralized
its indigent defense funding at the state level to ensure that the
quality of defense will not vary with the economic fortunes of
individual counties. I understand that legal representation cannot
always be measured by dollar figures, but I believe that Oregon's
commitment to competent counsel is reflected in the resources the state
has dedicated to ensure it.
I believe that the federal government must ensure that we, as a
nation, are also fully committed to nationwide standards for competent
counsel. I have been fortunate to work with the chairman of this
committee on legislation that would lead to the development of national
standards for legal services in capital cases. I believe that the
federal government should study existing systems for appointing counsel
in capital cases, determine the minimum standards that states should
meet in providing representation, and ensure that states abide by these
standards. By establishing these requirements, the federal government's
leadership can help secure the nation's confidence in our application
of the death penalty.
Mr. Chairman, I'm not here because I believe that incompetent
defense counsel has become the norm in courtrooms across America. But
our system of justice simply cannot tolerate severely overworked,
underpaid, and even unqualified attorneys representing Americans on
trial for their lives. I want to urge this committee to do all it can
to make our excellent system of justice even better. Helping ensure
competent counsel nationwide is a good step in that direction. We
cannot afford mistakes in death penalty cases, and Americans must be
confident that defendants in capital cases are receiving adequate
representation.
Statement of Maurie Levin, Texas Defender Service
Background
My name is Maurie Levin. I am the Managing Attorney of the Austin
office of Texas Defender Service (TDS), a private nonprofit with
offices in Austin and Houston, Texas. Since 1995, TDS has provided
direct representation to indigent inmates on Texas's death row,
consulted with other lawyers litigating capital cases at the trial and
post-conviction level, and intervened in unusual cases where expert
legal assistance was urgently needed. Senator Leahy's office asked that
I describe for this Committee the appointment and compensation process
in Texas.
Texas Defender Service is the only organization in Texas, public or
private, that concentrates exclusively on tracking capital cases and
representing indigent defendants charged with and/or facing a capital
sentence. We thus serve as a primary source of information about the
death penalty in Texas for other organizations, the public, and the
press. In October 2000, TDS released A State of Denial, the most
comprehensive report to date on the administration of the death penalty
in Texas.\1\ Local, national, and international media covered its
release. The nine chapters of the report outlined many of the
deficiencies in the Texas system, including official misconduct, the
use of phony experts, racism and the death penalty, the execution of
the mentally retarded, and the inadequacies in the representation
provided. It also underscored the fact that the deficiencies in the
system are all exacerbated, masked, and allowed to continue when
defense counsel fails to fulfill her role as a zealous advocate for the
defendant and due process.
---------------------------------------------------------------------------
\1\ The report is available on our web site at:
www.texasdefender.org.
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The State of Indigent Capital Defense in Texas
Texas is replete with the horror stories that result from the
inadequate counsel that is provided to inmates facing a sentence of
death. Texas, of course, is home to the now infamous sleeping lawyer
cases--where capital trial counsel actually slept through significant
portions of trial, and where the Texas appellate court deemed that to
be nonetheless adequate representation. And lest we dismiss those
stories as rare aberrations of the past, recent studies from a variety
of sources confirm that the typical attorney appointed to represent an
indigent capital defendant in Texas is a solo practitioner who may or
may not have any capital experience, is eight times more likely than
the next lawyer to have suffered some form of disciplinary action for
ethical lapses, and will get paid an hourly rate that cannot even cover
her office overhead, and only for a fraction of the hours necessary to
do a competent job. In addition, she will be fully aware that zealous
advocacy may risk future appointments from the Court that hands her the
cases that provide her day-to-day livelihood. In short, it is a system
that makes it a fairly safe bet that counsel cannot and will not do a
competent job representing their capital clients.
Despite the increased attention to these problems, and the reforms
implemented in the last legislative session, they still exist. While
the Fair Defense Act, courageously championed and skillfully stewarded
through to passage by Senator Rodney Ellis, takes crucial first steps
to improve indigent defense overall, its effect on capital cases will
be extremely limited. Moreover, it does not affect the quality of post-
conviction representation at all--the crucial stage of the appeals
where people are discovered to be innocent, and exonerated. In short,
we still have a long, long way to go.
To fully understand the nature and extent of the problem, it is
necessary to understand how the Texas system works. In explaining the
process, and providing examples and statistics, I rely upon TDS'
Report, A State of Denial, the capital chapter of The Fair Defense
Report, released this past year by Texas Appleseed,\2\ an earlier study
by a Subcommittee of the State Bar, reflecting the results of a
comprehensive survey of attorneys, judges, and courthouse personnel,\3\
and newspaper studies and articles. Each of these reports bears out the
anecdotal evidence and describes numerous profoundly disturbing
systemic deficiencies.
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\2\ A copy of The Fair Defense Report may be obtained from Texas
Appleseed at www.appleseeds.net/tx.
\3\ See Allan K. Butcher & Michael K. Moore, Muting Gideon's
Trumpet: The Crisis in Indigent Criminal Defense in Texas 12 (Sept. 22,
2000), at http://www.uta.edu/pols/moore/indigent/whitepaper.htm.
The Texas system is marked by the following features:
Disparity in the manner in which counsel are
appointed, the quality of counsel, and the compensation and
funding provided. Texas' appointment system is county-based.
There are 254 counties, and numerous courts within each county.
Some say that there are 800 different appointment and
compensation systems--a different one for each court.
A lack of meaningful statewide standards. Up until
1995, there were no standards whatsoever governing the
appointment of counsel in capital cases. Anyone, even a tax
attorney, could be appointed to represent a defendant facing a
sentence of death--and were. In 1995, legislative revisions
required that each of the nine administrative regions establish
regional standards, but the results were minimal at best, and
the failure to comply with the statute bore no consequences--
except for the defendant.
For example, the Dallas Morning News recently found that 24
attorneys who had been designated as qualified to represent capital
murder defendants had been disciplined for misconduct, one having been
suspended from practice twice. As the News observed: ``The judge who
ordered the most recent suspension [of this attorney] . . . . delayed
its activation so the attorney could finish a capital murder case he
had been appointed to handle. He has since received other death penalty
cases--as well as another reprimand from the bar.'' The same News study
confirmed that the trial lawyers who had represented Texas death row
inmates had been disciplined at approximately eight times the rate of
lawyers as a whole.\4\
---------------------------------------------------------------------------
\4\ Defense Called Lacking for Death Row Indigents, But System
Supporters Say Most Attorneys Effective, DALLAS MORNING NEWS, Sept. 10,
2000, at 1A.
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In a study conducted by the Chicago Tribune, they found that in one
out of three of the cases examined, the trial lawyer presented no
evidence, or only one witness at the sentencing phase of trial--the
phase where the jury decides whether their client should live or
dies.\5\
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\5\ Steve Mills and Ken Armstrong, Flawed Trial Lead to Death
Chamber, CHICAGO TUNE, June 11, 2000, at Sec. 1, p. 1.
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One particularly egregious example is that of Joe Lee Guy, whose
attorney ingested cocaine on the way to trial, consumed alcohol during
court breaks, and had been disciplined numerous times both before and
after Guy's capital trial.\6\ In fact, he could not complete the appeal
of Guy's case because of a recent suspension. These facts only came to
light after TDS intervened on the eve of Mr. Guy's scheduled execution,
and recruited a law firm to represent Mr. Guy on a pro bono basis. It
is worthwhile noting that Mr. Guy, the lookout, was the only one of the
three defendants who was sentenced to death--his two co-defendants, the
``shooters,'' were both sentenced to life after their attorneys
presented a compelling case for life on their behalf. It is a
particularly good example of the title of Stephen Bright's oft-quoted
statement: ``the death sentence not for the worst crime, but for the
worst lawyer.''
---------------------------------------------------------------------------
\6\ Dan Malone and Steve McGonigle, Questions of Competence Arise
in Death Row Appeal: Lawyer with History of Problems Defends Handling
of Case, DALLAS MORNING NEWS, Sept. 11, 2000, at A1. See also Linda
Kane, Death Row Inmate's Lubbock Attorney Used Drugs, Alcohol, LUBBOCK
AVALANCHE-JOURNAL, Sept. 10, 2000, at 12A; A State of Denial, p. 111.
---------------------------------------------------------------------------
While the Fair Defense Act establishes, for the first time, minimum
statewide standards for capital trial counsel, the standards that Texas
legislators were willing to pass are fairly minimal, requiring only
that counsel have five years of experience in criminal litigation
(defense or prosecution), and only ``significant'' felony experience as
defense counsel. Moreover, without the funding necessary to enable
qualified counsel to litigate these cases, and the concomitant support
and independence necessary to make that possible, these standards will
affect very little change, and will not prevent horror stories such as
sleeping or drug-addicted capital counsel.
Impermissible factors, irrelevant to questions of qualifications,
affect the elected judiciary's appointing decisions and compromise the
quality and independence of appointed counsel. According to the State
Bar Study, nearly half the judges reported that their peers ``sometimes
appoint counsel because they have a reputation for moving cases,
regardless of the quality of defense they provide,'' and over half
indicated that the ``attorney's need for income'' influenced the
appointment decision. Significant numbers of judges reported that their
appointment decisions were affected by whether a defense attorney was a
personal friend (39.5%), a political supporter (35.1%), or a
contributor to the judge's reelection campaign (30.3%).\7\
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\7\ BUTCHER & MOORE, MUTING GIDEON's TRUMPET 12 (Sept. 22, 2000).
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While the Fair Defense Act permits and encourages counties to
establish a different, more neutral appointment system, it does not
require them to do so, and in fact permits them to retain their current
system. There is nothing to say that judges will not continue to
appoint attorneys based not on their qualifications, but on the basis
of how quickly and cheaply they move cases through the courts, or how
much was donated to the appointing judge's reelection campaign.
Trial courts do not provide the resources necessary to defend a
person accused of a capital crime. Compensation varies drastically
between the counties. In many of the more rural counties, it is not
enough to cover overhead expenses. In others, ``fixed'' or ``flat'' fee
structures provide incentives for attorneys to do as little work as
possible on the case. In one county, compensation for out of court time
is limited to 60 hours--one twentieth of the amount of time that is
spent, on average, preparing for a federal capital trial. Until 1995,
Texas law capped the entire amount defense counsel could request for
investigative and expert expenses at $500, and anecdotal evidence
indicates that many judges still apply the old limits.
For example, the attorney who represented Paul Richard Colella in
his 1992 Cameron County capital murder trial was not reimbursed for an
investigator and was not paid until almost two years after the trial
ended.\8\ When he was paid, he received only $9,000 for handling both
the trial and the initial appeal of the case. Dividing this payment by
the attorney's estimates of the number of hours he worked yields an
average of approximately $20 per houror less than one-third the hourly
overhead rate in the average Texas criminal defense attorney's
practice.\9\
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\8\ Application for Writ of Habeas Corpus at 61-62 and Exh. 62, Ex
parte Colella (CCA No. 37,418).
\9\ BUTCHER & MOORE, MUTING GIDEON's TRUMPET 15 (Sept. 22, 2000)
(reporting that Texas criminal defense attorneys report overhead costs
of $71/hr).
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There is a lack of any centralized body of expertise upon which
attorneys might draw for resources and assistance. The State Bar Study
found that 66% of the appointed lawyers were solo practitioners and the
vast majority of the remainder practiced in small firms, most of which
were merely clusters of lawyers sharing office expenses. Most of the
attorneys reported that only half of their practice involved criminal
cases, while the remainder involved civil matters.\10\ Thus, most
lawyers confronting a capital case, if they are interested in providing
an adequate defense, must grapple alone with a body of unfamiliar and
complex death penalty law, and direct an investigation into the
client's background, which can require expertise far beyond the typical
criminal case. Unlike the cadre of experienced prosecutors trying these
cases, many attorneys appointed to capital cases must start, each time,
learning the law from the ground up.
---------------------------------------------------------------------------
\10\ Id.
---------------------------------------------------------------------------
The courts do not take responsibility for correcting the egregious
problems--such as snoozing counsel--that are clearly displayed before
them. The judge presiding over Calvin Burdine's trial (whose lawyer
slept through significant portions of the trial) stated that ``the
Constitution doesn't say the lawyer has to be awake.'' The Texas Court
of Criminal Appeals routinely denies any remedy to inmates whose court-
appointed lawyers perform poorly. Thus, that (elected) Court denied
relief to two death row inmates whose lawyers slept through trial, and
in the past five years have achieved one of the lowest reversal rates
for capital cases in the entire country: three percent.
Errors are generally not revealed in post-conviction proceedings--
the appellate proceedings which are supposed to serve as the safeguard
to our system--because appointed counsel are profoundly inexperienced,
inadequate, and underfunded. In fact, the post-conviction appointment
system simply repeats the errors replete at trial, thus making it
highly likely that we are not even aware of many of the horror stories
regarding what occurs at trial.
In Joe Guy's case, discussed above, the state post-conviction
attorney appointed to represent him failed (in her nine page petition)
to raise the fact either that trial counsel was struggling with drug
and alcohol addiction, or that the investigator appointed to assist
counsel had become the beneficiary of the surviving victim's estate. It
was only by chance that TDS discovered the case, and its horrifying
facts, shortly before Mr. Guy's scheduled execution.
Moreover, the courts appear indifferent to the glaring inadequacies
of the work produced. For instance, in a study of over half the post-
conviction appeals filed in Texas since 1995, we found that in 42%,
post-conviction counsel appeared to have conducted no new
investigation, and raised no extra-record claims--even though these are
the only type of claims that can be considered for review at this
stage.\11\ In many cases, appointed attorneys merely repeated,
verbatim, claims which had already been rejected by the courts in a
previous appeal. In almost one out of five of the cases reviewed, the
post-conviction application was less than fifteen pages long--barely
long enough to contain the minimal procedural formalities. In a number
of cases where such patently inadequate applications were filed,
subsequent investigation has revealed significant constitutional
errors--such as that of Joe Guy, as well as a possible claim of
innocence--that were not included, and would have remained undiscovered
if TDS had not become involved.
---------------------------------------------------------------------------
\11\ `` See A State of Denial, supra, pp. 104-118.
---------------------------------------------------------------------------
Conclusion
The lethal consequences of the Texas capital system are concrete.
Every year, Texas leads the country in number of executions. Last year,
Texas set a ``record `` for the number of executions in one year: 40.
We execute disproportionate numbers of people of color, persons who are
mentally ill, mentally retarded, and juveniles. Because of the
inadequacies of the system--primarily the inadequacies of trial and
post conviction counsel--it is also highly likely that we are executing
people who are innocent or not eligible for a sentence of death.
Tragically, it is the hallmark of the Texas system that its most
pervasive feature is its efficiency in burying its mistakes. The
Innocence Protection Act is an essential step in bringing these
problems to light, and in providing the resources and enforcement
mechanisms necessary to provide indigent inmates facing a sentence of
death the competent counsel to which they are constitutionally
entitled.
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
The death penalty is the most serious punishment our criminal
justice system can seek, and we all agree that defendants who are
charged with a capital crime deserve the effective assistance of
counsel. We all want to make certain that any defendant receives a fair
trial, and I appreciate the majority's interest in this issue.
However, I think what we disagree about is how fair the system is
today. The states take their responsibility to provide counsel for
indigent defendants in capital and non-capital cases very seriously.
About $1.2 billion dollars was spent by the nation's 100 largest
counties in 1999 to provide lawyers for indigent defendants. The fact
is that the conviction rate for defendants is approximately the same,
regardless of whether they are represented by publicly-financed counsel
or private counsel, according to a Justice Department study from last
year. The criminal justice system is not perfect, but it is not
fundamentally flawed.
The system is no worse regarding capital cases in particular. In
recent years, the media has widely reported allegations of flaws in the
death penalty system in the states. For example, a widely publicized
Columbia University study, which found a 68% ``error rate'' regarding
capital case reversals on appeal, was very misleading. It did not note
that most reversals had nothing to do with innocence, and that many
defendants were again found guilty of their crimes. It also did not
cover the period since 1995 when all indications are that the law is
much more settled than it was in the 1970s and 1980s.
I do not believe that there is a crisis in how criminal defendants
who commit capital crimes are treated in the criminal justice system
today, and I certainly do not believe that the federal government
should take control of how the state courts operate in this regard.
Unfortunately, I am concerned that this is essentially what the
Innocence Protection Act would do in its current form. The bill would
create a national commission that would dictate to the states how all
defendants in all capital cases are to be represented. If a state did
not comply, it would be severely punished through the loss of federal
funds and even the loss of recent habeas corpus reforms. The Congress
enacted these reforms just a few years ago to help limit endless
prisoner lawsuits and promote finality and comity between the state and
federal systems.
The federal government should be extremely reluctant to impose
federal mandates and standards on the states based on a one-size-fits-
all mentality, especially in the area of criminal justice. It is the
responsibility of the states to define crimes and the procedures to be
followed in their courts.
I am concerned that many of the proposed changes in this
legislation would have little to do with actually protecting innocence,
but instead could obstruct the appropriate enforcement of capital
punishment throughout the country.
I appreciate the witnesses who have appeared today to discuss this
important topic. I would especially like to note that one of the
witnesses is Kevin Brackett, who is a prosecutor from South Carolina.
It is a pleasure to have him before the Committee.
Thank you.
Statement of Denise Young, Attorney, Tempe, Arizona
I am an attorney licensed to practice law in Arizona since 1982.
Since 1989, my practice has been devoted entirely to representing
defendants under sentence of death in appeal and post-conviction
proceedings in the state and federal courts, and assisting other
defense counsel in representing their clients in all stages of capital
proceedings including pre-trial, trial and post-conviction proceedings.
I was also the former director of the Arizona Capital Representation
Project, a capital post-conviction defender organization, from 1989
until July, 1996.
I have been asked to describe the manner in which the Arizona
courts appoint and compensate counsel for indigent persons in potential
capital trials in Arizona. The answer to that question is not an easy
one because Arizona has no statewide capital defense office, and no
unified system of indigent capital defense. As a result, the costs of
capital trials are largely borne individually by each of Arizona's
fifteen counties. Due in no small part to Arizona's failure to provide
a statewide system of indigent defense with quality counsel and
adequate funding for experts and resources, Arizona's reversible error
rate is shockingly high. A comprehensive study conducted by Professor
James Liebman recently found that Arizona's overall reversible error
rate for capital cases is 79 per cent.
State funds account for a very small portion of expenditures on
indigent defense in Arizona. In 1999, the state allocated $5 million
over two years for prosecution, indigent defense services, and the
court system. A rough estimate suggests that of this $5 million, no
more than $1 million, approximately one-fifth of total state funding,
went to indigent defense.
Compared with other states that provide funds, Arizona ranks at the
very bottom in state assistance towards indigent defense
representation. Twenty-three states fund indigent defense entirely at
the state level. In about half of the remaining twenty-seven states,
state funds account for at least 50% of the money spent on indigent
defense. Only two states, Pennsylvania and South Dakota, provide no
state funding. Assuming that Arizona does indeed spend at least $1
million annually on indigent defense, it ranks last among the 48 states
which provide some state funding, based on a per capita comparison of
state expenditures.
Because indigent defense services in Arizona are administered at
the county level, each county has responsibility for establishing and
managing its own system to find, appoint and compensate counsel to
represent the person charged with first degree murder where the state
is seeking a death sentence. Not surprisingly, the practices in this
system vary widely from county to county, with no systematic statewide
procedure for compensation, defense training or support. Capital
representation at trial is undertaken primarily by a scattering of
public and legal defender offices, sporadically located in some
counties. Because these offices are typically grossly underfunded and
overworked, contract attorneys represent a substantial number of
capital defendants at trial. The majority of attorneys handling first
degree murder cases at any stage do not practice exclusively in the
highly technical and specialized area of capital defense.
Defense procedures vary widely from county to county and there is
no systematic procedure for ensuring adequate compensation, litigation
expenses, training or support. Since 1996, the Arizona Rules of
Criminal Procedure have provided some qualifications for appointment of
attorneys. The qualifications, however, speak only to the number of
years in criminal work, not to the quality of work done over those
years. Arizona Rule of Criminal Procedure 6.8 (b) requires that capital
trial counsel have ``practiced in the area of state criminal litigation
for five years'' before appointment, and been ``lead'' counsel in nine
felony jury trials and lead or co-counsel in one capital murder jury
trial. It is left to individual courts and counties to determine
whether those minimal qualifications are met. Trial co-counsel, upon
whom major responsibility is frequently thrust, need have no prior
legal experience. Non-mandatory provisions of the rule recommend that
appellate and post-conviction counsel should have some appellate or
post-conviction experience in felony cases, but the lawyer need not
have any capital experience. Additionally, trial counsel is to
complete, within one year before the initial appointment, six hours of
training in ``the area of capital defense.'' After appointment, no
further capital training is required, although ``within one year prior
to any subsequent appointment'' in a capital case, trial counsel must
have completed twelve hours of training ``in the area of criminal
defense.''
Trial defense attorneys who are handling these cases in Arizona's
counties do not receive adequate resources or assistance, including
necessary investigative and expert assistance to competently handle the
guilt and penalty phases of the capital case. For example, in Pima
County (the second most populous county), private contract attorneys
represent about 83% of the county's capital defendants. As is
characteristic of defense attorneys statewide, most of these attorneys
do not practice exclusively in capital defense. Pursuant to these
contracts, an attorney is paid $3000 for providing representation in a
serious felony case, and $800 for other felonies. In first-degree
murder cases, lead defense counsel is paid $75 per hour up to a maximum
of $15,000, compensating about 200 hours of work, and co-counsel
receives $60 per hour up to a limit of $7,500, compensating about 183
hours of work.\1\ In stark comparison to Arizona's estimation, the New
York State Defender's Association has estimated an attorney's time for
a death penalty trial at 800 to 900 billable hours. Even if one
aggregates lead counsel and cocounsel's time, totaling 383 hours, the
ceiling on this compensation in Arizona is grossly inadequate to permit
competent representation.
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\1\ The contract does provide that more funds might be available if
``special circumstances'' are present. What constitutes ``special
circumstances,'' however, is unknown.
---------------------------------------------------------------------------
In Maricopa County, Arizona's most populous county, attorneys are
appointed from one of four public defender offices, unless a conflict
arises. In those cases, attorneys who have contracted with the county
to accept court-appointed criminal cases are appointed. Contracts are
based on a flat fee. For example, under the major felony contract,
which includes first degree murder cases in which the state is seeking
death, attorneys are paid $72,000 over a twelve month period to
represent nine defendants regardless of the number of hours involved in
the case and the number of pending criminal cases each defendant may
have. If any of those cases end in a mistrial, or result in a new
trial, the contracting attorney receives no additional compensation to
retry the case. The contract also obligates the attorney to undertake
representation of three more defendants for an additional $8,000 each.
If any one of these potential twelve cases is a first degree murder
case where the state is seeking death, the attorney is paid ``an
additional $8,000 when the jury is empaneled.'' State v. Rivas, No. CR
1995011272, pp. 6-7 (Mar.Cty.Sup.Ct. Jan, 29, 2001).
In a recent capital case, a Maricopa County criminal defense
attorney operating under this contract in a capital case spent 220
hours preparing for the trial. Although these hours are far below those
competent counsel must spend to adequately prepare for a capital trial,
the county paid the attorney only $16,000.00. Following the client's
conviction of first degree murder, the attorney requested additional
compensation to prepare for the sentencing phase which he estimated
would require an additional 100 hours.\2\ The request was refused by
the contracting agency. It was also refused by the judge to whom the
case had been assigned. Eventually, another judge took over the case,
and upon counsel's motion for reconsideration, ordered the contracting
agency to meet with the attorney to negotiate reasonable additional
compensation for the completion of the work. Id., p. 13. That matter is
still pending.\3\
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\2\ This estimate, too, is excessively low. Competent investigation
for the penalty phase of a capital case begins long before the capital
trial begins and generally consumes hundreds of hours.
\3\ Another rural county, Yavapai County, also requires counsel to
enter into a contract which pays a flat fee for representation in a set
number of cases, usually for $70,000. Rural Graham County also uses
contract attorneys who are paid $80,000 to provide representation in
100 cases.
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In rural Yuma County, capital cases that cannot be handled by the
public defender offices are given to the lowest bidder. In one such
case, the ``winning'' bid was a contingency fee with an ugly twist: the
lawyer was to receive one lump sum payment up front and a second lump
sum if the case went to trial. The client did not want to go to trial
and informed his lawyer on numerous occasions that he would accept any
plea that did not include a death sentence. The lawyer, however, stood
to make a tidy sum if he spent little time on the case and took it to
trial. The lawyer did nothing to try to settle the case, and no plea
was offered.
Although this case had been remanded for a new trial following
postconviction proceedings based on previous trial counsel's failure to
present a viable defense that was available to the client, the new
trial lawyer failed to even review the postconviction file in the case.
He failed to consult with an available expert, already appointed by the
court, regarding this defense and he failed to present this defense at
trial.
The lawyer failed to communicate with the client in any form for
stretches of six months at a time before trial, and again before
sentencing. During one of the very few visits between the lawyer and
client, both the client and second counsel observed evidence that the
lawyer had been consuming alcohol before the visit. In an unrelated
case, a different client listened to this same lawyer describe Yuma as
a place where the only thing to do at the end of each trial day was get
drunk in the hotel bar. The lawyer also said, in public, that his Yuma
client was ``guilty from the beginning'' and the whole trial was a
waste of the lawyer's time.
Before trial began, second counsel on this case (who had never
tried a capital case before) moved to withdraw, informing the court
that it would be unethical for her to continue when it was clear that
the client was not receiving adequate representation. In spite of
second counsel's sworn testimony that she did not believe the client's
attorney was performing effectively-because he failed to conduct any
investigation, failed to file necessary motions, failed to communicate
with the client or second counsel, and failed to review the file in the
case--the court refused to appoint a new lawyer, and instead removed
second counsel from the case.
Also before the trial began, the client was subpoenaed as a witness
against the lawyer in a criminal case involving another defendant and
was asked to testify about the incompetent representation he was
receiving and the complete breakdown of his relationship with the
lawyer. In spite of the obvious conflict of interest this created, the
lawyer failed to withdraw from representation, and the trial court
refused to appoint new counsel.
During a recent hearing, the client again requested, and was
denied, new counsel. Since his conviction almost one year ago, his
attorneys have had almost no communication with him, regularly refusing
his collect telephone calls and ignoring his requests for meetings.
They have failed to participate in any way in the mitigation
investigation in the case, or prepare in any way for the upcoming
penalty phase hearing. Shortly after the recent hearing on the motion
for new counsel, the mitigation specialist on the case was replaced by
a new mitigation specialist.
In another case from a rural county, the client was granted a new
sentencing based on counsel's ineffectiveness in failing to present
meaningful evidence in mitigation when there was much available which
should have been investigated and presented. The lawyer appointed to
handle the case at the resentencing failed to hire a mitigation
specialist, and conducted very little of his own investigation into
mitigation evidence. The lawyer presented only a few witnesses at the
resentencing, including a mental health expert who had recently been
arrested on domesticrelated charges. The lawyer communicated with the
client only a few times in the two years leading up to the
resentencing. The client was recently sentenced to death again.
The number of death sentences originating from certain counties is
extraordinarily high per capita. Two of Arizona's counties (Maricopa
and Pima) are densely populated and contain the state's two largest
cities from which the greatest number of death sentences originate.
However, eight other counties which are sparsely populated and
presumably should account for a small portion of first degree murders
state-wide actually contribute over a quarter of all of the inmates on
death row.
Arizona has no thorough, unified system of review to determine
whether counsel is conducting work in a professional manner. Thus far,
as noted above, the quality of representation has been poor. Indigent
defendants are frequently appointed counsel who fail to object to
constitutional violations, to preserve the objection by properly
raising the supporting facts and appropriate provisions of the state
and federal constitutions, to investigate, or to request funds needed
to investigate and hire necessary experts to identify all the
constitutional violations in the case. In this last year, counsel have
allowed their clients to plead guilty to first degree murder with no
agreement as to sentence, and the defendants were ultimately sentenced
to death. A vast number of meritorious claims are barred from later
consideration by rulings of waiver, preclusion, and procedural default
due to the attorney's failure to raise issues properly, or at all. In
Arizona, courts are routinely procedurally barred from hearing the
constitutional violations alleged in the cases of numerous capital
defendants who have been executed such as Don Harding, whose appointed
public defender advised him to represent himself in the hope that the
client might create some reversible error, and Luis Mata, whose
appointed counsel presented no defense, and little mitigation despite
overwhelming evidence that Mr. Mata was brain-damaged and functionally
mentally retarded. Those who are facing execution include Ramon
MartinezVillareal, a severely mentally ill and mentally retarded
Mexican national whose attorney failed to present any evidence
concerning his multiple disabilities at his capital trial and
sentencing. Although his death sentence was set aside by the federal
district court based on his trial counsel's ineffectiveness, that
ruling was vacated by the Ninth Circuit Court of Appeals when it
concluded that the issue was waived because trial counsel, who
continued representing Mr. MartinezVillareal in state and federal
postconviction proceedings, failed to raise his own incompetence.
If counsel does attempt to investigate, testing and expert
consultation are exceedingly difficult to obtain, whereas prosecution
funding is nearly unlimited. The Arizona Supreme Court recently
recognized this pervasive inequality: ``Superior resources for
prosecutors and the constant battle for funds faced by indigent
defendants and their counsel, especially in our rural counties, will
perpetuate or perhaps even exacerbate the disparity that already exists
between rich and poor.'' State v. Hoskins, 14 P.3d 997 (Ariz. 2000)
(Zlaket, C.J., dissenting). In one small county where a defendant
actually was afforded competent counsel, the trial court refused to
approve payment for even one mental health expert, appointment of whom
was crucial in presentation of the client's mental health defense.
Counsel was forced to file a special action to the Arizona Supreme
Court two times to gain the bare resources necessary to protect his
client's constitutional right to present a defense. Other defendants,
without diligent and ethical counsel, have not been so lucky.
Unlike other states, Arizona's legislators have done little to fill
the funding void. Senate Bill 1486 was introduced in the legislature
this year to create a capital defense trial office for the rural
counties, despite the fact that the vast majority of capital cases are
initiated in Maricopa and Pima counties and that nearly 80% of the
capital cases in which ineffective counsel claims were granted derived
from Maricopa and Pima counties. The proposed office was also grossly
underfunded, allocating only $981,250.00 for nine full-time employees
and expenses ``necessary to carry out the duties of the office.'' It
did not allow the office to undertake representation until ``the state
has served notice of intent to seek death,'' although it is well-
recognized that some of the most important work that can be done in a
potential capital case is early investigation that will convince the
prosecutor not to seek a death sentence in a particular case. The bill,
however, had a short life, and like other initiatives to improve
indigent defense for capital defenders in Arizona, died in a
legislative appropriations committee because the appropriations
chairperson believed that attempting to provide competent counsel
through a statewide office was not a state issue.
In sum, is no reliable system of indigent defense for defendants
charged with capital murder exists in Arizona. Quality of counsel is
not ensured and investigative and expert resources are scarce. Although
the magnitude of these problems as they impact capital defendants is
widely recognized, as recent debate and resulting proposals from the
Attorney General's Capital Case Commission demonstrate, there is no
mechanism in place capable of addressing these problems, and no funding
available to create such a mechanism.
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