S. HRG.

1091038

HABEAS CORPUS PROCEEDINGS AND ISSUES OF

ACTUAL INNOCENCE

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION

JULY 13, 2005

Serial No. J10929

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S. HRG. 1091038

HABEAS CORPUS PROCEEDINGS AND ISSUES OF

ACTUAL INNOCENCE

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION

JULY 13, 2005

Serial No. J10929

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON

47088 PDF

2009

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 5121800; DC area (202) 5121800
Fax: (202) 5122104 Mail: Stop IDCC, Washington, DC 204020001

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COMMITTEE ON THE JUDICIARY

ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah
PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa
EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona
JOSEPH R. BIDEN, JR., Delaware
HERBERT KOHL, Wisconsin
MIKE DEWINE, Ohio
JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina
RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas
CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas
RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
DAVID BROG, Staff Director
MICHAEL ONEILL, Chief Counsel
BRUCE A. COHEN, Democratic Chief Counsel and Staff Director

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CONTENTS
STATEMENTS OF COMMITTEE MEMBERS
Page

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................
Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ...................................................................................................
Feinstein, Hon. Dianne, a U.S. Senator from the State of California .................
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona ....................................
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont ....................
prepared statement ..........................................................................................
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania .................

6
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6
4
2
281
1

WITNESSES
Cattani, Kent E. Chief Counsel, Capital Litigation Section, Arizona Attorney
Gernerals Office, Phoenix Arizona .....................................................................
Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia District Attorneys Office, Philadelphia, Pennsylvania ...........................................................
Scheck, Barry C., Co-Director, Innocence Project and Professor of Law,
Cardozo Law School, Yeshiva University, New York, New York .....................
Stevenson, Bryan A., Director, Equal Justice Initiative of Alabama, and Professor of Clinical Law, New York University School of Law, New York,
New York ..............................................................................................................
Todd, John Pressley, Assistant Attorney General Arizona Attorney Generals
Office, Phoenix, Arizona ......................................................................................
Waxman, Seth P., Former Solicitor General of The United States, and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C ..................

11
7
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15
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QUESTIONS AND ANSWERS

Responses of Kent Cattani and Seth Waxman to questions submitted by
Senators Specter and DeWine .............................................................................
Responses of Thomas Dolgenos to questions submitted by Senators Specter,
Leahy and DeWine ...............................................................................................
Responses of Barry Scheck to questions submitted by Senators Specter, Leahy
and DeWine ..........................................................................................................
Responses of Bryan Stevenson to questions submitted by Senators Specter,
Leahy and DeWine ...............................................................................................
Responses of John Presley Todd to questions submitted by Senators Specter,
Leahy and DeWine ...............................................................................................
Responses of Seth Waxman to questions submitted by Senators Specter,
Leahy and DeWine ...............................................................................................

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SUBMISSIONS FOR THE RECORD

Atlas, Scott J., Vinson & Elkins, L.L.P., Houston, Texas, statement .................
Arizona Daily Star, July 19, 2005, article .............................................................
Butler, A. Bates, III, Fennemore Craig, P.C., Law Office, Tucson, Arizona,
letter ......................................................................................................................
Campbell, Ward A., Supervising Deputy Attorney General Criminal DivisionAWT, Department of Justice, Sacramento, California, Memorandum ............
Cattani, Kent E. Chief Counsel, Capital Litigation Section, Arizona Attorney
Gernerals Office, Phoenix Arizona, statement ..................................................
CNN, St. Louis Missouri, article ............................................................................

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IV
Page

DiMarzio, Most Reverend Nicholas, Diocese of Brooklyn, Chairman, Domestic

Policy Committee, United States Conference of Catholic Bishops, Department of Social Development and World Peace, Washington, D.C., letter .......
Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia District Attorneys Office, Philadelphia, Pennsylvania, statement ........................................
Federal Judges Association, Irene M. Keeley, President, Clarksburg, West
Virginia, letter ......................................................................................................
Federal Public Defender, Western District of Washington, Thomas W. Hillier,
II, Federal Public Defender, Seattle, Washington, statement ..........................
Gallo, John N., Sidley Austin Brown & Wood LLP, Oak Park, Illinois, letter ...
Hemmersbaugh, Paul A., Potomac, Maryland, letter ...........................................
Hughes, Mary Ann, Southern California, statement ............................................
Kantra, Andrew E., Andrew R. Rogoff, Pepper Hamilton LLP, Attorneys
at Law, Philadelphia, Pennsylvania, letter ........................................................
Los Angeles Times, July 13, 2005, article .............................................................
Former Prosecutors, Law Enforcement Officers, and Justice Department Officials, letter ............................................................................................................
Lewis, Timonthy K., and Other Judges, Washington, D.C., letter ......................
Marshall, Prentice H., Jr., Partner, Sidley Austin Brown & Wood LLP, Oak
Brook, Illinois, letter ............................................................................................
Mascherin, Terri L., Parnter, Jenner & Block, LLP, Chicago, Illinois, letter ....
Mecham, Leonidas Ralph, Secretary, Judicial Conference of the United States,
Washington, D.C., letter ......................................................................................
NAACP Legal Defense and Educational Fund, Inc, Theodore M. Shaw, Director-Counsel, Washington, D.C., statement and letter .......................................
New York Times, July 14, 2005, article .................................................................
Perlmutrer, Willa B., Patton Boggs, LLP, Attorneys at Law, Washington,
D.C., letter ............................................................................................................
Rainson, Tara A., American Law Division, Congressional Research Service,
Washington, D.C., Memorandum ........................................................................
Renne, Paul A., former Assistant U.S. Attorney, District of Columbia, San
Francisco, California, letter .................................................................................
Scheck, Barry C., Co-Director, Innocence Project and Professor of Law,
Cardozo Law School, Yeshiva University, New York, New York .....................
Stevenson, Bryan A., Director, Equal Justice Initiative of Alabama, and Professor of Clinical Law, New York University School of Law, New York,
New York, statement ...........................................................................................
Todd, John Pressley, Assistant Attorney General, Arizona Attorney Generals
Office, Phoenix, Arizona, statement ...................................................................
Tarver, Julia, Paul, Weiss, Rifkind, Wharton & Carrison, LLP, New York,
New York, letter ...................................................................................................
Washingtonpost.com, Washington, D.C., July 10, 2005, article ..........................
Waxman, Seth P., Former Solicitor General of The United States, and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C., statement ......................................................................................................................
White & Case LLP, Vincent R. FitzPatrick, Jr., and Heather K. McDevitt,
New York, New York, letter ................................................................................

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HABEAS CORPUS PROCEEDINGS AND ISSUES

OF ACTUAL INNOCENCE
WEDNESDAY, JULY 13, 2005

UNITED STATES SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in room
SD226, Dirksen Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Kyl, DeWine, Sessions, Leahy, and
Feinstein.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.
SENATOR FROM THE STATE OF PENNSYLVANIA

Chairman SPECTER. Good morning, ladies and gentlemen. We

will proceed with the Judiciary Committee hearing on habeas corpus proceedings and issues of actual innocence. We are going to be
taking up a variety of subjects today on the very important question of the death penalty. Legislation has been introduced by Senator Kyl, jointly with Senators Hatch, Grassley, Chambliss, and
Cornyn, which would tighten the time requirements, something
that has been done back in 1996, but there is a concern about the
very, very lengthy delays in the habeas corpus proceedings, which
run as long as 10, 15, or even 20 years of litigation. And at the
same time, the Committee will be taking up the issues of actual innocence cases, where the Supreme Court has granted cert on a case
which will test whether a claim of actual innocence will warrant
review in House v. Bell.
The whole issue of the death penalty is obviously a very complex
one which our society has been struggling with for a very, very long
time. I personally believe the death penalty is a deterrent, but to
hear articulated the proposition of law that it is not unconstitutional to execute an innocent person so long as procedural due
process has been followed candidly shocks me. I think that is an
unacceptable articulation of law.
I do not have any magic formula as to how we will eliminate all
error, but we ought to be working at it a lot harder than we are
at the present time. When I was District Attorney of Philadelphiaand I do not want to tell too many old war storieswe had
500 homicides a year, and I would not permit any of my assistants
to ask for the death penalty in a homicide case without my personal review. And my own experience suggests to me that there are
cases which are being prosecuted where the death penalty is requested where the prosecutors are really not sure of their case,
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2
really not sure of the conclusion of guilt. And I think if there is any
lingering issue as to the issue of guilt, that is something the prosecutor has the duty to pull back on to be absolutely sure or as sure
as he can be without going into the kinds of evidence which is tenuous and difficult.
So here we have a very complex issue where there are problems
on both sides of the equation, enormous delays which ought to be
precluded, but still at the same time to protect the innocence of
people. And it is a little surprising to me, candidly, that the Supreme Court has not dealt with the DNA issue long ago. And Congress has the authority to deal with it, and we intend to do so.
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR
FROM THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman. You know, it has

been less than a decade since the Congress overhauled the Federal
habeas corpus laws prior to the Antiterrorism and Effective Death
Penalty Act of 1996, or AEDPA. That was a bipartisan compromise,
but it severely narrowed the scope of habeas jurisdiction. For example, it imposed strict new time limits, procedural bar rules. I
thought that AEDPA went too far at that time. It increased the
risk that people were wrongfully convicted, could be left to rot in
jail, and the nightmare scenario of an innocent person being executed could come to pass. Of course, others thought that it did not
go far enough. Naturally, that is the nature of a compromise. We
brought that compromise bill to the floor.
Now, during the floor debate on it, the distinguished Senator
from Arizona offered an amendment to eliminate Federal habeas
except in circumstances where the States justice system had
proved incapable of enforcing Federal constitutional rights. That
position was rejected. In fact, several Republican members of this
Committee voted against it. It was rejected by a heavy margin in
the Senate.
Now, the habeas bill that is before the Committee, the so-called
Streamlined Procedures Act, actually goes much further than the
bipartisan compromise of AEDPA did. I will say more about that
when we come to a markup, but I do not know what has happened
that would justify unraveling that compromise made in the Senate.
We will hear some anecdotal evidence about a case in which habeas
proceedings have dragged on long after conviction, and I would
urge consideration first and caution against any rash judgments.
We should ask some questions before we legislate based on these
stories, depending on what caused the delay. Is Federal habeas
being abused, or most of the time was it taken up by State habeas
or matters attributable to the individual States? And we should ask
whether they are isolated instances or a systemic problem.
Habeas corpus has protected the constitutional rights and freedoms of all Americans throughout our history. It really is the Great
Writ. It is a vital protection that we all rely upon.
Last October, after we took a closer look, last October, President
Bush signed into law the Innocence Protection Act of 2004. We
passed that with overwhelming bipartisan support, including
Chairman Specter, former Chairman Hatch, Senator DeWine, and

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3
others. We joined together on it, and we have to continue to work
together to ensure that its funding promises do not go unfilled. It
reflects what we learned about the administration of the death
penalty over years of hearings in this Committee.
We learned that there is an unconscionably high rate of error in
capital cases, errors so serious that it not only denies defendants
their constitutional rights, it undermines the reliability of the verdict. We learned of sleeping lawyers, drunk lawyers, suspended
lawyers, lawyers too overworked, underpaid, inexperienced, or indifferent to even meet with their clients. And they were defending
in death penalty cases.
We learned that more than 100 people had been released from
death row when it turned out they had the wrong person there.
The modern miracle of DNA has helped, but that is only the tip
of the iceberg. We have a number of those people who were wrongfully convicted here in the audience today. Kirk Bloodsworth is
here. He and his wife are friends of my wife and me. But he was
a young man who was just out of the Marines. He was arrested,
convicted, and sentenced to death for a heinous crime, a terrible
crime. The only thing is he did not commit it. DNA evidence ultimately freed him and identified the real killer. So I am proud to
have come to know him and his wife, Brenda, through our work together on the Innocence Protection Act, which includes a program
named in his honor.
Dennis Fritz spent 12 years serving a life sentence until he was
finally able to prove his innocence through DNA testing. He testified before this Committee 5 years ago, and I am glad to see him
back in the audience today.
Dell Hunt of North Carolina was convicted in 1984 for a murder
he did not commit. He was freed 19 years later, in 2003, after DNA
evidence ruled him out as a killer and, just as importantly, identified the true perpetrator of the crime, who then confessed.
I mention this because, you know, a lot of times we take a sense
of comfort that we have locked somebody up. There has been a heinous crime, we have arrested somebody, we have locked him up,
even convicted him, and we have a sense of safety. But if you have
got the wrong person, that means that killer is still out there and
could kill again. It is especially important in matters of serial murders or serial rapes, things like this.
Brandon Moon, convicted of rape in 1987, a law student at the
University of Texas at El Paso, DNA testing cleared him of the
crime just a few months ago, almost 20 years later, and then he
was released with the apology of the district attorney. That does
not give him back those 20 years of his life, but at least he has
been released.
Thomas Goldstein, Gloria Killian, Joseph Estrichall of them
were granted Federal habeas relief after presenting substantial evidence of actual innocence. If S. 1088 were the law, they would still
be wrongfully in prison.
So let there be no misunderstanding. If S. 1088 were the law,
exonerees such as these who are in the audience today would still
be wrongfully imprisoned or worse. That is what we have learned
since AEDPA, and that lesson has involved saving innocent lives.
It is what apparently convinced President Reagans first appointee

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4
to the Supreme Court, one of the strongest advocates of States
rights in the history of the Court, that left without Federal scrutiny, State criminal justice systems may pose unacceptable risks.
In July of 2001, Justice OConnor acknowledged in a widely reported speech the serious questions being raised about the administration of the death penalty. Her conclusion was chilling in its common-sense candor. The system may well be allowing some innocent
defendants to be executed.
This week in St. Louis, they reopened a murder investigation, of
course, 10 years after the man was executed for the crime.
You know, the bill before us would greatly increase the risk, as
well as the risk of lesser but, nonetheless, life-shattering injustices.
It would do so without any real evidence, anything beyond anecdotal evidence, that the new regime we enacted less than a decade
ago to limit Federal habeas is not doing the job. AEDPA put together a large majority in the Congress as a result of a bipartisan
compromise that is not broken, certainly not in the way this bill
would presuppose. And there is no need to fix Federal habeas corpus by destroying it. That does not fix it.
If you want to do anything, let the administrative arm of the
courts look at this and report back to us if they think there is a
problem. But lets not rush through and remove the historic protection of habeas corpus based on some anecdotes or some concerns.
Thank you, Mr. Chairman. I know I went over time, but this is
a matter of great importance, and I appreciate you letting me do
that.
Chairman SPECTER. Your timing is fine, Senator Leahy. Thank
you.
Customarily, it is just the Chairman and Ranking who open, but
Senator Kyl is the author of the bill, and I will yield to you for an
opening statement, Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE
STATE OF ARIZONA

Senator KYL. Thank you very much, Mr. Chairman.

Let me make it clear that we are not going to fix habeas corpus
by destroying it. I think the question that the distinguished Ranking Member raises is the appropriate question. What has changed
in the last 9 years to cause us to revisit the statute? The answer
is a lot has changed. Let me cite some statistics that I think reveal
why we need to look at this now, 9 years later.
In the context of something that President Clinton said when he
commented with regard to the 1996 Act, it should not take 8 or 9
years and three trips to the Supreme Court to finalize whether a
person, in fact, was properly convicted or not. The sad fact is that
after 9 years of this Act, we still have that situation pertaining in
far too many cases.
Lets look at some of the backlog statistics, and these are from
the Administrative Office of the Courts.
In fiscal year 1994, there were 13,359 Federal habeas petitions
pending before the U.S. district courts, a condition that we decided
required us to look into this to see if we couldto relieve the courts
from that kind of burden, 13,300. But by fiscal year 2003, the last
year for which data are available, that number had gone up by

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5
nearly 10,000 petitions to 23,218 petitions pending. So today there
are almost twice as many as there were just 9 years ago when we
felt that we had a problem that we needed to deal with.
How about the courts of appeals? Same facts. Fiscal year 1994,
3,799 habeas petitions pending before U.S. courts of appeal. By
2003, that number, again, has nearly doubled to 7,025 petitions
pending before the courts of appeals.
These delays and backlogs have had a dramatic impact on the
administration of justice. Consider a comment before the June 30th
hearing in the House Crime Subcommittee by Ronald Eisenberg, a
deputy district attorney for Philadelphia. He testified, In the last
decade, the number of lawyers employed exclusively on habeas
work in the Philadelphia D.A.s office has increased 400 percent. It
is very difficult for us to do our job if we have this many habeas
petitions.
Now, I am not going to get into anecdotal evidence at this point.
I will later. Suffice it to say that there are a lot of examples, and
one that I am going to be talking about is Christy Ann Fornoff,
who was murdered in Arizona. Her parents are still waiting for a
final conclusion to the case 21 years after her death. The Congress
has the authority to deal with this subject. Habeas corpus is a
guarantee against being held without trial, against executive detention. But the United States courts of appeals and other courts
have repeatedly held that Congress has the authority to put limitations on habeas corpus.
The Seventh Circuit concluded in the case of Lynn v. Murphy,
Any suggestion that the Constitution forbids every contraction of
the Federal habeas power bestowed by Congress in 1885 and expanded by the 1948 and 1966 amendments is untenable.
Mr. Chairman, everybody agrees that it is important to protect
innocents, and that is why in this legislation, at every point, this
bill creates an exception for actual innocence claims to all procedural barriers, allowing these claims to go forward. There is no exception to that principle. Innocence claims always trump the procedural barriers. We want to make sure that an innocent person is
not executed. And I would also note that the cases of actual innocence on death row are exceedingly rare. I would just note that of
all of the cases that were analyzed in the hearing in the House of
Representatives, only 36 were actual innocence cases on death row.
And my office has further analyzed those and found that 30 of
those cases were resolved in State court proceedings. So only six
of those cases even reached habeas review, and none of those would
have been obviated by the legislation that we propose now. And I
would note that of the anecdotes cited by the distinguished Ranking Member, none of those would have been adversely affected by
our legislation today.
So I urge my colleagues in considering this legislation to connect
up any concerns you have with the actual provisions of our bill. See
how it works. It does not work the way some people have alleged
that it works. We always provide the innocence claim, and I believe
that as a result of the tightening up of some loopholes that have
evolved over the years since the 1996 law was adopted, we can try
to get back to a manageable case load of habeas petitions without

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6
doing any injustices whatsoever. And I am hoping that our hearing
today will enlighten us further on that process.
Again, Mr. Chairman, thank you very much for holding this
hearing so promptly.
Chairman SPECTER. Thank you very much, Senator Kyl.
Senator Feinstein or Senator DeWine, would either of you like to
make an opening comment?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR
FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. The only thing I would like to say, Mr.

Chairman, is I think this is a very big bill, and I was on the Committee when we did the prior habeas bill. And I did not realize that
the numbers, the pendings, had gone up as they are. I had been
under the impression that there was a decline. There is a letter
that we have received from the Federal Public Defender which so
states. So I think there are a lot of things that I need to reconcile.
I am particularly interested to hear the witnesses on this point.
My own view is that an individual should have a timely habeas
appeal and that the State appeal should be exhausted before there
is the Federal appeal, but that should all be carried out within a
given period of time.
I listened with interest to what the Ranking Member had to say,
and I think whatever we do, we have to make it available, particularly for the innocent or some unusual claim.
So I would be very interested to hear what the witnesses have
to say here today.
Chairman SPECTER. Thank you, Senator Feinstein.
Senator DeWine.
Senator KYL. Mr. Chairman, might I just ask unanimous consent
to put two things in the record: my full statement and a statement
from Congressional Research that has the exact statistics which
Senator Feinstein just
Chairman SPECTER. Without objection, they will be made a part
of the record.
[The prepared statement of Senator Kyl appears as a submission
for the record.]
Chairman SPECTER. Senator DeWine.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM
THE STATE OF OHIO

Senator DEWINE. Mr. Chairman, I just thank you for holding the
hearing, and I am looking forward to hearing our witnesses.
Senator LEAHY. Mr. Chairman, if I might note, Senator Feingold
wanted to be here, but he is, of course, out in Wisconsin for the
funeral of our former colleague, Senator Gaylord Nelson of Wisconsin. He will have a statement later to be included in the record
with your permission.
Chairman SPECTER. Thank you, Senator Leahy. It might also be
worth noting that Senator Feingold was one of those requesting the
hearing today, and the bill had been onit will be the third time
on Thursday. First we did not have a quorum, and next it was carried over. And it is a complicated subject, and we will give it due
consideration in Committee.

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7
Our first witness is Mr. Tom Dolgenos, Assistant District Attorney in Philadelphia. He has been there since 1994. That is a good
career prosecutor. Magna cum laude from Brown, 1984, and J.D.
from Yale in 1990. When I was D.A. of Philadelphia, we did not
have many people with your credentials. I am glad to see you
there, and I am glad to see you there for such a long time.
Just a 20-second personal aside, people frequently ask methey
probably ask Senator Leahy, tooWhat was your best job? Was it
D.A., Senator? I say, No; Assistant D.A. So enjoy it while you
have it, Tom.
Thank you for joining us, and we look forward to your testimony.
STATEMENT OF THOMAS DOLGENOS, CHIEF, FEDERAL LITIGATION UNIT, PHILADELPHIA DISTRICT ATTORNEYS OFFICE, PHILADELPHIA, PENNSYLVANIA

Mr. DOLGENOS. Thank you, Mr. Chairman and members of the

Committee. I am an assistant district attorney in Philadelphia. It
is my job, and the job of the other lawyers in my unit, to respond
to hundreds of habeas corpus petitions each year. We are on the
front lines, and I believe there are some real problems in the habeas system that have recently grown worse, despite the enactment
of habeas reforms in 1996. I also believe, however, that the proposed Streamlined Procedures Act contains carefully crafted, common-sense responses to some of the worst abuses we commonly
face.
I also want to emphasize that these problems are not limited to
death penalty cases. On the contrary, they apply across the board,
to all of the convictions that reach the Federal habeas stagemurder, rape, robberies, and other violent crimes. Only a small percentage of these cases involve the death penalty, and the Act would
help protect the rights of victims and encourage the fair and effective use of the criminal justice system in all of these cases.
Perhaps the most familiar problem in habeas litigation is delay.
We see this every day. Criminals who were convicted 5, 10, or 20
years ago continue to complain about their trials and raise new
claims. The facts are endlessly re-litigated, and the process goes on
and on.
Now, there are many costs associated with delay. The victims
pay a heavy emotional cost, of course, because they and their families must relive the crimes again and again, without any closure or
sense of justice. The States also bear the cost of delay because we
have to pay for prosecutions that never really end. To take a small
exampleand Senator Kyl mentioned this statistic beforein the
past 5 years, the number of attorneys in my office who are assigned
as full-time habeas attorneys has increased by 400 percent.
The public also bears the cost of delay, both because it is expensive to support drawn-out litigation and because time itself dilutes
the effectiveness of the criminal justice system. Deterrence works
best when punishment is swift and sure; and when the process is
open-ended and nothing ever seems final, the system breaks down.
I want to emphasize one other important point: The truth itself
is a casualty of delay. As years pass, memories fade. Evidence is
lost. Witnesses who were once sure cannot remember everything.
Other witnesses disappear. Some witnesses who never wanted to

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get involved in the first place are extremely reluctant to testify
again years later. In fact, the longer the process goes on, the more
opportunities exist for witness tampering and intimidation. After
all, police and judges cannot protect witnesses forever, and too
often a recantationor other new evidenceis simply the product of coercion or foul play.
One recent example from our office makes the point. This prisoner had repeatedly molested and raped a girl when she was only
5 and 6 years old, and about 15 years later, he presented the Federal district court with the victims alleged recantation, but it was
ambiguously worded. When we investigated, the victim, now a
young woman, told us that the defense investigator had misled her.
This investigator had not clearly identified herself as a member of
the defense team. She had urged the victim to sign the statement
while assuring her that the assailant would remain in prison. And
the statement, written by the defense team, had been worded just
ambiguously enough to make it sound as if her attacker had not
committed rape, when, in fact, he had. The victim was mortified
when we told her that she had signed a defense-prepared affidavit
that was designed to get this man out of prison. The prisoners
strategy had been to create evidence to qualify under the actual innocence standard; otherwise, his claims were barred.
Now, we were finally able to convince the district court in that
case that this new evidence should at least be examined first by
the State court, and the habeas petition is now stayed pending a
State court hearing. But in the meantime, the victim has been
dragged back into this case. And the point is that the passage of
time, repetitive hearings, and re-litigation of guilt do not increase
reliability. They can discourage witnesses from coming forward in
the first place, and they can punish those who do. And because
Federal habeas courts are so far removed in space and time from
the crime, from the subtleties of State proceedings, and from the
victims, it is all too easy to create claims as the years pass.
The only way to restore balance is by Federal statute, a statute
that makes deadlines meaningful and prevents the litigation of
new claims. And that is why I support the reforms contained in the
Streamlined Procedures Act.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dolgenos appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Mr. Dolgenos.
Our next witness is Professor Barry Scheck, Clinical Professor of
Law at Cardozo School of Law, co-founder and the current Director
of the Innocence Project, started in 1991, which has exonerated, according to the information provided to me, some 150 people since
its creation, recognized as a DNA expert on the O.J. Simpson defense team, and has been in various other high-profile cases.
Thank you for coming in, Professor Scheck, and we look forward
to your testimony.
STATEMENT OF BARRY C. SCHECK, CO-DIRECTOR, INNOCENCE PROJECT, AND PROFESSOR OF LAW, CARDOZO LAW
SCHOOL, YESHIVA UNIVERSITY, NEW YORK, NEW YORK

Mr. SCHECK. Thank you very much, Senator Specter.

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In an epilogue to his 1995 decision vacating the conviction and
death sentence of Ron Williamson of Oklahoma, United States District Court Judge Frank Seay wrote:
While considering my decision in this case I told a friend, a layman, I believed the facts and law dictated that I must grant a new
trial to a defendant who had been convicted and sentenced to
death. My friend asked, Is he a murderer? I replied simply, We
wont know until he receives a fair trial.
God help us, if ever in this great country we turn our heads
while people who have not had fair trials are executed. That almost
happened in this case. Accordingly, the Writ of Habeas Corpus
shall issue...
Now, Senator Kyl, this is a case cited by Senator Leahy in his
opening remarks, and Ron Williamsons sister, Annette Hudson, is
here today. She measured his coffin 5 days before the execution.
And Dennis Fritz, who testified with respect to the Innocence Protection Act, who was sentenced for life, is here today. I want you
to know that on remand of that case, both Ron Williamson, who
came within 5 days of execution, and Dennis Fritz, who served 12
years of his life sentence, proved their innocence through a series
of DNA tests which also identified the real murderer, Glen Gore.
Gore was the chief witness against Williamson and Fritz, and
Judge Seay found in his opinion that Williamsons lawyer was
grossly ineffective on a number of grounds, including the failure to
investigate Gore as a possible suspect. He also ruled that suppressed Brady material and refusal by the trial court to appoint an
expert, an Ake error, were material due process violations. All
these contentions were rejected by the Oklahoma Criminal Court
of Appeals as procedurally defaulted and without merit such that,
under this billthere is no question about itJudge Seay would
have been stripped of jurisdiction to hear this case and reach the
merits. If S. 1088 had been the law in 1995, Ron Williamson would
have surely been executed, an innocent man; Dennis Fritz would
still be in prison; Glen Gore would have had an opportunity to commit more crimeshe was eligible for imminent release. And, needless to say, a civil rights suit that we later filed in this case that
exposed stunning misconduct would have never come to light.
The take-home lesson from the Williamson and Fritz case is that
the wrongly convicted cannot prove their innocence until they have
competent counsel, appropriate experts, access to exculpatory evidence, and, most important of all, a full and fair hearing on the
merits of their procedural due process claims.
The reason we care about procedural due process, after all, is
that it leads to accurate results, and its opposite leads to the opposite. That is why so many innocence cases do not start out presenting innocence claims at all but, rather, procedural due process
violations, and proof of innocence only emerges once the rubble of
these other legal errors are swept aside. So any habeas bill that
tries to restrict claims that start off with fully developed showings
of actual innocence will make sure that these innocence claims will
never come to light, it will bury them. And that is exactly what
this bill will do.
I want to make it very, very clear because, Senator, you have
been talking about the House case, which is now before the United

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States Supreme Court, where six judges in the Sixth Circuit said
that House, as far as they are concerned, was actually innocent
based on a DNA test. One judge said, I think he gets a new trial.
And eight judges said, Well, we do not think he passes through
the innocence as a gateway exception, which is a standard that is
lower than the clear and convincing evidence standard that this
bill, Senator Kyl, you say uses as a protection in every provision
to protect the innocent.
But lets be very clear about this. In the Williamson and Fritz
case, there was definitely an ineffective lawyer; there was definitely exculpatory evidence; but they did not have at that point in
time enough evidence to get even close to this standard. House
does not have evidence to get close to the standard in the sense
that if this bill were passed, the Supreme Court may very well
have to dismiss that writ as improvidently granted and never reach
this issue in theory, because Houses lawyers procedurally defaulted these claims in the State courts.
What I must emphasize is this bill says that the innocent, even
if you have clear and convincing evidence of innocence, which is a
high standard, could not present it unless the facts underlying the
claimif the facts underlying the claim could have been found with
the exercise of due diligence. And that is what happens all across
this country. There are lawyers that do not getyou could look at
almost every case and say there is no due diligence in terms of perfecting these claims.
One last point before I close. I see my time is about to end. This
is not a problem that DNA solves. We have 159 post-conviction
DNA exonerations. We have found in 44 instances the real perpetrator. This is a different list, Senator Kyl, than the death penalty
ones you were talking about. Somebody go look at this list. There
is no question these people are innocent. But only 20 percent of
cases, I must emphasize, have any biological evidence that you can
perform a DNA test on. Eighty percent of the cases, there is no
DNA. But what we have learned from these DNA exonerations is
that the ineffective lawyers, the suppressed Brady material, the
prosecutorial misconduct, the mistaken IDs, the false confessions,
there is so much of that out there on other cases that we can only
get if lawyers have an opportunity for a full and fair litigation in
the cases of innocence. There are many, many more of them out
there than anyone ever expected. That is what we have learned in
the last 10 years.
There are ways of speeding up these procedures, Senator Feinstein, and you pointed to them. We can create limits. I would suggest this is a very simple matter. If you want to speed up the Federal habeas system, when you get into Federal court you can pass
a bill that says there is a time limit, but just like in North Carolina
and some other cases recently, the prosecutors entire filethe entire fileshould be turned over to the Federal district court judge
so we can look at it and find any suppressed material and any
other errors. That is the kind of direction we should be going instead of creating all these procedural bars which are going to lead
to more litigation; and as Mr. Waxman is going to tell you, I do
not think the statistics support that there really is a systemic problem.

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11
[The prepared statement of Mr. Scheck appears as a submission
for the record.]
Chairman SPECTER. Thank you, Professor Scheck.
Our next witness is the Chief Counsel of the Capital Litigation
Section of the Arizona Attorney Generals Office, Mr. Kent Cattani,
a law degree from the University of California-Berkeley in 1986,
and he has been with the AG since 1991, represents and supervises
attorneys in State and direct appeals, post-conviction proceedings,
and Federal habeas corpus proceedings in Arizona capital cases.
Just a brief aside, do you work at all with Barnett Lotstein in
Arizona?
Mr. CATTANI. I do not personally, but I do know of him.
Chairman SPECTER. He is an ex-patriot of the Philadelphia D.A.s
office. We are practically everywhere.
Thank you for joining us, Mr. Cattani, and we look forward to
your testimony.
STATEMENT OF KENT E. CATTANI, CHIEF COUNSEL, CAPITAL
LITIGATION SECTION, ARIZONA ATTORNEY GENERALS OFFICE, PHOENIX, ARIZONA

Mr. CATTANI. Thank you, Mr. Chairman.

I disagree that there is not a problem with Federal habeas. The
AEDPA has not solved the problem of excessive delay in Federal
habeas proceedings, particularly in capital cases in Arizona. Although the AEDPA made several changes that have improved the
process, in the final analysis delay has increased rather than decreased since the enactment of the AEDPA. I am not suggesting
that the AEDPA has created the increased delay, but the AEDPA
has not operated to decrease the amount of delay that we face in
capital cases in Arizona.
We have no interest in executing or even incarcerating an innocent person in Arizona. We take very seriously our role as prosecutors, and we have helped to create a system in Arizona that provides multiple opportunities to establish claims of innocence. There
is no time bar in Arizona to raising a claim of actual innocence of
a crime or innocence of the death penalty. Since 1993, we appoint
two highly qualified attorneys in every capital case at the trial
stage. We appoint yet another highly qualified attorney to represent defendants at the direct appeal stage. And then we appoint
yet another attorney, another highly qualified attorney to represent
the defendant in post-conviction relief proceedings stage. Funds are
made available for investigation, and for expert witnesses. Having
created this type of system, we are frustrated by the seemingly
endless round of Federal habeas review in the Federal district
court and in the Ninth Circuit.
One of the key provisions of the AEDPA was what is known as
the opt-in provision. The opt-in provision was designed to accelerate Federal habeas review in capital cases on the condition that
States establish a mechanism to provide for the appointment of
competent counsel at the post-conviction stage. We anticipated that
if those provisions were applied in Arizona, the length of the Federal habeas process would be reduced to approximately 3 years.
The theory underlying the opt-in provisions was that if you ensure

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12
competent representation in State court, there is less of a need for
lengthy Federal proceedings.
Arizona responded to the AEDPA by enacting new standards for
the appointment of counsel in post-conviction proceedings. Attorneys have to meet specific criteria to be eligible to be on a list of
qualified counsel that is maintained by the Arizona Supreme
Court. In 21 cases in which counsel have been appointed from the
list of qualified counsel, the State has thus far expended over $1
million to represent these indigent defendants in capital post-conviction proceedings. In some cases, the State has paid in excess of
$100,000 in attorneys fees and costs in a post-conviction proceeding.
Nevertheless, we have not opted in, and I believe there are no
States that have opted in under the AEDPA. Why havent we opted
in? After we enacted these provisions to provide for compensation
for counsel in the post-conviction stage, defense attorneys temporarily boycotted the system, some out of a concern that it would facilitate expediting review. Others boycotted because they were concerned about whether there would be adequate compensation.
The Arizona legislature clarified that there is no cap on attorneys fees. Attorneys are paid $100 an hour for up to 200 hours of
work, even if a post-conviction petition is not filed, and additional
compensation is paid upon a showing of good cause.
Attorneys have in fact been compensated well in excess of
$20,000 for handling capital post-conviction proceedings.
In any event, because of these concerns, there was a delay in the
appointment of counsel in these first cases after the new standards
were enacted.
The first case in which we attempted to take advantage of the
opt-in provisions was in the Anthony Spears case. The Ninth Circuit ruled that the standards that we have adopted for the qualification levels for the attorneys who represent defendants in postconviction are satisfactory. The court refused to allow us to opt in,
however, because there had been a delay in appointing counsel. In
Spears case, there had been a 20-month delay before he was appointed to represent Spears. We argued that the 20-month delay
did not prejudice Spears, and, in fact, Spears post-conviction counsel never argued in State court that this 20-month delay had created any kind of an impediment to raising claims in the post-conviction process.
In our view, Spears received the benefit of the opt-in provisions.
The State has created an opt-in mechanism to appoint competent
counsel. Spears received counsel appointed under that system.
It is important to note that our attempt to opt in is not just a
belated effort for technical compliance. Again, we take very seriously the need to protect the innocent, and in my view, the proposed bill takes that into account. There are provisions to ensure
that people who are actually innocent of the crime will get Federal
review.
I see my time has run out. Thank you, Mr. Chairman.
Chairman SPECTER. If you need a little more time, go ahead, Mr.
Cattani.
Mr. CATTANI. I would just note that to evidence our concern for
innocence, the Arizona Attorney Generals Office has worked with

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13
the Arizona Supreme Court and the American Judicature Society
to study cases in which there has been an exoneration. There have
been two such cases in Arizona. Significantly, the exonerations
were the result of State court proceedings. Neither of the defendants had ever filed anything in Federal court. And we certainly try
to learn any lessons that we can from an exoneration, but I think
it is important to note that these exonerations were the result of
State court proceedings. We have a mechanism that allows for the
development of newly discovered evidence at any time, and I think
in all of the cases that we have seen in Arizona, the provision for
newly discovered evidence allows a defendant to pursue this claim
of innocence. In addition, our rules provide for a free-standing
claim of innocence; this allows an opportunity to present claims of
innocence at any time.
Our frustration with the Federal habeas process is that it does
not recognize the improvements that have been made to the criminal justice system. The people of Arizona, in particular, the victims
of violent murders, deserve a better system. Our current Federal
habeas process is not working, and I urge your careful consideration of the proposed amendments.
[The prepared statement of Mr. Cattani appears as a submission
for the record.]
Chairman SPECTER. Thank you very much, Mr. Cattani.
Our next witness is the Honorable Seth Waxman, Solicitor General for 4 years from 1997 to 2001, summa cum laude from Harvard, Yale Law School, Rockefeller Fellow, American College of
Trial Lawyers, very distinguished record, currently heads the appellate practice at Wilmer, Cutler. Thank you for coming in today,
Mr. Waxman, and we welcome your testimony.
STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE UNITED STATES, AND PARTNER, WILMER,
CUTLER, PICKERING, HALE AND DORR, WASHINGTON, D.C.

Mr. WAXMAN. Thank you very much, Mr. Chairman, and thank
you for the opportunity to speak today. It is a great honor and a
pleasure to be on the panel and to be surrounded by
Senator FEINSTEIN. Turn on your mike, please. Thank you.
Mr. WAXMAN. To be surrounded by prosecutors from the State of
Arizona, which, in my experience, is a particularly and, I would
have to say, uniquely forward-looking State for reasons that Mr.
Cattani has expressedthe only State, to my knowledge, that has
attempted in the 10 years since AEDPA was enacted to opt in to
the system that this Congress created 10 years ago.
Mr. Chairman, I have been a litigator my entire professional life,
which, as my children remind me every week, has been very long.
I have been a trial lawyer and an appellate lawyer. I practice in
State and Federal courts, in civil and criminal and post-conviction
cases. And I have done so in private practice and on behalf of the
United States Government. I am not philosophically, morally, or
ideologically opposed to the death penalty. To the contrary, while
I was in the Justice Department, I served for years on a committee
that recommended to the Attorney General of the United States
cases in which the Government should affirmatively seek the death
penalty, and we did so successfully.

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14
I have no patience in my personal or professional life, as colleagues and family members will tell you, for delay for its own
sake, procedural games, and maneuvering that gets in the way of
answering substantive questions and moving on. I understand, I
think, the sentiment that lays behind this bill that Senator Kyl introduced and that Representative Lungren has introduced in the
House. I cannot support it. I must and I do oppose it, and I urge
the Senate to reject itnot because I think the sentiments are misguided, but for four reasons which I would like to tick off in the
horribly short remaining time.
I have a written statement that I submitted that I hope the Committee will take a look at.
Chairman SPECTER. It will be made a part of the record.
Mr. WAXMAN. I like to keep abreast of what is going on, but I
must say that I only learned of this legislation late last week, and
I am struggling to try and understand how all of its interrelated
provisions apply. But let me just make four points very briefly,
which I would be happy to elaborate on in response to any questions.
I have four reasons for opposing this legislation as drafted. Two
of them relate to AEDPA, which is legislation that I think every
member of the Committee who spoke referred to and for which I
had fairly substantial personal involvement in drafting and analysis. Two are more fundamental.
My AEDPA points are as follows:
First, I was quite interested to hear the statistics that Senator
Kyl cited this morning. I had not seen them before. I was also really very interested in reviewing the statistics from the Administrative Office to which Senator Feinstein referred, which are reported
in a letter to the Committee from Thomas Hillyer. But my bottomline point with respect to AEDPA is I am not aware of any study,
systematic or otherwise, or any collection of data that looks at the
effectiveness or ineffectiveness in AEDPA in reducing the particular targeted problems that the Congress of the United States
legislated to fix. There may be more post-conviction cases now filed,
but what AEDPA was designed to address is how readily they get
adjudicated, particularly in Federal courts. And the statistics that
I saw in Mr. Hillyers letter actually suggest, if anything, that
AEDPA has been quite effective. I urge the Committee to enlist the
Administrative Office or the Federal Judicial Center, and lets see
how the specific provisions of AEDPA have worked outto identify
where there continue to be frustrating and unconscionable and indefensible delays in getting to the merits of constitutional claims.
My second AEDPA-related concern is that any time the Congress
legislates in a wholesale fashion to substantially revise proceduresparticularly in the criminal area, and most particularly in
the post-conviction areaa wave of litigation is generated, raising
statutory interpretive questions and constitutional questions. We
are now only emerging from that wave of litigation with respect to
AEDPA. And I fearI think it is a certaintythat this legislation
will generate a new wave of litigation, both interpretive and constitutional, that will take the Federal courts years to adjudicate
rather than streamlining these proceedings.

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15
If I may just have one minute to mention my two more fundamental objections, I will simply tick them off.
Chairman SPECTER. You may proceed, Mr. Waxman, for a little
more time.
Mr. WAXMAN. Thank you. I am totally in favor of streamlining
procedures where procedures are not, in fact, streamlined and
where that can be done without sacrificing fairness to both sides
concerned. But many, I would say most, of the substantive provisions of this bill are, in fact, jurisdiction-stripping provisions. I referred in my written testimony to Sections 2, 4, 6, and 9, which do
not establish tighter timetables or different standards. They deprive Federal courts of jurisdiction to hear categories of cases. And
that is, I think, fundamentally inconsistent with long-standing
statutory and constitutional traditions. I do not think that stripping Federal courts of jurisdiction in categories of these cases is the
appropriate way to achieve a streamlining function. And I am very
concernedand this is really my principal concern herewith the
number of cases in which substantial majorities of this Supreme
Court have concluded that fundamental constitutional rights, many
going to guilt-innocence, were violated and violated in such a way
that even under AEDPA standards, the writ of habeas corpus must
issueand yet which would not even make it into Federal court
under the provisions of this bill. And I have listed and described
four of them, one each from the past four terms in the Supreme
Court, in my legislation.
Thank you for your patience.
[The prepared statement of Mr. Waxman appears as a submission for the record.]
Chairman SPECTER. Thank you very much, Mr. Waxman.
Our next witness is the Executive Director of Equal Justice Initiative and Professor of Clinical Law at New York University
School of Law, Professor Bryan Stevenson, nationally acclaimed for
his work challenging bias against the poor and people of color in
the criminal justice system; Harvard Law School and Harvard
School of Government; has an extensive record in assisting the
poor.
Thank you for coming in, Professor Stevenson, and we look forward to your testimony.
STATEMENT OF BRYAN A. STEVENSON, DIRECTOR, EQUAL
JUSTICE INITIATIVE OF ALABAMA, AND PROFESSOR OF
CLINICAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW,
NEW YORK, NEW YORK

Mr. STEVENSON. Thank you, Senator Specter.

I would like to first just put in context some of what we have
been talking about today. We should all be mindful of the fact that
over the last 30 years, the number of people in jail and prison has
increased dramatically. In 1972, there were 200,000 people in jails
and prisons. Today there are 2.1 million.
Since the passage of AEDPA, we have actually added some
700,000 people to jails and prisons, and anything we talk about
with reference to the numbers of habeas filings has to be seen in
that context. It would be very misguided for this Committee or any-

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16
one to look at the number of filings without looking at the number
of people being sent to jail and prison.
We talk a lot in this legislation about finality, but one threshold
point I think needs to be clarified. This bill applies to all prisoners.
It does not focus or expressly limit itself to death penalty cases.
The reality is that in non-capital cases, which are the overwhelming majority of these filings, there is finality. None of these
people are out on probation or bail or parole. They are not avoiding
punishment. If they have a 20-year sentence, whether they have a
habeas pending for 5 years or 8 years or 12 years does nothing to
the finality of that judgment.
So what we are effectively talking about are death penalty cases.
And when we talk about death penalty cases in this country, we
have to look at the death penalty States. And with, you know, obviously appropriate deference to my colleagues from Arizona, the
overwhelming number of death penalties in this country are being
applied in the Deep South. It is Texas and Florida alone that outnumbers the rest of the death row population in the country by
themselves, Mississippi, Alabama, Georgia, Virginia, and in these
States we have had serious problems and continue to have serious
problems with indigent defense.
All over the country, there are problems with innocence. I believe
they start at the trial level, but we have still not done enough to
make indigent defense appropriate. When you increase the numbers this way and you do not increase the resources for giving people aid, you are going to have wrongful convictions. In my State,
72 percent of the people who were sentenced to death were represented by lawyers whose compensation was capped at $1,000. In
Texas, $800 caps on cases; Virginia, $13 an hour. These kinds of
statutory schemes increase the likelihood of wrongful convictions,
and I do not think we should be in any way confused about the fact
there are people on death row, in jails and prisons, who are innocent.
This bill, I think, wants to kind of speed the process up, but is
not really focused on where the problems are. The problems, in my
judgment, begin in State court. Again, Deep South States. We do
not have a public defender system. The State of Alabama does
nothing to provide people lawyers when their case is affirmed on
direct appeal, even in death penalty cases. Our statute says that
if you can find a lawyer and that lawyer comes to the court, the
court will appoint that lawyer, but the compensation cap for death
penalty post-conviction appeal is $1,000. We have had 95 cases
filed in the last 75 years. In none of those cases did the State do
anything to provide people with lawyers. That means the cases do
not get investigated. The cases do not get developed. There is no
opportunity to explore issues of innocence or fairness until you get
to Federal court, and this bill would, in fact, insulate many wrongful convictions.
I have got a client who is innocent. He has been on death row
for 19 years. He has never filed a Federal habeas petition because
he has been languishing in the State trial court for the last 15
years. He could not find a lawyer. He could not force the judge to
rule. We have an elected judiciary. These problems are the real
problems of delay. In many States, the length of time in State court

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17
triples the amount of time people spend in Federal court. And we
have got to understand that as it relates to these issues, this bill
would do a lot of very, I think, unfortunate things to insulate
wrongful convictions and innocence. The counsel problem that I am
talking about is not addressed here. It in no way limits the application of these provisions to States that are doing the things that
make State court review meaningful. And what that does is essentially protect States that are unwilling to protect the accused.
We have seen this in a number of ways. The exhaustion provision, for example, would prevent my client, who has been languishing on death row for 15 years, from getting to Federal court
if the State courts never address his claims.
I did a case not too long ago where a death row prisoner had
been convicted and was mentally ill. The State used an expert who
testified that this man was not mentally ill, that he was faking his
mental symptoms at the trial. He was denied relief, came within
7 days of execution, filed a habeas petition in Federal court.
Months later, it was discovered that the expert who testified
against him was a fraud, never graduated from high school, had no
college degree, had been masquerading as a clinical psychologist for
7 years in a State mental institution.
This bill would strip away the opportunity for filing an amended
petition to get to that claim, which did not go to factual innocence,
at least at that stage. And we see this all the time. These issues,
as Professor Scheck talked about, oftentimes start as due process
claims.
I was a young lawyer at the Southern Center for Human
Rightsif I could just have one more minute to complete.
Chairman SPECTER. Go ahead, Professor Stevenson.
Mr. STEVENSON. Thank you, sir. I was a young lawyer at the
Southern Center for Human Rights when we got a case in our office that went to the United States Supreme Court where a prosecutor had basically sent a memo to the clerk to kind of teach the
clerk how to under represent black people in jury pools. This racial
bias that was detailed in this memo was hidden, and it was only
years after that this memo was discovered, it was challenged, and
the State court said the claim is procedurally barred. And that happens a lot. We have had 25 cases in my State where prosecutors
have been proved to use preemptory strikes in a racially biased
manner. Many of those cases, the State courts say they are procedurally barred.
The case went to the United States Supreme Court, and the
Rehnquist Court said unanimously, 90, this kind of bigotry cannot
be insulated, cannot be tolerated. And it used language that this
bill would eliminate to address the merits of that claim. And it is
those kinds of claims that I think are very much at stake, those
kinds of concerns. The integrity of our criminal justice system is
critical, in my view. And there is simply no one in this country who
wants fair and efficient adjudication of their claims more than innocent people who are sitting in jails and prisons today. They desperately need that. But what this bill will do is actually make it
infinitely harder for them to ever see the kind of justice that many
of the people in this room have seen and witnessed and experienced.

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I will end with one last case. We were involved in a case that
a firm and some lawyers in Birmingham did years ago of a man
who spent 17 years on death row. Claims were procedurally barred
in State court. It got to Federal court, and the court granted relief,
not on factual innocence, because those claims could not be developed, but on ineffective assistance of counsel at the penalty phase,
something that would be barred from this bill, and a race bias
claim at the trial, something, again, that would be barred. He was
given a new trial, and at his new trial he was acquitted. He spent
17 years on death row. I dare say he would have been executed if
this bill were law. And I think those kinds of concerns have got to
urge this Committee to turn this legislation around and please give
it deeper and more careful consideration.
Thank you, Senator.
[The prepared statement of Mr. Stevenson appears as a submission for the record.]
Chairman SPECTER. Thank you, Professor Stevenson.
Our final witness on the panel is Mr. John Pressley Todd, Assistant Attorney General in Arizona, a law degree from Arizona State
University, 30 years experience as a prosecutor, trial lawyer, and
appellate lawyer in the Arizona Attorney Generals Office. A real
career prosecutor, Mr. Todd. Thank you for coming.
STATEMENT OF JOHN PRESSLEY TODD, ASSISTANT ATTORNEY GENERAL, ARIZONA ATTORNEY GENERALS OFFICE,
PHOENIX, ARIZONA

Mr. TODD. Thank you, Mr. Chairman. It is a great privilege to

be here. I also had the
Senator LEAHY. Is your microphone on, Mr. Todd?
Mr. TODD. I am sorry. I also had the privilege of serving 15 years
with Barnett, investigating and litigating trial cases, frauds and so
forth. And I spent my first 15 years in the first segment of the
criminal justice system. I have spent my second 15 years in the
second segment of the criminal justice system. And Federal habeas
affects just a small portion of the second segment. If there is a
problem of innocence, those cases can really only be addressed in
the States.
As Senator Kyl mentioned, there are like 23,000 pending habeas
petitions currently in the whole Federal court system. In one county, in Maricopa, in Arizona, there is double that amount of cases
tried. The Federal courts cannot simply retry all the State cases.
It cannot work.
The system that is in place and that we are asking to be made
better is a logical, reasonable system. What is good about this bill
is it undercuts the procedural delay and focuses the Federal courts
onif there is any legitimate question of innocence, it focuses the
courts on that question.
In any criminal case, there are only two types of errors. There
is the error where an innocent person is convicted, and there is the
error when a guilty person goes free. Now, the way we have created our system is, at the time when the evidence is most reliable,
when the evidence is most fresh, we have a trial, and we provided
all sorts of procedural safeguards at that trial to be sure that if
there is an error, it errs on letting the guilty person go free.

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19
Since common law starting with the Magna Carta, 800 years ago,
we have left to the jurors the fact-finding process. By the time we
get to Federal court, factual issues are years and years removed.
As the first speaker indicated, memories fade, witnesses become
uncooperative. And to create a system that relies on retrying many
cases in Federal court, you cannot. It is just physically not possible.
The problem in Federal court is that instead of raising legitimate
issues of constitutional merit which have been presented in State
court, particularly in death penalty cases, individuals feel that they
have to try and raise a multitude of claims that are without merit.
And all this does is build delay into the system. The only persons
who benefit by delay are those who are under a sentence of death
who are guilty. A person who is under a sentence of death who is
innocent certainly does not benefit by delay, and no non-capital defendant benefits by delay.
So this bill has the safeguard of truly innocent people getting
into Federal court. It does away with the ability of people who are
simply trying to create delay to postpone the States judgment. It
undercuts this procedural delay.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Todd appears as a submission for
the record.]
Chairman SPECTER. Thank you very much, Mr. Todd.
Mr. Waxman, I will begin with you. You have had an extraordinary record as an appellate lawyer, Solicitor General, head of a
big firms appellate practice. You object to delay. You oppose the
bill. What is the answer to these very, very long delays which have
become epidemic?
Mr. WAXMAN. I would very much like to work with the Committee of the administrative office or the Justice Department, or
whoever it is would look at the extent to which delays remain in
the system and where and why. Before I can answer the question,
Mr. Chairman, I would need to know.
I have been involved in cases in which the State courts, for whatever reason, have simply not decided meritorious constitutional
claims for many years, and no
Chairman SPECTER. Mr. Waxman, we will accept your offer, just
so long as you will not utilize your customary hourly rate.
[Laughter.]
Mr. WAXMAN. Mr. Chairman, I will charge the Committee exactly
what I am charging the Committee today, which isthis is a public
service
Chairman SPECTER. Well, we can double that.
[Laughter.]
Mr. WAXMAN. I will tell you what, I will give you 50 percent off,
and I would be delighted to work with the members from both
sides to come up withto figure out where the problems are and
come up with a solution that is fair to both sides.
Chairman SPECTER. We are going to take you up on that because
you have had the experience to have some really unique insights.
Professor, Scheck, you raised a proposition of making the entire
State court record available to the judge on habeas corpus proceedings. Amplify what you mean by that. Is that record now not
available customarily?

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Mr. SCHECK. Actually, there are a lot of problems even getting
transcripts in place. What I am really talking about, when you get
to the issue of innocence, is the entire prosecution file. Obviously,
during the course of a criminal case the defense is not entitled to
the
Chairman SPECTER. The entire prosecution file, so it is more
than the trial record, obviously.
Mr. SCHECK. Yes. And that is exactlytake the case of Darryl
Hunt who is here in the audience, who spent 20 years in prison for
a crime he did not commit. I will bet you that Judge Ludick and
Judge Wilkinson, who actually rejected his claim when there was
some DNA evidence showing that he was innocent in some Brady
claims, would really like to see that as well, because when he went
into Federal court, it was a closed case, but he could not even get
a hearing. Then after his case came down we finally got a new
DNA test that identified the real perpetrator.
And here is my point, when the real perpetrator was identified,
we found in the prosecutions file exculpatory evidence indicating
that the police knew about him.
Chairman SPECTER. Let me stop you there because of the limitations of time, and turn to the prosecutor.
Mr. Dolgenos, how about that, would you be willing to follow Professor Schecks idea and turn over the entire file?
Mr. DOLGENOS. I think that is a terrific over-reaction, Mr. Chairman.
[Laughter.]
Mr. DOLGENOS. Concerns of
Chairman SPECTER. Give us a little under-reaction.
Mr. DOLGENOS. Police investigations and law enforcement investigations are filled with material, witness statements and police information that it is important to keep confidential. There are discovery rules in State court.
Chairman SPECTER. How about redacting all the confidentiality?
Professor Scheck is suggesting if there is some exculpatory evidence in your file.
Mr. DOLGENOS. Well, exculpatory evidence is absolutely subject
to discovery in every State court. The question is whether or not
States can enforce or have their own rules of discovery. If we have
a policy in Federal court where we hand over the entire prosecution
and police file, the funnels absolutely backwards. Then the Federal
proceeding becomes the main event and the State proceeding becomes merely a preliminary, simplyand I do not think there is
any basis for that. I mean obviously Brady violations are very important and
Chairman SPECTER. Mr. Dolgenos, I hate to cut you off but I
want to ask Mr. Cattani a question, and I also want to observe my
time limit.
Habeas corpus, the subject matter we are dealing with, constitutional standing. Does the Congress have the authority to strip the
courts, the Federal courts of jurisdiction on constitutional issues,
Mr. Cattani?
Mr. CATTANI. Yes, I think Congress can certainly restrict the
types of claims that can be raised.
Chairman SPECTER. Even on constitutional issues?

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21
Mr. CATTANI. Yes. I think this Congress has the authority to do
that. And the jurisdictional restrictions are important. What we
face in the overwhelming majority of our cases is a relitigation of
the mitigation investigation as it relates to sentencing. Notwithstanding the fact that we have gone through a mitigation investigation at trial and again in the post-conviction stage, we move into
Federal court and the attorneys representing the petitioner in Federal court start over with a complete mitigation investigation. This
means we are no longer focused on guilt or innocence, we are focused instead on whether there is some additional mitigation? And
of course there is always additional mitigation that can be found.
There is always someone else somewhere who will say something
about the defendants background.
In my view, at some point it does become necessary to say we
have to cut off certain types of claims or we simply will not have
finality in the process.
Chairman SPECTER. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman.
Mr. Cattani, just to follow up just a little bit, you say this Congress has the right to strip the courts of jurisdiction over constitutional matters. Assuming I agree, would you also agree that if the
Congress is going to remove the ability of a Federal court to have
jurisdiction on something involving constitutional matters, your
constitutional rights, would that not be a step that the Congress
should take only with enormous deliberation?
Mr. CATTANI. I certainly would agree that there should be careful
consideration, but I think the proposal that has been made
Senator LEAHY. I am not talking about this proposal. I am just
talking about in general.
Mr. CATTANI. Certainly. Careful consideration, and I think it is
important to provide safeguards for actual
Senator LEAHY. Those may be your constitutional rights we are
talking about too.
Mr. CATTANI. Sure.
Senator LEAHY. Mr. Waxman, again, thank you for being here,
and I concur with the Chairman, we much appreciate you taking
the time because of your own vast experience.
We are told that this bill is to eliminate inefficiencies in the exercise of Federal habeas jurisdiction, not to eliminate habeas all together. But you said in your testimony that it strips Federal courts
of jurisdiction to vindicate meritorious constitutional claims. Would
you elaborate on that a little bit, please?
Mr. WAXMAN. Well, I will not be able to as much as I would like
to, but I listed, just so that the Committee could review, four cases
that were recently decided by the Supreme Court of the United
States, where substantial majorities of the Supreme Court concluded in Federal court review of State criminal convictions, where
the State courts hadI believe in all of the cases there was counsel
in the State courts. The State courts concluded that the writ of habeas corpus need not and should not issue. The Supreme Court of
the United States, in each of those cases, concluded by a substantial majority thataccepting all of the facts as found by the State
courts, giving complete deference to the fact finding of the State
courtsegregious violations of constitutional rights, three of them

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22
going to the guilt/innocence stage, had been committed to the point
that the State courts had not only erred in their judgment, but that
there was an unreasonable application of the facts as found by the
State court to the settled law as announced by the Supreme Court
of the United States.
Now, I am not throwing stones at State courts or State court
judges. State court judges are human beings just like Federal court
judges and just like everybody sitting in this room is
Senator LEAHY. Except for Senators of course.
[Laughter.]
Mr. WAXMAN. Yes, some present company excluded.
It is part of our tradition, our constitutional tradition, our statutory tradition and our cultural tradition going back to Magna
Carte, that in criminal cases, and particularly in cases where the
penalty to be exacted is death, we need safeguards and we need
some redundancy, and the fact that in our day and age, under
AEDPA, which has raised the bar very substantially, 6, 7, and
9Justice majorities of the current Supreme Court have found instances where they have said: Look, taking all the facts as found
by the State court, even in a case in which there was counsel, we
have no choice but to conclude, no alternative but to conclude that
fundamental constitutional rights were violated that require
issuance of the writ.
What I am concerned about is that with respect to the four cases
that I identified over the weekend and have explained to the Committee, those people, if this bill passed, almost certainly would not
have been able even to get into Federal court.
Senator LEAHY. Then would you agreeI think you would not
agreethe principal sponsor of this bill in the House said that if
a petitioner had meaningful evidence of innocence he would not be
subject to the bills jurisdiction-stripping provisions and the other
procedural hurdles? Does this bill really create general exceptions
for people with meaningful evidence of innocence? I could not find
them.
Mr. WAXMAN. I fear that it does not, and I would very much like
to seeif this legislation were going to pass with an actual innocence exceptionthat standard that you just articulated, rather
than what is in the bill.
The reason I say that is as follows. The bill contains, with respect to a number of the jurisdiction-stripping provisions, an exception that can be met if the innocence standard that is already specified in AEDPA is met. Now, that standard, which I have explained
at the top of page 3 of my testimony, is the standard that the Congress imposed on second or successor petitions under AEDPA. It
was a major point of AEDPA to reduce or eliminate the opportunity
for petitioners to file second or successive petitions. And in order
to invoke that innocence exception, you need to prove under this
bill, as under the successor provisions of AEDPA, No. 1, that the
claim of innocence that you are making rests on a factual predicate
that quote, could not have been previously discovered through the
exercise of due diligence. Even if you had no lawyer, even if you
found DNA evidence, but a diligent lawyer could have found it, you
will not meet this exception.

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23
In addition, under the standard that this bill imports from
AEDPA, you have to show that the underlying facts that you come
forward with that could not have reasonably been discovered before, quote, would be sufficient to establish by clear and convincing evidence, that but for constitutional error, no reasonable
fact finder would have found the applicant guilty.
As a threshold finding, that is breathtakingly difficult, and even
that is not enough, because you also have to show, to come within
the innocence exception, that a denial of relief on the basis of your
constitutional claim was not only error by the State court, but in
fact was, quote, contrary to or would entail an unreasonable application of clearly established Federal law as determined by the Supreme Court. I find it difficult to think that any prisoner, as a
threshold jurisdictional matter, could make those showings. The
new evidence establishing innocence might have been discoverable
earlier. It probably should have been if competent counsel were involved.
It might show very strongly that the person is likely innocent,
but would it clearly and convincingly persuade every reasonable
judge or jury of innocence as a threshold matter? And it might also
have been wrong but not unreasonable to reject the underlying constitutional claim that innocence is attached to.
So if we are going to have a bill like this and we want to have
an actual innocence exception, it seems to me we need to have one
that does not pose the AEDPA, successive or second petition standard that was designed toand in my experience has served very
effectivelyto eliminate Federal petitions.
Chairman SPECTER. Senator DeWine has to leave early, and Senator Kyl has graciously consented to let Senator DeWine go ahead.
Senator DEWINE. I thank my colleague from Arizona, and I
thank the Chairman.
Mr. Waxman, you have cited here cases where you say were S.
1088 the law, the Federal courts would not even have had jurisdiction to review the meritorious constitutional claims, and then you
cite these cases.
I would like to ask the rest of the panel. I do not know if you
have had a chance to look at Mr. Waxmans examples here, but if
any of you have, would you agree with his statement? Mr. Scheck?
Mr. SCHECK. I not only would agree with it, but I could put into
the record 27 Supreme Court cases on a section by section basis
that are affected by this decision. So if you are looking for, certainly as Mr. Waxman said, in the short term, this is going to
cause an incredible set of delays.
The other thing is I have a list hereand it is just beginning
of 8 individuals who were exonerated who would not have been
able to get into court.
I cannot emphasize enough what Mr. Waxman has been saying
about this bar. What this bill says in Section 4 and in other sections, is if the State court said, oh, there was a procedural default,
and I have a clientand we have a lot of them, a number from
your State, Senator DeWineyou know, who are innocent people,
I cannot get into Federal court for review if a diligent lawyer could
have found it.
Now, take my friend, Brandon Moon, who

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24
Senator DEWINE. Mr. Scheck, I only have 5 minutes.
Mr. SCHECK. Oh, I am sorry. Brandon Moon is sitting in this
room and that is exactly what happened to him.
Senator DEWINE. Love to hear you for an hour.
Mr. SCHECK. That is exactly what happened to him.
Senator DEWINE. Let me ask the people on the panel who are
in favor of the bill if they could comment, because ultimately we
get down to specifics. We are talking about real cases, real people,
real victims, real defendants. Do you agree with what Mr. Scheck
said? Do you agree with what Mr. Waxman has said? Are these
cases going to be knocked out of court where the Federal District
court, if it wants to hear the case, just says, cannot hear it? Yes,
no?
Mr. DOLGENOS. Senator, if I may, I do not agree with that.
Senator DEWINE. So you disagree. All these cases that he has
cited you have looked at them, you have looked at them, and all
of these cases that he has cited, you would say no, he is wrong
about that?
Mr. DOLGENOS. I cannot make that statement, Senator. I have
not had a chance to look at the list of cases.
Senator DEWINE. Will you take a look at that list and give me
something in writing?
Mr. DOLGENOS. Absolutely, I would absolutely like to do that,
Senator.
Senator DEWINE. Okay. How about the rest of those of you who
are in favor of the bill, anybody else?
Mr. TODD. I have looked at one of the cases that Mr. Waxman
cited, and that was the case that dealt with three witnesses leaving
during trial, defense witnesses that could establish an alibi and
happened to be relatives of the defendant. It would seem to me
that would be an absolute defense, and if those witnesses went to
Federal court and testified and were credible, that would satisfy
the bill.
Senator DEWINE. You could get into court?
Mr. TODD. That is my opinion.
Senator DEWINE. Mr. Waxman.
Mr. WAXMAN. I wish that were the case. I think the case that
Mr. Todd is referring to is Lee v. Kemna, which was decided by the
Supreme Court in 2002. I think it is very, very clear that under
Section 4 of this bill, this case could not get into court. Just very,
very briefly, it was a case of murder that took place in Missouri.
The defendants defense was alibi. He had three witnesses from
California who came to testify that he had been in California on
the day the offense was committed. They were in the Federal courthouse under subpoena, sequestered in a separate room where the
witnesses were held. They were told during the course of the day
by an unnamed person who subsequently the Supreme Court opinion reflects was an employee of the State, that the States prosecution case was going to take so long, that they would not be called
till the next day, and they could and should leave.
When the defense lawyer called them out of the sequestered witness room, he was told that they had left. He asked for a short extension to find them because they were his alibi witnesses. The
judge said no. He asked that the case be adjourned till the next

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25
day. The judge said no because he was going to be visiting his
daughter in the hospital the next day. He asked for an adjournment till the following Monday. The judge said: I have another trial
starting that day.
The Court of Appeals in the State court came up with a new
problem with the case, which is that he had not made his mid-trial
motion for an extension in writing
Senator DEWINE. Mr. Waxman, time is running. But ultimately
you are saying that that case would not have beenthe jurisdiction
would not have been there. Is that your interpretation?
Mr. WAXMAN. Absolutely not. Section 4s treatment of procedural
bar would have prohibited the court from hearing the case.
Senator DEWINE. My time is up. Let me just conclude with two
things. One is, I would ask those of you on the panel or all of you
on the panel, to take a look at Mr. Waxmans testimony, look at
the cases cited that he has cited. Mr. Scheck, are you submitting
your cases?
Mr. SCHECK. Yes. And the one I discussed, Williamson and Fritz,
no question would the guy have gotten into court, he would be
dead.
Senator DEWINE. Okay. My point is I want to get those to the
other panel members, and I would like opinions from all the other
panel members on those cases, whether or not this bill as written
currently would bar the Federal court from hearing those cases. If
I could get all of you to give me an opinion on that. I think that
is very important.
I would also just, a final comment, say that we really have not
heard much from any of you about Section 9 of the Act, which the
way I interpret it, the Federal court would lack jurisdiction to hear
any claims at all from a capital defendant as long as the States
been certified as having a procedure in place to provide counsel for
post-conviction proceedings, very sweeping. We do not have time to
get a response from any of you, but it seems to me that is quite
interesting.
Thank you very much.
Chairman SPECTER. Thank you very much, Senator DeWine.
Senator Feinstein.
Senator FEINSTEIN. Thank you, Mr. Chairman.
The bill clearly puts up substantial barriers to Federal courts
even with initial habeas appeals. I would like to ask each of you
this question, if you could just answer it yes or no. Do you believe
the bill as written is constitutional? Mr. Dolgenos?
Mr. DOLGENOS. I do.
Mr. SCHECK. No.
Mr. CATTANI. Yes.
Mr. WAXMAN. I doubt it, in all of its provisions.
[Laughter.]
Mr. WAXMAN. Sorry.
Mr. STEVENSON. No, Senator Feinstein.
Mr. TODD. I believe that, in my opinion, it would be constitutional.
Senator FEINSTEIN. Thank you. Sort of a clear division here.
My friend, Senator Kyl, said earlier that innocence cases take
priority, and yet as I read page 4, it seems to me that the inno-

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26
cence exception is curtailed and limited to new law that might be
retroactive, or new evidence which could not have been discovered.
Do you agree with that, each one of you? And if not, why not?
Mr. DOLGENOS. Senator, I do agree with that simply because I
have seen too many cases where old evidence is submitted to the
court and rehashed as evidence of innocence when it has already
been rejected by the State court or has been rejected by a lawyer
who decides, well, I am not going to use it because I do not think
it is convincing. In other words, when evidence is stale, that is usually a good reason to think it is not credible.
Senator FEINSTEIN. Mr. Scheck.
Mr. SCHECK. The fact is that you can look at these records and
you can see in case after case, like my friend from El Paso, that
there was evidence that a diligent lawyer could have foundI
mean literally in his case there was a DNA test and just one more
thing had to be done, and it was clear that Brandon Moon was innocent. 17 years he tried to get that. He had no lawyer, until finally he got competent counsel and it was solved like that.
The problem is in this provision of the bill where innocence is
supposed to be protected, not only is, as Mr. Waxman, is it a new
rule, but if somebody could look at it and say, oh, that evidence
could have been found with due diligence, even if you now have it
and it proves somebody innocent, you cannot get into court. And
the United States Supreme Court, as Senator Specter has emphasized, just took cert. in the House case where the issue of actual
innocence is finally going to be put before them again for the first
time since Herrera, and House himself could not have brought that
case to the United States Supreme Court because his lawyer had
procedurally defaulted and you could have said there is a lot of evidence that you could have found if he did it. That is the problem.
Senator FEINSTEIN. Thank you.
Yes?
Mr. CATTANI. Thank you. I have more confidence in our State
court system. I think it is important to note that the difference in
the level of review that you get if you commit a federal crime. You
simply have your trial, your direct appeal and
Senator FEINSTEIN. My question is that the innocence exception
or the innocence ability to move the cases is really curtailed.
Mr. CATTANI. Right. And the point I was trying to make is that
if you compare what happens with a State court conviction with a
Federal conviction, with the Federal crime you have a direct appeal
and you have some sort of post-conviction proceedingthat is it in
the Federal system. And you have that same system in the States.
Federal habeas review provides another layer on top of that. And
so I think it is appropriate to have a higher standard to obtain relief in this layer of collateral review. So I am comfortable with this
higher standard.
Senator FEINSTEIN. Thank you.
Mr. Waxman.
Mr. WAXMAN. Yes, it is curtailed in the respects in which I articulated, I think, in response to Senator Leahys question.
Mr. STEVENSON. Senator, I just want to emphasize I think this
is a very serious problem for precisely the reasons Professor Scheck
talked about. Most innocence cases involve evidence of innocence

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that was not presented at trial which could have been. But when
you are dealing with lawyers who are capped at $1,000 for their
defense work, who are undertrained, who do not have an opportunity to do it, they do not get it. My innocence case I was talking
about turns on weapons evidence. He needed an expert. The court
gave this defense lawyer $500 for his expert. The expert that he
could bring in to do a ballistics comparison was half blind.
Senator FEINSTEIN. Was half blind?
Mr. STEVENSON. Yes, was legally blind in one eye and could not
use the machine. And so what we had to do was bring the best experts in the country to a post-conviction hearing who all said there
is no match, this man should be released. But that evidence could
have been presented at trial. Under this bill, that threshold showing that it could have been discovered at trial, would bar us from
review, and it is that kind of jurisdiction restriction I think absolutely will increase the execution of innocent people.
Mr. TODD. That has not been our experience in Arizona. I do not
know the facts of Mr. Schecks case, but DNA has progressed significantly since 1990 its ability to detect and exonerate people. And
if the new DNA evidence was not available initially, then this
would be newly discovered evidence that would be certainly appropriate under the bill.
Senator FEINSTEIN. May I ask one other quick question?
Chairman SPECTER. Yes, you may, Senator Feinstein.
Senator FEINSTEIN. Supposing the DNA evidence had been mishandled, it was there but it had been mishandled. Would the bill
allow the case to go?
Mr. TODD. Yes, it was newly discovered that it had been mishandled.
Senator FEINSTEIN. See, what my problem is, I do not know what
newly discovered really means in terms of the law. It could have
been there but not used.
Mr. SCHECK. Newly discovered means that you could have found
it with the exercise of due diligence, and this bill says as explicitly
as it can be said, if a lawyer could have found it with due diligence,
then you cannot bring it into Federal court. So like Mr. Moon, he
had partial DNA exclusion just as the hypothetical you are giving.
The lawyerliterally, it showed that it was not his semen but they
needed to get an exemplar from the victim and her ex-husband in
order to make the proof. And he waited 17 years trying to get that.
He would not be able to get into Federal court.
Once we went and got the exemplar from the wife and the husband, proved him innocent, he could not get into Federal court to
vindicate his claim under this bill. And House would be out of the
United States Supreme Court in theory. That is how extreme this
is.
Senator FEINSTEIN. Thanks, Mr. Chairman.
Thank you, Mr. Scheck.
Chairman SPECTER. Thank you very much, Senator Feinstein.
Senator Kyl
Senator KYL. Thank you, Mr. Chairman.
In 5 minutes here it is going to be hard to go over a lot, so I am
just going to select two cases, the case that Professor Stevenson
discussed, and the Williamson case discussed by you, Mr. Scheck.

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I think in both cases, analyzed very carefully, this bill would not
have prevented the assertion of actual innocence and the exoneration of the individual. Let me quickly go through both and then ask
for your reaction to that.
In the Williamson case there were 6 claims that were raised and
exhausted in the State court. And it was voided in Federal court,
noting that the 6 claims were fully exhausted and not defaulted,
and thus would have not been affected in any way by our bill
standards for unexhausted and defaulted claims.
The bill would have prevented the Federal District Court from
granting relief, you state, because the State courts found that the
grounds for relief wereand I am quoting youprocedurally defaulted or without merit.
And so let us go back to the provision of the bill. The bill does
not apply any special gatekeeper to claims that were addressed by
the State court on their merits. And let us go over and just assume
even had all of Williamsons claims been procedurally defaulted,
which was not true. Then under the bill the defendant nevertheless
would have still been able to raise these claims, presenting clear,
previously unavailable evidence of innocence. This has to do with
the semen and saliva evidence and the DNA.
And it seems to me pretty clear, and I think you have established
it, that the DNA evidence showing that the rape victim was not
raped by the defendant would meet the actual innocence standards.
So I do not believe that you have established that the bill would
have denied the assertion of the claims. I know you believe that the
semen and saliva evidence indicates the defendant was not the perpetrator and would be enough to meet the test. So comment briefly
on that, and then I have got the case you cited.
Mr. SCHECK. When you go back and look at the case itself, you
will see that the Oklahoma Court of Criminal Appeals said that
some of the ineffectiveness claims were not raised, and they should
have been on direct appeal. So they procedurally defaulted most of
them. The ones that they reached were not even the ones for which
the Federal judge granted relief. So I do not think there is any
question that under this bill he would have been procedurally
barred, and I will submit a more extensive analysis if you want.
But the real point I am trying to make here
Senator KYL. Let me just interrupt there. At this point in the
record it will show that I disagree with you, that a judge reached
all 6 claims, and I am going to ask that the record of the case be
putrather, the decisions in the case be put in the record at this
point.
Chairman SPECTER. Without objection it will be made a part of
the record.
Mr. SCHECK. Even if he reached the claims, still under this bill
it still would have been barred.
The other issue and the key one is, remember, Williamsons case
was reversed and remanded on the ineffectiveness claims, and it
was then afterwards that there was DNA testing that showed he
was innocent, Fritz was innocent and Gore was the real perpetrator.

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So to the extent you are suggesting that the DNA testing could
have gotten him into Federal court beforehand, you know, they did
not have that evidence.
And my real point to you, Senator Kyl, is that procedural due
process means something in these cases. I have looked at more innocence cases, I dare say, in the last 11 years, than most people
will in a lifetime. I go back and look at these cases, and you see
again and again, whether it is in State or Federal court, there was
hidden Brady material, there were ineffective lawyers. You know,
you do find more of that in these cases.
Senator KYL. My time is just about up and I want to get to Professor Stevenson. We can put some more in the record if you would
like.
This case of Hinton that you talked about, I actually think our
bill would make it easier, not more difficult, and let me just quickly
go over the fact here. You, in your testimony, detail the evidence
with respect to his case, and of course I am not familiar with it,
but if we accept thattalking about the tool mark and ballistics
evidence that exonerates him, and let us assume that that is correct. And further you asserted the that State of Alabama agrees
that without a weapons match Mr. Hinton should be released. So
let us accept that as well, which would seem to establish the clear
and convincing evidence that is the standard in the law today and
the standard under the Act.
Under current law, a defendant has to exhaust the claims for relief in State court, including these actual innocence claims. In Section 2 of our bill, we change the requirement by amending the current 28 USC provision to provide that each claim in a Federal petition must either be exhausted in State court or must present clear
evidence of innocence, this new evidence that we have talked
about. So the bill would add a new provision that even if the claim
had not been exhausted in State court, you could go forward with
Federal habeas if you have this kind of innocence.
We were trying to bend over backward to ensure that whatever
the procedural problems with the State court, you could always
have the Federal habeas reviewed if you have this degree of evidence.
Mr. STEVENSON. Just two things as why I say that, Senator. We
are not convinced we will ever get a ruling in State court. I do not
know that after 19 years this case will ever be exhausted. And so
what we have been relying on is language that currently allows us
to utilize the jurisprudence under AEDPA a futility. Going to Federal court and saying we need reliefthis man has been on death
row for 19 years, and every day, every week, every month, he is
being injured and victimized in ways that we have a hard time accepting.
What current law allows us to do at some point is to go to Federal court and say, after 19 years, after 15 years, we think exhaustion is futile. That is what is eliminated in this bill.
Senator KYL. Exactly my point, we eliminatewe do not eliminate the exhaustion requirement. We add an additional way in
which you can get to the Federal court with exactly the kind of evidence that you have with a habeas petition.

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30
Mr. STEVENSON. But, Senator, that would only happen if after we
complete the State court process
Senator KYL. No, that is
Mr. STEVENSON. Because your bill says no more futility. We do
not have the option of sayingthe claim would be unexhausted if
we went to Federal court now. And what your bill does is say that
Federal judges cannot adjudicate unexhausted claims.
Senator KYL. We have a disagreement here because we are trying to specifically exempt that kind of situation by this showing of
clear evidence of innocence, which would enable you to go to the
Federal court. Let us discuss that further.
Mr. Chairman, if I could just make one final comment here.
Chairman SPECTER. Senator Kyl, do you need a few more minutes? Go ahead.
Senator KYL. No, no. I need just 20 seconds here.
There was a suggestion thatand I think, Mr. Waxman, you
were the one that noted that State courts may not always be as efficient as they need to be, and they take a long time and there is
certainly evidence that that can happen. I would just note that in
the Fornoff case that I cited earlier, it took a long time in the State
courts, but it has been in the federal courts since 1992. So Federal
courts can delay forever just as easily as State courts, and in many
cases have done so.
Chairman SPECTER. Thank you very much, Senator Kyl.
Senator Sessions.
Senator SESSIONS. Thank you, Mr. Chairman.
Mr. Stevenson, it is good to see you. I tell you, if I were in big
trouble, I would love to have you defend me.
[Laughter.]
Senator SESSIONS. He has done a very good job in Alabama defending people on death row cases, and is an aggressive advocate.
I know he deeply feels the death penalty is not wise, but so far the
majority of Americans conclude otherwise.
I would just say a couple of things, Mr. Chairman, that we need
to remember. With regard to convictions of crimes, people are allowed to appeal, and in most States there is an intermediate court
of criminal appeals, and that is in the State system. If you are
tried in State courtyou could be tried in Federal court, of course,
and have Federal appealsbut if you are tried and convicted in
State court, your appeal is to usually the intermediate court of
criminal appeals, and the State pays for that defense, both at trial
and at that appeal. And then if one is unsatisfied with that, they
can petition that the case go to the State Supreme Court, and the
State, if it is approved, the State will pay a defense counsel to represent the person in the State Supreme Court.
What we are talking about here is what used to be very, very
rare and has now become just commonplace. The Attorney Generals Office in Pennsylvania has a whole section dealing with Federal habeas appeals, do they not, Mr. Dolgenos?
Mr. DOLGENOS. We do, Senator, yes.
Senator SESSIONS. Now, what used to be a very rare thing just
routinely occurs, and you have sections in your office handling appeals in Federal court. Historically, there has not beenthe State
has not paid for those appeals, have they?

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31
Mr. DOLGENOS. Historically they did not exist to the extent they
exist now, Senator.
Senator SESSIONS. So now we are finding ways to make sure that
they have those appeals. And then they go up from the Federal
District Court to the Federal Circuit Court of Appeals and even to
the U.S. Supreme Court; is that right?
Mr. DOLGENOS. That is absolutely right.
Senator SESSIONS. And that is what you do every day.
Mr. DOLGENOS. Absolutely, Senator.
Senator SESSIONS. So now we have had a series of appeals all the
way up to the State Supreme Court, then presumably the conviction is affirmed. Then they go into Federal court, and this occurs
in every death penalty case, does it not, Mr. Stevenson? You would
never allow a client to be executed if you had not begun a process
to review the conviction in Federal court.
Mr. STEVENSON. We would not if we could get to it, Senator, but
of course, we have had cases that have not gone to Federal court
where people have been executed in part because our resources to
represent everyone are exhausted. We do not have lawyers for everybody on Alabamas death row, and once they miss the statute
of limitations, then they are barred from Federal review.
You know, the last two executions in Alabama were people who
never had Federal court review. You are right, it is certainly our
intention to represent everyone.
Senator SESSIONS. Did either one of those renounce Federal court
appeals and ask to be executed?
Mr. STEVENSON. Two of them did, but the otherwe have somebody scheduled for execution actually in August, who did not, who
wants review and was unable to get it because of the statute of
limitations problem.
Senator SESSIONS. But you are working to get that.
Mr. STEVENSON. Well, not at this time, no. I mean I think you
are absolutely right, there is this appellatethe problem in our
State is that we have got this cap on compensation for direct appeals of $2,000, a cap on representation in post-conviction of
$1,000, and we cannot find lawyers for a lot of these folks. We are
relying on volunteer counsel.
Senator SESSIONS. Well, it is true that there is no limit now on
the trial of capital cases, and I think that is good.
Mr. STEVENSON. Absolutely.
Senator SESSIONS. And that is the most important thing, that is
what used to count, the trial. Now we drag these cases out for
years. Here, in the Fornoff case, this lady, the conviction of the
murderer of her daughter, Christy, who was 13, occurred in 1985.
It was upheld by the Arizona Supreme Court after appeals, and he
then filed challenges in Federal District Court where it remained
for another 7 years. Finally in 1999 the district court dismissed the
case, dismissed the appeal. Then a few years later the Ninth Circuit sent it back for more hearing. It is still pending.
The Benjamin Brenneman case in 1981, the 12-year-old was kidnapped, assaulted and killed. He was convicted, a defendant was,
sentenced to death, filed a habeas petition in Federal court in 1990.
15 years later it is still before the same court. I mean judges have

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32
lifetime appointments in Federal court. We cannot cut their salary.
And if they sit on a case, justice is denied.
Michelle and Melissa Davis in 1982, those two girls were killed.
The aunts boyfriend confessed. In 1992 the courts finished their review of the case. Today, 23 years later, after the girls were murdered, the case remains before the Federal District Court.
Michelle Malander, that case was she was kidnapped and murdered in 81. The case remains before the same Federal District
Court where the appeals began in 1992.
Do you not thinkand there are some other cases in which it
I will just ask you, sir, from Philadelphia there, you handle these
cases regularly. Do you not think that it would be legitimate that
the judges have a time limit that they have to rule on these cases
one way or the other instead of just letting them sit, and does not
this undermine the integrity of the legal system when we cannot
get a decision?
Mr. DOLGENOS. Absolutely, Senator, and I see no other method
for addressing those kinds of delays than through a congressional
statute. And I think when you lower the innocence standard you
are asking for more litigation into the future. I think when you
eliminate the diligence requirement for discovery of evidence or
presentation of evidence of innocence, you are again begging for
these cases to go on further, longer, rather than shorter. I think
we have to remember that ultimately these cases implicate victims
who have been through a great deal, and it is important that we
do not subject them to additional trauma here in Federal court.
Senator SESSIONS. Mr. Chairman, just briefly, Mr. Clay Crenshaw, who handles the appeals in the State of Alabama, they are
sort of nemesess. They go against one another a lot on these cases.
He notes that on the Rule 32 appeal, this is like the Federal habeas, you have already had your direct appeal to the Alabama Supreme Court, may have often had an appeal to the Federal court
system. Now you have a new claim of some kind you want to make
in the State court as a post-conviction appeal. He reports in an affidavit he filed sometime ago that the attorneys representing these
inmates, even though they may not be paid fully for this post-conviction, they have been paid to appeal but this post-conviction repetitious filing, the attorneys, 92 were out-of-state attorneys from
large law firms who have given their time to this. The Equal Justice Initiative, that is Mr. Stevensons group, has got 18 of the
cases. Alabama attorneys, 17. Three of the cases are proceeding pro
se.
There are attorneys representing most of these defendants, and
if there is a good case there of innocence I think we have plenty
of attorneys that are willing to represent them, even in these multiple appeals, post-conviction.
Chairman SPECTER. Thank you very much, Senator Sessions, and
thank you, gentlemen, for coming in today.
Senator LEAHY. Could I ask just one more question?
Chairman SPECTER. Sure. Senator Leahy.
Senator LEAHY. Thank you, Mr. Chairman.
I wanted to follow up with things. I want to put in a statement
from Senator Feingold and some other material if I might.

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33
Chairman SPECTER. Without objection, all the statements will be
made a part of the record.
Senator LEAHY. Just one for Mr. Stevenson. Section 6 of S. 1088
would strip Federal courts of jurisdiction to entertain claims going
to a sentence. If the State courts decide that any error was not
prejudicial, would not the State courts say that any errors with respect to a sentence is not prejudicial to preclude a Federal court
from looking at those claims?
Mr. STEVENSON. Absolutely, and, Senator, in every ineffectiveness claim there is a prejudice standard which would in effect
mean claims of ineffective assistance of counsel at the penalty
phase, where the lawyers do nothing to present mitigation, would
effectively be barred. One of the tragic things, the court has made
a lot of progress in the last years, in my judgment, have declared
you cannot execute people who are mentally retarded, you cannot
execute people who are juveniles. But in many States there are no
procedures in State court for making those proofs. This bill would
again bar people who could prove mental retardation and other
constitutional defects from review.
In all of those State court cases there is always the judgment
that the claim is without merit, non-prejudicial, harmless, and I
think it is a de facto bar on any kind of sentencing phase relief in
Federal habeas.
Senator LEAHY. Thank you.
Thank you, Mr. Chairman.
Chairman SPECTER. Thank you very much, Senator Leahy.
Thank you gentlemen for coming in. This is obviously a matter
of the utmost gravity, and the Committee will be considering it
very, very closely.
Senator Kyl.
Senator KYL. May I have a little more time, Mr. Chairman?
Chairman SPECTER. Sure. I am going to have to excuse myself.
We have a stem cell proceeding, press conference. We are coming
to grips with stem cells, life instead of death, and that is scheduled
at 11:30. Would you be willing to chair the hearing?
Senator KYL. Yes, I would be happy to, Mr. Chairman. Actually,
in view of that, what I can do is just make a couple of closing comments here, put some questions in the record.
Chairman SPECTER. Fine.
Senator KYL. And you have indicated we are going to continue
to work anyway, and we certainly have some expert advice that we
can rely upon here.
Chairman SPECTER. Proceed.
Senator KYL. If you would just permit me then. It is clear from
some of the testimony that there is some misunderstanding about
both I think what we are trying to achieve, and also I think the
actual provisions of the bill. I will just cite one example. We really
have tried to provide a Federal court remedy where there has not
been an exhaustion in State court where you have the clear and
convincing evidence. If we have not accomplished that satisfactorily, I need to know that. But I think we have.
And so I want to be sure that the objections to the bill are actually based upon features of the bill rather than general concerns

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34
that people might have about trying to modify the 1996 law just
as a fundamental basis.
Secondly, you notice that we have two witnesses from Arizona
today, and that is not by accident. Arizona has tried very, very
hard, and Mr. Cattani noted it, under both Democrat and Republican Attorneys General and Governors, and State legislature,
which has been mostly Republican, but certainly under the current
Democratic Attorney General and his predecessors, we have tried
very, very hard to meet the ability to have the expedited provisions
to qualify under Chapter 154, for example, and gotten whacked
down at every turn. I mean I will say it a little bit more bluntly
than Mr. Cattani did. You heard from the testimony how far Arizona has tried to go here, and the Ninth Circuit still says, sorry,
you do not qualify.
There are some things about the bill that are not working well,
and I agree, Mr. Waxman, with you, or perhaps, Mr. Scheck, it was
you who said that we need to have an analysis of exactly how the
bill has worked. It is true, as Professor Stevenson said, that it is
not necessarily the fact that the huge increase in petitions, the
doubling of petitions, is due to the ineffectiveness of the Act, there
are also a lot more cases pending. Undoubtedly that accounts for
part of it.
So we do need to understand what effect the Act has had, but
I think it is undeniable, from the testimony, for example, Mr.
Dolgenos testimony, that whatever the effect, it has not adequately
addressed the problem of volume and delay here, when you have
got cases anecdotally that go on for decades and you have to increase the number of people in the office just to handle these kind
of petitions.
So clearly we have not yet solved the problem. There are problems and we need to solve them, and I want it clear here that in
no way am I going to countenance any change in the law that results in a situation where somebody who is actually innocent cannot get his or her day in court. That is why we tried to build in
this actual innocence exception. We may not have done it quite the
way that some of you want us to do it, but that is my intention.
But there is something else that those of you who oppose the bill
have to account for, and Mr. Waxman, you certainly addressed this
point, justice delayed is justice denied. Our prosecutors and our
courts are overburdened, and victims have rights too. When
Christy Ann Fornoffs mother testified in the Houseand I am not
going to repeat the testimony here at this pointit makes you realize that we are not doing our job up here of providing a criminal
justice system that meets the needs of our society. Some of you are
focused strictly on the defendant, and I am glad you are because
we can never let the innocent person be executed, for example.
But we also have to look at the rights of every victim of crime,
and the obligation of society. And we are the decision makers here
and we do have the constitutional right to legislate with regard to
habeas corpus, there is no question about that. And therefore, I
think after 9 years it is time to look at this and to acknowledge
that it is not doing the job that we wanted it to do, that no State
has qualified under Chapter 154, none.

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Well, obviously something is wrong here. We tried to set up a situation where you could get expedited proceedings and it has not
worked. So we do need to address this. We do need to deal with
it. And I appreciate the testimony that all of you have provided. It
is not all in agreement, but it is all in good faith, and it has all
been edifying to all of us I am quite sure. Though the rest of you
did not necessarily volunteer at the great rate that Mr. Waxman
did, I suspect that all of you are available for continued consultation by the members of the Committee, and I for one am going to
take you up on that because I appreciate your interest and your expertise in the area.
I just wanted to make that statement. I know we do not have another round here, but we will get some questions to you on the
record, and I would appreciate the chance to continue to consult
with all of you.
Thank you again, Mr. Chairman, for holding the hearing.
Chairman SPECTER. Thank you very much, Senator Kyl, for your
initiatives on this very important subject, your leadership. It is obviously a matter of the utmost gravity, and we want to pursue it.
We have some homework. A number of people have undertaken to
do some follow-up work. Mr. Waxman has, to give us his expertise
on trying to find an answer to the issue of delay, and at the same
time being very sensitive to the issue of innocence. But we will be
wrestling with this issue on the Committee, and we will be following up. I think it has been a very useful session with a lot of
experience and a lot of knowledge here at the witness table today.
Thank you all very much.
[Whereupon, at 11:27 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record follow.]
[Additional material is being retained in the Committee files.]

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