test test test good afternoon this hearing the subcommittee of the constitution civil rights and civil liberties will come toward or will begin by recognizing myself for five minutes for an opening statement today searing examines the impact of the federal corpus rules on the application of the death penalty in the united states is incumbent on those who support the application of the death penalty to ensure that this is mrs fairly and that every risk of error is wrung out of the system the right to petition for writ of habeas corpus is really the last line of defense against error and injustice in our legal system while executive clemency is still a possibility it is subject to the political winds in ways that the independent you dishy area is hopefully not punishment its main flaw is that it strict it's set strict time limits for bringing hey these petitions one year generally and if a state qualify six months in capital cases the standard is even more disturbing it gives extreme deference to state court decisions it prohibits the court from granting relief or any claim adjudicated on the merits in state court unless the state decision rejecting the claim is quote contrary to or involved in or involved in an reasonable application of clearly established federal laws determined by the supreme court of the united states quote or is quote based on an unreasonable determination of the facts in light of the evidence presented in state court proceedings and quote at the same time resources to assist the tennessee state court proceedings have diminished in many ways we have made a mockery of the administration of justice in the search for the truth what is really ironic about all of this is that while these changes were sold to congress as a way to move the cases and make the system more efficient and bring closure more  it has had the opposite effect the time it takes for these petitions to move through the process has increased substantially since the anti terrorism and more effective death penalty act of one thousand nine hundred six and the restrictions on the great  time for moving through the process has increased substantially and confusion about existing legal standards has been widespread i want to commend our colleague the gentleman from georgia for introducing legislation to correct the situation i'm pleased to be an original co sponsor i look forward to working with him to bring reason and justice back to this important process where there is always a push to move faster with executions the record indicates that this rush to execute is called into question the fairness and accuracy of our machinery of that we stand alone in the industrialized world in our commitment to capital punishment even russia has a long standing moratorium on executions it is a disgrace and the limitations on the great rate only exacerbate the problem i think we would do well to remember justice black observation his opinion dissenting from the supreme court's decision denying review in a texas death penalty case counts versus collins in one thousand nine hundred four when he stated twenty years of passes this court declared that the death penalty must be imposed fairly and with reasonable consistency united all in despite the effort of the states and courts to devise legal formulas and procedural rules to meet this challenge the death penalty remains fraught with arbitrariness discrimination and mistake from this day forward i no longer should think with the machinery of death for more than twenty years i've endeavored to develop rules that would lend more than the mere appearance appearance fairness of death penalty endeavor rather than continue to coddle the course delusion that the desired level of fairness has been achieved that feel ab obligated simply to concede that the death penalty experiment has failed it is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save a death penalty from its inherent constitutional deficiencies perhaps one day if anything after years of exonerations of death row inmate because of d n a evidence and in other areas of the criminal law and notorious decisions like that is circuits in which the court held that an attorney sleeping through a capital trial is not reversible error is not the ineffective assistance of counsel just as blackman's admonition nice truer today than it did a decade and a half ago and the restrictions on post in the conviction review imposed by the one thousand nine hundred six act look not only like a failure in terms of shortening the process they have as i said greatly less in the process but look even more dangerous in terms of restricting  the availability of constitutional rights and the vindication of the actual right of innocence i look forward to the testimony of the witnesses on this very timely important subject i yield back the bells of my time the chair now the distinguished ranking member the subcommittee for five minutes for his over these things thanks very much mr chairman as we consider the need to strike the right balance between finality in capital cases and confidence that only the guilty of been sentenced to death it makes sense to first consider how the most significant measures congress has passed and decades to protect the innocent have been implemented i am referring to the justice for all act of two thousand and four which was and acted on an overwhelmingly bipartisan vote unanimously in the senate i worked with colleagues on both sides of the aisle and on both sides of the capitol to see that this legislation made it to the president's desk d n a samples can help to quickly apprehend offenders and solve crimes of law enforcement agencies have access to the most up to date testing capabilities additionally d n a technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system d n a can identify criminals with incredible accuracy when biological evidence exists and the a can be used to clear suspects and exaggerate persons mistakenly accuse are convicted of crimes the justice for all act was designed to provide the necessary funding to ensure that these critical programs include the equipment and training necessary to eliminate the backlog of d n a samples in the need of test thing and to provide greater access to both attention to tory evidence those who have been wrongly convicted of crime justice for all legislation also provides that up to twenty five percent of authorized grants to states can be used to provide training to defense attorneys for appellate representation and to establish a system of appointment of capital counsel in capital cases it also provides that there should be notification one hundred eighty days after any direct appeal of a conviction is complete before any biological evidence can be destroyed this will ensure that the evidence in the case is preserved to benefit both the defendant in the government if the conviction is reversed and addressing concerns relating to d n a testing portions of the legislation i consider that on one side of the debate there were a group of people w to have no time limit at all such that a motion could be made for testing at any time as long as the defendant was still alive and in jail on the other side of the debate there were people who wanted to have a hard and fast limit and the shorter the limitation the better to prevent defendants from gaming the system in waiting until witnesses a died and a d n a to vat paraded so that there would not be enough evidence to conduct a retrial the compromise that was worked out i think was a fair one under that compromise for the first five years after conviction there's a rebuttable presumption in favor of the d n a test that after five years there's a rebuttable presumption against the d n a test but the defendant's can have their motion granted if the court finds that the applicant was in capital of the trial there is no way discovered d n a evidence or the denial of the motion to retest would result manifest injustice or for good cause shown the legislation also struck a balance regarding the standard for obtaining a new trial by requiring that there be compelling evidence that a new trial would result in an acquittal this represents a compromise but when the preponderance of the evidence and clear and convincing evidence standards i mention this experience by way of example i have no preconceived notions regarding the issues before us today but of a searching analysis reveals that there is any need to amend the federal hey b s laws i hope  similarly fair compromises can be reached that justice for all act is a vast improvement over what it prevailed prior to its annakin but there's still much room for improvement in its implementation as the justice department's inspector general explained last year the office of justice programs has been reluctant to exercise appropriate oversight over justice for all act programs and that means that this committee has also failed to exercise appropriate oversight over the last few years if this committee is interested in exonerating the n s a and and also in solving crimes that lead to the incarceration of very dangerous criminals that could do no better than by strengthening the post conviction d programs that the justice for all act has already put in place i hope we can find the time to do that and soon let me say that i'm going to have to leave this hearing now because i have a press conference on the copenhagen conference over in the capitol visitor center but i will be interested in reading what the witness have to say thank the chairman for giving me the time and thank the gentleman and before the gentleman leaves i would simply want to observe that most of the province of chairman your constitutional wisdom which was in your opening statement not exhaustive but it was very fulsome leaves me with very little to  and so i'll submit my statement for the record and and add that chairman scott and i are looking toward ways that that we can improve this legislation so that chairman johnson will still consider us among his best friends and that you know back about cement i thank the gentleman it's usually the custom of the subcommittee just a theoretical matter at that point and that's not fair earlier this year introduced h r thirty nine eighty six the effective death penalty appeals that as i was pleased to work with chairman nat lerner chairman conyers chairman scott and chairman cohen all of them have co sponsored the legislation to ensure that the bill addresses key failing of the system as it pertains to inmates on death row congressman john lewis of atlanta tireless advocate for civil rights was also closely involved in developing this bill which has been endorsed by amnesty international the n a s c p n the a c l u the civil rights and civil liberties advocacy community which i want to tape to my hat too for protecting the rights that we take for granted in this country  community has been in to really involved in the drafting of this bill and laying foundations for more comprehensive reform in the months and years to come without their hard work legislation would be less efficient and less effective my bill h r thirty nine eighty six would empower federal courts to grant a b s corpus petitions for inmates facing execution when newly discovered evidence convicts convinces the court of probable innocence as the law stands today death row inmates can be stranded in a procedural no man's land and t imagine that in america you can be killed by the state without new evidence of your innocence ever getting a hearing the status quo is inhumane unconstitutional and unacceptable justice stevens recently wrote that section twenty two fifty four d is arguably constitution unconstitutional to the extent it bars relief for an inmate sentenced to death who can present newly discovered evidence of innocence that johnson adler bill and i thank  for his work on this bill this bill will fix the law as it stands to protect innocent americans from execution i can imagine  respects and appreciates the right that people are given under our system of government so i look forward to hearing the witnesses views of this legislation and i'm equally interested in  broader issues at hand today we are not only considering the merits of the johnson net live bill we are laying the groundwork for a comprehensive reform of federal  corpus i want to emphasize that it is possible to legislate a system that is equitable and a fish but only if we commit to finding real common ground and renounced the counterproductive legislative tactics that have stymied effective criminal justice reforms in the years in the in recent years the  restore hope to restore fairness we need to pass the effective death penalty act appeals that end quickly before another potentially innocent american is executed we should also commit to fully reforming those statutes during be one hundred eleventh congress it would be a long time until the composition of congress is as favorable for such reform as it is now i look forward to leading on this issue and working closely with both of my chairman and all of the  n and an advocacy community to move legislation and that will help restore fairness to federal hey be a score puts without compromising efficiency i thank our distinguished panel with their attendance and i thank chairman now for holding this important hearing for and for his indispensable assistance in helping to develop h r thirty nine eighty six and i yield back the balance of my time witnesses as we ask questions of our witnesses the chair will recognize members in the order is their seniority the subcommittee alternating between majority minority provided the members present major turn arrives members who are not present in their turns begin will be recognized after the other currently managing the firm's community services team which provides pro bono legal services for indigent clients he stands on his work on civil rights issues particularly indigent defense systems claims for survivors of the rosewood massacre death penalty litigation prisoner rights medical experimentation without consent and racial discrimination he's also a member the american bar association death penalty moratorium project and currently chairs the constitution project board of directors he received his j d from the university of missouri columbia school of law this b s from st louis university the honorable gerald kogan served in the florida supreme court from one nine hundred eighty seven to one hundred ninety eight including two years as chief justice he serves on the faculty of the university of florida the university of miami noble university the university of virginia and new york university before serving the florida supreme court justice kogan was a member of the us army counter intelligence core a practicing attorney dade county chief prosecutor a circuit judge in florida's eleventh traditional circuit an administrative judge of the criminal division since his retirement he heads the national committee to prevent wrongful executions along with co chair charles baird a former judge of the texas court of criminal appeals he attended the university of miami where he received his bachelor's degree in business administration and is juries doctorate degree michael o'hare has served the state of connecticut as the supervisory assistant state's attorney for the civil litigation bureau since two thousand and two he currently supervise all federal  the state of connecticut arising from challenges to state convictions mr hare served in the u s army judge advocate general's corps and is a staff judge advocate in the reserves from one hundred seventy nine to two thousand and nine which included deployment to iraq in two thousand and three he retired from the army with rank of colonel he's also worked with the justice department's office of international affairs of the criminal division the narcotics section the criminal division as a member of the state of connecticut capital litigation unit in two thousand and five mr successfully led efforts to defeat state and federal developments in addition to his academic work is argued eight cases before the united states supreme court since one thousand nine hundred six professor bloom is served as one of several consultants to defend his services division of the administrative office of the united states courts and he's corpus you you've written samus in their entirety with a part of the record i would ask each of you to summarize your testimony in five minutes or less i'm supposed to say that to help you to stay within that time limit the timing light your table which switches from green to yellow to read i mean for that the power has failed it's back to power is back so you can't filibuster anymore this is not the senate anyway you couldn't in any event nor can we but when one minute remains on your time t light will switch from green to yellow and then red when the five minutes are up before we begin it's customary for the committee to swear in its witnesses if you please stand and raise your right hands to take the  do you swear or affirm under penalty of perjury the testimony about to give us your incorrect to the best of your knowledge information and believe let the record reflect that the when this is answered in the affirmative you may be seated and we thank you and now recognize for five states supreme court in that your time ok so refused to find a constitutional right to state post conviction counsel and the result is that throughout the states now we either have no state funded or or grossly inadequate state funding particularly for state post conviction counsel it was about that time in the late eighty's early ninety's that justice kogan and other members of the florida supreme court came to us from the private bar and asked us to enormity of the problem these cases raised for the first time ever the issues of ineffective assistance of trial prosecutorial suppression of material evidence and jury must conduct in a host of other serious constitutional issues involving facts which are almost entirely outside the trial record i have been practicing law now for approximately forty three years i have done a wide range of civil trial practice constitutional litigation civil rights litigation class action litigation securities litigation probate litigation i have never seen anything in my experience approaching the factual and the legal complexity of capital post conviction litigation this can fairly be characterized as the brain surgery of our profession in the past eighteen testimony give you a very good idea of the massive additional complexity that has introduced into this area of the law my experience with ed and i've been involved in this worth both before and after is that it has dramatically increased satellite litigation and death penalty cases which has nothing to do with me could you explain what you mean by satellite and counsel and by counsel i mean not only defense counsel i mean the state are engaged in a wide variety of technical litigation which again is well described in both professor bloom's testimony and  justice kogan testimony which is significantly slowing down this process and keeping us from getting to the merits of these cases there is a study that has been done by professors at vanderbilt a study that was funded by the national institute of justice office of justice programs the department of justice it was a collaborative effort with that capital cases that terminated in federal district court lasted an average of twenty nine months almost twice the fifteen months they took before ed i have a copy of that study here and i would ask permission to include that in the record  without objection thank you again this is not only tying up state court time federal federal court time is tying up the efforts of defense counsel and the thank you very much mr chairman i want to start out by showing you basically where i come from and what my experience has been in this field not only was i the chief prosecutor of the capit crimes division in miami i personally appeared before juries asking the juries to impose the death penalty on the defendant who is sitting in the courtroom and was being tried i had members of my staff my societe prosecutors also asked to certain circumstances to impose the death penalty when i left the state attorney's office i defended these particular cases later on i went on the trial bench and i tried death penalty cases as a trial judge and starting in one nine hundred eighty seven until the end of december of one nine hundred ninety eight i was a member of the supreme court of the state of florida and every single time a judge in the state of florida impose the death penalty on an individual that case came before us on the court for our review and our decision as to what ought to be done with it as a matter of fact twenty eight people were executed in the state of florida while i was sitting on the supreme court and in most of those cases i in fact went ahead and signed off approving the imposition of the death penalty as a matter of fact on nine occasions while i was chief justice i presided over these proceedings and i was the last person who made the final decision as to whether or not the defendant would suffer a death or would not and of course at that particular time everything had been done all they be as corpus christi these had been filed all the post conviction relief matters had been disposed of and i was the one who stood between that person living or dying and i remember when i said there are no stays of execution because all that's been decided and when governors counsel heard that he told me what was receding on about putting the hood over the head of the person to be executed he told me that mr chief justice the electricity because in those days florida only had the electric chair has been turned up to twenty five hundred volts and what do you think went through my mind at that time with all of my experience i knew that every day in this great country of ours with the greatest legal system in the world i know that innocent people have been convicted of crimes they have not committed i said god help us if we have made a mistake here we are human beings we are trying to work a system that we would like to believe is perfect but being human beings we're not perfect and we can make mistakes and then what seemed like an eternity i was told the electricity was turned off and the attending physician had pronounced that individual dead in over forty years of practicing in the death penalty field as an attorney prosecutor judge trial and appellate participated in the final decision in more than twelve hundred capital cases and that doesn't mean all twelve hundred people receive the death penalty but they were subject to the death penalty at some point along in those particular proceedings and i learned one thing that the most important thing that we have going for us is a system which allows us to permit the highest court in this land the u s supreme court to be able to consider those issues that manifestly effect whether or not people live or die after they have been convicted of a capital offense and we should do everything in our power and of course you folks have power to see to it that all persons who are charged especially in death penalty cases have the ability to have these issues resolved by  not in a year not in six months as a current law requires but one ever arises we cannot as a civilized society tell these people you don't have any more rights because it's  ally barred that is absolutely absurd to say you've got to die because something wasn't filed on time or due to some peculiar reason we cannot consider what made manifest number of cases it doesn't consider those cases where people are convicted because of false identification or because of a false confession that in some way been induced from their lips by law enforcement action and other items come up as well so you're right about that not so much to worry about the d n a although there was a time that all of you gentlemen recall  prosecuting attorneys for the defendants ability to get but i think now that is all that's true that is very very true and so from my background you can say that up front experience i've been out there on the street with law enforcement looking at the dead body i've commiserated with the members of the family of these people who have been killed but that our system must provide all the safeguards that we possibly can in regards to preserving that corpus and i think what congress needs to do is to go ahead and reexamined the entire situation come up with a comprehensive law and i want to compliment  congressman johnson for taking a step in that direction and i think this is a very very worthwhile endeavor by this committee and by congress and i thank you for the opportunity for important to the states because as a direct effect on the ability of the states to carry out the lawful judgments of their courts the lawful and constitutional judgments of their courts as a prosecutor properly applied the provisions of the procedural protections that are required by the united states constitution but there's nothing in the constitution to provide for a court already in determining the facts claim of actual innocence is a factual claim and the state under our constitutional system i believe the states have the final say in adjudicating such a claim indeed in barefoot factual determination it is to determine whether the state court judgment has been has been determined in compliance with the procedural requirements under the federal constitution because proposed amendment provides relief on a factual claim i believe it exceeds congress's power to act and is therefore unconstitutional the proposed amendment to section twenty two forty four seeks to remove the barrier to successive petitions with respect to claims of actual innocence by petitioners who have been sentenced to death minutes mr chairman members of the committee thank you for this opportunity the nailer johnson bill is a lot of whole effort to address a significant problem in the criminal justice system the conviction and execution of the n s a and i think the problems with vires manner when it sent troy davis case back to the district court for further fact finding they could not have done that had they not at least implicitly recognized a right not to be executed if you are innocent i want to talk about three issues briefly the first habeas corpus review of their convictions and death sentence is because of this i want to briefly talk about one case kenneth rouse was convicted and sentenced to death in north carolina for the crime that he allegedly murdered raped and robbed an elderly white female mr rouse was african american he produced an contradicted evidence in federal court that one of the jurors who convicted him and sentenced him to death mother was also convicted raped and robbed by a different african american male and he lied about that fact during blood year for the purpose of getting on the jury to send its mr rouse to death that an contradicted haven't received no federal review whatsoever why because his attorneys filed his habeas petition one day yes one day late and they did so despite the fact that there was a good faith dispute about whether that filing was timely that is shocking that is unconscionable and that should not be allowed in a civil society but it goes on in this regime second i'd like to briefly talk about federal procedural default as mr hanlon mentioned in his remarks there is the sort of byzantine set of procedural rules that are now in place in the hevia system and these also produce draconian unjust results john elden smith was executed in the state of georgia display the fact that there was widespread discrimination against women in the grand jury process that led to his conviction and death sentence his co defendants lawyers objected mr smith's lawyers did not object what was the result mr smith was executed mr smith's codefendant received a new trial in the senate to life imprisonment it is absolutely clear that had mr smith's lawyers objected it would not have made one bit of difference to the judge because that judge overruled the objection made by his codefendant but yet one person lived and one person died because one lawyers knew the rules of the road and the other set of lawyers did again that is shocking and that is unconscionable and it should not be allowed it also means that in these capital cases a substantial amount of time and effort is spent on the riveting question such as was there a state rule is it consistently and regularly applied is it adequate if all these procedural obsoletes were eliminated we could streamline the review we could achieve more justice and the system would work better and produce just results finally i wanted to talk a little bit about twenty two fifty four d which is also mentioned in the chairman's opening remarks twenty two fifty four d says that a federal court cannot grant relief unless a state court decision was contrary to or unreasonable application of clearly established federal laws determined by the supreme court of the united states but i will say that proponents of the a d p assured members of congress that if they passed this that meritorious claims would be vindicated president clinton signing statement said the same thing but that promise has been broken  example a case out of the fifth circuit mr dick been presented evidence that even persuaded that court that his conviction and definite paned unconstitutional his lawyers presented virtually no evidence in mitigation despite the fact there was an contradicted evidence of the extreme abuse to which he'd been subjected to when being placed in a state militia to including being repeatedly gang raped by other members there the fifth circuit agreed that his lawyers performance was unreasonable they agreed it was prejudicial but they said they could do nothing because while the state court decision was wrong it was not so off the mark and thus at petard their hands again that should not be allowed if there is a constitutional violation the federal court should have the power to remedy it this court should go beyond just a question of innocence engage in sweeping reform and untie the hands of the federal courts and allow them to get down to the business of remedying constitutional error thank you thank you very much i will begin the questions by recognizing my  self for five minutes let me start by asking mr o here since one of the major purposes of edgar which i think you referred to also was for finale and to reduce the number of post conviction appeals and more importantly to reduce the timing the time of post of litigation between an adjudication of guilt and execution of sentence and sin but since the result seems to have been a great  ning of the time because of all of the as judge hogan referred to it as a cogen as satellite litigation and all these other questions of whether essentially and whether the statute was met and so forth do you think that that ought to be reviewed  well excuse me that's exactly my point my point is going to be better instead of wasting a lot of time and effort money in litigation as to whether the procedures were followed properly to get to the heart of the matter on the merits i think the heart of the matter on the again and a whole new regime and of what is going to happen in these situations are adopted by the congress because if you don't do that you're going to get involved in things that are less you know procedural matters are all well and good the only problem with the seadrill matters is they object to your the thing you're really looking at and i know that that's an interesting philosophical point of view which is exactly the opposite of mr harris view which seems to be better spent time on procedural obstacles to vindicate the right of the state not to have their determinations looked at on the merits by a federal court which i disagree with mr here but that that is his position as i gather it now let me ask you further judge hogan based on our current because of the provision in the in the end that a claim that federal court cannot grant habeas claim decide the stay quit level that's it's  to are involved in an reasonable application of clearly established federal law or based on reasonable determination of the facts in light of the evidence could there be circumstances when innocent individuals are the night a v s relief  other words you're looking at are of the courts is the lower court making a mistake that's really what you're looking at and the whole point is that if you're going to go ahead and saw talking about you know whether or not something is reasonable or unreasonable you have to go to the highest level in favor of the person who's filing that particular petition because remember the whole system of justice is not just to convict the guilty it's also to provide protect and prevent the unison from being convicted although some people's view seems to be that the purpose of of the federal justice system is to protect the right of the states to make the terminations right or wrong mr bloom professor bloom in light of what we've just been discussing give any specific suggestions on how to modify the current law to ensure that individuals his constitutional rights ways which the less the state courts say the more deference they get in federal court and there's the less they say the more deference they get because they don't say enough to hang themselves because they don't say it to hang itself and supreme court is focused solely on the result is the lower federal court so there's a presumption that the state courts did it all right when they in fact say nothing i don't think that's what the people who passed at the intended but that's how it's played out and it is lead to numerous to coney just results elimination of procedural default would justify federal review right now the federal courts of interpret such that the lawyers agree just a mistake no matter how egregious doesn't told the statute of limitations and because many of these inmates have no right to either a lawyer no right to the attorney of their what i'd like to tell all of you to do is help us figure out how we can improve this really important piece of legislation everybody knows we do have an amendment to the u s constitution that talks about nobody's life liberty or property shall be taken without due process of law due process of law has been defined over the years by all courts including brain court to include those things that arguments such as mr o'hare's might have years ago been valid but really aren't anymore what do we mean by due process of law very simply for law treated this particular litigant in this case and defended fairly and that's really the issue and the court can always decide whether or not that person has been treated fairly and do troy davis the supreme court had said well we had never explicitly decided whether there was a right not to be executed if you're innocent now that of course is a statement most people in the street i think would find shocking that in this country supposedly the greatest democracy in the world the greatest defenders of civil liberties that it's not enough to obtain a new trial that you are just innocent of the offense for which you were convicted and sentenced to death but despite that fact i think it is true the court could not have done what it did  davis it ticked at the case it said we're sending it back to the federal district court to determine if mr davis is innocent in light of the statutory criteria met unless it first decided at least implicitly that there is a constitutional right not to be executed unless you're innocent they would have had no power to do that without at least making that determination so i think david speaks clearly to the fact that there is now a constitutional right not to be executed lawyer anderson this committee has  the congress has the power to pass it and i think also to influence the decision of what is the standard for innocence which is something this bill takes on well attorney what what seems to be disturbing some of the people at this hearing about your analysis well i'll let i think they've indicated what disturbs them about my analysis but i would respond by saying that  i believe on that issue the court spoke most clearly in herrera versus collins where they decline to hold that there is a right to relief on a claim of actual innocence for a right to federal habeas corpus relief on a claim of actual innocence and i think that is still the state of the law and their action on the order in troy davis doesn't alter that  and i think that the real issue is not whether or not a person can be executed if he is innocent of the crime i think the issue is where that decision is made and i believe that the decision if the decision is made in a state proceeding that complies with the requirements of the federal constitution then that should be the final decision on that issue and i think that that is the basis of our federal constitutional system and i believe that that the in her versus collins united states supreme court  yourself with that a new position on the subject i mean it's just deeply hell and you don't have any question about it or is it something that you can apply the law as i believe it exists so my position is based on the law as i believe it currently exists today i represent my clients people of the state of connecticut based on i believe if the supreme court were to much and the reason that i pursued this conversation is that we are some some of our views legal  deeply held and i've found myself on occasion saying i don't care what the supreme court says a matter of fact increasingly had that i found myself or that view so i just wanted to know if you could easily adjust yourself to that if the supreme court spoke personally i've got some issues that i think the supreme court with all due respect was  a practitioner i have to follow the law and as as articulate about the supreme court and my own state supreme court on matters of of state law and i  often disagree with my state supreme court sometimes the united states supreme court when i do i follow the law and representing the state of connecticut well you can't not follow the love but that doesn't mean it's you you don't you haven't changed your opinion do you see what i'm trying to convey i mean just because the supreme court says o is wrong that doesn't mean o'hara says ok i'll do it your way you likely don't have any other choice but with would there be other things that could help you reexamine your position like may be reviewing this transcript of this discussion when mr conyers i always keep an open mind on these issues well that's what i was looking for i mean i wish you'd said that a few minutes ago instead of a about how blindly you follow supreme court dicta but i thank you for this discussion you're welcome was just wondering since we know what we know with the findings of d n a where people have had a trial that all aspects looks like a fair trial but we know they just got it wrong now is there anything do you find it inherently wrong to have us just inherently wrong when that's the way it is and not inherently wrong with is a system that someone is factually innocent of the charge on to be executed in my state  state has very broad rights post conviction to challenge convictions in post conviction proceedings and we have virtually unlimited opp opportunity for after the game has been played you know you get a videotape review of they just got it wrong if there is no d n a you wouldn't expect any better percentage  results then in the case of d n a we know there's d n a to come and look at it no you got it wrong if you don't have the d n a it's not perfect some of them are wrong if you can show that you're factually innocent of the charges anything inherently wrong with the system they will put you to death anyway without an appeal i think that someone who can get their facts of the charge should not be put to death ok now where in the process would they have the opportunity to have someone put a stop to the proceedings i think as i indicated in my testimony the show i have is where that should take place where my view it should take place in the state proceeding in the state court that's correct so you start a new trial you trust the state court to get it right and the federal court should have no opportunity to put a halt to the state proceedings when someone claiming innocence with it would be denied the opportunity to present the evidence gets put to death anyway without the federal government being able to put a halt of it to the proceedings i think that the that the federal government can ensure that that the defendant that there's nothing execution if you're factually innocent is nothing inherently wrong with that process the judge joe coburn did you have a this is something inherently wrong with a system with someone who is factually innocent cannot present evidence to show their their their their innocence this country there are some countries around the world where i think that that routinely happens with the court and thing to remember what it was what happens where they are put to death you know where they just have the evidence but they have no chance to present it and even if they did present it they would prevail anyway is that what did that does that happen in the united states unfortunately i believe so let me also say and is there something inherently wrong with that inherently wrong in a country such as ours that prides itself upon the right of individuals to have life liberty and the pursuit of happiness it sure does it is just morally wrong to execute someone who is innocent of a crime and especially not even giving that person the opportunity to come around to show that they are in fact innocent and also let me say this you know having been on the bench i am not someone who overlooks reality courts can be wrong they are wrong many many times state supreme courts make mistakes the u s supreme court makes mistakes and for us to say the mr hamlyn many of your criticisms of at pi seem to come back to one major flaw in the way we handle capital cases in this country the lack of well trained experienced lawyers to help prisoners that are sentenced to death penalties  to and and who lack the ability to have to have representation on their appeals and the statistics are very disturbing that seven out of ten capital cases fully reviewed a bridge over a twenty year period had serious constitutional errors i doubt that many prisoners that are sentenced to death can afford the cost of a multi year post conviction proceeding and yet they're not guaranteed counsel after their initial convention conviction  what's the what is the best way to fix this problem what is the best way to make sure that they have adequate legal advice and representation should the federal government provide defenders to capital cases to shepherd them through the ish constitutional right to capital post conviction representation the funding for counsel in these cases is grossly inadequate almost everywhere and this is just terribly exacerbated by a one thousand nine hundred six effort to limit federal review under that situation one would think you would want to expand federal review knowing that the problem of adequate counsel and capital post conviction in cases where this is the first time that this issue can be raised ineffective assistance of counsel prosecutorial misconduct capital post conviction defender systems because we have a at least a twenty year record of failure we can't get we've tried and tried and tried and were met with well it's just a matter of legislative  we don't have to fund we don't have to provide you with any faced with that we go begging but we always come up dramatically short seems to me that the record is overwhelming right now that we are not going to get that  funding in the states and we have only one of the place to look for and you mentioned that there are federal training programs in place to help states improve training and standards for councils appointed to state capital cases are the states taking advantage i frankly don't know the answer to that question but i'll get it for you i know that one of the other bad things that happened in one thousand nine hundred six is that we lost funding for the volunteer resource center right at the time that we had this record stablished o in your testimony you mention to pending supreme court cases that will rule on the very same issues you raise why not leave it up to the courts to iron out these inconsistencies and confusion a lot remember  have fifty states in the united states and you could very simply wind up with fifty different ideas as to what something should be interpreted as what the law should be we have the u accurate way process procedure legal technicalities whatever it might be but not necessarily innocence and so i'd ask first mr hanlon this question of this data that you put out do you have data that would reflect the identity of the individuals and the numbers of individuals who were executed unjustly who were actually innocent of the crime is generally collected by the death penalty information center is available on its website but i do want to correct the record we did not say that these errors were procedural technical  testimony was that the courts had reviewed these cases and had found serious constitutional and reversible error it was that thanks for the clarification mr hallinan i didn't intend to put words in your mouth but i would ask or you do have knowledge of any individuals who were executed that have been a term and to be innocent i'll be happy to turn this to a honorable judge kogan since that was my intent at this point but i want to let the record reflect that i'm asking the honorable judge cogon if you could respond there question i cannot give you names  i'll say this i'm going to use d n a as an example of what i'm going to refer to now save yourselves d n a first of all as we all know only covers a small number of cases but let's look at it this way what happened to these people prior to d n a being developed as a science which could prove an innocent i'll tell you exactly what happened to them they were executed common sense tells you that you can't say oh you know do you know that only arose it was you you know in recent years like it's just something that fell out of the sky in other words they were innocent people going back to the founding of this country but yet we didn't have d n a develop up until the night where it was able to be used in court to exonerate so logically that point out that we have over forty thousand people a year killed on the highways in america over sixteen thousand that are murdered in america we'll lose about an average of over the last two years about one hundred seventy two troops in afghanistan surely when we look at the magnitude what we're dealing with your you have a sense of the magnitude of how many innocents have been executed over a period of time have any sense of that that you can help this panel out with well as i understand it we've i don't know somewhere between one hundred one hundred fifty people exonerated by d n a and none of them executed none of them executed none of them were executed and if we didn't have d n a they would have been are we certain of that i mean i'm glad this happened and i'm i've been a strong supporter as a supporter of establishing a d n a databank and all kinds of circumstances because i think that is the saving of one life is worth all the investment we could possibly put into it so i don't want to leave a tone here with respect to your question just now and what percentage of death penalty cases is d n a evidence available i can't give you an exact broccolis but i can tell you it's a very very small amount in other so in other ways so enough so in other words so in other words one has to assume that if x percent of people would have been executed but the d n a evidence with d n a evidence is available then probably a similar amount of people who are innocent are executed where the d n a evidence is not available w that be correct i don't know there's no way for us to quantify that at all but we have to say logically that if now we have exonerated between one hundred one hundred fifty maybe more than that by a and capital look at the same percentage for years gone by judge going i think that you know i think you've given an accurate answer on this is have to we don't know the number and we don't know the names and be very helpful to know the number and the name so we understood the magnitude of this is this a way out on the stretch anomaly or is it something that's a to stickle and i and i think we're going after all look at that data off the web site that was mentioned by mr hanlon but i want to also point out before i turn to mr o'hara my clock is running down here that i watch the o j simpson trial there was d n a d n a evidence there so some of these things do go out the window when it comes time to go before a jury for example mr o'hare i want to get a clarification from you that you might be able to eliminate this situation a little bit and that  is if i go to the bill and yet it reads in page two a sentence of death that was imposed without consideration of newly discovered evidence which and combination with the evidence presented at trial demonstrates that they  innocence in claims can be made in post conviction proceedings in the clear and the standard is clear and convincing evidence of actual innocence which is a higher and more appropriate standard so i would suggest that  a standard of probably is far too low and too imprecise would you agree as there are little sidebar conversation here out that probably means preponderance and if that's the case shouldn't that be an amendment to this language so offenses and also for things like search warrants and so i just want i just want everyone to know the probable cause misdemeanor cases and a friend of mine came to me and said look there's a guy down on death row who really needs an attorney and he's due to get killed on  you know they were willing to entrust that case to a young lawyer with with no experience we didn't have the death penalty seminars to get  lawyers ready for for that kind of work and and so mr howard jones had already exhausted his direct appeals and so now it was stated were misspelled motion for trail as opposed to trial and there was some other the other motion i don't recall what it was but it was you know misspelling it was careful approach to representing mr jones and so to make a long story short in eighty four a federal district court judge was able to see that this case against how what jones was  based on perjured testimony and also prosecutorial misconduct and the press the prosecutorial misconduct had to do with allowing the state's principal witness to testify there was no deal between he and the state he had already received a twelve year sentence for armed robbery with the murder case  having been dead docketed and so but anyway that case ended up the prosecutor allowed that testimony the defense lawyer  did ask the appropriate question do you the of the of the state's principal and main witness you did ask him and he said no i have not reached a deal main witness against my client who as he was getting older i guess he wanted to make a deathbed confession or something like that but he he was the one who  ruled in favor of mr jones now not to talk about whether or not jones was guilty or innocent i think it's important for people to have respect for our system of justice and if our system of justice allows for lies for a conviction to be based on lies knowingly procedural issues are important you know certainly procedural requirements a very important and so is the application of substitute law and whenever that process is not true whenever it's there's a question about it was troy anthony davis who pulled the trigger but now they're all saying that they were victimized by police misconduct and  and he wanted to change their testimony and so you know people do have converged at some point where they where the truth comes out and for us not to be able to get at that truth in the most important type of case that we can have a person's life is that state where states getting ready to take someone's  in any cases from state court personally i'm i'm here on behalf of the american bar association the american bar association other categories of human isles mental retardation ok so you have no personal opinion that's my question i have a person opinion and what representing the a b a and i appreciate that thank you but this may surprise you i am opposed to the death penalty because i see the problems in the system and how every day we run the risk of executing and then it's a person ok with that reason allows me but but there are some people who have committed that are so heinous and so horrible that actually i think the only way society can show its disapproval is by exercising the death penalty now that doesn't mean the proceedings allow questions so we know where people are coming from personally when i look at the proposed bill i do have concerns about the word probably yes well you we have all kinds of law on the words probable cause but probably is going to create all kinds of new case law and so if the idea were to drag litigation out drag things out to prevent any further execution in any case then this would seem to be a good word to use also the law as it exists right now has a limit  well some limits on how many shots at the apple you get as well as exhaustion requirements and it's my understanding under the proposed law that there is no exhaustion requirements of  remedies as well as potentially unlimited opportunities to continue to pursue a writ of habeas corpus under that bill is that your understanding channel is it your understanding that there is no limit to the number of writs that may be brought under under the proposed bill if you looked at it you mean under under congressman johnson's bill right is there any limit to the number proposed writs that's great i'm not sure i know the answer i know there's no specific limit articulated  bill then that would be obviously subject court interpretation but the bill itself doesn't limit it and i've got to tell you i appreciate mr johnson's comments having handled sentence imposed in one did not the one i was appointed to appeal though the court kept dragging the highest court in texas kept dragging its feet on whether or not to render a decision and frankly i'd done a very effective case of pointing out that i didn't have a problem with the death penalty but in that case the rules were not followed and needed to be reverse but my client kept begging me please it's been so long tell them just give us a decision leaving me on death row for an unlimited period is cruel and unusual don't make me sit here day after day after day not knowing whether i'm going to die next month or not die next month my going to get close and then be pulled back let's just do it it's cruel and unusual to make me sit here for such a long period of time and so i see the pendulum swing back and forth on say my time's expired but i want to make sure that we don't go as far as we had back in the sixty's and seventy's for getting the victims in the victim's rights and they were doing a good job with the d n i laws that we passed to help that we've done applaud the majority's efforts in that regard  i thank the witnesses as well i want to make a statement just for the record that this hearing is on the impact of federal hay vs corpus limitations on death penalty appeals pre show eighty honesty of the witnesses but this is not a of the death penalty and many of us quarrel with ourselves in particular judge on the framework which you used heaney is in the river crimes you probably have personal quarrels with your own morality but i think this hearing is enormously important because there are many of us who have lived through our the crisis of death penalty cases becoming political football and i think that that is an abuse of justice i think that is a he is immoral act when the in essence the political future of those who are entrusted to make fair and unbiased decisions are based solely on the latest poll whether or not i will win the conservative vote whether or not i can go into a primary and be successful and why am i speaking from that perspective because i've had real life feeding false information to distort the decision making process of an elected official but giving them our very best so that they can make the right decision or giving the very  best the supreme court are so they could in essence put in place a stay but obviously if you're addressing the conservative court versus another type of court and of course we have lived under now what has been called a conservative court for more than two decades so let me give you an example of what we face in particular in the state of texas one particularly troubling case is the case of todd willingham was executed by lethal injection in texas in two thousand and four todd willingham was accused of deliberately trapping his three children inside a burning house he continued that he did not set the fire and was asleep on the morning that the house caught fire but managed to escape with burns while his daughters died inside before willingham execution his attorneys were able to particular an expert evidence proving that he did not cause the fire that killed his daughters yet the governor's office of the state of texas declined to even read the report todd willingham was executed without an opportunity to appeal with evidence that he could have very well saved his life a heinous crime certainly something that would distort the minds and hearts of individuals as to why this person should li e and i would like for the record chairman there unless i could i'd like to officially ask for a full hearing on the todd willingham case i think it is a case in point i've written a letter to the general edition generally will and that's in the works thank you very much sir my written a letter it's on the record i'm so grateful for the leadership of this committee but let me move quickly in and just indicate that is one glaring case out of the state of texas texas one governor by the name of governor r the second case was with a christian oliver executed on november sixth two thousand and seven his case we mean two thousand and nine one case that i personally got involved with because it was represented that there was new evidence dealing with the d n a on a rifle certainly someone died no one will ever diminish the loss to these families but someone died and we asked for a thirty day stay it was rejected but governor did not respond mr bloom if i could quickly ask the question as to what legislation as mr johnson has offered on the original co sponsor would have done to these cases when i believe it was truly tainted by political aspirations political concerns as a prole so the basic raw facts of a simple process of justice and not even just is but a procedural roadmap procedural question and you are familiar with the todd willingham case out of texas says sir i thirty seven death row exonerations seventeen people found factually innocent through d n a evidence one hundred twenty two overwhelming evidence of innocence undermined the validity of the  conviction let me tell you what's even more disturbing than that someone was one hundred twenty two what did you say that hundred twenty two well i mean evidence of innocence undermined the validity of the conviction all right for a total of one hundred total of one hundred thirty nine but let me tell you what's even more disturbing than that to me and that is in many many many of these cases how lucky we were to find in chicago in the north western journalis it's we were just lucky that there was a law professor there who put his students out to do the investigation to un or thought and to produce the exonerations i can say in my review of these cases i'm convinced to a moral certainty that we have executed innocent people it's almost inconceivable that we haven't done that given the luck that we have had many many times throughout the system chairman the question was and i called your name out there to answer it i guess you didn't hear me and the question was what a procedural roadmap helped avoid political decisions or decisions that my cloud the opportunity for new evidence to be perspires in it but there's no question you would need a road map to do that and it should be set up and done let me make one comment i just remembered something a number of years ago i was on the american bar association  at the ends of caught in london it was an international data rate and the moderator of that panel in front of a huge audience said you know that in order simply because our elected public officials who have something to say about that feel that the american people are in favor of let me told us something i never knew before he said and every one of the european countries the general populace is in favor of the death penalty but we don't worry about that because we're there were elected officials and they have confidence in our ability which we will follow it in s the witnesses to respond this family as they can so that their answers may be made part of the record without objection all members of that five legislative days to submit any additional materials for included in the record i thank the witnesses in the members and with