STREAMLINED PROCEDURES ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 3035

NOVEMBER 10, 2005

Serial No. 109–82

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

STREAMLINED PROCEDURES ACT OF 2005

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STREAMLINED PROCEDURES ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 3035

NOVEMBER 10, 2005

Serial No. 109–82

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

MICHAEL VOLKOV, Acting Chief Counsel 

ELIZABETH SOKUL, Special Counsel for Intelligence 

and Homeland Security 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

NOVEMBER 10, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

The Honorable William D. Delahunt, a Representative in Congress from 

the State of Massachusetts, and Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 4

The Honorable Daniel E. Lungren, a Representative in Congress from the 

State of California, and Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 6

WITNESSES 

Mr. Tom Dolgenos, Chief, Federal Litigation Unit, Philadelphia District Attorney’s Office, Philadelphia, PA 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 11

Mr. Kent Cattani, Chief Counsel, Capital Litigation Section, Arizona Attorney 

General’s Office, Phoenix, AZ 

Oral Testimony ..................................................................................................... 37

Prepared Statement ............................................................................................. 39

Mrs. Mary Ann Hughes, Chino Hills, CA 

Oral Testimony ..................................................................................................... 46

Prepared Statement ............................................................................................. 48

Ms. Ruth Friedman, Solo Practitioner, Washington, DC 

Oral Testimony ..................................................................................................... 54

Prepared Statement ............................................................................................. 57

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 99

INSERTED INTO THE RECORD BY MR. SCOTT (AS REQUESTED DURING THE HEARING): 

Kristen Gelineau, ‘‘Old DNA clears two more men, including one in Norfolk 

case,’’ Associated Press, (December 14, 2005) .................................................... 101

Letter submitted by Leonidas Mecham, Secretary, Judicial Conference of 

the United States, to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary (July 22, 2005) ................................. 104

Letter submitted by Leonidas Mecham, Secretary, Judicial Conference of 

the United States, to the Honorable F. James Sensenbrenner, Jr., Chairman, House Committee on the Judiciary (September 26, 2005) ...................... 112

Letter submitted by Ronald M. George, Chief Justice of California, Supreme 

Court of California to Chief Judge Mary M. Schroeder .................................... 139

Page

IV

Joint Resolution 16 of the Conference of Chief Justices and Conference of 

the State Court Administrators .......................................................................... 142

Joint Resolution 18 of the Conference of Chief Justices and Conference of 

the State Court Administrators .......................................................................... 144

‘‘Sample List of Innocent People on Death Row Granted Relief in Federal 

Court Who Would Have Been Executed had the Streamlined Procedures 

Act of 2005 Been in Effect,’’ excerpted from the testimony of Barry Scheck, 

Co-Founder of the Innocence Project at Cardozo Law School in New York 

to the Senate Judiciary Committee .................................................................... 146

Letter submitted by Thomas W. Hillier, II, Federal Public Defender, Western 

District of Washington to the Subcommittee ..................................................... 157

List of organizations and individuals opposing the Streamlined Procedures 

Act ......................................................................................................................... 223

Letter submitted by former Federal and State prosecutors and law enforcement officers to the Honorable Arlen Specter, Chairman, Senate Judiciary 

Committee ............................................................................................................. 227

Letter from the Honorable Timothy K. Lewis, former Judge, U.S. Court 

of Appeals for the 3rd Circuit to the Honorable Arlen Specter, Chairman, 

Senate Judiciary Committee and the Honorable Patrick J. Leahy, Ranking 

Minority Member, Senate Judiciary Committee ............................................... 237

Letter submitted by Bob Barr, former Member of Congress, the American 

Conservative Union .............................................................................................. 245

Various Editorials submitted in opposition to H.R. 3035, the ‘‘Streamlined 

Procedures Act’’ .................................................................................................... 247

Letter submitted by the Most Reverend Nicholas DiMarzio, Chairman, Domestic Policy Committee, U.S. Conference of Catholic Bishops (USCCB) ...... 286

Statement of Seth P. Waxman, ‘‘Hearing on S. 1088 before the Committee 

on Judiciary,’’ United States Senate, July 13, 2005 .......................................... 288

Letter submitted by Robert D. Evans, Governmental Affairs Office, the American Bar Association (ABA) to the Senate Judiciary Committee ..................... 297

Letter submitted by Paul A. Renne, former Assistant U.S. Attorney to the 

Subcommittee (October 31, 2005) ....................................................................... 299

Letter submitted by Paul A. Renne, former Assistant U.S. Attorney to the 

Subcommittee (July 20, 2005) ............................................................................. 301

‘‘Judicial Conference Action Regarding the ‘Streamlined Procedures Act of 

2005’’’ submitted by Karen Kremer, Office of Legislative Affairs, Administrative Office of the U.S. Courts to the Subcommittee ..................................... 309

‘‘Rebuttal to Claims From the Office of the District Attorney of Philadelphia 

County, Pennsylvania’’ ......................................................................................... 312

(1)

STREAMLINED PROCEDURES ACT OF 2005

THURSDAY, NOVEMBER 10, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:10 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Howard 

Coble (Chair of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. I want to welcome you all to the important legislative hearing on habeas corpus 

procedures for review of State death penalty convictions. This is 

the second hearing on this legislation. And for the benefit of all involved, I need to let you know we need to vacate this room on or 

before 12. We are having our PATRIOT Act conference in this 

room. So we have to set up for that. So keep that in mind. We need 

to hit the road at 12. 

I have stated on numerous occasions that I support the death 

penalty for the most heinous crime. But I’ve also made clear that 

the death penalty must be clear, fair and must be accurate with 

appropriate balance between victims and analyst litigation and appropriate consideration of crimes of error and legitimate claims of 

actual innocence. 

I am a strong supporter of the Justice For All Act, a far-reaching 

measure which provides additional safeguards in our death penalty 

system for post-conviction DNA testing of evidence and improvements in our capital counsel system. 

Today, we are reexamining representative Lungren’s proposal, 

H.R. 3035, the ‘‘Streamlined Procedures Act of 2005,’’ which reforms Federal habeas corpus review of State court convictions. 

Mr. COBLE. The Subcommittee in the judicial security hearing 

and in examining child crimes and even last Congress during consideration of the Justice For All Act has gathered a substantial 

amount of evidence showing that the Federal Court, that the Federal Court habeas review, particularly in the death penalty area, 

has suffered from extraordinary delays, some as long as 15 years 

for pending habeas petition to be resolved by a single Federal judge 

and misguided application of precedent to frustrate the ends of justice. 

State provides significant habeas review. And applicants are now 

using the Federal review in some instances to frustrate justice 

which at once calls for reform aimed at ensuring that justice delayed does not turn into justice denied. 

2

Currently, many Federal habeas corpus cases require 10, 15, 

even 20 years to complete. These delays burden the courts and 

deny justice to defendants with meritorious claims. They are also 

deeply unfair to victims of serious violent crimes. A parent whose 

child has been murdered or someone who has been a victim of a 

violent assault cannot be expected to move on with their lives without knowing how the case against the attacker has been resolved. 

Endless litigation and the uncertainty that it brings is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas corpus reforms, ‘‘It should not take 

8 or 9 years and three trips to the Supreme Court to finalize when 

a person, in fact, was properly convicted or not.’’ For the sake of 

all parties, we should minimize these delays. 

The 1996 habeas corpus reforms were supposed to prevent delays 

in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in 

March 2003, there still are significant gaps in the habeas corpus 

statutes which can result in highly protracted litigation, and some 

of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application. 

In a recent letter sent by the Judicial Conference, they provided 

data which demonstrates that delay is increasing and that some 

steps are needed to address the problem. 

The median time for disposing of habeas petitions for State capital convictions has nearly doubled from 1998 to 2004, from 13 

months to 25.3 months. 

The number of habeas petitions pending for over 3 years doubled 

from 1998 to 2004, from 20 percent to 46 percent. 

Similarly, the percent of habeas petitions pending in the Federal 

Court of Appeals increased sevenfold from 1998 to 2004, from 5 

percent to 36 percent. 

I want to commend representative Lungren for his work in this 

area and look forward to working with him on this important issue. 

I am now pleased to recognize the distinguish gentleman from 

Virginia, the Ranking Member, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman, for holding this hearing 

on H.R. 3035, the ‘‘Streamlined Procedures Act of 2005.’’ And Mr. 

Chairman, I want to thank you for your excellent representation of 

the Sixth District of North Carolina, the State of North Carolina 

and the Nation. You’re one of the most respected leaders of the 

House. It is an honor to serve on this Committee with you. And I 

think the entire House could benefit from the kind of leadership 

that you provide. 

We have a lot of disagreement on issues, but you’re one that can 

disagree without being disagreeable. And we would have a much 

better House if we had more Members like you. So thank you for 

your service and leadership. 

Mr. COBLE. If the gentleman will suspend, I will give the gentleman from Virginia all the time he wants. 

I thank you for that, Bobby. I appreciate that. 

Mr. SCOTT. Well, the next thing I was going to say is because of 

your admonition that time was of the essence—but the title of the 

bill, Mr. Chairman, suggests that it would streamline the processing of habeas cases. In fact, it would actually strip the courts 

3

of jurisdiction to determine many Federal issues and undercut the 

Supreme Court’s efforts to clean up uncertainties regarding reforms that Congress enacted in 1996 with the Anti-terrorism and 

Effective Death Penalty Act. 

The bill would virtually eliminate the ability of Federal courts to 

determine Federal constitutional issues in cases involving prisoners 

either facing the death sentence or serving prison terms. In short, 

the bill would greatly increase the prospects of an innocent person 

being put to death or languishing in prison with no help of correcting an unconstitutional conviction. 

In general, the bill will overturn a series of Supreme Court decisions adopted since 1996, increase the number of habeas corpus petitions filed, complicate and delay litigation in this area, disregard 

traditional principles of federalism and invite constitutional challenge on the theory that it impairs the independence of Federal 

courts. 

Ironically, many of the supporters of this bill are the same people 

who in the Terry Schiavo case advocated for the elimination for 

that case of the very kinds of hurdles that this bill promotes. 

Federal habeas corpus is a modern day reflection of the great 

writ which was the foundation for much of our criminal law principles. A right without a remedy is no right at all. What good is 

it to have a constitutional right that cannot be enforced? This bill 

would eliminate the Federal court’s role as courts of last resort for 

citizens of this country. It would restrict citizens to State courts 

where prosecutors seeking to protect their convictions—it would restrict them to courts where prosecutors are seeking to protect their 

convictions when the State prosecutors were the cause of the problem to begin with. 

Those prosecutors are the only ones who have anything to gain 

from having innocent people languish in prison or even put to 

death because they were unable to get the proper relief from the 

courts. 

Crime victims and their families will face even greater delays 

and frustration as courts struggle to resolve constitutional challenges to a new law, and they nor the society in general will benefit 

from having people locked up or put to death while the true perpetrators remain free to prey on others. And there are other examples of innocent people being released in recent years who could not 

have been released if this bill had been law. 

I would like to offer for the record, Mr. Chairman, two of these 

cases, one involving release from death row, the other will be identified. And we are going to add other cases as well as an article, 

recent article in my hometown newspaper which indicates that several people were released from prison after they had served a substantial portion of their time for crimes that they did not commit. 

Mr. COBLE. Without objection, it will be received. 

[The information referred to follows in the Appendix] 

Mr. SCOTT. Thank you, Mr. Chairman. A host of organizations 

and individuals, including prosecutors and judges, liberals and conservatives, have expressed concerns about the bill becoming law; 49 

of 50 chief justices have asked Congress to carefully study the need 

for and impact of this legislation before any new law is passed. And 

I would like to offer their resolutions at this point for the record. 

4

Mr. COBLE. Without objection. 

[The information referred to follows in the Appendix] 

Mr. SCOTT. I also have read letters of letters and resolutions 

from the Federal Judicial Conference, Federal public prosecutors, 

Federal public defenders, a prosecutor in California expressing concern about the legislation, and I would like to offer these for the 

record as well. 

Mr. COBLE. Without objection, they will be received. 

[The information referred to follows in the Appendix] 

Mr. SCOTT. In this latter submission is a memo developed by a 

former prosecutor and a letter from a current chief justice of the 

California Supreme Court which explains why most of the time period necessary to complete habeas petitions occurs at the State 

level, not at the Federal level. 

So, Mr. Chairman, in some way, while there are not—where 

there are, no doubt, instances in which non meritorious prisoner 

claims get more attention than they deserve, it is not a heavy price 

to pay to ensure that we don’t execute an innocent person or have 

innocent people languishing in prison with no hope. We already 

have streamlined the habeas process in 1996. Now, only those who 

have, quote, clear and convincing evidence of actual innocence even 

get a hearing under the traditional habeas process. 

Those who can establish that they are only probably innocent, 

that is, 51 percent chance that they are innocent but more probably 

innocent than not, they don’t even get a hearing under the present 

restrictions. 

Apparently, Mr. Chairman, under the Anti-terrorism and Effective Death Penalty Act, having the courts clogged up with all these 

people who are probably innocent is contrary to the goals of an effective death penalty. 

So, Mr. Chairman, in the context of where it is clear that innocent people have been released in recent years who could not have 

been released under the provisions of the bill, we should not further jeopardize the prospects of cases like that by proceeding with 

this bill. 

Again, it benefits no one, that Congress should assist in having 

innocent people languishing in prison or executed while real perpetrators roam free. A single case of that happening is a tragedy, 

and we shouldn’t create a situation where more of that might 

occur. Thank you. 

Mr. COBLE. Thank you, I thank the gentleman from Virginia. 

Normally we restrict opening statements to the Chairman and the 

Ranking Member, but the distinguished gentleman from Massachusetts asked to be heard. 

Mr. DELAHUNT. Yes, thank you, Mr. Chairman, let me echo the 

kudos of the Ranking Member for you and your leadership. 

Mr. COBLE. I thank you for that, sir. 

Mr. DELAHUNT. I think you have heard me say that before. It is 

sincere, and it is an honest sentiment. And we are definitely fortunate to have you. 

Mr. COBLE. I appreciate very much the generous comments from 

Mr. Scott and you. I hope you are not lulling me into a sense of 

false security this morning. 

5

Mr. DELAHUNT. Let me proceed. And I probably will have to 

leave the hearing for another hearing. So that will eliminate some 

of the questions I would ask. But I think it is—I wanted to be here 

because I was one of the authors of the Justice For All Act. 

You know, the core of our justice system is a search for the truth. 

That is the purpose of the criminal justice system in this country. 

And in that system, we should take every opportunity to maximize 

our capacity in our efforts to secure the truth because often it is 

illusive. Often it is not available to those accused of crimes. It is 

a system that is fallible and fragile and susceptible to error. 

I served as the chief prosecutor—the elected prosecutor—in the 

Metropolitan Boston area for almost 22 years. I know mistakes. I 

have been there. I have made them. One of my constant concerns 

was making a mistake that resulted in the conviction of someone 

that was innocent. I almost did that twice. 

This bill is about maximizing the power of the State to limit our 

search for the truth. 

There have been many cases where information was developed 

decades after the conviction that clearly exonerated innocent individuals that served on death row. The Ranking Member has referenced some of them. I could stay here and recite two or three 

cases where individuals were convicted and the truth did not surface for 30 years. 

I want to recognize someone who is in the hearing room today. 

Her name is Gloria Killian, she won’t be testifying, obviously, but 

I think her case is reflective of what I just said. She was a former 

law student who had no criminal record. She is sitting in the front 

row. She has the gray hair. 

She had no criminal record when she was convicted in 1986 of 

being the mastermind of a 1981 burglary, robbery and murder of 

an elderly couple in California. She was sentenced to 32 years in 

prison. Her conviction was based on the testimony of one of the actual killers who had been convicted for the crime and sentenced to 

life without parole. And any prosecutor knows that informant testimony, testimony that is subject to a deal, really needs to be scrutinized. 

Despite the fact that his codefendant testified at his own trial 

that he had never met Ms. Killian, shortly after his conviction, 

Gary Masse wrote to the Sheriff’s Department offering to lie for the 

Government in exchange for a sentence reduction. 

Mr. Masse testified at Killion’s trial that he made no deal with 

the prosecution. Shortly after Killion’s trial, Masse further wrote to 

the prosecutor again admitting that he had lied. The prosecution 

failed to disclose this letter and two others, both of which made 

clear that Masse was offered and expected benefits in return for his 

testimony. 

Gloria Killion’s appeal was denied. And her State petition was 

rejected without an evidentiary hearing. If I could have just 2 additional minutes, Mr. Chairman. 

Mr. COBLE. Without objection. 

Mr. DELAHUNT. She petitioned for habeas corpus relief in Federal 

Court. A hearing was held in which evidence of Masse’s perjury finally came to light in part because his codefendant’s attorneys—his 

codefendant’s attorneys—discovered the letters Masse had written 

6

and brought the information to Killian. The Federal district Court 

nonetheless denied her petition. 

On appeal, however, the Ninth Circuit found clear error in the 

District Court’s decision and vacated the conviction. The Circuit 

Court concluded that there is a reasonable probability that, without 

all the perjury, the result of the proceeding would have been different. 

It also held the cumulative effect of Masse’s perjury, the prosecution’s failure to disclose impeachment evidence and prosecutorial 

conduct at trial were sufficient to justify relief, even if each claim 

individually was not. 

She was released in 2002 after spending 16 years in prison. She 

founded and became executive director of the Action Committee for 

Women in Prison. 

The bottom line is that had this proposal been in effect, Gloria 

Killian would never have had the opportunity to prove her innocence. And she sits here today. 

This proposal, with all due respect to my good friend and another 

individual for whom I have great respect, Mr. Lungren, this proposal erodes the integrity of that effort to search for the truth that 

is incorporated in our jurisprudence. Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. We have been joined by the 

distinguished gentlemen from California, Ohio and Arizona; Mr. 

Lungren, Mr. Chabot and Mr. Flake. 

Mr. Lungren, did you want to be heard? This is your bill and 

very briefly for an opening statement and then——

Mr. LUNGREN. Thank you, Mr. Chairman. Mr. Chairman, I am 

sorry I was late. I had one of my periodic flare-ups with my back 

so it was a little while getting here. 

I appreciate the opportunity once again and consider the proper 

role of the Federal collateral review in the context of the larger 

criminal justice system, along with the hearings which have taken 

place in the other body and time for opportunity for additional 

input we are better able to craft legislation to address abuses of the 

habeas corpus process in light of the Federal courts. 

I welcome all the witnesses here this morning. We have heard 

from many who have criticized our original proposal. We have 

made changes in the proposal that we are now considering. We will 

consider others. 

I would just like to mention, however, the gentleman referred to 

the pursuit of truth. That is what the jury system is supposed to 

be all about. 

As the late Chief Justice Rehnquist said at a time when he was 

on the bench but not chief justice, our system is predicated on the 

assumption that the main event is that jury trial. And the habeas 

corpus collateral review is the most distant from the jury trial. And 

one should not mistake the two. 

On habeas corpus, you don’t have the opportunity to eyeball the 

witnesses. You don’t have a chance to see their demeanor. You do 

not have a chance to judge what juries have to judge. 

And while there certainly is a place for habeas corpus—remember, we are not talking about the great writ, despite what some editorialists have said. We are talking about a statutory writ which 

the Congress has every right to expand or contract or eliminate alVerDate 0ct 09 2002 10:05 Apr 19, 2006 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\111005\24506.000 HJUD1 PsN: 24506
7

together. Although I wouldn’t suggest that we eliminate it altogether in any event. But let’s just remember what it is we are talking about. 

The pursuit of truth is not just given to those who happen to be 

Federal judges looking at it long after the events have taken place. 

The pursuit of truth begins with the jury trial. 

I would like to acknowledge the participation of Mary Ann 

Hughes. It was because of the comments made to me by crime victims and their families that I agreed to introduce this bill in the 

first instance. 

I noted in the prepared statements of one of the witnesses the 

suggestion was that even those for whom this was intended to benefit, the State judges do not support this bill. 

I never introduced this for the purpose of helping the State 

judges. I did this in response to victims’ family members who came 

to me and said, how can you justify, 25 years after a crime is committed, the Federal Court is still trying to question what the truth 

is? A case in my home State of California where a convicted murderer sitting at Folsom State Prison under a sentence of life without possibility of parole, directs murders against two of the witnesses who had testified in his original trial. The Supreme Court 

finally turned down the latest collateral appeal on that case 25 

years after the second set of murders. The fellow sitting on death 

row is 75 years of age. All his victims never had a chance to reach 

anywhere close to that time. 

So the responsibility of Congress to monitor the operation of the 

statutory habeas procedures, a fundamental access of this responsibility is to ensure that those who have been victimized by crime are 

not then again victimized by the criminal justice system itself. 

It is for that reason and that reason alone I introduced this legislation. And I will work to refine it and to see that it is ultimately 

passed and signed into law. I thank you again and look forward to 

hearing from our distinguished panel. 

Mr. COBLE. I thank the gentleman from California. For the benefit of those who came in late, I want to reiterate, we must vacate 

this room by 12 because the PATRIOT Act conference will be conducted in this room subsequently. 

For the benefit of the panelists, it is the practice of the Subcommittee to swear in all witnesses appearing before it. So if you 

all would please stand and raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. You may be seated. 

We have a distinguished panel before us today, I say to the Members of the Subcommittee. Our first witness is Mr. Tom—Tom, help 

me with that surname—Dolgenos, chief of the Federal Litigation 

Unit at the Philadelphia District Attorney’s Office. Mr. Dolgenos 

previously worked as an associate in the Deckert firm in Philadelphia. Following law school, he clerked for the Honorable Rya Zobel 

of the U.S. District Court of the District of Massachusetts and the 

Honorable Walter Stapleton of the U.S. Court of Appeals for the 

Third Circuit. Mr. Dolgenos was awarded his undergraduate degree 

from Brown University and his law degree from the Yale School of 

Law. 

8

Our second witness today is Mr. Ken Cattani—is that right, 

Ken—chief counsel of the Capital Litigation Section in the Arizona 

Attorney General’s Office. Mr. Cattani currently serves on the Attorney General’s DNA Task Force, the Attorney General Citizen 

Advisory Committee and is a member of the National Association 

of Government Attorneys in Capital Litigation Board of Directors. 

Mr. Cattani received his JD degree from the University of California at Berkeley. 

Our third witness today is Mrs. Mary Ann Hughes who was previously recognized by Mr. Lungren. In 1983, Mrs. Hughes’ 11-yearold son, Christopher, was brutally murdered at the hands of an escaped convict. The escaped convict not only bludgeoned Christopher 

to death but brutally murdered three others and severely wounded 

a fourth. Although extensive evidence, including DNA, pointed to 

Kevin Cooper as an assailant, he has eluded justice after committing those heinous crimes nearly 23 years. We look forward to 

hearing Mrs. Hughes’ compelling testimony as well. 

Our final witness is Mrs. Ruth Friedman, a solo practitioner 

under contract with the Office of Defender Services of the Administrative Office of the United States Courts. She has devoted her entire career to representing poor people sentenced to death and has 

more than 17 years of litigation in State and Federal courts. Previously, Mrs. Friedman was senior counsel at the Equal Justice Initiative in Montgomery, Alabama, where she worked at all levels of 

civil litigation. Mrs. Friedman is a graduate of Harvard University 

and received her law degree from the Yale School of Law. 

We are indeed pleased to have you all with us today. 

Now folks, we operate under the 5-minute rule. Your written testimony has been examined and will be re-examined. But when you 

see the red light on the panel before you, that is your warning that 

the ice upon which you are skating has became very thin. 

We, Mr. Scott and I, will not haul you into custody at that point, 

but we would ask you to wrap up on or before that red light illuminates. 

Mr. Dolgenos, we will start with you sir. 

TESTIMONY OF TOM DOLGENOS, CHIEF, FEDERAL LITIGATION 

UNIT, PHILADELPHIA DISTRICT ATTORNEY’S OFFICE, 

PHILADELPHIA, PA 

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, not merely in death 

penalty cases—and I want to emphasis this—but across the board 

in all types of habeas cases, despite the enactment of habeas reforms in 1996. 

I also believe, however, that the proposed Streamlined Procedures Act contains some commonsense solutions to some of the 

worst abuses that we face. Now, it is important to emphasize that 

the stakes here are very high, not merely for those convicted of the 

crimes but for the stability and reliability of the criminal justice 

system itself. 

9

Every time a convicted prisoner files a habeas petition, he invites 

the Federal court to overturn a State court judgment. Most of the 

time, that means throwing out a unanimous jury verdict. It means 

subjecting victims and their families to more pain. It means reversing the considered judgment of State court appellate judges despite 

their good faith attempts to apply the very same Constitution that 

the Federal judges apply. And it also means that State and local 

governments, if they want to keep this person in jail, must allocate 

the resources to do it all over again. 

Now, in most legal contexts, this kind of Federal interference 

with State government would be unthinkable. But criminal cases 

are different. And we all agree that they are so important that we 

have got to do everything we can to avoid mistakes. 

That is why it is so important to ensure that every criminal defendant has adequate representation up front and the funds to 

present the best possible defense at trial. 

But at some point, more review by yet another different set of 

judges no longer makes the process more fair or trustworthy. And 

the SPA aims to strike an appropriate balance. 

Perhaps the most familiar problem in habeas litigation is that it 

robs the system of finality. This is no abstract issue for the victims 

who are dragged along in an endless process or for local governments that must pay for prosecutions that never really end. To 

take a small example, in the past 5 years, the number of attorneys 

in my office who are assigned as full-time habeas attorneys has increased by 400 percent. 

I want to emphasize one other point. The truth itself is a casualty of delay. As years pass, memories fade. Evidence is lost. Witnesses who were once sure can’t remember everything. Other witnesses disappear. 

Some witnesses who never wanted to 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 can’t 

protect witnesses forever. And too often, a recantation or other new 

evidence is simply the product of coercion or foul play. 

One recent example from our office makes the point. The prisoner had repeatedly molested and raped a girl when she was only 

5 and 6 years old. About 15 years later, he presented to Federal 

court with the victim’s alleged recantation, but it was ambiguously 

worded. When we investigated, the victim, now a young woman, 

told us the defense investigator had misled her. The 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, 

which was written by the defense, had been worded just ambiguously enough to make it sound as if her attacker had not committed rape when, in fact, he had. 

Now 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 prisoner’s strategy had been to make evidence to convince the Federal court that he was innocent. That way 

he believed he could sweep away all of the bars and the rules that 

10

should prevent him from raising new claims many years later. As 

of now, this matter is still ongoing. 

The point is, the passage of time, repetitive hearings and relitigation 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 in time from the crime, from the subtleties and 

the rules 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 except in extraordinary situations. And that is why I 

support the reforms contained in this Streamlined Procedures Act. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Dolgenos follows:]

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PREPARED STATEMENT OF THOMAS DOLGENOS


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Mr. COBLE. Thank you, sir. 

Mr. Cattani, you are recognized for 5 minutes. 

TESTIMONY OF KENT CATTANI, CHIEF COUNSEL, CAPITAL 

LITIGATION SECTION, ARIZONA ATTORNEY GENERAL’S OFFICE, PHOENIX, AZ 

Mr. CATTANI. Thank you. 

Thank you, Mr. Chairman, Members of the Committee. 

The AEDPA has not solved the problem of excessive delay in 

Federal habeas proceedings, particularly in capital cases in Arizona. We have had 9 years under the AEDPA. Delay in capital 

cases has increased rather than decreased. The chart that is attached to my written statement shows how long Arizona’s capital 

cases have been pending in Federal Court; 63 Arizona capital cases 

have been filed and remain pending since the effective date of the 

AEDPA. Of those cases, only one has advanced to the Ninth Circuit 

where it has remained pending for the past 9.5 years. The case 

that moved on to the Ninth Circuit was filed in 1996. Ten cases 

were filed in 1997. They were all awaiting rulings in District Court. 

16 more were filed in 1998, and all of them have yet to be resolved. 

Some of our pre-AEDPA cases have remained pending for over 

19 years in Federal Court. We have one case that is still pending 

in the Ninth Circuit in which the defendant, Robert Comer requested over 5 years ago that his Federal appeal be withdrawn. 

Comer, who committed murder and rape in 1987, has acknowledged responsibility for his crimes and has repeatedly indicated a 

desire to waive his Ninth Circuit appeal. 

The Ninth Circuit ordered an evidentiary hearing at which 

Comer’s habeas attorneys argued, over Comer’s objection, that he 

was incompetent. Additional counsel, a highly respected defense attorney in Phoenix, was appointed to represent Comer’s interests. 

After an evidentiary hearing in District Court, Comer was found to 

be competent. The appeal of the District Court ruling that Comer 

is competent nevertheless remains pending in the Ninth Circuit. 

Again, it has been more than 5 years since Comer’s initial request 

that he be permitted to withdraw his appeal. 

The delay that we encounter in Arizona capital cases is particularly frustrating given the system that we have set up in Arizona 

to protect the rights of criminal defendants. We have no interest 

in executing or even incarcerating an innocent person. We take 

very seriously our role as prosecutors, and we have created a system that provides multiple opportunities to establish claims of innocence. 

In capital cases, since 1993, we appoint two highly qualified attorneys to represent the defendant at the trial stage. We appoint 

yet another highly qualified attorney to represent the defendant on 

appeal. We appoint another qualified attorney to represent the defendant at the post-conviction stage. The State appellate process includes an automatic appeal to the Arizona Supreme Court with the 

option to appeal that ruling to the United States Supreme Court. 

The post-conviction relief process similarly provides an opportunity 

to appeal to the Arizona supreme court as well as the United 

States Supreme Court. 

38

Additionally, a defendant can pursue successive post-conviction 

proceedings to raise claims that the law has changed or that there 

is newly discovered evidence that would have affected his trial or 

sentence. State funds are made available for DNA testing whenever it is warranted, including for retesting when DNA technology 

improves. 

We even have a free-standing actual innocence provision in our 

post-conviction rules. That is rule 32.1(h) of the Arizona rules of 

criminal procedure which authorizes a successive post-conviction 

proceeding to raise claims of actual innocence even if the claim 

could have been raised earlier if the defendant had been diligent. 

The fact that there is a free-standing actual innocence provision 

for Arizona defendants in State courts is particularly significant in 

my view because its availability shows that the Federal habeas 

process involving Arizona cases is about something other than guilt 

or innocence. Federal habeas review may serve a purpose, but that 

purpose is not to provide a forum for asserting claims of actual innocence for Arizona defendants. 

One of the key provisions of the AEDPA is what is known as the 

opt-in provision. That provision was designed to accelerate Federal 

habeas review in capital cases on the condition that a State 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 Federal process would be 

shortened to approximately 3 years. The theory underlying the optin provisions was that if you ensure competent representation in 

State courts, there is less of a need for lengthy Federal habeas 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 maintained by the Arizona Supreme Court, the State has thus 

far expended over $1 million to represent these defendants in capital post-conviction proceedings. In some cases, the State has paid 

in excess of $100,000 in attorney’s fees and costs for these post-conviction proceedings. 

Nevertheless, we have not been able to opt-in. And there are no 

States who have opted in under the AEDPA. Why haven’t we opted 

in? We attempted to do that in the Anthony Spears case several 

years ago. The Ninth Circuit ruled that the standards that we have 

adopted for the qualification levels for attorneys who handle postconviction proceedings are satisfactory. The court refused to allow 

us to opt-in however because there had been a 20-month delay in 

appointing counsel to represent Spears in the post-conviction proceeding. The delay was caused primarily because defense lawyers 

initially boycotted the process. 

We argued in Federal Court that the 20-month delay did not 

prejudice Mr. Spears, and in fact, in the State proceeding, Mr. 

Spears’ counsel never asserted that the delay had created any kind 

of impediment to raising claims in that proceeding. In our view, 

Spears received the benefit of the opt-in provisions, but the State 

was denied the corresponding benefit. 

39

We do not claim to have a perfect system in Arizona. I see my 

time is up. I just have maybe 1 minute. We do not claim to have 

a perfect system in Arizona. We have, in fact, had two DNA exonerations in Arizona. Significantly, however, those exonerations 

were a result of State court proceedings. Neither of the defendants 

who were exonerated had ever set foot in Federal Court. 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 in Arizona and particularly the victims of violent 

murders deserve a better Federal review process. The current review process is not working. I urge your careful consideration of 

the proposed amendments to the habeas statute. Thank you. 

[The prepared statement of Mr. Cattani follows:]

PREPARED STATEMENT OF KENT E. CATTANI

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 

1996 (‘‘AEDPA’’), which was intended to restrict the scope of federal habeas review 

and limit delay in federal habeas proceedings. After 9 years under the AEDPA, it 

is clear that the Act did not reduce the problem of delay. As evidenced by Attachment A, a chart of Arizona capital cases currently pending in federal court, 63 Arizona capital cases have been filed and remain pending since the effective date of 

the AEDPA. Of those cases, only one has advanced to the Ninth Circuit, where it 

has remained pending for the past 51⁄2 years. Thirteen pre-AEDPA cases remain 

pending in federal court; five of those cases have been in federal court longer than 

15 years; the others range in time from 9.33 years to 14.08 years. 

The AEDPA contained provisions intended to restrict federal court consideration 

of claims not properly raised in state court. Additionally, the AEDPA included a provision—specific to capital cases—designed to accelerate the federal habeas process 

on the condition that states opt-in by enacting procedures to ensure effective representation of indigent defendants in state post-conviction relief (PCR) proceedings. 

Under the opt-in provision, the federal habeas process would be reduced to approximately three years by virtue of accelerated briefing schedules and a requirement 

that the federal courts rule on the claims raised within specified periods of time. 

The rationale underlying the opt-in provisions is that when more experienced attorneys represent death row inmates throughout the state court process, there is less 

need for a lengthy federal review. 

After the AEDPA was enacted, the Arizona Legislature and the Arizona Supreme 

Court amended Arizona’s system for appointing and compensating PCR counsel to 

meet the opt-in requirements. Arizona previously provided PCR counsel to all indigent capital defendants, and under the amended system, that provision remains and 

requires the appointment of an attorney who did not represent the defendant at 

trial or sentencing. Arizona enacted mandatory competency standards for attorneys 

who apply to be placed on a list of available counsel for capital PCR proceedings. 

There is an objective measure relating to bar status, continuing legal education, and 

years of experience as a lawyer and in practicing in the area of criminal appeals 

or post-conviction proceedings. There is also a subjective requirement that the attorney have ‘‘demonstrated the necessary proficiency and commitment which exemplify 

the quality of representation appropriate to capital cases.’’

In addition to provisions to ensure qualified counsel for PCR proceedings, Arizona 

already had in place a system to try to ensure qualified counsel at the trial stage. 

Since 1993, Arizona has required the appointment of two highly qualified attorneys 

in every case in which the State notices its intent to seek the death penalty. The 

requirements for lead trial counsel include practice in the area of state criminal litigation for 5 years immediately preceding the appointment, having been lead counsel 

in at least 9 felony jury trials tried to completion; and having been lead counsel or 

co-counsel in at least one capital-murder jury trial. There are additional legal education requirements and the same subjective requirement mandated for PCR counsel—that counsel shall have demonstrated the necessary proficiency and commitment which exemplify the quality of representation appropriate to capital case. Additionally, Arizona provides extensive funding for mitigation specialists and expert 

witnesses at both the trial and post-conviction stages. Multiple expert witnesses and 

intensive mitigation investigation are routinely utilized in capital cases throughout 

the state. 

40

Since 2002, Arizona has spent more than 1 million dollars for PCR representation 

in 21 cases. Many of those cases are in the early stages of the post-conviction process, and will result in significantly higher expenditures by the state and local government. Of the cases that have completed the post-conviction process, the expenditures have ranged between $25,000 and $138,000 for each case, with the median 

figure of approximately $64,000. 

Prior to the clarification regarding compensation, there were only 6 attorneys on 

the list of qualified PCR counsel and a backlog formed of about 15 capital defendants who were ready to pursue PCR proceedings and were awaiting appointment 

of qualified counsel. In those cases, it took between one to two years to appoint 

counsel. More attorneys eventually applied for the list, and there are currently 4 

Arizona cases pending at the PCR stage where the attorney was appointed without 

delay. 

The first case that went through the state post-conviction process with an attorney appointed under the opt-in provision requirements was that of Anthony Spears, 

who was sentenced to death in 1992. In Spears v. Stewart, the district court denied 

Arizona’s request that the case be treated as an opt-in case, and certified the optin issue to the Ninth Circuit for an interlocutory appeal. The Ninth Circuit held 

that Arizona’s mechanism for appointment of counsel for indigent capital defendants 

in post-conviction proceedings meets the requirements of the AEDPA and qualifies 

for opt-in status. 283 F.3d 992 (9th Cir. 2002). However, the court held that the optin procedures could not be invoked in Spears because there had been a 20-month 

delay before counsel had been appointed in the state post-conviction proceeding. Id. 

The ruling that the opt-in mechanism will not be applied in the Spears case or in any other case in which there has been a delay in appointing post-conviction 

counsel is frustrating. The delay in appointing counsel did not prejudice Spears. His 

post-conviction counsel never argued that the 20-month delay in appointment affected his ability to pursue the claims Spears raised in his post-conviction proceeding. Although Spears was given every advantage contemplated under the 

AEDPA opt-in provisions, the State has been denied the corresponding benefits to 

which it is entitled. 

The holding in Spears places undue emphasis on what is essentially an arbitrary 

date. There is no set time line for any criminal case. Sometimes there is a delay 

between the date of the crime and the date of the arrest. Sometimes there is delay 

prior to trial, or delay during the trial or state appellate process. If, for example, 

there had been a delay in preparing transcripts for the appeal, or if the Arizona Supreme Court had taken additional time to resolve Spears’ direct appeal, the PCR 

proceeding might have commenced on or about the same date even without delay 

in appointing counsel. Again, there was no suggestion that the delay in appointment 

of counsel prejudiced Spears’ case. In my view, Arizona should have been deemed 

to have opted in to the accelerated provisions for capital cases. 

That fact that Arizona has attempted to opt-in to the accelerated provisions of the 

AEDPA for capital cases does not signify an intent to foreclose a defendant’s efforts 

to establish innocence. We have no interest in executing or even incarcerating an 

innocent person. We believe, however, that our state court system provides the necessary means to address claims of innocence, and that the federal habeas process 

does not measurably increase the likelihood that innocent persons will be vindicated. 

The Arizona Rules of Criminal Procedure place no limitation on a defendant’s 

ability to raise claims relating to newly discovered evidence or retroactive application of new substantive rules, and we permit DNA testing and retesting (as technology improves) at state expense any time there is evidence that may establish innocence. We have a specific rule of criminal procedure that exempts from the rules 

of preclusion any evidence that would establish that the defendant did not commit 

the crime or should not have been subjected to the death penalty. Thus, it is hard 

to fathom a claim of innocence for which an Arizona defendant would not be granted 

relief in state court, but which would entitle the defendant to federal habeas relief. 

The best way to improve our criminal justice system is to ensure that quality representation and adequate resources are made available for the main event—the trial 

and sentencing proceedings. We are trying to do that in Arizona, and we have a system that provides defendants in capital cases with two highly qualified attorneys 

at trial, another highly qualified attorney to handle a direct appeal, and yet another 

highly qualified attorney to handle state post-conviction proceedings. The direct appeal process includes review by the Arizona Supreme Court (whose members are appointed through a merit selection process) and the United States Supreme Court, 

and the post-conviction process permits review not only by the original trial court, 

but again by the Arizona Supreme Court and the United States Supreme Court. 

That same type of review is also available for successive post-conviction relief proVerDate 0ct 09 2002 10:05 Apr 19, 2006 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\111005\24506.000 HJUD1 PsN: 24506
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ceedings, where a defendant seeks to raise claims of newly-discovered evidence, 

change in the law, or freestanding claims of innocence. 

Providing this level of review at the state court level should decrease the number 

of meritorious claims that are presented in federal court (since federal habeas review permits only claims that have first been presented in state court). Nevertheless, during the past 10 years, we have seen an increase in the number of claims 

that are being raised in federal court and an increase in delay in federal court. That 

delay has prejudiced the state’s and crime victims’ interest in fairness and the finality of state court judgments, and has decreased public confidence in the criminal 

justice system. 

An Arizona capital case, Smith v. Stewart, 241 F.3d 1191 (2001), provides an example of why habeas reform is needed. In Smith, the state courts rejected a claim 

of ineffective assistance of sentencing counsel (raised in Smith’s third post-conviction proceeding) on the basis of a state procedural bar. The federal district court rejected the claim on the basis of procedural default, but the Ninth Circuit reversed, 

holding that the state procedural default ruling was intertwined with a merits ruling. The Ninth Circuit reasoned that, because a Comment to Arizona’s procedural 

rules noted that for some issues of significant constitutional magnitude, the state 

must show a knowing, voluntary, and intelligent waiver by the defendant, Arizona’s 

procedural default rule necessarily required a merits ruling on every defaulted 

claim. Arizona argued that the comment suggested only the need for an on-therecord waiver of certain types of claims, including the right to counsel or the right 

to a jury trial. The Ninth Circuit rejected the State’s argument, as well as its request that the court certify a question to the Arizona Supreme Court to clarify 

whether a procedural default ruling necessarily encompassed a merits ruling. Arizona filed a certiorari petition in the United States Supreme Court, which reversed 

the Ninth Circuit’s ruling. 

Although the State ultimately prevailed in the United States Supreme Court, the 

victory simply returned the parties to where they were two years earlier. In the 

meantime, every other case involving a procedural bar imposed by an Arizona court 

was similarly delayed pending resolution of Smith in the United States Supreme 

Court. 

Smith’s federal habeas proceeding has been pending since 1994. The district court 

denied relief in 1996, and the case has been in the Ninth Circuit since then. Most 

recently, the Ninth Circuit ordered a stay to allow Smith to pursue a jury trial in 

state court on the issue of mental retardation, even though Smith had never raised 

a claim of mental retardation in state court or in the federal district court. Arizona 

filed a certiorari petition in the United States Supreme Court challenging that ruling. In October of this year, the United States Supreme Court again reversed the 

Ninth Circuit. In the meantime, proceedings had been initiated in state court to assess whether Smith is mentally retarded, and a court-appointed psychologist administered an IQ test on which Smith scored in the average range, which precludes a 

finding of mental retardation. The case, involving a 1982 conviction of first-degree 

murder, kidnapping, and sexual assault, remains pending in the Ninth Circuit. 

In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005) (a non-capital case), the federal 

courts recently added another impediment to resolution of procedurally defaulted 

claims. Cassett never raised the claim at issue in state court (an alleged due process 

violation unrelated to guilt or innocence), and the district court found the claim to 

be precluded in a federal habeas proceeding. The Ninth Circuit reversed, however, 

ruling that because there has not been a ruling of preclusion by a state court, the 

case should not be dismissed and Cassett should be given an opportunity to return 

to state court to raise the claim. If the rule in Cassett is applied in capital cases, 

an already delayed process will be delayed even further to allow defendants to return to state court to try to litigate procedurally defaulted claims never raised in 

state court. As with the Smith case, Arizona is seeking further review of Cassett

by the United States Supreme Court. 

In addition to Smith, there are several other examples of capital cases that demonstrate extensive delay in the federal habeas process: 

Joseph Lambright 

Lambright was Smith’s co-defendant, and was similarly convicted and sentenced 

to death in state court in 1982. In 2004, the Ninth Circuit ordered an evidentiary 

hearing on a procedurally defaulted claim that Lambright’s counsel had failed to investigate as possible mitigation the possibility that Lambright suffered from posttraumatic stress disorder based on his combat experiences in Viet Nam. 

At the evidentiary hearing held last year in federal district court, the State established that Lambright was never in combat in Viet Nam; he was a mechanic who 

was never involved in a combat situation. The friend who Lambright claimed to 

42

have held in his arms after the friend was sawed in half by enemy fire, is in fact 

alive and well in Florida. The case remains pending in the Ninth Circuit; the only 

issue now before it is the propriety of the district court’s ruling that Lambright did 

not establish that his counsel was ineffective for failing to assert post-traumatic 

stress disorder as a mitigating circumstance. 

Michael Corrrell 

Correll was convicted in 1984 of first degree murder in a triple homicide case. The 

trial court sentenced Correll to death after finding four aggravating factors beyond 

a reasonable doubt: that Correll committed the offense in expectation of pecuniary 

gain, that the murders were committed in an especially cruel, heinous or depraved 

manner and multiple homicides. Correll’s federal habeas proceeding has been pending since 1987. The district court denied habeas relief in 1995. However, the Ninth 

Circuit ordered an evidentiary hearing regarding whether counsel was ineffective at 

sentencing. 

At the evidentiary hearing held in 2003, Correll called fourteen witnesses during 

the hearing including the original trial attorney, a mitigation specialist, a 

neuropsychologist, a psychiatrist and addictionologist, a toxicologist, and several of 

Correll’s family members and friends. The State responded that if Correll had provided this alleged mitigation evidence to the trial court, it would have opened the 

door for the State to present powerful rebuttal evidence, including evidence of 

Correll’s rape of a female psychiatric patient while he was undergoing treatment for 

his antisocial personality disorder, Correll’s repeated sexual assaults against his sister while living at home, Correll’s numerous escape attempts from mental health 

facilities, and Correll’s participation in a number of armed robberies with this thirteen year old brother and fifteen year old girlfriend. 

In March 2003, the district court denied Correll his requested relief, finding that 

Correll did not suffer any prejudice as a result of his counsel’s deficient performance. The district court held that, ‘‘after all of the evidence that [trial counsel] could 

have obtained and presented has been reviewed, it is clear that the rebuttal and 

non-mitigating aspects of such evidence overwhelms any slight mitigation evidence.’’

Correll immediately appealed that ruling to the Ninth Circuit, and the case has 

remained pending in that court since then. Thus, the case has been pending in federal court for 18 years. 

Jasper McMurtrey 

The federal district court ordered an evidentiary hearing regarding whether the 

state trial court should have conducted a competency evaluation of capital defendant 

McMurtrey. The state court held an evidentiary hearing in 1994, after which the 

trial judge, who had presided over McMurtrey’s trial, found that McMurtrey had 

been competent during trial. The district court nevertheless granted federal habeas 

relief, finding that there was not enough evidence from which the trial judge could 

reach the conclusion that McMurtrey was competent during trial, even though the 

evidence included the trial judge’s own recollection of what happened. Arizona is 

seeking further review of that ruling. 

The common thread in these cases is not only excessive delay in federal court, but 

an absence of any allegation of factual innocence. The federal habeas process is not 

accomplishing its intended purpose in these and many other cases and is in fact undermining public respect for the criminal justice system.

43

ATTACHMENT


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Mr. COBLE. I thank you, Mr. Cattani. 

Ms. Killian, even though you are not a witness, the Subcommittee is pleased to welcome you at this hearing. It is good to 

have you here. 

Ms. Hughes you are recognized for 5 minutes. 

TESTIMONY OF MARY ANN HUGHES, CHINO HILLS, CA 

Ms. HUGHES. Thank you, Mr. Chairman and Members of the 

Subcommittee. 

I have come here today to talk to you about the tragedy that my 

family has gone through for the last 22 years. The last time that 

I saw my son Christopher, he had asked permission to spend the 

night at a friend’s house, and he and Josh Ryen were on their bikes 

riding up the road turning around waving, laughing. I’ll forever 

blame myself for sending my son to that house. The next time I 

saw him was an autopsy picture at a 16-week preliminary hearing. 

The next day, when Chris didn’t come home in time for church, 

I sent my husband out to the horror that he has to live with the 

rest of his life, the nightmares that he has to have. He found Doug 

and Peg Ryen dead in their bedroom, 10-year-old Jessica dead in 

the hallway with multiple stabs and hack marks. The killer had actually pulled up her nightgown and carved on her chest after she 

was dead. He found 8-year-old Josh in his parents’ bedroom, his 

throat slit from ear to ear, his fingers at his throat to keep himself 

from bleeding to death, and he had laid there for over 12 hours 

staring at the naked dead body of his mother. 

Last of all, he found our son Christopher only 11 years old, our 

oldest child, dead on the floor in the master bedroom by a door, obviously trying to get out, away from the killer. He had more than 

25 wounds made by a hatchet and a knife. Many of them were defensive wounds to his hands. He had tried to fight off his killer but 

to no avail. 

The person arrested for these crimes was a man who had escaped from the Chino prison under the name of David Trautman. 

It was found afterwards that they had mishandled the outstanding 

warrants and who they actually had there was someone wanted 

back east by the name of Kevin Cooper for a robbery and for a 

rape. 

He raped a young girl who happened to interrupt him when he 

was robbing a house, someone who was at the wrong place at the 

wrong time. He raped her with a screw driver to her throat. He 

was caught in the Channel Islands near off Santa Barbara raping 

a woman on a boat. Two years later, we had a guilty verdict, and 

we had a death penalty. 

We waited for the system of justice to work for us, our son and 

for the Ryen family. Mostly, we were silent as almost every year 

it came up in the papers, on the TV, on the radio, that it always 

seemed that these would coincide with special dates, Christmas, 

my son’s birthday in December, Father’s Day, Mother’s Day. 

Finally, in 2004, we were told that an execution date had been 

set, February 10, ironically another date, my birthday. 

We were naive to think at that time that the system was finally 

going to work for us and for our son and for the Ryens. 

47

It didn’t really matter that Kevin Cooper was guilty. The defense 

saw fit to weave another fantasy. We were now going to blame the 

police and the district attorneys. They planted all the evidence. 

Kevin Cooper wasn’t guilty. He was just framed. 

He became the poster child for a group of celebrities, religious 

leaders, political—politicians. The object was to stop the death penalty in California. Where was someone speaking out for our son 

and for the Ryens? We had no celebrity, no politician, no religious 

leader. No one was there for us, and we quickly realized that if 

Christopher was going to have a voice, it was going to have to be 

us. 

We proceeded to talk to any newspaper, radio, television program, anyone who would hear us cry out for justice for our son. 

This, evidently, was unusual. Evidently, victims don’t fight. Evidently, we are quiet. We are beat down, and we don’t speak up for 

ourselves. We went up to San Quentin on the day before the execution was supposed to take place. A three-judge panel from the 

Ninth Circuit Court that was totally familiar with the case had 

sent the case forward for execution. However, this wasn’t good 

enough for them. Instead, they called an 11-judge en banc panel 

who had no knowledge of the case, who, to my knowledge, had 

never even read the transcript of the case. The defense weaved 

their fairytale fantasy, and the court bought into it. Four hours 

from the execution, they stopped it. 

The Ninth Circuit said a few simple, definitive tests needed to 

be done to prove that Kevin Cooper was really guilty. Well, almost 

2 years later, we had been through the courts in San Diego once 

again. Kevin Cooper is still guilty. There has been no new evidence 

presented whatsoever. And now we are appealing again. 

Recently, the defense has put forward to the Ninth Circuit Court 

an appeal that I am told is 6,000 pages long, 6,000 pages after 22 

years. 

My family’s story is probably just one of many in this country 

whose victims need help from you people. 

My son’s death affected a lot of people. Maybe they weren’t the 

politicians or the celebrities or the religious leaders. Maybe they 

weren’t the people in the news. But we had hundreds of thousands 

of calls from the everyday people, the type of people that put you 

in the positions that you are in now, the voters in this country who 

were appalled by what the justice system was doing and the time 

that it was taking. 

We had calls from classmates of Christopher, calls from mothers 

who, at night, go in and look at their children, who are afraid to 

let them spend the night, other people who have nightmares. 

You have a chance to help fix a system that is broken. I have 

listened to your statements in spite of what you have—frankly, if 

you haven’t been there, you don’t have a clue what it is like to be 

a victim and to have a child, of all people, murdered. They say no 

parent should have to bury a child. You are right. No child should 

have to die in the type of horror that my son knew. 

The Federal system is totally being abused and mishandled. And 

you have got a chance with this Streamlined Procedures Act to do 

something positive to make this system work for other parents and 

to finally let us have justice for our son and for the Ryen family 

48

and maybe bring peace to Josh Ryen, the young boy that was only 

8 years old when his throat was slit and who is now 30 years old 

and lives in horror. I urge you to seriously pass this bill. Thank you 

very much. 

[The prepared statement of Ms. Hughes follows:]

PREPARED STATEMENT OF MARY ANN HUGHES

My husband and I are the parents of Christopher Hughes. Chris was senselessly 

and brutally murdered at the age of 11 by Kevin Cooper, an escaped convict with 

a lengthy criminal record. The legal proceedings against Cooper have now taken 

twice as long as the time our young son was alive. Before I talk about how the 

Streamline Procedures Act would have affected this case, I want to share with you 

who our son was and how he died at the hands of Cooper. I want you to be able 

to understand what the delays in this case have meant to us. It is our hope that 

our story will serve to bring about changes so that other families will not have to 

endure what we have been through. 

Christopher was a beautiful little boy. He had just completed the fifth grade at 

a local Catholic school. His classmates later planted a tree in his memory at the 

school. Chris swam on the swim team and dreamed of swimming for the University 

of Southern California and being in the Olympics. He loved his younger brother, and 

in typical brotherly fashion would tease him one minute and be his best friend the 

next. Chris’ younger brother is now 28 years-old. He has missed Chris every day 

since he was murdered. Our younger son was not yet born when Chris was murdered. I was pregnant during part of Cooper’s trial with our third son. When he was 

born we gave him the middle name Christopher after the brother he never knew. 

Both boys have only in the last few years been able to face what happened to their 

brother. As the years have passed, we are reminded that Chris never got to finish 

grammar school, go to a prom, marry, have children of his own, or pursue his 

dreams. 

On Saturday, June 4, 1983, Chris asked me for permission to spend the night at 

the home of his friend, Josh Ryen. We lived in what was then a very rural neighborhood. Josh was the only boy nearby who was really close to Chris’ age and so they 

formed a bond. We were good friends with Josh’s parents, Doug and Peggy Ryen. 

The Ryens lived just up the road from our home with their 10-year-old daughter 

Jessica and eight-year-old Josh. The last time I saw Chris alive he and Josh were 

riding off on their bicycles toward Josh’s house. They were excitedly waving because 

they were so happy I had given Chris permission to spend that night with Josh. 

The only thing Chris had to remember was to be home Sunday in time for church. 

The next time I saw Chris was in a photograph on an autopsy table during Cooper’s 

preliminary hearing. 

Unbeknownst to anyone, Cooper had been hiding in a house in Chino Hills just 

126 yards from the Ryen’s home. He had escaped two days earlier from a minimum 

security facility at a nearby prison. When Cooper was arrested for burglary in Los 

Angeles he used a false identity. His identity and criminal past should have caught 

up with him before he was wrongly assigned to the minimum security portion of 

the prison. The prison, however, mishandled the processing of an outstanding warrant for Cooper for escape from custody in Pennsylvania. He was being held pending 

trial for the kidnap and rape of a teenage girl who interrupted him while he was 

burglarizing a home. While staying at the hide-out house near the Ryens, Cooper 

had been calling former girlfriends, trying to get them to help him get out of the 

area. A manhunt was under way for Cooper, but the rural community surrounding 

the prison was never notified of the escape. 

The failure of the California prison-system to protect the surrounding community 

from a dangerous felon marked the beginning of our family and community’s being 

let down by our government. Within a few hours of Cooper’s escape, prison officials 

realized who Cooper was and how dangerous he was. Nevertheless, they still failed 

to alert the community that he was at large. Our frustration and disappointment 

with our government’s failings has only grown since that time as Cooper’s case continues to wind its way down a seemingly endless path through our judicial system. 

The morning following the murders, I remember being mad at Chris because he 

had not arrived home on time as promised so we could attend church. Then my 

anger turned to worry. I sent my husband Bill up to the Ryen home. He saw that 

the horses had not been fed, and that the Ryen station wagon was gone. 

Uncharacteristically, the kitchen door was locked, so my husband walked around 

the house. He looked inside the sliding glass door of the Ryen’s master bedroom. 

He saw blood everywhere. Peggy and Chris were lying on the ground and Josh was 

49

lying next to them, showing signs of life but unable to move. My husband could not 

open the sliding glass door, so he ran and kicked open the kitchen door. As he went 

into the master bedroom, he found 10-year-old Jessica lying on the floor in fetal position in the doorway, dead. He saw Doug and Peggy nude, bloodied, and lifeless. 

When he went to our son Chris, he was cold to the touch. Bill then knew that Christopher was dead. 

My husband then forced himself to have enough presence of mind to get help for 

Josh, who miraculously survived despite having his throat slit from ear to ear. Josh, 

only eight years-old, lay next to his dead, naked mother throughout the night, knowing from the silence and from the smell of blood that everyone else was dead. He 

placed his fingers into his throat, which kept him from bleeding to death during the 

12 hours before my husband rescued him. 

Everyone inside the home had been repeatedly struck by a hatchet and attacked 

with a knife. Christopher had 25 identifiable wounds made by a hatchet and a knife. 

Many of them were on his hands, which he must have put against his head to protect himself from Kevin Cooper’s blows. Some were made after he was already dead. 

No one should know this kind of horror. That it happened to a child makes it even 

worse. The killer had lifted Jessica’s nightgown and carved on her chest after she died. 

The killer also helped himself to a beer from the Ryen’s refrigerator. We wondered 

what kind of monster would attack a father, mother, and three children with a 

hatchet, and then go have a beer. That question has long since been answered, but 

22 years later we are still waiting for justice. 

One way that things could have been different in our case under the Streamlined 

Procedures Act is that victims would have the same rights in federal habeas proceedings as victims have in criminal cases in the federal courts. In other words, victims or their surviving family members would be heard from by the federal courts. 

There was no indication that the en banc Ninth Circuit majority ever gave even a 

moment’s consideration to the impact upon the victims and their families when they 

granted yet another stay in the case in 2004. In this way, the bill would have made 

a difference. It would have prevented federal courts from making decisions in federal habeas litigation that affect people without ever knowing or thinking about 

them. Judge Huff recently afforded us an opportunity to address her at the end of 

14 months of proceedings in her courtroom. My husband and I spoke to the court, 

as did Josh, who is now 30 years old. 

While I know that Cooper is the one who murdered my son, I will always bear 

the guilt of having given Chris permission to spend the night at the Ryen’s house. 

I will always feel responsible for sending my husband to find the bodies of our son 

and the Ryen family. It is a guilt similar to the guilt that Josh feels to this day 

because he had begged me to let Chris spend the night. He thinks that Chris would 

still be alive if he had not spent the night. Of course, Cooper is responsible for all 

the pain and suffering that he inflicted that night and the continued pain that has 

followed, but it does not help stop the pain and guilt. Kevin Cooper is still here over 

22 years later—still proclaiming his innocence and complaining about our judicial 

system. 

As Josh explained when he finally got a chance to speak to the Judge about how 

he has been affected by Cooper’s crimes: Cooper never shuts up. We continually get 

to hear more bogus claims and more comments from Cooper and his attorneys. Over 

the years I have learned to know when something has happened in Cooper’s neverending legal case: the calls from the media start up again, or, at times, the media 

trucks just park in front of our house. We have no opportunity to put this behind 

us—to heal or to try to find peace—because everything is about Cooper. Our system 

is so grotesquely skewed to Cooper’s benefit and seemingly incapable of letting California carry out its judgment against him. 

It is important to understand how obvious it has been for over two decades that 

Cooper committed these horrible, senseless, and brutal crimes. This has never been 

a ‘‘who done it’’ case by any stretch of the imagination, despite all the publicity and 

antics by Cooper and his attorneys. The California Supreme Court understandably 

characterized the volume and consistency of evidence proving Cooper guilty as 

‘‘overwhelming.’’

The Ryen family and Chris returned to the Ryen home from a neighbor’s barbecue 

about 9:30 that Saturday night. None except for Josh were ever seen alive again. 

Cooper could observe the Ryen home from the hideout house next door. He knew 

it was a home and a family lived there because he had been watching the Ryen 

home for the two days since his escape. Cooper also had a motive for the crimes. 

The phone records from the hideout house, combined with statements Cooper’s 

former girlfriends gave to police, showed Cooper was trying to get help to get out 

of the area. Cooper found out just before the Ryens and Chris returned to the Ryen 

50

home that night that no money and no help was coming his way, despite his numerous phone calls to former girlfriends. Forensic evidence established Cooper’s presence in the hideout house (footprints, fingerprints, and semen). The murder weapons came from the hideout house, and other evidence showed that the killer returned to the hideout house after the murders to wash up. 

Cooper told the jury that he simply walked out of the hideout house the same 

night as the murders. He said he never went inside the Ryen home, a mere 126 

yards away. He claimed he was never inside the Ryen station wagon that was stolen 

the night of the murders. Not surprisingly, the jury did not believe him. Cooper was 

asking the jury to believe that some hypothetical killer entered Cooper’s hideout 

house within a short period of time of his vacating it, selected a hatchet and other 

weapons, went and attacked an innocent family 126 yards away, returned to the 

hideout house to wash up, and then stole the Ryen family car and drove it in the 

same direction that Cooper admittedly traveled to Mexico. 

A single drop of blood inconsistent with the victims’ blood was found inside the 

Ryen home on the hallway wall immediately adjacent to the entrance to the master 

bedroom. Cooper’s own expert excluded anyone other than an African-American as 

the source of the drop of blood. (The Ryens were white.) A serology analysis showed 

that the drop of blood was a rare type and Cooper had that same rare blood type. 

The distinctive prison-issued tobacco that Cooper admitted having when he escaped 

from prison was found in the hideout house and in the Ryen station wagon. A butt 

from a hand-rolled cigarette found in the station wagon with the distinctive prisonissued tobacco had saliva from a non-secretor. Only 20 percent of the population, 

including Cooper, are non-secretors. Another cigarette butt found in the car was a 

manufactured cigarette matching the brand of cigarettes taken from the hideout 

house; it also had saliva from a non-secretor. A pubic hair consistent with Cooper’s 

hair was found in the Ryen station wagon. Plant burrs found in the station wagon 

were from vegetation that grew between the hideout house and the Ryen home. The 

burrs were also found in the hideout house and underneath Jessica’s Ryen’s nightgown. Jessica’s killer had pulled up her nightgown to carve on her chest after she 

died and then lowered her nightgown. A button similar to those on the prison-issued 

jacket Cooper was wearing when he escaped was found with blood on it on the floor 

of the hideout house. A shoe print made by a particular make and model of shoe 

that was issued by the prison to Cooper, and that he admitted at trial to wearing 

at the time of his escape, made a partial print in blood on a sheet on the floor of 

the Ryen master bedroom, and another print on the cover to the spa outside the 

sliding glass door leading into the Ryen master bedroom, and a third shoe print inside the hideout house. 

In other words, Cooper’s defense has always asked that we believe the utterly ridiculous scenario that a hypothetical killer coincidently entered the same house 

where an escaped convict had just been hiding shortly after the convict departed, 

selected a hatchet and other weapons, committed a brutal murder of a family, returned to clean up before stealing their car, and that the hypothetical killer was 

African-American and had Cooper’s rare blood type, wore a prison-issued jacket and 

the same make and model of prison-issued shoes that Cooper wore, had the same 

shoe size as Cooper, had hair like Cooper’s, and was a smoker and a non-secretor 

like Cooper, used distinctive prison-issued tobacco, and fled in the Ryen station 

wagon in the same direction that Cooper traveled. 

In 2001, after years of Cooper contending that he was innocent and his highly 

publicized demand for DNA testing, the State agreed to post-conviction testing. The 

evidence to be tested was identified by Cooper’s own nationally recognized expert 

as the most significant pieces of evidence in the case in terms of determining guilt 

or innocence. The results confirmed Cooper’s guilt. The single drop of blood that had 

been identified through serology analysis at the time of trial as belonging to a person of African-American ancestry with the same rare blood type as Cooper was consistent with Cooper’s DNA profile; the probability of a random match with the population was a staggering one in 310 billion. The saliva on the cigarette butts in the 

Ryen station wagon also matched Cooper’s DNA; the odds of a random match with 

the general population was one in 19 billion for the hand rolled cigarette and one 

in 110 million for the manufactured cigarette butt. At trial, Cooper claimed that a 

t-shirt that had been recovered from along side the road nearby the Canyon Corral 

Bar belonged to the ‘‘real killer.’’ The post-conviction DNA testing confirmed that 

the T-shirt had smears of blood belonging to the victims as well as Cooper’s blood. 

The probability of a match in the general population to Cooper’s DNA profile on the 

t-shirt is one in 110 million, and the random occurrence within the general population of a match to the victim’s blood would be one in 1.3 trillion. The t-shirt, which 

was never used against Cooper at trial, was new damning evidence of his guilt: his 

blood was present on the same item of clothing as the victims’ blood. 

51

The fact that the overwhelming evidence of Cooper’s guilt presented at trial was 

now bolstered by undeniable scientific evidence evoked a predictably absurd response from Cooper. Cooper now claimed that his blood had been planted on the 

shirt by police and the drop of blood found at the crime scene had been tampered 

with. Of course, Cooper could not explain how or why police would plant a minute 

amount of blood on the t-shirt only to never use it as evidence against him at trial. 

Moreover, this evidence had been in police custody since 1984. Apparently, these 

supposed rogue police officers also anticipated the development of the Nobel Prizewinning science that would enable Cooper to have the blood tested for DNA. Cooper 

also could not explain how the police could have planted his blood at the crime scene 

within a few hours of discovering the bodies, while he was still at large. 

The fact that Cooper’s claims were patently absurd, however, did not prevent him 

from receiving yet another round of appeals from the federal courts. In February 

2004, the Ninth Circuit authorized Cooper file another full round of habeas corpus 

appeals on the ground that he showed ‘‘clear and convincing’’ evidence that he could 

be ‘‘actually innocent.’’ I simply do not see how the judges could have reached such 

a conclusion. 

Our story is one of a judicial system so out of balance in favor of the convicted 

that it literally enables them to victimize their victims and their families all over 

again through the federal judicial system. We understood the rights of an accused 

and that Cooper’s rights took precedence over ours as he stood trial. His trial was 

moved to another County because of the publicity surrounding the horrendous 

crimes. I had to drive a long distance to another County to watch the trial as it 

could not take place in our County. Cooper’s defense attorney spent an entire year 

preparing to defend Cooper at trial. Everything was about Cooper’s rights and none 

of our sensibilities or concerns could be dignified because Cooper had to have a fair 

trial. We understood and we waited for justice. In California, Cooper’s appeal was 

automatic because he had received the death penalty for his crimes. The appeal took 

six years to conclude. We understood the need for a thorough appeal and we waited 

for justice. 

By 1991, Cooper had received a fair trial and his appeal had been concluded. The 

California Supreme Court aptly observed that the evidence against Cooper, both in 

volume and consistency, was ‘‘overwhelming’’. Since then, we have waited and 

watched as the United States Supreme Court has denied Cooper’s eight petitions 

for writ of certiorari and two petitions for writ of habeas corpus, and the California 

Supreme Court has denied Cooper’s seven habeas corpus petitions and three motions to reopen Cooper’s appeal. The Ninth Circuit affirmed the denial of Cooper’s 

first federal habeas petition, and denied him permission to file a successive petition 

in 2001, and again in 2003. But then, on Friday night, February 6, 2004, Cooper’s 

attorneys filed an application with the Ninth Circuit requesting permission to file 

a successive habeas petition. 

A three-judge panel of the Ninth Circuit denied Cooper’s application to file a successive petition on Sunday February 8, 2004. Cooper was scheduled to be executed 

at one minute after midnight on Tuesday February 10, 2004. On Monday February 

9, 2004, my husband and I made the trip to Northern California from our home in 

Southern California. Relatives of the extended Ryen family flew in from all over the 

Country. Josh Ryen, now 30, left for dead at the age of eight, his entire immediate 

family murdered, drove hundreds of miles to reach the prison to witness the execution of Cooper. We all expected that finally, this case would be brought to a close. 

Since the murder of Chris, holidays and special days are never totally joyful. They 

serve as a painful reminder that Chris is not with us, and of how he was taken 

from us. Otherwise happy occasions with our surviving children often are overshadowed by what Chris should have been able to experience in his life but for Cooper’s choices and actions. When I learned from the prosecutor that Cooper’s execution was going to be set for February 10, 2004, I asked to have it changed because 

February 10th is my birthday. The prosecutor explained that it was not possible to 

accommodate my request because the date had been chosen in order to coordinate 

the staffing of the hundreds of people who must be on duty when an execution is 

scheduled to be carried out, i.e. the personnel at the prison, at the appropriate state 

and federal courts, and at the California Attorney General’s Office. With that explanation, I at least hoped the date would be one that would be remembered for justice 

being served at long last. Sadly, that date is now identified with yet another example of a judicial system gone wrong. 

If the Streamlined Procedures Act had been law in February 2004, Cooper would 

have been executed as scheduled. My birthday would not forever be a reminder of 

how it felt to believe that this case would finally end—only to have it begin again, 

21 years after it first began. Today, my family and Josh Ryen are left to wonder 

if there will ever be justice for my son and the Ryens. 

52

The reason that Cooper would have been executed as scheduled under the SPA 

was because a three-judge panel that was familiar with his crimes and the lengthy 

procedural history of his case already had rejected Cooper’s request to pursue yet 

another habeas petition in the federal District Court. Unfortunately, since the 

Streamline Procedures Act was not the law, the Ninth Circuit was left free to decide 

that Congress’ prior habeas reforms, which provided that a three-judge panel has 

the final word on whether a successive federal habeas petition will be allowed, did 

not really mean what they said. While Congress specified that there would be no 

petitioning for rehearing of the three-judge panel’s decision, the Ninth Circuit decided that what Congress really meant was that a rehearing would be just fine if 

it was the appellate court’s idea to have a rehearing as opposed to one of the parties. 

Of course, the problem with the Ninth Circuit’s logic is that it resulted in judges 

who had absolutely no familiarity with Kevin Cooper’s crimes or the history of his 

case making a last-minute decision about it. Only hours before Cooper’s scheduled 

execution, these judges would decide whether he would get yet another round of federal habeas review. Not surprisingly, having the decision made by the en banc panel 

that did not include a single judge with any familiarity with Cooper’s case did not 

improve the quality of justice. Cooper’s application for a successive petition and supporting exhibits was deliberately presented late in the process and was over 1,000 

pages long. It contained nothing meritorious or worthy of review. The outcome was 

a gross miscarriage of justice. 

The Ninth Circuit’s authorization for the filing of a successive habeas petition resulted in 

further proceedings in the federal District Court which served to reveal exactly 

how wrong it was to give Cooper yet another round of federal review. After 14 

months of proceedings in the District Court, we now know that the entire premise 

of the Ninth Circuit’s decision to grant Cooper the opportunity to file yet another 

federal habeas petition was predicated on false assumptions and mistaken impressions. The en banc majority of the Ninth Circuit decided in a matter of a few hours 

that two ‘‘quick and definitive scientific’’ tests could be conducted with respect to 

Cooper’s continuing claim of actual innocence. The subsequent proceedings in the 

District Court showed the tests were anything but quick. After considerable time 

and expense, both tests were conducted and neither supported Cooper’s claim of innocence. So here we are, 17 months after this case should have been put behind 

us, and law enforcement, prosecution and judicial resources continue to be wasted 

on a guilty man whose crimes were committed over 22 years ago. The same judge 

who decided Cooper’s first federal habeas petition just issued a 160 page decision 

explaining in detail why he is not innocent and why he is not entitled to relief on 

any of the claims that the Ninth Circuit allowed him to file. Cooper is now asking 

for his numerous baseless federal habeas claims to be certified for appeal to the 

Ninth Circuit. His attorneys apparently envision many more years of appeals. 

The claim that the majority of the en banc panel identified as satisfying the ‘‘actual innocence’’ test enacted by Congress in 1996 that enabled Cooper to return for 

yet another round of federal habeas review was his claim that the prosecution withheld exculpatory evidence relating to the shoe prints in the Ryen house. Cooper left 

a partial print in blood on the Ryen’s bedsheet, a print in dust on the spa cover 

outside the sliding glass door leading into the Ryen masterbedroom, and another 

shoe print in the hideout house. The shoe that Cooper wore when he left the damning shoe print evidence was a make and model that was issued to him by the prison. 

He also admitted at trial that he was wearing these shoes at the time of his escape 

from the prison, just days before he murdered our son and the Ryens. The fact that 

Cooper admitted to wearing the particular make and model of shoe did not prevent 

the en banc majority of the Ninth Circuit from deciding that ‘‘information’’ from the 

former Warden, if believed by the jury, would mean the jury ‘‘would have known 

that Cooper was almost certainly not wearing’’ the same brand and model of shoe 

responsible for the distinctive shoe prints inculpating him in the brutal murders. 

Of course, nothing in Cooper’s papers supported that conclusion. Not even Cooper’s 

attorneys argued that the former Warden’s ‘‘information’’ would have meant the 

shoes could not have been issued by the prison, yet this is the conclusion that 

caused the en banc majority of the Ninth Circuit to let Cooper file yet another habeas petition in the District Court. 

Cooper’s attorneys’ contention was, of course, completely false but, the Ninth Circuit en banc panel, unfamiliar with the details of the case, managed to buy into the 

version of events conjured up by Cooper’s counsel. The Ninth Circuit could not have 

gotten everything so wrong had they not undertaken to decide such an important 

matter over a span of just a few hours, rather than leaving matters to the threejudge panel that was actually familiar with Cooper’s case. 

53

What Cooper’s attorneys actually argued in their eleventh hour filing was that the 

murder shoes had been purchased by the prison at Sears and were readily available 

to the public in retail stores. They based this allegation on the former Warden’s 

‘‘personal inquiry,’’ which she supposedly had conducted and conveyed to the San 

Bernardino County Sheriff’s Department before trial. Of course, as the former Warden testified later in front of Judge Huff, she did not conduct a ‘‘personal inquiry.’’ 

Instead, she just asked someone and they told her information that was inaccurate. 

The corporate records and prison purchase records introduced at trial clearly 

showed the prison bought the shoes directly from the manufacturer, and the sales 

records of the corporation showed sales only to state and federal institutions such 

as the military, forestry service, and prisons such as that from which Cooper had 

escaped before the murders. 

A greater familiarity with the evidence in the case would have enabled the judges 

on the en banc panel to understand that Cooper admitted to having been issued the 

make and model of shoe that left the incriminating foot prints, and he admitted to 

wearing the shoes when he escaped only days before the murders. Those facts, combined with the fact that the prints were consistent with Cooper’s shoe size, along 

with all the other evidence incriminating him, is what made the shoe prints damning—not whether the prison bought the shoes at Sears or whether anyone else could 

buy the shoes at Sears. As if missing this point were not infuriating enough, it also 

turns out that everything the former Warden said to Cooper’s attorneys is absolutely wrong, and that the defense as well as the trial jury knew all along where 

the prison had purchased the shoes and who else had purchased those kinds of 

shoes. Imagine this scenario: everything is stopped just hours before an execution, 

after two decades of litigation, because of inaccurate hearsay offered by the same 

warden who put a violent offender in the minimum security portion of the prison, 

allowing Cooper to escape and commit the murders in the first place. 

Not only was the entire claim misunderstood and false, the Ninth Circuit also was 

misled as to how long the defense knew about the ‘‘facts’’ supporting the claim. The 

time frame in which the defense learns something is a critical fact to be considered 

when something is asserted at the last minute after years of litigation. The importance of when something is discovered in the context of an application to file a successive petition is evident from the decision of the en banc majority, which expressly 

states when it believed Cooper’s defense learned of the ‘‘new’’ information. The decision expressly noted that a sworn declaration by Cooper’s counsel showed that the 

Cooper defense did not become aware of former Warden Carroll’s ‘‘information’’ until 

the date on her declaration, which was January 30, 2004. If we were not already 

completely disgusted with our judicial system, we certainly were when we sat in 

Judge Huff’s courtroom while a Cooper defense investigator testified that he had 

discovered Warden Carroll’s ‘‘information’’ years earlier, and that Cooper’s attorneys 

had had that information for years and knew that it was worthless because, as everyone had known since trial, the shoes had not been purchased from Sears and 

were not readily available in retail stores. In other words, the whole appeal was 

based on a lie. It was based on worthless evidence that Cooper’s lawyers held back 

until the last minute, so that they trick the en banc Ninth Circuit into grant a second-appeal application that it never should have been considering in the first place. 

The decision of the en banc majority also shows a lack of understanding of the 

evidence against Cooper in other ways as well. The hastily crafted opinion noted: 

‘‘[t]here was, of course, evidence pointing to Cooper’s guilt at trial.’’ The opinion then 

references a spot of blood on the hallway wall of the Ryen house, the bloody Tshirt, and hand-rolled cigarettes from the Ryen car.’’ But the so-called bloody Tshirt was never used as evidence against Cooper at trial. Instead, it was Cooper’s 

defense attorney who had waived it around and argued that it belonged to the ‘‘real 

killer’’ as he tried unsuccessfully to cast suspicion on three unknown patrons who 

visited a local bar on the night of the murders. Remarkably, the en banc panel that 

decided to grant Cooper more appeals thought the T-shirt was used as evidence 

against him at trial. Hours before Cooper’s execution, the Ninth Circuit en banc 

panel majority wanted a ‘‘quick and definitive scientific’’ test conducted to determine 

whether Cooper’s blood was planted on evidence that was never used against him 

at trial. This error was magnified when the test turned out to be neither quick, 

definitive, or even scientific—or helpful to the defense. 

The other scientific test that the en banc Ninth Circuit panel ordered for Cooper 

was mitochondrial DNA testing of hair that Jessica supposedly was ‘‘clutching’’ in 

her hand at the time she died. Cooper argued it could identify the real killer. It 

came as no surprise, after spending $2,500 per hair, that the victims could not be 

eliminated as the donors of the hairs selected by Cooper’s own expert. Common 

sense suggests that when a person is attacked with a hatchet and multiple blows 

are struck to the head, clumps of cut hair will adhere to the victims’ bloodied hands. 

54

Cooper’s expert from trial and post-conviction testing himself explained that the theory that young Jessica clutched her killer’s hair in her hands was absurd because 

a dead person cannot clutch anything. Also, how would a little girl, attacked in the 

dark by a hatchet-wielding assailant, ever manage to pluck hairs from her assailant’s head? The whole argument that Jessica was ‘‘clutching’’ her killer’s hair is absurd. The only thing that it accomplishes is to force her family and my family to 

once again focus on the horrific manner in which the Ryens and my son died. 

The Streamlined Procedures Act also would have changed the course of Cooper’s 

case by limiting the amendments that he filed to his first federal habeas petition. 

Cooper first asked the federal court for a stay of execution in March of 1992. In August of 1994, he finally filed his first habeas petition. He was allowed to amend his 

petition in April of 1996. Then Cooper was again allowed to amend his petition in 

June of 1997. The Streamlined Procedures Act would allow one amendment as a 

matter of right before the answer is filed, and any amendment after that would 

have to present meaningful evidence that the petitioner did not commit the crime. 

Obviously, under these standards, Cooper would not have been allowed to amend 

his petition twice over a three year period. Years of delay could have been avoided. 

The Streamlined Procedures Act also would not have permitted Cooper’s appeal 

from the denial of his first federal habeas petition to take as long as it did. Cooper’s 

appeal of the 1997 denial of his first federal habeas petition was not completed until 

2001—over three and a half years. The SPA would have required that the matter 

be resolved within 300 days of the completion of briefing by the parties, and would 

require a rehearing decision to be made within 90 days, a rehearing by a threejudge panel to be completed within 120 days, and a rehearing en banc to be completed within 180 days. Years of delay in Cooper’ appeal in the federal court could 

have been avoided. 

Every state and federal court has repeatedly and consistently upheld the judgment against Kevin Cooper, yet 22 years later he still has not answered for his horrific crimes. My husband and I urge you to reform the federal habeas system so the 

profound abuses and manipulations that have allowed the murderer of our son to 

evade justice for over 22 years will finally be brought to an end.

Mr. CHABOT. Thank you Mrs. Hughes. 

Ms. Friedman. 

TESTIMONY OF RUTH FRIEDMAN, SOLO PRACTITIONER, 

WASHINGTON, DC 

Ms. FRIEDMAN. First of all, I would like to thank you, Mr. Chairman, for holding this hearing. 

Punishment of crime, particularly in death penalty cases, is a 

highly charged subject. Confronting the minutia of the laws and actual practice can be very challenging. Some people tell me sometimes boring. 

Habeas corpus is a very, very complicated subject and has become even more so over the last decade with the procedural rules 

and technical requirements often referred to as Byzantine. But we 

should make no mistake about it. This is a very radical bill. It proposes to gut years of Supreme Court case law, most of it by the 

Rehnquist court. In many places, it would amount to a virtual repeal of the writ of habeas corpus. 

Hearings like this one, a careful examination of the actual effects 

of this bill across the country, are critical. My understanding, Mr. 

Chairman, is that some of the most drastic provisions of this bill 

are being attached piecemeal to other legislation without the debate undertaken today and without even the consideration by the 

Subcommittee. 

I hope these issues are not resolved in that way. 

Hearings such as this one, where there can be open and public 

debate on the merits of the legislation, are essential. I thank you 

for the privilege of submitting my remarks and appearing before 

you today. 

55

I say that this bill is radical not only because it would fundamentally change the time-honored American remedy of habeas corpus 

in an unprecedented fashion, it would also destroy the last and 

often the only chance of fairness for thousands of State prisoners. 

For many, particularly those on death row, Federal Court is the 

first place one has access to a paid and competent lawyer, any resources to prove the case and an unbiased decision maker not facing re-election pressure in the community where a terrible crime 

occurred. 

Where I practice in Alabama, almost three-quarters of the current death row population was represented at trial by an attorney 

who got paid $1,000 for all the work he or she did, out of court, 

preparing the case. 

There is no public defender system in Alabama, no institution 

comparable to district attorneys or attorneys general who gain expertise in handling capital litigation. There is no right of access to 

forensics or DNA labs or even investigators who could prove the 

accused’s defense or even his innocence, trials where first guilt and 

then life is at stake. That is two trials, and sometimes jury selection as well have been known to last less than 3 days in Alabama. 

The situation of State post-conviction, which if this bill were to become law would be the last place to look for justice, is worse. 

Alabama death row inmates are not entitled to an attorney at all 

until after they file their petition for relief. This is after their Federal statute of limitations may even have run out. The State of Alabama does nothing to provide these inmates with counsel at this 

juncture, though this is when the prisoner must file a pleading that 

will withstand all of the procedural defenses that the State lawyer 

immediately and always asserts. Indeed, the Alabama Attorney 

General has watched the statute of limitations clock run out on an 

unrepresented death row inmate and then contacted them to let 

them know they would be seeking an execution date because the 

deadline was missed. If a prisoner does manage to get a lawyer, 

that attorney will lose money doing the case. He or she will be paid 

a total of $1,000 for however long it takes to prepare, research, litigate, defend and present the case. 

The State typically will oppose every attempt made for discovery, 

for experts or even for investigative help. The case will usually be 

decided by the same elected judge who imposed the death sentence 

originally. Even often over the express wishes of the jury, even 

though that jury was comprised of people in favor of the death penalty, even when they determined that the defendant’s life should be 

spared, Alabama law permits judicial override. And about a quarter of the people currently on the row got there even after jury verdicts of life without parole. 

As it stands now, the habeas law is completely unforgiving of any 

mistakes that post-conviction lawyers, unpaid, coming in late, without help, without access to discovery, any mistakes that he or she 

made or any claim he or she neglected to raise. There is no constitutional right to post-conviction attorneys, much less to competent or paid lawyers. Thus when lawyers miss their clients’ deadlines, under the habeas law as it stands today, those clients will 

die without Federal habeas review. This has already happened a 

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number of times. Under the AEDPA, it is likely to happen more 

times more. 

As I noted more extensively in my written remarks, it is important to recognize and consider just how strict habeas law has already become. All habeas petitioners are now subject to a statute 

of limitations. There is no right anymore to a Federal evidentiary 

hearing. Claims subject to legitimate State procedural defaults are 

barred forever from Federal review. There is only one shot at a habeas petition. Federal judges must generally defer to all State court 

fact findings, and relief cannot be granted, even if a State court decision maker got it wrong, unless he or she also got it unreasonably 

wrong. To put it mildly, it is not easy for a petitioner to get past 

the hurdles erected by the AEDPA. But it is still possible. 

For example, the prosecution at Bo Cochran’s Alabama trial intentionally removed nearly every qualified black juror from that 

case. The State courts found the claim defaulted. The Federal 

Court said the State courts didn’t apply it fairly. Bo Cochran was 

acquitted at his retrial. 

I see my time is up. I will end quickly. At the Delma Banks’ 

Texas trial, the State lied throughout about what it did to its witnesses. It paid them. It coached them. It lied throughout. When the 

case was taken by the U.S. Supreme Court, the main defense by 

the State was that defense didn’t catch the lie soon enough. The 

Supreme Court overturned the case. 

Had this bill been law, Delma Banks would have been executed. 

As I mentioned in my remarks, Arkansas’ death row inmate Ledell 

Lee was represented by a drunk lawyer. In post-conviction, the 

State judge, the State lawyer knew that, but the State courts approved it anyway. Under this law, he would have gotten no relief. 

I could go on and on. I will not. Let me just add, the Senate has 

looked at this bill several times. It has held hearings. It has met 

and conferred. I have spoken with staff members on both sides of 

the aisle. It has changed that bill twice, offered two new substitutes. It has eliminated section 6 altogether, gotten rid of the appeal effects of section 9, changed the tolling revisions and done 

other things. I urge this Committee to please do the same. 

[The prepared statement of Ms. Friedman follows:]

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PREPARED STATEMENT OF RUTH E. FRIEDMAN


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Mr. COBLE. Thank you Ms. Friedman. We impose the 5-minute 

rule against ourselves as well so we will commence the examination now. 

Mr.—pronounce your surname for me again, please. 

Mr. DOLGENOS. Dolgenos, Mr. Chairman. 

Mr. COBLE. Mr. Dolgenos, one issue which surrounds this subject 

matter is the cost of relitigating. Comment on that, for me, if you 

will. 

Mr. DOLGENOS. Well, Mr. Chairman, as I said in my remarks 

earlier, in my little office in Philadelphia—it is not that little, but 

it is small compared to some of the agencies we see around this 

city. We have had to increase the number of lawyers who work full 

time on habeas by 400 percent. And the reason that is, as far as 

I can see, is that when a prisoner files a habeas petition, it doesn’t, 

despite the existence of a statute of limitations, despite the existence of various default provisions, it does not go away easily, even 

if it is patently frivolous. 

The fact is, we have far more evidentiary hearings now than we 

ever did before, evidentiary hearings about whether the time bar 

should be applied in a particular case, evidentiary hearings about 

whether the State court proceedings were fair, far more evidentiary 

hearings than we used to have before the passage of AEDPA. In 

fact, last year, I think we had something like 20 Third Circuit appeals in my unit. Before AEDPA was passed, before the last 5 

years, we had hardly any. And I think it is not because AEDPA is 

so complicated. I think it is because there are so many judicial exceptions, judicially carved exceptions to each and every bar in 

AEDPA, that litigation snowballs every time habeas petition is 

filed. 

And that means that those of us in State and local governments 

have to take money away from the investigation of crime, away 

from the prosecution of crime, and put it into the habeas unit 

where, frankly, I think it’s better spent elsewhere. 

Mr. COBLE. Thank you, sir. 

Mr. Cattani, in the 1996 act, Congress created a special expedited habeas corpus procedure into which States can opt-in by creating a mechanism for providing high-quality counsel to defendant’s own State post-conviction matters. 

Tell us what your State has done to that end. 

Mr. CATTANI. After the AEDPA was enacted, we enacted heightened standards for attorneys who would represent defendants in 

post-conviction proceedings. The standards require extensive experience to be qualified to act as lead counsel in a post-conviction proceeding. 

We’ve ensured that there is adequate funding for defense attorneys to handle these post-conviction proceedings, as I indicated. In 

some cases, more than $100,000 has been spent for post-conviction 

proceedings; and in those post-conviction proceedings, what we generally see—the post-conviction proceeding is the primary opportunity to raise claims such as ineffective assistance of counsel. And 

the claim that we routinely see is counsel should have developed 

additional mitigation. 

So notwithstanding the fact that the initial—our trial attorneys 

are well-funded and conduct a mitigation investigation at trial, we 

78

repeat the mitigation investigation during the post-conviction proceedings. Notwithstanding the fact that we’ve then had that type 

of a hearing in post-conviction proceedings, we move to Federal 

court, and we still get claims of ineffective assistance of counsel for 

not developing additional mitigation. 

But the point—going to the question that you raise, we have implemented a system that provides highly qualified attorneys to represent defendants in post-conviction proceedings, but we haven’t 

been able to take advantage of the opt-in requirements. 

Mr. COBLE. Ms. Hughes, you’ve mentioned in your testimony that 

you’re not—you’re not alone in this situation. Do you know other 

families that have experienced similar difficulties in finalizing the 

problems that plague them? 

Ms. HUGHES. All I can say to answer that is, I live in a State 

where the death penalty is seldom ever carried out. If you’re the 

family of a victim and the murderer of your family member is on 

death row and he’s been there for a long time, they’re in the same 

boat that I am. 

We’ve seen recently in California—and it was tragic that the parents, Doug and Peg, were killed, but I’m coming here as a mother, 

I’m talking about someone who kills a child. 

We’ve had a lot of very high-profile child murders in California. 

We’ve got cases that have been tried, are waiting to be tried; and 

I know that these parents—and I see some of them when they’ve 

had the verdict and they go, ‘‘Thank God it’s all over,’’ and I go, 

‘‘You’d better pray because you’re just—you’re just beginning to see 

what the system is like and how it’s not going to work for you.’’ 

Twenty-two years is too long. 

Mr. COBLE. Well, I see my red light has appeared. 

My aunt, Ms. Hughes, recently lost a child, natural death, but 

she said to me, as you have told us, that the saddest day in a parent’s life is burying a child because it’s supposed to be the reverse. 

The gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Dolgenos, I assume it’s your position that most of these petitions are without merit; is that true? 

Mr. DOLGENOS. I would say so, yes. 

Mr. SCOTT. And some have merit? 

Mr. DOLGENOS. That’s correct. 

Mr. SCOTT. Is it important to have finality if you’re dealing with 

someone that happens to be innocent? 

Mr. DOLGENOS. I think it’s legally untenable to imprison or execute someone who’s innocent; it’s important not to punish the innocent. 

Mr. SCOTT. Okay. Well, exactly what happens now if you have 

someone who’s probably innocent? 

Mr. DOLGENOS. Well, what we have, sir, are claims of innocence 

that reasonable people can disagree about; and the question is 

whether or not we need to channel that to a jury or——

Mr. SCOTT. The jury has found them guilty. Now you’ve got evidence that shows they’re probably innocent. 

Mr. DOLGENOS. If I believed, sir, that someone——

Mr. SCOTT. What is their right, not what you believe. They can 

convince you—because you’ve already prosecuted them. Do they 

79

have an independent shot at a judge to show they’re probably innocent? 

Mr. DOLGENOS. Yes, they do. It depends——

Mr. SCOTT. Well, now you have to show clear and convincing evidence that they’re guilty. That’s a higher standard than probability; is that not right? 

Mr. DOLGENOS. That’s correct, sir. 

Mr. SCOTT. Ms. Friedman, what happens if you’ve got somebody 

that’s probably innocent? 

Ms. FRIEDMAN. Through this bill? 

Mr. SCOTT. Yes. 

Ms. FRIEDMAN. They would not be able to make it through under 

this bill. These innocence provisions are not fail-safes for the innocent by any measure for many reasons. One of them is that there 

is no provision here for even presenting any evidence. The court 

wouldn’t even have jurisdiction under this bill; it’s a jurisdictionstripping bill. 

Mr. SCOTT. Well, suppose a lawyer prematurely files an 

unexhausted claim on page 3, lines 1 through 3 of the bill. If you 

file an unexhausted claim that is, for procedural reasons, thrown 

out, what does ‘‘dismissed with prejudice’’ mean? 

Ms. FRIEDMAN. That claim is gone forever, you can never litigate 

that. 

Mr. SCOTT. So if it’s prematurely filed and you get yourself together and you have a valid claim, but you messed up and prematurely filed it, it’s dismissed with prejudice so that when you get 

it together it can’t be brought back? 

Ms. FRIEDMAN. That’s absolutely right, unless you can prove not 

only innocence to a clear and convincing—there’s many things 

wrong with that standard. It’s got to be tied to the claim. It’s innocence-plus. It’s not even enough if you’re innocent. 

Mr. SCOTT. Clear and convincing is a higher standard than probability, so if all you’ve got to show is that you’re probably innocent, 

the court doesn’t have jurisdiction to hear the case? 

Ms. FRIEDMAN. That’s correct. And it’s even beyond that. You 

have to show that that evidence wasn’t available before, so that if 

you had a bad lawyer, who never put it on, you’re out of luck as 

well. 

Mr. SCOTT. On page 7, line 10, it shows that, unless determination that the error is not structural is contrary to clearly established Federal law. 

Mr. Cattani, what’s the difference between clearly established 

Federal law and Federal law? 

Mr. CATTANI. Clearly established Federal law is law as determined by the United States Supreme Court. There has to be a decision from the United States Supreme Court. 

Mr. SCOTT. What do the words ‘‘clearly established’’ do? I mean, 

if it’s contrary to Federal law, what does ‘‘clearly established’’ do 

to that sentence? 

Mr. CATTANI. It suggests that there’s no reasonable dispute 

among jurists. 

Mr. SCOTT. So if the court decides that it’s contrary to Federal 

law, it’s not clearly established, then you can’t be heard; is that the 

deal? 

80

Mr. CATTANI. I’m not familiar with the specific provision that 

you’re looking at. 

Mr. SCOTT. Page 7, line 10. 

Mr. CATTANI. I guess—the important point, I guess, for me is 

that——

Mr. SCOTT. Those words aren’t in there by accident. What do 

they mean? 

Mr. CATTANI. This is collateral review, and as Representative 

Lungren pointed out, if, for example, you commit a Federal crime, 

you have a trial, an appeal, a post-conviction proceeding. 

We have those same provisions in State court, and then this is 

another layer of review on top of that. And I think it’s appropriate 

to have a higher standard—greater requirements to pursue your 

appeal in that setting in a Federal collateral review——

Mr. SCOTT. So if a State court has decided, then the Federal 

court doesn’t second-guess the State court; is that the deal? 

Mr. CATTANI. That is correct. 

Mr. SCOTT. Okay. Is a guilty person entitled to a fair trial? 

Mr. CATTANI. Yes. 

Mr. SCOTT. Suppose everybody agrees you didn’t have a fair trial, 

but you’re not claiming innocence? 

Mr. CATTANI. I guess I have more confidence in our State court 

system——

Mr. SCOTT. So a guilty person is not entitled to a fair trial. If everybody up there agrees that the trial was not fair, but the person 

was guilty, is a guilty person entitled to a fair trial? 

Mr. CATTANI. Certainly a guilty person is entitled to a fair trial. 

Mr. SCOTT. And what is his remedy if it’s no fair trial? 

Mr. CATTANI. If it’s not a fair trial, he certainly has all of these 

avenues of appeal that I’ve outlined. 

Mr. SCOTT. How do you get in if you’re not claiming innocence? 

Mr. CATTANI. Well, you get in by raising your Federal constitutional claims in State court, and then you get to raise those claims 

again in Federal court. 

Mr. SCOTT. Without a claim of innocence? 

Mr. CATTANI. Even without a claim of innocence, yes. 

Mr. SCOTT. Ms. Friedman, can you get into Federal court under 

these without a claim of innocence? 

Ms. FRIEDMAN. Not for any claim that has been in any way defaulted, unexhausted, unamended. So if you didn’t have proper 

counsel or if the State withheld evidence—and that’s one of the 

problems with this bill, it does nothing if the State lies, it withholds evidence and denies access to discovery, it’s going to be too 

late when you get to Federal court to raise that claim. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman. 

The gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Ms. Friedman, in your testimony on page 2 you talk about the 

Federal forum being available for habeas petitions for centuries, 

and that after the 1970’s the implementation of the habeas remedy 

generally focused on whether the petitioner had been deprived of 

a fair trial. Yet the Supreme Court, in Felker v. Turpin doesn’t 

seem to agree with you. 

81

The Supreme Court said that, in these words, the first Congress 

made the writ of habeas corpus available only to prisoners confined 

under the authority of the United States, not under State authority. Again, the Supreme Court said it was not until 1867 that Congress made the writ generally available in all cases where any person may be restrained of his or her liberty in violation of Federal 

law. 

The Supreme Court goes on to say, and it was not until well into 

this century—that is, the 1900’s—that this court interpreted that 

provision to allow a final judgment of conviction to be collaterally 

attacked on habeas. 

I view that as suggesting there’s a great distinction between the 

great writ and the statutory writ that we are talking about here 

today. 

Do you still stand by your statement that the right to litigate in 

a Federal forum a habeas petition has existed for centuries? 

Ms. FRIEDMAN. Yes, Congressman Lungren. 

Mr. LUNGREN. Okay, that’s fine. You can disagree with the Supreme Court here. Many of us do, as well. 

Talking about the ‘‘actual innocence’’ test, people have to understand under this bill, procedural default, if the claim goes to the 

innocence, the Federal court can still consider, under the ‘‘safe harbor,’’ the claim even if not exhausted. If it doesn’t relate to innocence, then the claim would be dismissed. 

Again, that goes to Mr. Cattani’s suggestion that there ought to 

be a higher standard in this subsequent, subsequent, subsequent 

review by the Federal courts. 

Ms. Friedman, you state in your testimony on page 18 that we 

should not be misled into believing that the bill’s exceptions to sections 2, 3, 4 and 9 will identify the innocent. The exception that 

these sections illustrate is that codified in 28 U.S.C. 2254E2, which 

requires that the evidence of innocence be new or previously 

undiscoverable, and that the evidence clearly shows innocence. 

This standard was enacted in 1996, the same standard to limit 

the right of habeas petitioners to file a second or successive habeas 

petition, as was also enacted in 1996. Both of these standards have 

now been around for 9 years and have been used to bar hundreds 

if not thousands of claims from going forward. 

Can you give me one actual case, not a hypothetical case or a 

case that you think would have been affected had this section applied—can you name one actual case where either 2254E2 or 

2244E2 was applied to the actual case out of the many cases where 

the sections have been applied and where this test has denied relief 

to a prisoner who reasonable people would agree was actually innocent? 

Ms. FRIEDMAN. I’m glad you brought up those sections. 

Those sections were a part of a bill, and they apply in the 

AEDPA in two places. One is to limit repetitive filings, and the 

other is to limit evidentiary hearings when the petitioner is not at 

fault. So those are both standards that are very different from 

what’s in this bill. This bill would limit—would use those same 

standards to limit any ability to get into Federal court at all. So 

it’s a very, very different situation. 

82

Mr. LUNGREN. The standard is the same, but it’s applied in a different manner? 

Ms. FRIEDMAN. It’s applied in a wholly different manner. These 

are applied in the ability ever to get Federal habeas review of a 

claim. Those were used to limit repetitive filings, and have halted 

repetitive filings of habeas petitions for all intents and purposes; 

or to limit Federal evidentiary hearings when the petitioner himself was at fault for not presenting the evidence. Those are not 

what this is about here. 

Mr. LUNGREN. Let me ask you this: Do you think there is any 

need to reform habeas petitions at all, given, in fact, that we have 

these instances, such as Mrs. Hughes’ case, of what appear to be 

interminable delays? 

Ms. FRIEDMAN. My heart, of course, goes out to Mrs. Hughes——

Mr. LUNGREN. That’s not the question I asked. 

Ms. FRIEDMAN. But I would like to say that, thank you. 

Yes. If cases are going on and on, that is a problem. And there 

are lots of problems that I think should be looked at in this bill and 

not just those. But it seems to me, that is about timing and the 

length of time something takes in Federal court, not the ability to 

go to Federal court at all, which is what this bill says. 

Mr. LUNGREN. Okay. Well, let me ask you that, then. 

In one specific part of the bill we allow expeditious review if a 

State—if a State follows the outline that we’ve established actually 

in the 1996 bill, which would improve the kind of representation 

that those defendants would get. Would you support that? 

Ms. FRIEDMAN. I think having incentives for States to improve 

their counsel is a terrific idea. 

What happened in 1996 is that it was put into the bill and very 

few States attempted to meet it. Some did, without changing their 

systems at all, and then gave up; some said they didn’t need it at 

all. 

Mr. LUNGREN. Which States have been approved by the Federal 

courts thus far? 

Ms. FRIEDMAN. Arizona will meet it. It did not meet it——

Mr. LUNGREN. No, no. I asked which have thus far, since 1996? 

Ms. FRIEDMAN. None have. 

Mr. LUNGREN. By the action of the Federal courts? 

Ms. FRIEDMAN. No, by their own actions, they have not improved 

their systems, and this bill rewards them for not improving their 

systems. 

Mr. LUNGREN. Well, since my office wrote the 1996 law, and we 

wrote it to pattern after the practice in California, it seems rather 

strange that the very law that we wrote that was patterned after 

what we had done to improve the situation in California has not 

been deigned by the Ninth Circuit to meet those standards. 

And what I would ask you is, why can’t we have some authority 

that has no interest in this whatsoever; that is, the Attorney General of the United States—these are State cases—he has no real interest in it; there’s no conflict there in the Circuit for the District 

of Columbia to do that rather than have what we have now, 

which—where there is a conflict? Because what you’re asking the 

courts to do is to say, Okay, you’ll have expedited procedure, we’ll 

have less chance to look at this, as we have imposed upon you in 

83

the past. So really there’s no incentive for us to actually say that 

your State qualifies. 

Ms. FRIEDMAN. Three quick answers to that. One is that the Attorney General——

Mr. COBLE. Ms. Friedman, if you will answer tersely because——

Ms. FRIEDMAN. Okay. The Attorney General is not——

Mr. COBLE. But it is Mr. Lungren’s bill, so we’ll be generous with 

him. Go ahead. 

Ms. FRIEDMAN. Thank you. 

The Attorney General of the United States comes in on the side 

of States in habeas cases against petitioners often; it has never, to 

my knowledge, come in on the side of a petitioner. 

I think what this bill also does is, it doesn’t just speed up the 

process, which is what the original AEDPA contemplated; it repeals 

jurisdiction entirely for any State that meets the opt-in, and I 

think that is an enormous problem. 

Mr. LUNGREN. I will just mention, the Attorney General does at 

times sue States in the Union, prosecutes officials of States when 

they find that they violate civil rights acts—civil rights laws, for instance, so they’re not always on the side of the States. 

Ms. FRIEDMAN. I don’t believe they have ever come in on the side 

of a habeas petitioner. 

Mr. COBLE. I thank the gentleman. 

The distinguished gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. I thought we had a very informative exchange 

between my friend from California and Ms. Friedman. If Mr. Lungren—and I can see he’s in discomfort with his back, but if he 

would wish to continue the dialogue that you’re having with Ms. 

Friedman——

Mr. LUNGREN. Well, I thank the gentleman for yielding. I appreciate it. 

Mr. DELAHUNT. I yield whatever time you might have. I find this 

very informative. 

Mr. COBLE. Mr. Delahunt controls the time and Mr. Lungren is 

recognized. 

Mr. LUNGREN. This is the confusing thing that I find in the 

whole process, the way it works now, and we have it in California 

with the Ninth Circuit. We have a situation where the procedural 

default exceptions that the State courts impose on themselves to 

serve the interest of justice, where they find that if they actually 

impose their procedural default rule in a particular case, they find 

that it would be inappropriate, that there is a case of innocence 

there that ought to be looked at. 

So the courts impose this on themselves; the California State 

court would do that in, as what we call it, the interest of justice. 

And then, subsequently, the Federal courts don’t recognize our procedural default rules because they say they’re inconsistently applied. 

Now, that seems strange to me. You have procedural default 

rules that you believe make good sense. In a very, very few cases 

you make an exception in the interest of justice at the State level. 

Then that very exception that you utilize is used against your 

whole State system by the Ninth Circuit that says, because you 

don’t apply it in every single case, we won’t apply these rules now. 

84

Does that make sense? 

Ms. FRIEDMAN. I think it’s a very different situation when you 

have a couple of times where the court may say, we’re going beyond 

our rule for some reason. 

Mr. LUNGREN. That’s what I’m saying. 

Ms. FRIEDMAN. What this bill does is, it goes way beyond that, 

it gets rid of any defense whatsoever to a default. So it would encourage and it would allow any State that makes up a default after 

the fact, as in Ford v. Georgia, about objecting to striking black 

people from juries——

Mr. LUNGREN. You don’t recognize any safe harbor that we have 

in here for actual innocence? 

Ms. FRIEDMAN. The actual innocence exceptions to this bill are 

impossible to meet. 

Mr. LUNGREN. Impossible to meet? 

Ms. FRIEDMAN. I think they are. But in terms of procedural default, it not only deals with inconsistent application, but with defaults that don’t serve legitimate purpose, that are announced after 

any time for applying the default has already passed, that are 

based on a State’s withholding of evidence, like in Delma Banks’ 

case. 

Mr. LUNGREN. Well, all I know is that the standard that we use 

in our bill, as you suggest, is used in other circumstances right now 

for successive petitions; and unfortunately, I would have to advise 

Ms. Hughes that that standard was used by the Ninth Circuit to 

allow successive petition to the convicted murderer in the case involving her child. 

So to suggest that that would never happen, when we had it in, 

I think, outrageous circumstances, at least undercuts your argument that it could never happen and that we provide no safe harbor whatsoever. 

Ms. FRIEDMAN. You know, I think one very big problem with this 

bill is, most of it has been based on anecdote and not on data. And 

I think it would be very important to know what, exactly, the data 

is around the country, and not just in one or two jurisdictions in 

the country, about how the AEDPA is being applied. 

Mr. LUNGREN. Well, you can call it anecdotal, I spent 8 years 

with the Ninth Circuit. My office wrote the law that was adopted 

by the Congress in 1996, expecting to see some change, and we actually see even greater delay. 

And the argument we hear from some of the judges now is—and 

you suggest in your final comments of your written statement that, 

even the presumed beneficiaries of this, the State courts, oppose it. 

And again, I would just say to you, my presumed beneficiaries were 

not the State courts, but they were people like Mrs. Hughes. 

But if you read what they have said, they are worried that if we 

put new law in there, the Federal courts will once again take so 

much time to interpret it, we will have uncertainty, which is sort 

of like a war of attrition. If the Ninth Circuit is obstinate in its effort to try and avoid the direction it was given by the Congress, by 

statute, we therefore can’t go back and try and change that statutorily because we’re told it will give us more uncertainty, because 

they will just do the same thing, times X, in the future. 

85

And you say it’s anecdotal. I spent 8 years dealing with it, dealt 

with people like Mrs. Hughes and many others who have seen that. 

If you examine the case involving Mr. Cooper, you will see that 

they have raised claims based on DNA. You will see that Mr. Cooper stated that if the forensic experts would conduct new DNA 

tests, he would drop his appeals. So they had the DNA tests, the 

DNA of Doug and Peggy Ryen, on a T-shirt, never presented at 

trial. 

The DNA tests firmly placed Cooper in the Ryen home, where he 

said he had never been; in the Ryen car, which he said he had 

never driven. But rather than drop appeal, they concocted another 

story that he was framed. And now his lawyers demanded a new 

test for a preservative on the T-shirt, never presented at trial, that 

would show that Cooper’s blood was planted, as well as hairs that 

police already knew were not Cooper’s, so the question of Cooper’s 

innocence could be answered once and for all. 

So they did the new test and found no extra preservative on the 

T-shirt blood. The district court judge ruled the tested hairs presented no proof of another assailant. And now they’re off on another journey to see if they can do it again. 

That may be anecdotal, but it’s actually what was presented to 

the court. And it’s that kind of thing that I think is indefensible. 

Ms. FRIEDMAN. I think——

Mr. COBLE. The gentleman’s time again has expired. 

Folks, I think we will probably have time for another round. I 

appreciate your yielding, Mr. Delahunt. 

The gentleman from Arizona. 

Mr. FLAKE. I thank the Chairman, and I appreciate this hearing. 

And I appreciate the gentleman from California for bringing up 

this bill. 

I would like to thank Mr. Cattani, in particular, for coming in 

from Arizona. This is an issue that obviously Arizona has been involved with for a long time, trying to get at a place where we can 

actually take advantage of law passed by the Federal Government 

in 1996. 

Mr. Cattani, is it true there are over 100 prisoners in Arizona 

on death row that have exhausted all State habeas claims? 

Mr. CATTANI. There are 106; I think some of them—those have 

not all exhausted. The chart that I have attached to my written 

statement details all of the defendants who are in Federal court. 

And the evidence regarding delay in Arizona is not anecdotal. 

You can look at the chart and it’s there, and it’s there notwithstanding the fact that the provisions that we have in Arizona for 

establishing innocence are more generous than anything that has 

been proposed in the Federal process. And again, what I want to 

reiterate, that suggests to me that what’s happening in Federal 

court in Arizona cases is not about innocence. 

And we have this delay—and you can look at the chart—there 

have been cases that have been there for 19.58 years; we’ve had 

61 cases since the enactment of the AEDPA that are still pending, 

none of them have moved on past—we’ve only had one that’s even 

made it to the Ninth Circuit. 

86

Mr. FLAKE. I believe you mentioned in your written testimony you spend an average of $64,000 per case in order to comply with 

the provisions of the ‘96 law? 

Mr. CATTANI. I’m not sure of the exact average, but certainly 

funds are made available, and we haven’t had any examples where 

defendants have said, I don’t have enough money to pursue my 

claims and post-conviction relief. Funds are made available, funds 

are made available for defense counsel, for highly qualified defense 

counsel; funds are made available for investigators, for mitigation 

specialists and for expert witnesses. And notwithstanding that, we 

still haven’t been able to opt-in. 

Mr. FLAKE. The assumption with this legislation that—as proffered by Mr. Lungren, is that the Ninth Circuit has conflict of interest here, since they’re the ones that will be hearing these appeals and they’re involved in the process. 

Is that your feeling as well? Do we need a third party, a U.S. Attorney General or something else to look at it? 

Mr. CATTANI. I’m not sure it’s necessarily a conflict. All I know 

is that it seems to me we have made a good-faith effort to opt-in, 

and we haven’t been able to opt-in, and it seems to me the mechanism should be changed. 

Mr. FLAKE. And, Ms. Friedman, your contention is that Arizona 

has not made a good-faith effort or hasn’t fully completed it. Where 

has Arizona gone wrong here? 

Ms. FRIEDMAN. That’s actually not my contention. My understanding is, it was just in the case that was before it, they didn’t 

appoint—didn’t follow their own rules is my understanding in appointing Mr. Spears a lawyer in a timely fashion. 

My understanding is that Arizona will be deemed to be opted in 

when they have done that in the next case in front of them. 

I also think it’s an example of the problem of doing something 

that’s so sweeping in the nature of a bill to cover the entire country, when the circumstances are so different in different places. I 

think some of these are regional issues we’re talking about, and a 

lot of the anecdotes, et cetera, are about the Ninth Circuit. My 

practice is very, very different. 

Mr. FLAKE. Mr. Dolgenos, what is your feeling with regard to the 

need for an outside party or group to certify? 

Mr. DOLGENOS. I think that particular problem is uniform across 

the country because every circuit—the decision that every circuit 

has to make is whether to limit their own power, and I think that 

is inherently a conflict. And I think it’s best placed in a third party, 

with meaningful review by the 3rd Circuit. 

Mr. FLAKE. Thank you. 

I thank the Chairman. 

Mr. COBLE. I thank the gentleman. 

The distinguished lady from Texas. The gentlelady is recognized 

for 5 minutes. 

Ms. JACKSON LEE. I thank the distinguished gentleman for yielding, and for the Ranking Member. 

I think, Mr. Chairman, I’m going to do something that is sort of 

the talent of the early ages of our origins, when we were just 13 

colonies, and a few Representatives were able to pontificate and 

stand in the well or to be able to talk at length about this, if you 

87

will, emerging country and what its principles should be and not 

be. 

Isn’t it interesting that the habeas corpus was grounded in some 

of the early thoughts of the Founding Fathers? I don’t pretend to 

document all of the citations, but I’m reminded that Georgia was 

founded by released prisoners, as our history will tell us. And there 

was a great sensitivity, I believe, in the Founding Fathers; and 

might I just suggest that I obviously was not a whole person at 

that time, obviously being represented by my slave ancestors, but 

there was a great sensitivity to being detained or incarcerated with 

no relief because, as we know, the early courts or the court systems 

in our European neighbors were the kind of systems to a certain 

extent that would have those penalties for the impoverished or the 

debtor, if you will, the debtor prisons. So we were without the relief 

that this habeas corpus procedure was to allow. 

So the idea of a concept of streamlining and habeas, to me, is incongruous and just completely against the grain, because what 

they suggest—and I know the underpinnings of this—the 

underpinnings, of course, is to be tough on criminals and to be empathetic to victims, and none of us want to be victims and none of 

us want to take advantage of victims. But frankly, I think that 

when you begin to tamper with a system that allows a great deal 

of democracy or justice to be rendered, then you are trampling on 

the very values of the Founding Fathers and their dedicated commitment to the Bill of Rights, the fifth amendment, the due process 

concept. 

And as a trained lawyer and someone who has encountered a 

number of more conspicuous death penalty cases in the State of 

Texas, that has the highest number of death penalty cases and 

death row cases, knowing that I have seen where courts without 

a habeas corpus would have simply, if you will, moved against a 

prisoner; and then in the backdrop of the last decade, the ‘90’s and 

the early 21st century, we have found a number of innocents out 

of the Innocence Project, and a number of other cases, a number 

of other efforts, to suggest that how many were sitting on death 

row and were ultimately found, because of the new DNA, that did 

not exist in 1990 or 1989 to be used as it has been used, and they 

are innocent. 

So we know that victims have, in many instances, been stressed 

and strained. And it may be quite conflicted to suggest that you are 

someone who is very sensitive to victims’ rights. I have supported 

a number of victim-support legislation and believe that victims 

should have their day in court, believe that victim’s testimony is 

particularly important in the sentencing process. 

But, Ms. Friedman, let me ask you this: What good comes out 

of streamlining habeas corpus? And of course the backdrop to your 

answer should be, people are there 8, 9 years before they are, if you 

will, ultimately finalized in the judgment and then sentenced, if 

you will, or they’re sentenced and therefore it is finalized. What 

good does this kind of legislation bring to a system, a criminal justice—a judicial system that is so far exceeding the importance of 

a habeas that was defined and designed by our early Founding Fathers? 

88

Ms. FRIEDMAN. I don’t think this bill, as written, brings any 

good. I think it is a very, very radical proposal. 

It’s really not about streamlining, it’s not about moving cases forward to resolution; it’s about cutting out the jurisdiction of the Federal court to ensure that fundamental rights are ensured. So there 

are some people who—there are many people, I think, who, had 

this law been in effect, would never have seen—been exonerated, 

they would never have had that opportunity because they would 

have lost out under one or another of these provisions. And I think 

it is a very dangerous bill in its effect. 

Some of the effect I think was even unintended. There were provisions that may have been drafted somewhat hastily, such as the 

tolling provision. It’s also not about the comity that is supposed to 

exist between State and Federal courts. 

For example, just quickly, the tolling provision, as it’s written in 

here, doesn’t allow for the Federal clock to stop in between parts 

of the State post-conviction process——

Mr. COBLE. The gentlelady’s time has expired. I think we’re 

going to have time for another round. 

Sheila, we have to be out of here by 12 o’clock for the conference. 

Ms. JACKSON LEE. You will finish later. Thank you, Mr. Chairman. 

Mr. COBLE. You’re welcome. 

I want to put one question to Mr. Dolgenos or Mr. Cattani, and 

then I want to yield the balance of my time to Mr. Delahunt, so 

if you all could give me a terse response, gentlemen——

One way the Congress sought to limit endless delays of habeas 

litigation under the 1996 act was by limiting so-called ‘‘successive 

petitions.’’ The ‘96 Act sets a limit standard—a limited standard for 

filing successive petitions and requires a petitioner to first apply to 

a three-judge panel and persuade the panel that he meets the 

standard. If the panel rejects the application to file a successive petition, the ‘96 Act bars the petitioner from seeking rehearing in the 

court of appeals. 

Have the courts of appeal undermined this bar; and if so, what 

would this bill do to address that problem? 

Mr. DOLGENOS. I think this has been sort of a Ninth Circuit 

problem. 

Mr. CATTANI. The problem in Arizona has not been so much successive petitions, but rather consideration of procedurally defaulted 

claims. And I think—there really isn’t very much of a difference between a procedurally defaulted claim and a successive petition. 

Generally, a procedurally defaulted claim means it was not 

raised in State court, and if it’s not raised in State court, you’re not 

supposed to be able to raise it in Federal court; and that’s the same 

thing that would happen if you decide you want to file a successive 

petition. And we’ve been unsuccessful in enforcing procedural bars 

in the initial petition where a claim was not raised, was not presented in State court, yet the Federal courts allow evidentiary 

hearings on that issue. And I think that’s what would happen in 

a successive petition. 

Again, we’re not seeing that many successive petitions, but they 

make an end run around having to file a successive petition by 

simply filing procedurally defaulted claims with the first petition. 

89

Mr. COBLE. Thank you, sir. 

I have 3 minutes remaining, and I will yield to Mr. Delahunt. 

Mr. DELAHUNT. I thank my friend. And this has, I think, been 

a very good panel. 

I think it was Thomas Paine who made that quote about, you 

know, ‘‘It’s the patriot that protects the citizen from the Government.’’

Now, you’re both prosecutors. How many cases have you run 

across where you never—have you both tried cases? I mean, I know 

your duty now obviously is at the appellate level, but you, I presume, have had extensive trial experience? 

Mr. CATTANI. Mine is primarily appellate. 

Mr. DOLGENOS. Mine, as well, sir. 

Mr. DELAHUNT. Okay. Well, I’ve got to tell you, all right, there 

are a lot of mistakes being made every day in the criminal justice 

system. It’s replete. Any prosecutor who’s in the trenches, who’s 

trying cases, hopefully will catch a significant proportion of them. 

Informant testimony, newly discovered evidence, evidence that is 

withheld. You know, as I listen to this, we keep coming back to the 

Ninth Circuit. Maybe we should have a bill just for the Ninth Circuit. 

You know, I have to concur with Ms. Friedman. I mean, I would 

like to see some data, I would like to see a questionnaire that was 

done that was a survey of really the magnitude of the problem. 

Now, we have legislation and bills before this Committee dealing 

with the Ninth Circuit all the time. I’m not that familiar myself 

with the Ninth Circuit; but it seems maybe to have a particular 

bent, at least it’s perceived that way by some. But we constantly 

come back here and deal with issues that are provoked by some action of the Ninth Circuit. I mean, we can’t have just those kind of 

policies. 

Ms. Friedman, let me give you what’s left of my time to liberate 

yourself of some concerns or observations you want to make. 

Ms. FRIEDMAN. I just want to make a point about—there is a 

concern here about the Ninth Circuit’s inconsistent application of 

rules, somehow not being fair to the Ninth Circuit. I just wanted 

to read a short quote: 

‘‘If inconsistently applied procedural rules suffice adequate 

grounds of decisions, they could provide a convenient pretext for 

State courts to scuttle Federal claims without Federal review. The 

requirement of regular application ensures that review is foreclosed 

by what may honestly be called ’rules,’ directions of general operability rather than by prejudice against a claim or claimant.’’ That 

was written by Judge Leo on the 3rd circuit. 

These are serious rules that have be taken seriously. 

I disagree entirely that a successive petition is the same thing 

as a procedurally defaulted rule. Claims come into Federal court. 

They don’t come—people aren’t able to bring these claims into Federal court most often because they had inadequate counsel or because the State withheld the basis for the claim. And again, I point 

you——

Mr. DELAHUNT. Mr. Cattani, I think you mentioned, Arizona 

changed its system in what, 2003? 

Mr. CATTANI. I think it was ‘90—I believe it was 1993. 

90

Mr. DELAHUNT. I mean, I would like to think that, you know——

Mr. CATTANI. It wasn’t a drastic change, though; it was simply 

to make certain that the attorneys handling the post-conviction 

proceedings——

Mr. DELAHUNT. Would you agree with me that it’s a system that 

has an abundance of imperfections to it, and it, in essence, is to secure the truth? 

We’re talking about people who are incarcerated by the way; you 

know, they’re not out wreaking havoc and violence in the community. 

Mr. CATTANI. I would agree with that. But when you consider the 

fact that when we have this actual innocence exception that is 

more generous than anything that’s ever been proposed as part of 

Federal legislation, and yet we still have no finality with these 

cases, I think there is a frustration that is justified. 

I think the resources should be put in up front at the trial and 

at the post-conviction stage. And having done that, there should be 

some finality in Federal court. 

Mr. DELAHUNT. I applaud that idea of investing in—and I’m impressed with what you’re saying about the qualifications and two 

attorneys in capital cases, plus investigative resources; that’s all 

good. 

Mr. COBLE. I will reclaim my time. 

Folks, keep in mind we have got to vacate this ship at 12 o’clock. 

The gentlelady from California is recognized for 5 minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

I don’t know if this question has been raised or this discussion 

has been had here, but you know, I am very much concerned about 

the death penalty. And I, too, believe that we must make sure that 

people who are imprisoned and who have been sentenced to death 

have the opportunity to go before the court with emerging evidence. 

It is noted that recently—in at least eight recent cases, the Federal courts have ordered new trials, after which defendants have 

been exonerated; and in each case, the exonerated defendant would 

have been executed if the bills before us now had—if this bill had 

been law. 

I would like to know if there is anyone who would disagree with 

the statement, or this observation or this assessment: Does this bill 

trivialize a person’s right to life and liberty? 

Mr. DOLGENOS. If I may, ma’am, I don’t think it does. I think the 

key to remember is that by the time someone gets to the Federal 

courts, if the system is working right and if defense counsel are 

funded, they’ve had a jury look at their claims, they’ve had a State 

court look at their legal claims, they’ve had time and they’ve had 

resources. 

That is not to say that Federal review is unnecessary; it’s a good 

thing. But the question is, if we are 15, 20 years after the crime 

relitigating guilt again, I believe that doesn’t lead to reliability; I 

believe that leads away from reliability. And I think it asks too 

much of habeas corpus and ultimately undermines the system of 

justice when assessments of guilt and innocence are made regularly 

so long after the crime. 

Ms. WATERS. Anyone else feel differently? 

91

Mr. CATTANI. I would just like to point out—I’m not certain of 

the specifics. 

I believe—I have seen the list of eight cases, I think, that was 

proffered in the Senate; and the fundamental premise is wrong in 

some of those cases. The premise is that if this had been an optin case, these defendants would not have been entitled to relief in 

Federal court. 

Well, the point of this was, those were not opt-in cases; the 

States did not provide that level of post-conviction review. So it 

really doesn’t make sense to say that these defendants would not 

have obtained relief in Federal court. Well, presumably, if we had 

established a good system to address these claims in State court at 

the post-conviction stage, there wouldn’t be a need for Federal relief. 

So I don’t think it’s fair to say that if these cases had been optin cases we wouldn’t get relief, because it’s based on an incorrect 

premise—if it’s a situation where a State does not provide an attorney or only pays $1,000 for an attorney to handle the trial or the 

post-conviction process, then it’s not an opt-in case. 

Ms. WATERS. Any other opinions? 

Ms. FRIEDMAN. I thought the whole purpose of the bill in trying 

to move it to the Attorney General was to ensure that some States 

would get the opt-in status much more easily. And so I think—

yeah, there’s a problem looking back at a case, but people are going 

to be in exactly the same situation. 

I think beyond opt-in, you’ve got people who have procedurally 

barred claims, procedurally barred claims that are barred because 

of a State committed misconduct. Nowhere in this bill is there a 

safe harbor for people in that situation. And I think this bill encourages that; it encourages States to withhold evidence, it encourages States to make harmlessness findings to avoid Federal review, 

it encourages default findings. And there is no way around that the 

way this bill is written. 

Ms. WATERS. Thank you very much. I will yield back the balance 

of my time. 

Mr. COBLE. I thank the gentlelady. 

The distinguished gentleman from California. 

Mr. LUNGREN. How could you discover it using due diligence if 

the State were hiding it? 

Ms. FRIEDMAN. I think that’s right in terms of getting past the 

due diligence part of it. There is a problem, of course, for people 

who come with their claims already—the claims of innocence, for 

example. 

I assume you’re talking about the innocence provision, Congressman. 

Mr. LUNGREN. Right. 

Because you keep talking about the fact that the State would 

hide this evidence. If they had the evidence, obviously you couldn’t 

have found it by due diligence. And it goes to innocence——

Ms. FRIEDMAN. That’s only one part of the innocence provision. 

The innocence provision also requires that the evidence of innocence be tied to the claim itself and that a person doesn’t seek relief on a different claim, which has happened many times and innoVerDate 0ct 09 2002 10:05 Apr 19, 2006 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\111005\24506.000 HJUD1 PsN: 24506
92

cence is proved. It requires that there be absolutely no connection 

to the offense whatsoever. 

It requires due diligence such that in cases where there are examples—it happened in the State of Texas where people put their 

evidence on in front of the State court. So you can’t say in Federal 

court that they couldn’t have found it by the exercise of due diligence and the State court rejected it. Under this bill, I don’t know 

how you would——

Mr. LUNGREN. But if it’s hidden by the State, if they intentionally hide it, you think a Federal court is going to have difficulty 

making a finding that due diligence wouldn’t have revealed it? 

Ms. FRIEDMAN. There is no way—absolutely, there is no way in 

this bill that people who have defaulted claims, who come in and 

want to say, I need to even find out if I can get evidence of innocence in front of this court, there is no way they’re going to be get 

past this. A case like Banks is a very good example of that. 

They are not raised in State court because the State withholds 

the evidence in State court. What happened in Banks is that basically the State got up and said—and it may have been Justice 

O’Connor——

Mr. LUNGREN. If they successfully hide it in State court, you’re 

not going to be successful in hiding it in Federal court? I mean, I 

appreciate your work, and I understand your sincerity, but I have 

not found all wisdom and objectivity in the Federal courts as opposed to the State courts. 

We had a situation in which we had a district court judge, Federal district court judge in California who was named to be the 

chief justice of the California Supreme Court, so he took off the 

Federal robe and put on the State robe. Now is the assumption 

that he is less dedicated to the Constitution because he’s the chief 

justice of the California Supreme Court than he was when he was 

the district court judge on the Federal bench? 

I just—I find difficulty with that. 

Let me ask, Ms. Hughes—you’ve been very good to be sitting 

there and listening to this, but I can’t let a comment go by without 

asking your response to it. And I wish Mr. Delahunt was still here. 

But almost as an aside to one of the questions he asked of the two 

prosecutors there, he said, ‘‘Remember, these people are in custody,’’ and I’m sure you’ve heard that before. 

Why should you be so concerned about the fact that the murderer of your son is having a few more years to go through the 

courts because he’s not going to get out, he’s still being punished? 

It’s like life without possibility of parole. Why would you be concerned? 

Ms. HUGHES. I almost jumped out of my seat when that statement was made. 

Mr. LUNGREN. We need to hear that. 

Ms. HUGHES. This is a constant emotional upheaval for my family. 

And you say he’s not going to get out. Last week a death penalty 

inmate walked out in Texas. Granted, he wasn’t on death row at 

that time, but what’s to stop Kevin Cooper from having some kind 

of medical problem, be transferred to some hospital and escape? 

He’s an escape artist. 

93

The truth of the fact is, all right, so he’s incarcerated, he’s still 

living and breathing. He has a TV, he has a radio, he has his own 

Web site, he has his own little bit of groupees. 

My child was 11 years old, 11 years old in the fifth grade. He 

never got to go to high school, to go to a prom, to graduate, to fall 

in love, to have a family of his own. He would be 33 years old 

today, and Kevin Cooper robbed him of all this. And I am horrified 

that Kevin Cooper still exists on the face of this Earth. 

The California Supreme Court said the evidence against Kevin 

Cooper was overwhelming, that was in 1991; this is 2005 and we 

are still at it. And I don’t know when the end is going to ever take 

place. Are we going to still be alive when the person who murdered 

my son is finally put to death? 

That’s how I feel. 

Mr. COBLE. The gentleman’s time has expired. 

We have time for one more questioning, and the gentleman from 

Virginia will do the honors. 

Mr. SCOTT. Thank you, Mr. Chairman. 

You know, the problem with these kinds of cases is that the 

guilty and innocent are being stuck with the same process. If we 

know the person is guilty, then there is no problem with the 

streamlined stuff. If we knew the person was innocent, then we 

could have a more complicated process; but unfortunately, we don’t 

know. And so we have the same process; whatever we do for the 

guilty we’ve got to do for the innocent. 

Now the gentleman from California went to great lengths to 

show how a person who got evidence, who was able to subpoena 

evidence, in fact, wasted the court’s time because he was guilty. 

What if the evidence had come back that he was, in fact, innocent? 

The question, I guess, is, should he have had the right to get the 

evidence? 

Ms. Friedman, if you present evidence of clear and convincing 

evidence of innocence, do you have a right to discovery, to subpoena? 

Ms. FRIEDMAN. There is nothing in this bill that suggests that 

one does. And I have actually seen this in a case recently in Alabama where somebody missed the statute of limitations and attempted to make an innocence argument, a compelling innocence 

argument, the person who had seen the person leaving the scene 

of the crime had described somebody looking very different from 

the person on death row. And he tried to meet the same kind of 

standard, and the district court said, no, you don’t get any discovery to do that. So there is no provision here. 

Mr. SCOTT. So you have to have your clear and convincing evidence all lined up going in. You cannot make—under this bill, you 

can’t even make the case where if I can get the evidence, I can 

show that by clear and convincing evidence, DNA—you don’t have 

a right to the DNA test, is that right, unless you’re coming in with 

clear and convincing evidence already? 

Ms. FRIEDMAN. You don’t have a right to anything. This is a jurisdiction-stripping bill. You don’t have a right to get into court. 

Mr. SCOTT. So unless you have evidence already lined up, you 

can’t even get into court? 

Ms. FRIEDMAN. I think that’s right. 

94

Mr. SCOTT. Okay. Now——

Mr. LUNGREN. Would the gentleman yield? 

Mr. SCOTT. So if your allegation is that if I can get the DNA evidence, I can prove my innocence by clear and convincing evidence, 

and first Ms. Friedman is saying I can’t even get to court to subpoena the evidence. I will yield. 

Mr. LUNGREN. Is the gentleman suggesting that there ought to 

be a broad scale allowance of any individual post-conviction, that 

they could make any claim whatsoever without any evidence, because they have an opportunity at a fourth bite at the apple? 

Mr. SCOTT. Well, that’s a hard question. I would say to the gentleman, that’s a hard question. Suppose somebody is innocent, and 

if I can just subpoena the evidence, I can show I’m innocent. What 

do you say to that? 

Mr. LUNGREN. We have an actual innocence exception in this. 

Mr. SCOTT. Wait a minute. I don’t have any evidence, I need to 

get the evidence. I’m alleging I’m innocent, and if I can get the evidence, I can show it. 

Mr. LUNGREN. In other words, I know I’m innocent, but I have 

nothing other than my statement that I’m innocent after being 

found guilty by a jury of my peers and after going through an appeal to my State Supreme Court, a collateral appeal to my State 

court——

Mr. SCOTT. But if you give me subpoena power——

Mr. LUNGREN.—and directly to the U.S. Supreme Court. 

Mr. SCOTT. If you give me subpoena power, I can show that I’m 

actually innocent. 

Do I have subpoena power to show it? 

Mr. LUNGREN. I don’t believe you do under this or any other procedure. 

Mr. SCOTT. Well, that’s a problem. And see—you know, unfortunately the innocent and the guilty are stuck with the same process. 

And so somebody saying they’re innocent that’s actually guilty, 

well, they shouldn’t have it; but if they are innocent, well——

Mr. LUNGREN. We don’t change that part of the law the way it 

is already. 

Mr. SCOTT. How do you—you can’t get into court to get a subpoena unless you’ve already got the evidence lined up, which—suppose you have seen—you’ve got a catch-22. If I can get the DNA 

evidence, I can show I’m innocent. I don’t have subpoena power 

until I get in court. 

And you show up in court, Your Honor, well, I don’t have any 

evidence now, but so what? You get thrown out and you never get 

an opportunity to show. 

Let me ask another question, Mr. Dolgenos. Tell me what happens if you—considering everything that’s before you, you conclude 

that somebody’s probably innocent? 

Mr. DOLGENOS. Well, sir, first of all, presumably the prosecutors 

who have gone before me have had the same choice, and it often 

happens in State court that we take steps. If it comes to me and 

if I have evidence in front of me that I believe someone is probably 

innocent——

Mr. SCOTT. Are you talking about as a judge or as a prosecutor? 

95

Mr. DOLGENOS. As a prosecutor. Is that the question you’re asking me? If I believe someone is probably innocent——

Mr. SCOTT. Actually, I’m asking what right does a defendant 

have in an adversary process? After all is said and done, you look 

at the case, and an independent trier of fact would conclude—not 

what the advocates say, but an independent trier of fact would conclude that the defendant is probably innocent. 

Mr. DOLGENOS. Well, if he’s in court, in State court or Federal 

court, the judge can find——

Mr. SCOTT. How do you get into Federal court without clear and 

convincing? Just kind of probable——

Mr. DOLGENOS. If you’ve exhausted your claims in State court, 

you’re in court in Federal court under this bill. It’s only when you 

haven’t brought our State claims——

Mr. SCOTT. After all is said and done, you’ve got all these defaulted claims and everything, and you’re trying to get in, and it 

requires clear and convincing evidence of innocence, you don’t have 

it, all you have is probably innocent, should the person be put to 

death or not under those circumstances? 

Mr. DOLGENOS. And there is all default, they haven’t done anything in State court? 

Mr. SCOTT. No, no. They’ve gone through and they’ve had a fair 

trial; they’ve had all their endless—their eternal appeals and all of 

what people are complaining about——

Mr. DOLGENOS. And the judges have disagreed about the innocence claim? 

Mr. SCOTT. And you are now in a situation where, after you have 

discovered evidence and the totality of the circumstances, the conclusion that an objective trier of fact is that the person is probably 

innocent, should they be put to death or not? 

Mr. DOLGENOS. I think what this bill says is that the hunch of 

one judge as opposed to a system of State court judges is not 

enough. 

Mr. SCOTT. So if the person in the totality of circumstances can 

show that they’re probably innocent, the effectiveness of the death 

penalty is in jeopardy? We’ve got to put him to death? 

Mr. DOLGENOS. If everyone agrees that he’s probably innocent, 

that would lead to a different result. 

But I think——

Mr. SCOTT. You can’t get into court. 

Mr. DOLGENOS. Well, if it was in court in State court——

Mr. SCOTT. This is after all the discovered evidence and everything else he can show that he’s probably innocent. 

Mr. DOLGENOS. And he didn’t show that to anyone else? 

Mr. SCOTT. That’s right, that’s right. He finally put his little case 

together after this thing had been thrown out procedurally with 

prejudice on page 3, line 3——

Mr. DOLGENOS. After 15 years, he put it together and he didn’t 

do anything in State court, he never put this evidence together before? 

Mr. SCOTT. That’s right. 

Mr. DOLGENOS. Well, I think that’s going to be a case that won’t 

ever happen. I can’t imagine why someone wouldn’t put together 

his evidence. 

96

Mr. SCOTT. Could Ms. Friedman——

Mr. COBLE. Ms. Friedman, the noon hour is upon us. Ms. Sheila 

Jackson Lee wants 2 minutes, but Ms. Friedman, can you wrap it 

up in a minute or less? 

Ms. FRIEDMAN. In less. It can absolutely happen. There is no 

right to counsel in post-conviction. You might not get counsel in 

time. There is no right to expert services; there is no right to investigation. And it may be that the State was withholding that evidence for a long time. 

Mr. COBLE. The gentleman’s time is up. 

The gentlelady from Texas is recognized for 2 minutes. 

Ms. JACKSON LEE. I thank you very much, Mr. Chairman. 

And I want to say to the victim’s mother, coming from Texas, 

there was absolutely no excuse for that ridiculous incident that occurred in Harris County. All of the local officials need to be held 

accountable. And it’s those kinds of episodes, unfortunately, that do 

further harm to those that have been victimized. 

And I want to build on what Congressman Scott did, that unfortunately there is a mix between the innocent and the guilty and, 

of course, the taking advantage—when you’re talking about 10 and 

20 years on death row, and the procedures are used frivolously. 

And, of course, we have to make that determination. 

But, Ms. Friedman, you were finishing, but let me get to this 

point and see how we can fix this problem. ‘‘Streamline,’’ to me, 

does not equal justice, but it does seem that we need to find a way 

to move the so-called ‘‘delaying’’ in Federal review of death penalty 

cases, habeas cases, in a much more responsible way. 

What would be your suggestion, as you sit alongside of Ms. 

Hughes, as to how we balance that so that there is, in fact, the real 

justice that we want to have. 

Ms. FRIEDMAN. I think in talking about California, which is very 

different from where I practice, I think you can talk about moving 

things under time lines in the Federal courts. That’s what moving 

things quickly is about, timing, it’s not about repealing one’s ability 

ever to get a case heard. 

I think for other States outside of California, I think it would be 

very good to have real incentives for people to have decent, adequate counsel and adequate access to resources so that the State 

process really is a process that can be supported and would allow 

things to move more quickly in Federal court. 

Ms. JACKSON LEE. Mr. Chairman, I think Ms. Friedman, in her 

brief answer to my brief question, has given us the real type of fix. 

Because if we take a problem in California and make it the general 

product of the Nation, we’re doing great disservice to those early 

musings of the Founding Fathers about what justice, what the habeas means, what due process means. And I don’t think that is 

worthy of our Committee, and I yield back. 

Mr. COBLE. I thank the gentlelady, 

Folks, this has been a very good hearing. I appreciate that. 

And Ms. Hughes, in particular, your courageous effort here is 

very much appreciated, as is the case with the others. We thank 

you for your testimony, and this Subcommittee is very much appreciative to you. 

97

In order to ensure a full record and adequate consideration of 

this very important issue, the record will remain open for additional submissions for 7 days. Any written questions that a Member wants to submit should be submitted within that same 7-day 

period. 

Mr. COBLE. This concludes the legislative hearing of H.R. 3035, 

the ‘‘Streamlined Procedures Act of 2005.’’ Thank you for your cooperation, and the Subcommittee stands adjourned. 

[Whereupon, at 12:07 p.m., the Subcommittee was adjourned.] 

(99)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman, for holding this hearing on H.R. 3035, the ‘‘Streamline 

Procedures Act of 2005’’. The title of this bill suggests that it would streamline the 

processing of habeas corpus cases. In fact, it would strip federal courts of jurisdiction to determine many federal issues and undercut the Supreme Court’s efforts to 

clear up uncertainties regarding the reforms Congress enacted in 1996 

(Antiterrorism and Effective Death Penalty Act, AEDPA). 

The bill would virtually eliminate the ability of federal courts to determine federal 

constitutional issues in cases involving prisoners either facing death sentences or 

serving prison terms. In short, this bill would greatly increase the prospects of an 

innocent person being put to death, or languishing in prison with no hope of correcting an unconstitutional conviction. In general, the bill would overturn a whole 

series of Supreme Court decisions adopted since AEDPA, increase the number of habeas corpus petitions filed, complicate and delay litigation in this area, disregard 

traditional principles of federalism, and invite constitutional challenge on the theory 

that it impairs the independence of the federal courts. Ironically, supporters of this 

bill are some of the same folks who, in the Teri Schiavo case, advocated for elimination, for that case, of the very kinds of hurdles this bill promotes. 

Federal Habeas Corpus is the modern day reflection of the ‘‘Great Writ’’ which 

was the foundation for much of our criminal law principals. A right without a remedy is not a meaningful right, and is worse than no right at all. What good is it 

to have constitutional rights that cannot be enforced? 

Ths bill will eliminate the federal courts role as a courts of last resort for the citizens of this country, and relegate citizens to ‘‘Jim Crow-like’’ state’s rights where 

prosecutors seeking to protect their wins wield all the power. They are the only people who have anything to gain from having innocent people languish in prison, or 

even be put to death, because they are unable to seek meaningful relief from unconstitutional convictions. Crime victims and their families will face even greater 

delays and frustration as the courts struggle to resolve constitutional challenges to 

a new law, and they, nor society in general, will not benefit from having innocent 

people locked up or put to death as the true perpetrators remain free to prey on 

others. And there are a number examples of innocent people being released in recent years who could not have been released if this bill had been law. I would like 

to offer these 2 for the record, Mr. Chairman, one involving a release from death 

row, and more will be identified and added before the record closes. 

A host of organizations and individuals, including prosecutors and judges, liberals 

and conservatives, have expressed concerns about this bill becoming law. Forty nine 

of the 50 Chief justices have asked the Congress to carefully study the need for, and 

impact of, this legislation, and I would like to offer their resolutions on the point 

for the record. I also have letters and a resolution from the federal Judicial Conference, the federal public defenders, and a former prosecutor in the California system expressing their concern about the legislation, and I would like to offer these 

for the record, as well. In this later submission is a memo developed by the former 

prosecutor, and letter from the current Chief Justice of the California Supreme 

Court, which explains why most of the time period necessary to complete habeas 

petitions occurs at the state court level. 

In summary, Mr. Chairman, while there are, not doubt, instances in which non 

meritorious prisoner claims get more attention than they deserve, that is not a 

heavy price to pay to ensure that we don’t execute an innocent person, or have innocent people languishing in prison with no hope. We already greatly streamlined haVerDate 0ct 09 2002 10:05 Apr 19, 2006 Jkt 000000 PO 00000 Frm 00105 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\111005\24506.000 HJUD1 PsN: 24506
100

beas claims in AEDPA. Now, only those who have ‘‘clear and convincing evidence 

of actual innocence even get a hearing under traditional habeas processes. Those 

who can establish that they are innocent only by a preponderance of the evidence, 

that is by 51% or more, or that they are only probably innocent, that is that it is 

more likely than not that they are innocent—they don’t even get a hearing under 

current habeas procedures pursuant to AEDPA restrictions. So, Mr. Chairman, in 

a context where it is clear that innocent people who have been released in recent 

years could not be released under the provisions of this bill, we should not proceed 

with further jeopardizing the prospects for like cases. Again, it benefits no one that 

Congress should assist to have an innocent person languishing in prison or executed 

while the real perpetrators roam free. A single case of that happening is a tragedy 

worth all we are doing now, and more, to avoid. Thank you.

101

KRISTEN GELINEAU, ‘‘OLD DNA CLEARS TWO MORE MEN, INCLUDING ONE IN NORFOLK

CASE,’’ ASSOCIATED PRESS, (DECEMBER 14, 2005)


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LETTER SUBMITTED BY LEONIDAS MECHAM, SECRETARY, JUDICIAL CONFERENCE OF

THE UNITED STATES, TO THE HONORABLE F. JAMES SENSENBRENNER, JR., CHAIRMAN, HOUSE COMMITTEE ON THE JUDICIARY (JULY 22, 2005)


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LETTER SUBMITTED BY LEONIDAS MECHAM, SECRETARY, JUDICIAL CONFERENCE OF

THE UNITED STATES, TO THE HONORABLE F. JAMES SENSENBRENNER, JR., CHAIRMAN, HOUSE COMMITTEE ON THE JUDICIARY (SEPTEMBER 26, 2005)


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LETTER SUBMITTED BY RONALD M. GEORGE, CHIEF JUSTICE OF CALIFORNIA, SUPREME

COURT OF CALIFORNIA TO CHIEF JUDGE MARY M. SCHROEDER


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JOINT RESOLUTION 16 OF THE CONFERENCE OF CHIEF JUSTICES AND CONFERENCE OF

THE STATE COURT ADMINISTRATORS


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JOINT RESOLUTION 18 OF THE CONFERENCE OF CHIEF JUSTICES AND CONFERENCE OF

THE STATE COURT ADMINISTRATORS


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‘‘SAMPLE LIST OF INNOCENT PEOPLE ON DEATH ROW GRANTED RELIEF IN FEDERAL

COURT WHO WOULD HAVE BEEN EXECUTED HAD THE STREAMLINED PROCEDURES

ACT OF 2005 BEEN IN EFFECT,’’ EXCERPTED FROM THE TESTIMONY OF BARRY

SCHECK, CO-FOUNDER OF THE INNOCENCE PROJECT AT CARDOZO LAW SCHOOL IN

NEW YORK TO THE SENATE JUDICIARY COMMITTEE


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LETTER SUBMITTED BY THOMAS W. HILLIER, II, FEDERAL PUBLIC DEFENDER, 

WESTERN DISTRICT OF WASHINGTON TO THE SUBCOMMITTEE


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LIST OF ORGANIZATIONS AND INDIVIDUALS OPPOSING THE STREAMLINED PROCEDURES

ACT


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LETTER SUBMITTED BY FORMER FEDERAL AND STATE PROSECUTORS AND LAW ENFORCEMENT OFFICERS TO THE HONORABLE ALREN SPECTER, CHAIRMAN, SENATE JUDICIARY COMMITTEE


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LETTER FROM THE HONORABLE TIMOTHY K. LEWIS, FORMER JUDGE, U.S. COURT OF

APPEALS FOR THE 3RD CIRCUIT TO THE HONORABLE ARLEN SPECTER, CHAIRMAN, 

SENATE JUDICIARY COMMITTEE AND THE HONORABLE PATRICK J. LEAHY, RANKING

MINORITY MEMBER, SENATE JUDICIARY COMMITTEE


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LETTER SUBMITTED BY BOB BARR, FORMER MEMBER OF CONGRESS, THE AMERICAN

CONSERVATIVE UNION


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VARIOUS EDITORIALS SUBMITTED IN OPPOSITION TO H.R. 3035, THE ‘‘STREAMLINED

PROCEDURES ACT’’


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LETTER SUBMITTED BY THE MOST REVEREND NICHOLAS DIMARZIO, CHAIRMAN, 

DOMESTIC POLICY COMMITTEE, U.S. CONFERENCE OF CATHOLIC BISHOPS (USCCB)


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STATEMENT OF SETH P. WAXMAN, ‘‘HEARING ON S. 1088 BEFORE THE COMMITTEE ON

JUDICIARY,’’ UNITED STATES SENATE, JULY 13, 2005


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LETTER SUBMITTED BY ROBERT D. EVANS, GOVERNMENTAL AFFAIRS OFFICE, THE

AMERICAN BAR ASSOCIATION (ABA) TO THE SENATE JUDICIARY COMMITTEE


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LETTER SUBMITTED BY PAUL A. RENNE, FORMER ASSISTANT U.S. ATTORNEY TO THE

SUBCOMMITTEE (OCTOBER 31, 2005)


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LETTER SUBMITTED BY PAUL A. RENNE, FORMER ASSISTANT U.S. ATTORNEY TO THE

SUBCOMMITTEE (JULY 20, 2005)


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‘‘JUDICIAL CONFERENCE ACTION REGARDING THE ‘STREAMLINED PROCEDURES ACT OF

2005’’’ SUBMITTED BY KAREN KREMER, OFFICE OF LEGISLATIVE AFFAIRS, ADMINISTRATIVE OFFICE OF THE U.S. COURTS TO THE SUBCOMMITTEE


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‘‘REBUTTAL TO CLAIMS FROM THE OFFICE OF THE DISTRICT ATTORNEY OF

PHILADELPHIA COUNTY, PENNSYLVANIA’’


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Æ


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