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INDIGENT REPRESENTATION: 

A GROWING NATIONAL CRISIS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 4, 2009 

Serial No. 111–29 

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 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 
(III) 

C O N T E N T S 

JUNE 4, 2009 

Page 

OPENING STATEMENTS 

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

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

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

The Honorable Louie Gohmert, a Representative in Congress from the State 

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

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 5 

The Honorable Mike Quigley, a Representative in Congress from the State 

of Illinois, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 5 

WITNESSES 

Mr. Robert M.A. Johnson, Co-Chair, National Right to Counsel Committee 

and District Attorney, Anoka County, MN 

Oral Testimony ..................................................................................................... 9 

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

Mr. Alan Crotzer, Probation and Community Intervention Officer, Florida 

Department of Juvenile Justice, wrongfully convicted and sentenced to 

130 years in prison, Tallahassee, FL 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 15 

Mr. Erik Luna, Professor, Washington and Lee University School of Law, 

Lexington, VA 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 19 

Mr. Malcolm R. ‘‘Tye’’ Hunter, former Executive Director, North Carolina 

Office of Indigent Defense Services, Durham, NC 

Oral Testimony ..................................................................................................... 31 

Prepared Statement ............................................................................................. 32 

Mr. John Wesley Hall, President, National Association of Criminal Defense 

Lawyers, Little Rock, AR 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 45 

Ms. Rhoda Billings, Co-Chair, National Right to Counsel Committee, former 

Justice and Chief Justice of the North Carolina Supreme Court, Lewisville, 

NC 

Oral Testimony ..................................................................................................... 60 

Prepared Statement ............................................................................................. 62 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 6 

Prepared Statement of the Honorable Maxine Waters, a Representative in 

Congress from the State of California, and Member, Subcommittee on 

Crime, Terrorism, and Homeland Security ........................................................ 7 
Page

IV 

Prepared Statement of Melanca D. Clark, Counsel, Brennan Center for Justice at NYU School of Law .................................................................................. 84 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 93 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Submission entitled ‘‘Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,’’ a report of the National Right to Counsel Committee, 

April 2009. This report is available at the Subcommittee and can also be accessed 

at: 

http://www.nlada.org/DMS/Documents/1239831988.5/Justice%20Deniedl%20 

Right%20to%20Counsel%20Report.pdf 

Submission entitled ‘‘Minor Crimes, Massive Waste: The Terrible Toll of America’s 

Broken Misdemeanor Courts,’’ a report of the National Association of Criminal 

Defense Lawyers, April 2009. This report is available at the Subcommittee and 

can also be accessed at: 

http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/Report.pdf 
(1) 

INDIGENT REPRESENTATION: 

A GROWING NATIONAL CRISIS 

THURSDAY, JUNE 4, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:33 a.m., in room 

2237, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Conyers, Pierluisi, Waters, 

Quigley, Gohmert, and Goodlatte. 

Staff present: Bobby Vassar, Majority Subcommittee Chief Counsel; Jesselyn McCurdy, Majority Counsel; Karen Wilkinson, (Fellow) Federal Public Defender Office Detailee; Veronica Eligan, Majority Professional Staff Member; Caroline Lynch, Minority Counsel; and Robert Woldt, Minority Counsel. 

Mr. SCOTT. The Subcommittee will now come to order, and I am 

pleased to welcome you today to the hearing before the Subcommittee on Crime, Terrorism, and Homeland Security on ‘‘Indigent Representation: A Growing National Crisis.’’ 

Our criminal justice system has been referred to as a threelegged stool supported by the judges, prosecutors and defense. If 

you remove one of those three legs, the stool collapses. And we are 

here today to talk about the third leg of the stool, the defense, and 

whether or not that leg has in fact collapsed. 

Researchers have estimated that between 80 and 90 percent of 

all state criminal defendants rely on indigent defense systems for 

counsel. This number will likely only go higher with our increasing 

rate of unemployment and the economic downturn. In March, we 

held a hearing on problems of indigent defense systems in the state 

of Michigan. This hearing focuses on the status of such systems nationally. 

Two significant reports have been released since our last hearing, 

the first report of the National Right to Counsel Committee titled, 

‘‘Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel.’’ The other report was prepared by the National Association of Criminal Defense Lawyers; that is entitled, 

‘‘Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts.’’ Both of these reports are the result of 

multiyear studies. Both reports also confirm what we suspected at 
2 

the last hearing, that the indigent defense system is suffering all 

across the country. 

In 1991, the Department of Justice report—a Department of Justice report concluded that indigent defense was in a chronic state 

of crisis. A 2004 study by the American Bar Association similarly 

found that caseloads for public defenders far exceeded national 

standards in many cases, ‘‘making it impossible for even the most 

industrious attorneys to deliver effective representation in all 

cases.’’ 

A recent New York Times article reported that public defenders’ 

offices in at least seven states either had refused to take new cases 

or had filed lawsuits to limit caseloads. With only a few exceptions, 

the situations are only getting worse, and the consequences are 

devastating. 

One of our witnesses today, Alan Crotzer, was convicted of a 

crime he never committed, spent 241⁄2 years in prison before being 

exonerated by DNA. The first time he met his court-appointed attorney was 3 months after his arraignment. He told his lawyer he 

had an alibi, and there were witnesses who could testify on his behalf. His lawyer never even bothered to interview those witnesses. 

The NACDL’s report, ‘‘Minor Crimes, Massive Waste,’’ found that 

many defense attorneys were carrying excessive caseloads in misdemeanor cases. Their caseloads far exceeded the only existing 

standard of 400 misdemeanor cases per year, and many believe 

that that standard, developed over 35 years ago, is too high. In Illinois, Florida, Utah, for example, many jurisdictions report average 

misdemeanor caseloads exceeding 2,000 per year. 

An attorney carrying a caseload of 2,000 cases could spend about 

1 hour and 10 minutes on each case total. That attorney would 

have to meet his client, read the police report, conduct relevant discovery and research, prepare for court, write motions and sentencing memoranda and appear in court all within that 1 hour. 

New Orleans has an average caseload of almost 19,000 misdemeanor cases per year, which leaves about 7 minutes per case. 

The report of the National Right to Counsel Committee reveals 

similar problems in felony cases. In Miami, average public defender 

caseloads have increased in the past 3 years from 367 to nearly 500 

felonies, while the public defender’s office’s budget has been cut by 

over 12 percent. These numbers compare to a maximum national 

standard of 150 felony cases per year. 

Everyone agrees that indigent defense as a whole needs more 

funding, but no one wants to pay. We continue to fund local and 

state governments with increasing law enforcement and prosecution resources but refuse to give money to defense. In the meanwhile, innocent people, like Alan Crotzer, continue to be convicted 

and real perpetrators walk free. 

The existing disparity and imbalance in the system continues to 

grow and hits minorities especially hard given their overrepresentation in the criminal justice system. This problem is exacerbated by the trend in the last several decades for mandatory minimum sentences and overcriminalization of conduct. 

I have been working in the field of criminal justice for a long 

time, and I thought I had heard everything. But yesterday, I 

learned that it is a crime in Nevada to feed the homeless in a city 
3 

park. In New York, apparently sleeping in a cardboard box or even 

sleeping on a subway is a crime. When we don’t like certain conduct, all too often our response is to make it a crime. In many such 

instances, a more effective and less costly response might be to consider education, prevention or treatment. 

All of this leads to the question of whether indigent defendants 

are being deprived of their sixth amendment right to counsel under 

the United States Constitution. Most everyone seems to agree that 

the resounding answer is yes. So what can and should Congress do 

to address this issue? 

The National Right to Counsel Committee has two recommendations that we should consider seriously. The first the committee 

recommends is the Federal Government establish and adequately 

fund an independent Center for Defense Services. The function of 

the center would be to assist and strengthen the ability of the 

states to provide quality representation to both adult and juvenile 

criminal defendants who cannot afford to pay for legal services. 

Almost 35 years ago, the Federal Government created a similar 

national program called the Legal Services Corporation to help 

states provide legal services in civil cases to people who could not 

afford to hire attorneys. The need for a similar national entity to 

assist states in meeting their requirements under the sixth amendment is even more compelling. 

Second, they call for a Federal research and grant parity. Congress currently spends billions of dollars on programs to states and 

local governments to enhance the local law enforcement and increase prosecution of crimes. We have an adversarial legal system. 

For justice to prevail under such a system, the playing field needs 

to be level, and both sides need to be adequately funded. 

Congress cannot continue to fund only one side of the system if 

we are to be assured of an effective and just system of justice in 

order to conform with the Constitution. 

I look forward to hearing from our witnesses about how we can 

address these problems. 

And it is now my pleasure to recognize the Ranking Member of 

the Subcommittee, the gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I do appreciate 

the interest in this issue. Appreciate the witnesses being here. 

And of course anytime the justice system fails one person, it is 

a very serious failure for the whole system. And I know that everyone has their testimony prepared, and the statements are going to 

be very helpful. We have got some good insights into future solutions. 

We don’t have anybody who has come in today—I could have 

brought dozens if I had known in time, and that is no fault of the 

majority—people who can come in and point to some excellent indigent defense that is going on across this country. So it concerns me 

knowing so many indigent defense attorneys across the country 

who often get a bad rap, who are dedicated to doing a good job, 

usually don’t get paid adequately but take their job so seriously 

that they do all they can. 

And I know there are attorneys like that because, even though 

I did civil litigation, I was appointed to appeal a capital murder 

case. I think it was nearly 800 hours I spent on that case. And I 
4 

did a good job, not because I was going to be properly compensated, 

because I knew I wouldn’t, but because it was an oath I took to 

properly represent my client. My client got good representation, 

and his case was properly reversed after we took it to Texas’ highest court. 

There is good representation going on out there, far better than 

I provided. There is good representation in many areas in the country, and hopefully somebody will be willing to acknowledge that as 

well, even though there are problems. 

Then there are differences on how you address a problem. What 

we hear in Washington, as we become more and more bankrupt as 

a Nation because we cannot control our spending—and I was hoping that when—even though the Bush administration, the prior 

majority, had spent too much money, that when we were promised 

change, we were going to get change and not keep spending ourselves into bankruptcy. But there has been no change, other than 

accelerating the course we were already on to bankrupt this country even faster. 

So when we look at where should the Federal Government be 

spending its money, then we should look carefully at what are the 

constitutional requirements. Constitutional requirements are clear, 

and, as some of you have discussed, Gideon points that out. There 

is to be proper representation of everyone in a court—state, Federal or otherwise. 

And one of the witnesses will properly point out and make the 

good point that, even though it is also required that every prison, 

every jail, properly feed inmates, it is not a Federal duty to come 

in and pay for the food if the state or local facilities don’t adequately feed their inmates. You make sure they comply with their 

state duties. 

So I know there are disagreements on the solutions. And the 

easiest thing is just let the Federal Government pay for it, but 

states and local government have an obligation to make sure the 

system works by having people get adequate representation. 

And I think it is excellent when the national government, the 

Federal Government, can and should show the way, just like saying, ‘‘This is what proper nutrition is.’’ And then it is up to the 

state and local government to make sure it is adequately funded, 

so that we do not have cases like Mr. Crotzer’s unfortunate situation arise, that we address that adequately. It just seems to be a 

question of making sure that that is applied across the country. 

I do appreciate the witnesses being here, and again I hope everybody is not going to beat up on the defense attorneys, so many of 

whom actually do a good job. When I found somebody I didn’t think 

was doing a proper job, they did not handle another case in my 

court. And we handled all felonies, including death penalty cases. 

But thank you, Mr. Chairman, for the time. And at this point, 

I yield back. 

Mr. SCOTT. Thank you, and I will point out, I don’t think my 

comments should be interpreted as being critical of the attorneys. 

It is just when attorneys, no matter how good they are, have a 

caseload way over what a caseload ought to be, they are put in an 

impossible situation. So your point that attorneys are doing a good 

job, I think, is well taken. 
5 

Gentleman from Michigan—we are joined by the Chair of the full 

Committee and, as he is recognized, if the witnesses will come forward and take your seats. 

Gentleman from Michigan, Mr. Conyers? 

Mr. CONYERS. Top of the morning, Mr. Chairman. I am so happy 

to be here. 

We had the beginning of this hearing on March 26. This is June 

the 4th, and here we are back looking at it again. We had former 

mayor, Dennis Archer; David Carroll; Nancy Diehl; Erik Luna; Regina Thomas; Robin Dahlberg. So there has been a predicate for 

this. 

And I am so glad, though, that Judge Gohmert, our Ranking 

Member, is back again with us, working on how we can work this 

thing out. And I see the senior Member of the Committee, the 

Ranking Member, Bob Goodlatte, is here. And we are joined by one 

of the newest Members, Mr. Pierluisi, but he was an attorney general from his state. And we are glad that he is here too. 

Now, what are we here for? To make the adversarial system the 

basis of our judicial process a better one. Now this is constitutional. 

What part of the Constitution does this appear in? 

VOICE. What did you say? 

Mr. CONYERS. I said what part of the Constitution does this appear in? 

VOICE. Sixth amendment. 

Mr. CONYERS. All right, sixth amendment. Thanks for your attention. 

I want to yield time to the newest Member of this Committee 

that I can think of is Mike Quigley. 

I want to give him some of my time, Mr. Chairman, if I may. 

Mr. SCOTT. The gentleman is recognized. 

Mr. QUIGLEY. Thank you for yielding. 

Thank you, Mr. Chairman. I would like to add something I think 

is a little timely in notice that affects this issue. The Chairman is 

correct; I am the newest Member of this Committee, second newest 

Member of Congress, but I spent 10 years in Cook County with a 

ringside seat in the criminal justice system defending people and 

watched the extraordinary overload of cases that the public defender’s office had there. 

Yesterday, I think much of that came to a head. A very good 

friend of mine became the public defender of Cook County the last 

week I was there—A.C. Cunningham, a former judge. Yesterday, 

he asked that the public defender’s office be allowed to withdraw 

from all of their capital cases because they have zero money to defend capital cases for expert witnesses, for all the other costs associated with the extraordinary defense that comes with a capital 

case. 

To me, that is as good an example of what is wrong with our system right now in providing a fair and just criminal justice system 

as you are going to find. The third largest county in this country 

cannot fund capital cases and is asking to withdraw. 

My first act as a county commissioner was to agree to pay a $36 

million settlement to a group called the Ford Heights Four, who 

were wrongly convicted of a murder case and were in some cases 

minutes from the death penalty. One of them was raped in prison. 
6 

They were later exonerated using DNA evidence. And what was 

pointed to was the extraordinary inept counsel that they had. 

Where we are going from here can only be downhill unless we 

do something, because the public defenders are overburdened and, 

at this point, they have no resources to handle our most important 

cases, those cases which, I think, in some respects the public cares 

about least—they are not an always sympathetic people—are the 

ones that we should hold most important to us if we care about justice. 

So on behalf of my friend, the chief judge of Cook County, our 

best wishes and hopes during this struggling time. And I just want 

to thank both Chairmen for their indulgence. 

Mr. CONYERS. I will put the rest of my statement in the record. 

[The prepared statement of Mr. Conyers follows:] 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

Our justice system is an adversarial one, and while it’s not perfect, it’s still the 

best system that I have seen. 

For this adversarial system to work, however, there has to be a fair fight. To that 

end, the Sixth Amendment provides that the accused in ‘‘all criminal prosecutions’’ 

is entitled to have the assistance of counsel for his defense. 

Unfortunately, most of our States, including my home State of Michigan, fail to 

comply with this constitutional mandate. 

And this longstanding problem will only worsen in our current fiscal difficulties. 

So, what can Congress do to help correct this problem? I see three possible roles 

for Congress. 

The first involves funding. Congress appropriates vast sums for State and local 

governments to train prosecutors and facilitate prosecutions, but we provide little 

or no funding to the defense side. 

Congress should no longer continue to foster this unbalanced system. If State and 

local prosecution resources are funded, we also should provide meaningful funding 

to the defense. 

Second, both the Constitution Project and the American Bar Association have recommended that a National Center for Defense Services should be established to 

help States improve their indigent defense systems. 

In light of the fact that many States share similar indigent defense problems, 

there is no reason to re-invent the wheel 50 different times. A centralized center 

makes sense from both organizational and fiscal perspectives. 

Third, Congress should require federal agencies—such as the Office of Justice 

Programs, the Bureau of Justice Assistance, the National Institute of Justice, and 

the Office of Juvenile Justice and Delinquency Program—that provide assistance to 

State and local law enforcement entities to also provide assistance to programs that 

provide indigent defense representation services. 

All of these agencies are well-equipped to perform this work. 

I think most of us would agree that the Sixth Amendment’s guarantee of legal 

representation in a criminal prosecution is a fundamental right, but one that is unfortunately denied to many in our criminal system. 

We need to address this problem, and today’s hearing is another step in the right 

direction. I hope today’s witnesses will help guide us on how we can best move forward. 

Mr. SCOTT. Thank you. The gentleman—— 

Are there others that want to make statements? 

Gentleman from Texas? 

Mr. GOHMERT. Yes, and I did want to also apologize to the witnesses. We have hearings set at the same time. I reviewed everyone’s statement, and I will be reviewing all the information we 

glean both during the hearing and that you may care to submit 
7 

after the hearing, but I will end up needing to leave before the 

hearing is over. Thank you. 

Mr. SCOTT. The gentlelady from California? 

Ms. WATERS. Thank you very much, Mr. Chairman. I was just 

considering whether or not I wanted to go into the statement. Why 

don’t I submit the statement for the record and yield back? Thank 

you. 

[The prepared statement of Ms. Waters follows:] 

PREPARED STATEMENT OF THE HONORABLE MAXINE WATERS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, SUBCOMMITTEE ON

CRIME, TERRORISM, AND HOMELAND SECURITY

Mr. Chairman, I want to thank you for organizing this hearing today. I want to 

also acknowledge our panel of witnesses for participating in today’s hearing. We can 

all agree that there is a problem in meeting the needs of indigent defendants’ right 

to effective representation. The Supreme Court has clearly enunciated that the 

Sixth Amendment guarantees criminal defendants the right to counsel. This is particularly imperative in the criminal trial context, as we must safeguard our legal 

system from the tyranny that would ensue were we to pit the powerful government 

and its resources against vulnerable indigent defendants. Yet, due to administrative 

inefficiencies, scarce resources, and a huge backlog of cases in public defenders’ offices across the country, many defendants have been denied effective counsel. In the 

most egregious of cases, they have been denied representation entirely. After today’s 

hearing, I hope that we can begin to reach a consensus on the most effective congressional response. 

The right of a defendant to legal counsel is granted by the Sixth Amendment of 

the Constitution, which states that ‘‘[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to have the Assistance of Counsel for his defense.’’ In 1963, a 

unanimous Supreme Court, in Gideon v. Wainright, held that this right to counsel 

applied to the States by virtue of the Fourteenth Amendment’s due process of law 

clause. 

More recently, a 1999 Department of Justice report found that despite progress 

since Gideon, indigent defense remained ‘‘in a chronic state of crisis.’’ The report 

pointed to a series of problems facing public defenders and their clients, including 

lack of funding, high workloads, and the low quality of appointed attorneys. In the 

years since the report, numerous other organizations have released other examinations of indigent defense in America, echoing many of the conclusions reached by 

the Department of Justice. 

Among the most problematic issues raised is the lack of independence between 

the judiciary and attorneys representing indigent defendants. When the court system is responsible for choosing and paying attorneys for indigent representation, 

judges may favor attorneys who facilitate quick processing of cases. Attorneys may 

be forced to choose between trying to please the judge (and remain employed) or 

representing their clients as required under their ethical rules. And the Supreme 

Court has provided little guidance. Although the Court has determined that the 

Constitution guarantees defendants the right to counsel, its holding does not propose how states are to fund the significant costs attached to providing all indigent 

defendants with effective counsel. 

The National Right to Counsel Committee’s report concluded that funding remains one of the biggest obstacles to meeting Sixth Amendment requirements. 

States are having trouble allocating resources in such a way that public defenders 

are equipped with all they need to adequately represent their clients. Moreover, 

public defenders are inundated with heavy caseloads, and they simply do not have 

the personnel, experts, investigators and interpreters to handle the casework so that 

each defendant’s case can be properly tried. According to a 2004 American Bar Association study, caseloads for public defenders far exceed national standards in many 

states, ‘‘making it impossible for event the most industrious of attorneys to deliver 

effective representation in all cases.’’ 

The problem of wrongful convictions also is of concern. Unfortunately, Alan Jerome Crotzer’s experience occurs far too often in courts across the nation. Researchers at the University of Michigan surveyed 340 exonerations of innocent defendants, 

each of whom served an average of ten years in prison before being exonerated. The 

most frequent causes of the wrongful convictions were mistaken eyewitness identification (64%) and perjury (43%). False confessions occurred in 15% of the cases. 
8 

This level of error is unacceptable. It undermines our constituents’ confidence in our 

criminal justice system and it must be corrected. 

And then there’s the issue of mistakes—mistaken identity or lack of adequate 

legal defense. Since 1973, over 120 people have been released from death row with 

evidence of their innocence. From 1973–1999, there was an average of 3.1 exonerations per year. From 2007–2008, there have been an average of 5 exonerations per 

year. 

Once again, I want to thank all of our witnesses today for preparing such detailed 

testimony. Your professional knowledge and personal experience is invaluable. And 

I am hopeful that your presentations and answers to our questions will give us a 

good update on previous research and the current situation. 

Mr. SCOTT. Thank you. Other comments? Thank you. 

We have a distinguished panel of witnesses here today to help 

us consider the important issues that are currently before us, and 

I ask each witness, if possible, to complete your statement within 

5 minutes or less. There is a timing device on the table that will 

start off green, turn yellow when there is 1 minute left, and the 

light will turn red when your time is up. All of the witnesses’ written statements will be made part of the record in their entirety. 

Our first witness will be Robert Johnson, who has been a prosecutor for over 40 years. He has been the elected county attorney 

in Minnesota since 1983. He is past president of the National District Attorneys Association, Minnesota County Attorneys Association and the Anoka County Bar Association. He is a past chair of 

the American Bar Association Criminal Justice Section and a member of the Minnesota National Guard. He graduated from the University of Minnesota with a bachelor’s degree and a Juris Doctorate. He is also co-chair of the National Right to Counsel Committee. 

Our next panelist will be Alan Crotzer. How do you pronounce 

your last name? 

Mr. CROTZER. Crotzer. 

Mr. SCOTT. Crotzer? 

Mr. CROTZER. Crotzer, yes. 

Mr. SCOTT. Crotzer—was 20 years old when he was arrested for 

a crime he did not commit. And he met with his court-appointed 

attorney for the first time 90 days after his arraignment. And we 

will hear that story when he testifies. He now works as a intervention specialist at the Florida Department of Juvenile Justice, encouraging at-risk kids to follow a positive path. 

Our next witness will be introduced by my colleague from Virginia. 

Mr. GOODLATTE. Thank you, Mr. Chairman. It is again my pleasure to welcome back to the Committee Erik Luna, professor of law 

at Washington and Lee University School of Law. He graduated 

summa cum laude from the University of Southern California and 

received his J.D., with honors, from Stanford Law School, where he 

was an editor of the Stanford Law Review. 

Upon graduation, he was a prosecutor in the San Diego District 

Attorney’s Office and a fellow and lecturer at the University of Chicago Law School. In 2000, Professor Luna joined the faculty of the 

University of Utah College of Law, where he was named the Hugh 

B. Brown chair in law and was appointed codirector of the Utah 

Criminal Justice Center. 
9 

He has served as a senior Fulbright scholar to New Zealand. He 

is an adjunct scholar with the Cato Institute and a member of the 

U.S. Chamber of Commerce’s Working Group on Criminal Law 

Issues. In early 2009, Professor Luna accepted a permanent faculty 

position at Washington and Lee University School of Law, from 

whence I am a proud alumnus. 

So thank you very much, Mr. Chairman, and welcome, Professor 

Luna. 

Mr. SCOTT. Thank you. Our next panelist will be Mr. Malcolm R. 

‘‘Tye’’ Hunter. He has spent more than 30 years working on behalf 

of indigent defendants in North Carolina. He was the executive director of the North Carolina Office of Indigent Defense Services 

from 2001 to 2008. 

Before that, he served as the state’s appellate defender from 

1985 until his appointment to the Indigent Defense Services. He is 

currently the executive director of the Center for Death Penalty 

Litigation, a nonprofit law firm representing capital defendants at 

trial, appeal and post-conviction. He graduated from the University 

of North Carolina Chapel Hill School of Law and served as an adjunct professor at the law school since 1998. 

Next panelist will be John Wesley Hall, currently the president 

of the National Association of Criminal Defense Lawyers. He 

served as deputy prosecuting attorney from 1973 to 1979 and has 

since then been in private criminal defense practice. 

He is the author of several books and law review articles on trial 

practice, criminal law and professional responsibility for criminal 

defense lawyers. He is a frequent lecturer and expert witness on 

legal ethics and relative matters and serves as a consultant in Arkansas’ Supreme Court Committee on Professional Conduct and on 

the Disciplinary Appeals Board for the International Criminal 

Court. He graduated from Hendrix College with a B.A. and the 

University of Arkansas with a Juris Doctorate. 

Final witness will be Justice Rhoda Billings, who received her 

B.A. from—is it Berea? 

Judge BILLINGS. Berea. 

Mr. SCOTT. Berea College in Kentucky and her Juris Doctorate 

from Wake Forest University School of Law. She has been a private practitioner, a law professor and a judge. She was an associate 

justice and chief justice for the North Carolina Supreme Court. She 

has been a professor of law for many years in Wake Forest University School of Law, where she teaches criminal procedure and constitutional law. She has been a commissioner with the North Carolina Indigent Services Commission since 2001 and is co-chair of the 

National Right to Counsel Committee. 

So we will begin with Mr. Johnson. 

TESTIMONY OF ROBERT M.A. JOHNSON, CO-CHAIR, NATIONAL 

RIGHT TO COUNSEL COMMITTEE AND DISTRICT ATTORNEY, 

ANOKA COUNTY, MN 

Mr. JOHNSON. Mr. Chairman, thank you. 

As a prosecutor under all the case law and standards relating to 

criminal justice, I know that my duty is to do justice. It is not 

merely to convict. And in an effort to find justice, I need a com-
10 

petent defender in the courtroom on the case in order to find that. 

I need that first to protect against convicting innocent people. 

As you may know, prosecutors don’t charge all the cases that 

come in from the police. Twenty percent of the cases that come in 

my office we decline; that is probably a low number compared to 

other prosecutor offices. And even those that I charge, the 80 percent of the cases, there are questions that we still have from the 

police documents that we get. 

There have been any number of times when defenders have gone 

out, done their investigation, analyzed the case and convinced us 

that there is not a crime that has been committed and certainly not 

a crime that we could prove was committed. 

I need them to protect against convicting innocent people. I also 

need them to find the proper sentence. Make no mistake about it; 

prosecutors sentence. When I charge a mandatory minimum—and 

in my state, when I charge a crime or plea bargain to a crime, it 

puts it on our sentencing guidelines box. 

So as a Federal judge once said at a Kennedy Commission hearing in the ABA, if AUSAs are going to sentence, they should get 

a PSI before they indict, as I need more information about the offender if I am going to be able to find the right disposition of the 

case. 

Now, most of the people that we deal with are ordinary people 

who have just done something bad. The truly evil people, the predators, are easy. We just max them; we put them away for as long 

as possible. But most of the people that we deal with are not, and 

our challenge is to try to find the right sentence. 

So I need to have the defender tell us about the characteristics 

of the offender that enables us to find the right sentence—find the 

right disposition. And I need defenders to move cases. 

Now, I will certainly acknowledge that we have some excellent 

public defenders in my jurisdiction. I have a tremendous public defender who just went to—headed up our district public defense, 

went to another district. There just aren’t enough of them. There 

aren’t enough of the defenders to be able to deal with it, so that 

when we don’t have enough defenders, as was pointed out in Chicago on capital cases, it paralyzes the system. The system does not 

go forward. 

Defenders have to triage the cases that they are going to handle 

and decline to handle the others, as was pointed out too. Defenders 

are starting to realize more and more their ethical responsibilities 

not to take on cases that they can’t adequately represent. 

So you see in Florida, you have seen in Massachusetts, you are 

seeing now in Illinois, where the defenders are saying, ‘‘We are not 

going to represent these people because we can’t do an adequate 

job.’’ That paralyzes the system. 

We have to have good defenders in the courtroom for the reasons 

that I have stated. As the report amply discusses, the state of 

criminal defense in this country is not good. It is bad. There is an 

enormous amount of work that can be done in the states. And we 

recommend in the report that the Federal Government contribute 

to the solution. 

And I will say that the Federal Government does fund various 

parts of the system. The Federal Government has just put a billion 
11 

dollars on the street for cops. I haven’t received any of that money 

to prosecute it. The defenders haven’t received any of that money 

to defend it. So we are going to have an influx of cases that we are 

going to have to deal with. We need balance in the system. We 

aren’t providing enough balance. 

I pick up a bit from time to time—drug prosecutions, I get Federal money up through the Byrne Grant, through the state to my 

office. I have picked up over half a million dollars over the years. 

In all candor, a piece of that should have gone to the defense system. And I understand that is a state responsibility to allocate 

some of that Byrne money or at least it is in my state. But we have 

to recognize that this is a balance system, and if we are going to 

do justice, it is important that we do balance it. 

Now, at some point, the states have to come to terms with the 

overcriminalization of behavior. The criminal court in my state, 

Minnesota, has gone, from the time I have been a prosecutor, from 

35 pages to over 200 pages. When I started this work 40 or so 

years ago, I had less than 100 cases. In 2006, I had 1,800 cases. 

So we have to come to terms with this. And I think the recommendations in the report are well taken: funding defense and a 

national center for public defense. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Johnson follows:] 

PREPARED STATEMENT OF ROBERT M.A. JOHNSON

Having been a prosecutor for nearly forty years, president of the National District 

Attorneys Association, chair of the Criminal Justice Council, worked for over a 

dozen years with national and international criminal justice organizations, and cochair of the Constitution Project’s National Right to Counsel Committee, I have 

some knowledge of the structure of our criminal justice system and the importance 

of capable defense lawyers representing a person accused of a crime. This importance goes far beyond the constitutionally generated right of an accused to have the 

assistance of counsel; the right to counsel is essential for the integrity and proper 

functioning of our criminal justice system. 

The essential nature of an accused’s right to counsel was reflective of the experience and wisdom of the drafters of our Constitution. They understood from their history and experience under the English criminal justice system that citizens must 

be guaranteed certain rights if we were to live in a free society. In the sixth amendment, they guaranteed ‘‘in all criminal prosecutions the accused shall enjoy the right 

. . . to have the assistance of counsel for his defense.’’ In applying this right to the 

accused in state prosecutions, our Supreme Court in a unanimous opinion stated in 

Gideon v. Wainwright, ‘‘in our adversary system of criminal justice, any person 

haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.’’ There have not been any credible challenges or 

even serious discussion challenging this constitutional right which the court affirmatively put in the same category as the taking of property for public use without compensation, and the prohibition of unreasonable searches. The only challenge has 

been and is the implementation of this right in the states. 

Speaking as a prosecutor, I know of the importance of the right to counsel for an 

accused. I see an accused (and family) try to understand and struggle with an unknown system as I bring the weight of the state to bear. The family is often devastated by what the accused may have done and often unable to understand how 

the accused violated the law and how to proceed. They often are unable to afford 

an attorney to advise them and the accused. 

There are a number of reasons a capable defense attorney is necessary for the 

proper functioning of our system of justice. First and perhaps most important is to 

protect an innocent person. As the Innocence Project has ably demonstrated, innocent persons are convicted of committing crimes. Such an injustice is abhorrent to 

a professional prosecutor. Not only is the guilty party free to commit more crimes, 

an innocent person is unjustly punished. Prosecutors must have capable defense at-
12 

torneys challenging the state’s proof to reduce the chance that an innocent person 

is unjustly convicted. 

Secondly, prosecutors do a lot of sentencing in our current system of justice. Mandatory sentencing laws and sentencing guidelines permit a prosecutor to sentence 

by what crime is charged or plea bargained to a conviction. In these discretionary 

acts, the prosecutor does not have a pre-sentence report as is typically provided a 

judge before sentencing. Prosecutors see the victims and law enforcement and their 

view, but do not see the circumstances of the offender. From my experience as a 

prosecutor and an Army National Guard military judge, I tell you the characteristics 

of an offender are necessary to a reasoned decision as to sentence. A defense attorney adequately representing an offender and presenting mitigating reasons to a 

prosecutor is the only chance the prosecutor will make a reasoned decision about 

a sentence. 

A third reason for the full implementation of the constitutional right to counsel 

is simply for the criminal justice system to efficiently function. Unless a defense attorney is in the courtroom with the prosecutor, the case may not go forward. Judges 

do and should refuse to move forward with a case unless the accused has a defense 

attorney present in court. 

I say again full implementation of this sixth amendment right to counsel is critical as both a constitutional and practical matter if we are to have the system of 

criminal justice that our Constitution promises. But this promise is not being kept. 

As set forth in the Constitution Project’s comprehensive Report of the National 

Right to Counsel Committee entitled Justice Denied: America’s Continuing Neglect 

of our Constitutional Right to Counsel, the states have taken a number of approaches to complying with the constitutional mandate. Often these approaches are 

shockingly inadequate. 

A common problem in the states meeting their obligations is insufficient funding. 

Whether state funded, county funded, or a mixture of both, the funding is inadequate. The budget issues in states and local governments are well known. As government struggles to meet its often self-imposed needs, it regularly does not adequately fund a constitutional right of the people it accuses of a crime. This shameful 

conduct often comes from a lack of understanding of the very practical reasons for 

funding an entire criminal justice system. Particularly troubling are the inequities 

between the adequate funding of law enforcement and prosecutors and the lack of 

funding for defense services. While the sentiment to make offenders accountable is 

understandable, there is a lack of understanding of the issues earlier discussed. 

There seems to be a mentality that, if the police arrest and the prosecutor brings 

charges, the accused must be guilty and we should just lock them up. Sadly, this 

type of thinking is part of why the state of criminal justice is not good and public 

safety is less than it might be if our criminal justice system was balanced. 

Of course, the lack of funding makes for excessive caseloads for the public defenders who are employed. Again, reference to the Report provides detail not repeated 

here. Efforts are underway to deal with this issue as public defenders are confronted 

with failing to fulfill their ethical duty to competently represent their clients. Public 

defenders are refusing to take on more clients when overburdened, judges are beginning to accept their refusals, and the criminal justice system is faltering. 

There are other problems with how defense services are being provided. The Report details many of these problems: lack of independence, lack of training, inability 

to hire experts, lack of technology, inadequate client contact, and significant lack of 

investigation capability. Prosecutors have enormous investigative capability through 

police departments. Important for the defense is the ability to pursue alternative 

theories as to how the crime occurred or even whether a crime occurred. It is not 

unusual for law enforcement to end their investigation when the defense team has 

a plausible theory. 

With a constitutional guarantee, practical reasons for implementing the guarantees, and strong evidence that effective counsel for the accused is not being provided, what is the responsibility of the federal government? The Report provides two 

recommendations which are reproduced here: 

A NATIONAL CENTER FOR DEFENSE SERVICES

Recommendation 12—The federal government should establish an independent, 

adequately funded National Center for Defense Services to assist and strengthen 

the ability of state governments to provide quality legal representation for persons 

unable to afford counsel in criminal cases and juvenile delinquency proceedings. 

Commentary—As discussed earlier in this report, the duty of providing defense 

representation in criminal and juvenile cases derives from decisions of the U.S. Supreme Court and is based upon interpretations of the federal Constitution’s Sixth 
13 

Amendment. Taken together, the Court’s decisions are an expensive unfunded mandate with which state and/or local governments have been struggling for more than 

45 years. Although the federal government established the Legal Services Corporation in 1974 to assist states in providing legal services in civil cases, in which there 

is not a constitutional right to counsel, the federal government has not enacted comparable legislation to assist states in cases where there is a constitutional right to 

counsel or where states require that counsel be appointed, even though it is not constitutionally mandated. The Committee applauds the establishment of the Legal 

Services Corporation but believes there should also be a federal program to help the 

states defray the costs of defense services in criminal and juvenile cases. 

Thirty years ago, the ABA endorsed the establishment of a federally funded ‘‘Center for Defense Services,’’ and the Association reiterated its support for such a program in 2005. The Center’s mission would be to strengthen the services of publicly 

funded defender programs in all states by providing grants, sponsoring pilot 

projects, supporting training, conducting research, and collecting and analyzing 

data. The original report submitted to the Association’s House of Delegates in 1979 

explained the proposal’s importance: ‘‘If adequately funded by the Congress, the 

Center could have far-reaching impact in eliminating excessive caseloads . . ., providing adequate training and support services . . . and in facilitating representation 

as well as ensuring that quality defense services are available in all cases where 

counsel is constitutionally required.’’ 

FEDERAL RESEARCH AND GRANT PARITY

Recommendation 13—Until a National Center for Defense Services is established, as called for in Recommendation 12, the United States Department of Justice 

should use its grant and research capabilities to collect, analyze, and publish financial data and other information pertaining to indigent defense. Federal financial assistance through grants or other programs as provided in support of state and local 

prosecutors should also be provided in support of indigent defense, and the level of 

federal funding for prosecution and defense should be substantially equal. 

Commentary—As noted in the Commentary to Recommendation 12, the call for 

a National Center for Defense Services is not new. Although Congress has not been 

persuaded to enact such a program, the Committee is convinced that the proposal 

still makes excellent sense. However, in the absence of such a program, there are 

valuable steps that the federal government can take through existing agencies of the 

U.S. Department of Justice (DOJ) to enhance indigent defense. 

The Office of Justice Programs (OJP) of the DOJ, for example, develops and disseminates data about crime, administers federal grants, provides training and technical assistance, and supports technology development and research. The OJP’s bureaus include, among others, the Bureau of Justice Assistance (BJA), which gives 

assistance to local communities to improve their criminal justice systems, and the 

Bureau of Justice Statistics (BJS), which provides timely and objective data about 

crime and the administration of justice at all levels of government. Also, the National Institute of Justice (NIJ), the research and evaluation agency of DOJ, offers 

independent, evidence-based knowledge and tools designed to meet the challenges 

of criminal justice, particularly at state and local levels. 

Although the overwhelming majority of expenditures by these agencies have been 

devoted to enhance law enforcement, crime control, prosecution, and corrections, a 

few successful defense-oriented projects have been funded, which suggest that increased federal attention to indigent defense could have significant positive impact. 

For instance, in both 1999 and 2000, BJA hosted two symposia that brought together from all 50 states criminal justice professionals, including judges and leaders 

in indigent defense, to explore strategies to improve the delivery of defense services. 

The National Defender Leadership Project, supported by a grant from BJA, offered 

training and produced a series of publications to assist defender managers in becoming more effective leaders. Grant awards by the Office of Juvenile Justice and Delinquency Prevention, another bureau of OJP, have supported a national assessment 

of indigent defense services in delinquency proceedings as well as numerous individual state assessments of access to counsel and of the quality of representation 

in such proceedings. 

While the foregoing projects and programs are commendable, the financial support of DOJ devoted to indigent defense is substantially less than the sum spent 

on the improvement of prosecution services at the state and local level. For this reason, the Committee calls for the financial support of ‘‘prosecution and defense . . . 

[to] be substantially equal.’’ 

You may say: How can we provide assistance with all the other demands we face? 

I ask: How can you not? You provide massive amounts of funds to police, prosecu-
14 

tion, and prison. It is past time that you invest in an entire system and not simply 

a punitive piece of the system. 

Mr. SCOTT. Mr. Crotzer? 

TESTIMONY OF ALAN CROTZER, PROBATION AND COMMUNITY 

INTERVENTION OFFICER, FLORIDA DEPARTMENT OF JUVENILE JUSTICE, WRONGFULLY CONVICTED AND SENTENCED 

TO 130 YEARS IN PRISON, TALLAHASSEE, FL 

Mr. CROTZER. Good morning, Chairman. Good morning, Committee Members. And I just want to thank God for being here this 

morning. I didn’t think I was going to make it. I only got in around 

2 o’clock this morning; my flight was delayed so much. So if my 

eyes are red, it is because I didn’t have much sleep. 

I did submit a written report, and I know everybody should have 

one. But I want to tell you real quick what really happened to me 

in my own words out of this mouth. 

In 1981, I was convicted of three counts of armed robbery, one 

count of attempt robbery, two counts of sexual battery, two counts 

of kidnap, one count of armed burglary and one count of assault 

with a deadly weapon. I was tentatively identified by one of two 

rape victims—or one of two rape victims, as an assailant. I was 

said to be six feet tall, light complected, weighing 200 pounds. I 

was five foot five, weighed 135 pounds; as you look at me, you can 

see I have never been light skinned. [Laughter.] 

You know, but all this points to the fact that I was convicted 10 

months later, sentenced to 130 years. I spent 24 years, 6 months, 

13 days and 4 hours wrongly convicted. And if it wasn’t for the 

grace of God and DNA testing, I would still be in there rotting 

away in a South Florida prison for crimes I didn’t commit. 

It took me 20 years writing letters to everyone, even the person 

that prosecuted me, and the lawyer that became a judge that handled my case can’t remember me. Twenty years of writing the people everywhere across the Nation to finally find someone to take 

my case, 1,200 miles away in the city of New York City, David 

Menschel and Sam Roberts came to my rescue. Two young men 

that were—one was just an intern, and one was just an attorney 

for a couple of weeks. They saved my life. It took them 31⁄2 years 

to get me out. That is what you call competent representation. 

Why did I not get that before then? No one looked at my alibi 

witnesses; no one looked at the fact that I didn’t fit the description, 

at least my attorney didn’t. The serology report was botched too. 

The serology report proved I couldn’t have been the perpetrator of 

the crime, and yet I spent more than half of my life in prison. My 

whole world was turned upside down. 

And I am not the only one. I was number five in the state of 

Florida, 173 in the country. I haven’t been out for 3 years and 4 

months; they have 10 in the state of Florida, DNA exonerees, and 

234 in the whole country. That is one per year for the existence of 

this country. One is too many. 

The system is broken. It failed me from the beginning. Why? Because I was indigent and convenient. This has to stop, and the only 

people that can change that is basically people in power, people on 

this Committee—and no matter what your political party is. 
15 

People are dying in there. I represent right now—in my heart, 

I represent Frank Lee Smith, who died on death row, the first DNA 

exoneree in the state of Florida. He died on death row before he 

was DNA exonerated. He was exonerated after his death. I represent him today in my heart, and there are others. 

And all I am asking is that you read the report and try to help 

us. One is too many. That is all I have to say. 

[The prepared statement of Mr. Crotzer follows:] 

PREPARED STATEMENT OF ALAN CROTZER

Good morning and thank you to this esteemed Committee for inviting me to speak 

about an extremely important issue that has profoundly affected my life in unimaginable ways. My name is Alan Jerome Crotzer and on July 10, 1981, at the young 

age of twenty, my life changed forever. At around 5:30 A.M., law enforcement officers in St. Petersburg, Florida, came to my girlfriend’s mother’s house where I had 

spent the night. They came to arrest me and accuse me of a horrifying crime. They 

were looking for three black men who invaded a home, kidnapped a thirty-year-old 

white female and twelve-year-old white female, placed them in a trunk of a car, 

drove them to a secluded area in the Florida summer heat, and then raped them. 

They were looking for me because the adult female victim made a tentative photo 

identification of me as the ring leader. 

I was taken to the county jail and charged with three counts of armed robbery, 

1 count of attempted robbery, 2 counts of kidnapping, 2 counts of sexual battery, 

1 count of armed burglary, and 1 count of aggravated battery with a deadly weapon. 

Ten months later, I was convicted by an all white jury and sentenced to 130 years 

in prison. When they announced the sentence in court, my mother crawled out of 

the court room on her hands and knees as she wailed, lamenting that her son would 

likely die in prison as a rapist. 

But my faith in God and in my innocence brought a different outcome. On January 23, 2006, at 9:30 A.M. and after 24 years, 6 months, 13 days, and 4 hours of 

wrongful incarceration, I was released from custody an innocent man, as new DNA 

results proved once and for all that I did not commit this crime. I was not the monster they made me into. 

I would still be in a deep south Florida prison today for crimes I didn’t commit 

but for the legal help I received from 1,200 miles away in New York from David 

Menschel and Sam Roberts. For three years, they put their lives on hold, making 

numerous trips to Florida and spending thousands of dollars to free one innocent 

person. 

These efforts, particularly the time, energy, and money spent to free me, are in 

stark contrast to the efforts made by my court-appointed attorney to keep me from 

being convicted in the first place. I was just a kid; a minority, poor, uneducated in 

the law, and very convenient. I needed professional legal help and expected to get 

it when the judge appointed me an attorney. It is generous, however, to say that 

my public defender at trial was ineffective. Frankly he hardly showed up. The first 

time I even saw him was 90 days after I was arraigned. In one of our very few meetings I had with him, he ignored my claim of innocence and instead tried to force 

me to plead guilty and accept 25 years imprisonment. He reasoned that I would 

probably only do 12.5 years. 

His cavalier attitude towards my innocence carried over to how he handled trial 

preparation and the actual trial. I alerted him that I had an alibi—I was watching 

TV at my girlfriend’s mother’s house in a different county at the time of the crime— 

and that witnesses could truthfully explain to the jury that I was more than twenty 

miles away from the crime when it happened. My lawyer never even interviewed 

these witnesses. My lawyer failed to subpoena these witnesses for depositions or 

trial, so I had to do these subpoenas myself. The State even came to my jail cell 

to collect physical evidence from me. I asked the prosecutor where my attorney was 

and he replied that my public defender was literally on vacation. 

But his unwillingness to put on even a minimal defense at trial made my wrongful conviction not just possible, but probable. He did not vigorously demonstrate my 

solid alibi defense. He didn’t challenge the obviously suggestive photo identification 

used to mistakenly connect me to this crime. And, most importantly, he failed to 

sever my trial from that of one of the actual perpetrators of this horrendous crime. 

Instead, the jury got to blame me as I sat there listening to the actual rapist, representing himself and cross-examining his own victim, even arguing that because 

she didn’t fight back it must have been consensual. 
16 

When the jury read its verdict, I came to the realization that I would probably 

die an innocence man in prison, at least in part because my lawyer was too lazy, 

too busy, or just didn’t care enough to provide me with the effective representation 

I was constitutionally guaranteed. Despite his gross ineffectiveness, my attorney 

was rewarded with a circuit court judgeship, where he still sits today. 

I lost so much during my wrongful incarceration. The crack-cocaine epidemic ravaged my working-class St. Petersburg, Florida neighborhood and many of my family 

and friends became woefully addicted. I never fulfilled my dream of serving my 

country in the coast guard and getting an education in the process. I lost the prime 

years of my life to start a family, build a career, and gain the life skills and experience that most people take for granted. Most of all, my mother never experienced 

my vindication in her lifetime, as she died of cancer less than five years before I 

was exonerated. 

Many in my position would be bitter and burdened by all that was taken during 

the wrongful incarceration. But I don’t have time for that. I spend my days working 

as Intervention Specialist at the Florida Department of Juvenile Justice, encouraging at-risk kids to get their lives on a positive path. I am a member of the Board 

of Directors of the Innocence Project of Florida where I speak out and raise awareness about my wrongful conviction and incarceration, alerting the public of ways we 

can prevent such injustice in the future. I also try every day to be a good husband 

to my new wife and positive role model to her two kids. 

I am here today, however, as a member of the National Right to Counsel Committee to tell you about my experience as an indigent defendant who was left behind 

by a broken criminal justice system. I hope that my story of ineffective assistance 

of counsel can be a lesson that if we are going to continually incarcerate more and 

more people every year in this country, then we have to do better to make good on 

our constitutional promise of adequate representation. It is my wish that my words 

here today are the beginning of real interest by this Committee and this Congress 

in reforming our indigent defense system so what happened to me will be infrequent 

rather than a constant refrain. 

I thank you for your invitation to come here to tell my story and I look forward 

to answering any questions you may have. 

Mr. SCOTT. Thank you. Professor Luna? 

TESTIMONY OF ERIK LUNA, PROFESSOR, WASHINGTON 

AND LEE UNIVERSITY SCHOOL OF LAW, LEXINGTON, VA 

Mr. LUNA. Thank you. 

Thank you, Congressman Goodlatte, for the—introduction. 

Chairman Scott, Ranking Member Gohmert and Members of the 

Committee and Subcommittee, thank you for the opportunity to 

speak today on the subject of indigent representation of counsel. 

Let me begin by reiterating my firm belief in the sixth amendment and the constitutional duty of the states to provide competent 

legal representation to indigent defendants whose liberty the prosecuting jurisdiction seeks to deprive. It is as true today as it was 

when Gideon was announced that defense attorneys are necessities, 

not luxuries, in the criminal process. 

One of the documents that inspired today’s hearing, the report 

of the National Right to Counsel Committee, provides a comprehensive review of indigent defense in jurisdictions across the Nation. 

I will not reiterate the troubling narratives it provides, as my fellow witnesses and the report itself can do this with far greater eloquence. 

I simply pause to note that the problems detailed in the report 

are deeply disturbing to me, and I suspect the sentiment is shared 

by most in the room regardless of political party. The real issue is 

not whether a so-called constitutional crisis exists, but what entity 

created the dilemma and what should be done to resolve it—in 

other words, questions of responsibility and remedy. 
17 

Like previous works, the report sets out a series of recommendations to deal with the problems of indigent defense. Almost all the 

recommendations are unobjectionable, if not laudable, particularly 

those that call upon the states to fulfill their constitutional obligations by providing adequate funding. 

Not only is it constitutionally required that the states pay for 

these expenses, it is altogether fitting. After all, the states and 

their agents are the ones who set the entire process in motion and 

have made all the choices that have resulted in today’s situation. 

As a matter of Federal constitutional law, the states have no obligation to criminalize and punish any particular behavior, nor are 

they required to arrest and prosecute any given individual. But 

when jurisdictions choose to employ their awesome power to deprive individual liberty, they have the absolute duty to comply with 

the U.S. Constitution, including the sixth amendment. In a very 

real sense, the states have brought any crisis upon themselves 

through overcriminalization. 

And to be sure, they have the power to remedy the situation by 

parsing back their bloated penal codes and reducing lengthy sentences and by being more prudent in the enforcement of criminal 

laws on the streets and in courthouses. 

Indeed, there should be no doubt that the relevant jurisdictions 

can provide the funds for competent indigent representation, as 

demonstrated by the disproportionate resources provided to prosecution offices and law enforcement agencies and the vast sums the 

states spend on legal work and programs that are not constitutionally required. 

Now, I won’t belabor the two primary arguments regarding Federal involvement, the principle of federalism and the potential for 

perverse incentive structures, as I testified about these concerns at 

the last hearing, and they are laid out in some detail in my written 

testimony today. In a nutshell, federalism, which is in the text and 

context of the Nation’s charter, limits Federal power and cautions 

against interference with the core internal affairs of the states, including state criminal justice. 

As the Supreme Court has said, constitutional concerns are 

raised whenever Congress affects a significant change in the sensitive relation between Federal and state criminal jurisdiction. Federalism has many values, including protection against the dangers 

that come from the concentration of too much power in too few 

hands. 

Federal funding of state indigent defense also raises policy 

issues, especially the specter of moral hazard, an economic phenomenon that was once described as the distortions introduced by 

the prospect of not having to pay for your own sins. If a given state 

does not bear the full cost of its criminal justice’s decisions and instead is able to externalize a politically disagreeable expense on another entity, state officials may have little incentive to temper their 

politically self-serving decisions that extend the criminal justice 

system. 

In a worst-case scenario, those states that have met their constitutional requirements may be tempted to skimp on their budgeting for indigent representation with an eye toward receiving Federal support. 
18 

I should also mention that I have some concerns about the proposed National Center for Defense Services, a bureaucracy that 

would set policy and control and dispense Federal funds. Although 

the proposal is extremely well-intentioned, caution is warranted in 

creating any Federal body with such powers outside of the constitutional framework. 

Government bureaucracies tend to be acquisitive, monopolistic, 

and they seek to maximize their funding and expand their powers. 

They also have a tendency toward entrenchment, and they create 

agency cost, serving the self-interests of bureaucrats rather than 

the principals, the American taxpayers. 

Now, although Federal involvement in state indigent representation is problematic on a number of grounds, I will not lose sleep 

if Congress were to create the National Center for Defense Services. I am, in fact, more troubled by the prospect of becoming an 

involuntary stockholder of General Motors. 

But before acting, I would simply recommend that Congress take 

into consideration all constitutional values at stake, including federalism and the unintended consequences and equity of absorbing 

the costs owed by the state that in all good conscience they should 

pay. 

Most of all, I hope Congress will consider measures that do not 

raise the same type of constitutional and public policy concerns, a 

few of which I mention at the end of my testimony, my written testimony. 

Again, thank you for the opportunity to speak today, and I look 

forward to answering any questions that you may have. 

[The prepared statement of Mr. Luna follows:] 
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PREPARED STATEMENT OF ERIK LUNA
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Mr. SCOTT. Thank you. 

Mr. Hunter? 
31 

TESTIMONY OF MALCOLM R. ‘‘TYE’’ HUNTER, FORMER EXECUTIVE DIRECTOR, NORTH CAROLINA OFFICE OF INDIGENT 

DEFENSE SERVICES, DURHAM, NC 

Mr. HUNTER. Thank you very much, Mr. Chairman. Can you 

hear me? Hello, good morning, is this working? Do I need it—— 

The light is on. Now you can hear me. I need to have it a little 

closer. 

Mr. Chairman, Members of the Committee, thank you very much 

for the opportunity to be here. 

I suppose on this panel, I am the career public defender. Mr. 

Gohmert, I am the one who should defend the lawyers who do this 

work. I have devoted my whole career to it. And there is no question but what there are lawyers in every state and all over the 

country who are doing great—some people are doing heroic jobs 

and a lot of people are doing good jobs. 

But I think the report is correct in that, in general, the system 

is not working well for a combination of circumstances. I think 

money is probably the biggest reason. 

I also don’t disagree with Professor Luna that this is the state 

and the local folks’ problem in a lot of respects, but we are here. 

The states aren’t doing it. We don’t seem to have a good way to 

force the states or make the states see their responsibility in a way 

that they provide adequate funding. 

And adequate, I would say also, standards are just as important 

as funding for this problem. And we are in a situation where we 

are, in fact, sending lots of Federal money in. Lots of Federal 

money has gone in North Carolina, and we are like Minnesota. I 

stopped even applying for Byrne Grants years ago because we 

never got a sniff at that. The great majority—practically all of that 

money goes to prosecution and to law enforcement. 

And so we are not living in a world where the Federal Government is not involved in state criminal justice; maybe we should be. 

But right now, the state’s thumb is on one side and not the other. 

And so if we get out, if Mr. Luna’s idea of the way government 

should work prevails, then I have no complaints. But until that 

happens, I think the defense function should get their fair share 

or at least a fair share. And so far, they are certainly not. 

I want to follow up just briefly on Mr. Crotzer’s story. That is not 

a unique story. I mean, there are five or six or seven people convicted of first-degree murder in North Carolina. Actually, a lot of 

them had good lawyers. Some of them had terrific lawyers but were 

wrongly convicted, and only through DNA years later did we find 

out that in fact they were not guilty. 

I think what all of us need to remind ourselves about DNA is 

that DNA is just a window to allow—what is more important than 

DNA is what is the evidence that allowed judges and juries to convict somebody and find someone guilty beyond a reasonable doubt; 

forget about the DNA. All of those were cases where there 

shouldn’t have been evidence that would prove their guilt beyond 

a reasonable doubt. You shouldn’t have to prove your innocence. 

The state has the burden of proving you are guilty. 

So we have hundreds of cases where juries are convicting, prosecutors are prosecuting, where in fact they have got the wrong person. And so we need to be aware of that. And, of course, better 
32 

counsel will be a very important part in trying to improve that situation. 

But DNA is not the answer. DNA has given us a window into 

a criminal justice system where we are making mistakes, not most 

of the time, just in a small group of the cases. But we can minimize 

those mistakes, I think, and we need to look at what is the evidence—what are the commonalities of the evidence that we are 

convicting people on that later DNA is showing us that we made 

mistakes? 

And so I hope we will look at that. And I hope, if the Federal 

Government gets involved in defense, that you will not just send 

money down to North Carolina and let somebody down there decide, you know, willy-nilly how to spread it out to make up for the 

gaps in what the state should be doing. I think the appropriate role 

for the Federal Government is limited, and it should be to encourage innovation, to encourage improved quality. 

I think any money that gets sent down should be tagged so that 

we are not paying for what the state should be paying anyway or 

allowing the state to shift funds to highways or something—all of 

which we need in North Carolina, by the way—but that improves 

the situation we have got right now. And I think there are lots of 

opportunities for innovations and for quality that could come from 

outside funding. 

And I will give you one example; it is in my written materials. 

An LEAA grant was awarded to North Carolina in 1980, and we 

started the Appellate Defender’s Office. That was the first statewide defender we had in North Carolina. We had a few local public 

defenders, but we had no statewide defender office. It funded that 

Appellate Defender’s Office for 1 year. I think it cost about 

$350,000 back in 1980. 

That office was evaluated after that first year. The state picked 

up that office, decided that was an agency that was worth the state 

funding, and it has been going and has provided excellent representation for indigent people on appeals for 29 years now. 

And in fact, I think the success of that office helped create an 

atmosphere where, when we tried to form the Indigent Defense 

Services in 2000, it was acceptable to the legislature and to the 

courts and to the bar because of what we had done in the Appellate 

Defender’s Office. 

So that was a small seed money, if you will, contribution by the 

Federal Government, which was limited in time, 1 year, and then 

the state decided—do they want to—is this a service that is worth 

picking up or not? And they did pick it up. And I think it has really 

been a part of the reform movement that we have had in North 

Carolina, where we have improved our work. 

Thank you very much. 

[The prepared statement of Mr. Hunter follows:] 

PREPARED STATEMENT OF MALCOLM R. ‘‘TYE’’ HUNTER

Thank you for the opportunity to speak on the subject of indigent defense representation. My name is Tye Hunter and I recently retired after more than thirty 

years of direct involvement in the representation of indigent persons in state courts 

in North Carolina. I have served as a public defender, an appellate defender and, 

from 2001 through 2008 as the first executive director of the newly formed North 
33 

Carolina Office of Indigent Defense Services. In my time I’d like to make a modest 

suggestion about a role the federal government could take to encourage reform. 

1. Justice Denied 

But first I want to acknowledge the excellent work of the Constitution Project’s 

National Right to Counsel Committee and the Committee’s report, Justice Denied: 

America’s Continuing Neglect of our Constitutional Right to Counsel. I agree with 

the report’s criticism of our current attempts to provide counsel for indigent people 

accused of crimes. I also agree with the general thrust of the recommendations. I 

especially like that the recommendations are organized to point out what different 

actors could do to improve things. The bar, the state and federal judiciary, state legislatures and this Congress have all played a part in the neglect of the right to 

counsel and all, I think, must play a role if we are to reform our current system. 

2. The North Carolina Indigent Defense Services Commission 

North Carolina created an Indigent Defense Services Commission (IDS) in 2000. 

I am attaching a document from the IDS website, ncids.org, that summarizes the 

reforms undertaken by the Commission in the past eight years. These include the 

development of state wide rules governing the delivery of indigent legal services, expansion of public defender offices, creation of performance guidelines, improvement 

of training for lawyers and establishment of special state wide rosters for capital 

and appeal cases. While I am proud of what has been accomplished in North Carolina, we are aware that we are not nearly finished with the long and difficult work 

of reform. There are a number of significant reforms that would improve the quality 

of indigent defense in North Carolina that the Commission has been unable to accomplish, not because of lack of funds, but because of resistance to change by powerful interests among the bench and bar. 

3. Money Not the Only Problem 

Lack of adequate funding is the biggest problem for indigent defense, but it is not 

the only challenge. Although the problems with indigent defense are repeated 

throughout the country, most people involved with indigent defense have a narrow 

and local view. I have found that most lawyers and judges are sympathetic with the 

kind of report we are discussing today and have no problem with general criticism 

of the quality of indigent defense work. However, most people in positions of power 

feel that their own jurisdiction is an exception to the general rule of deplorable quality. People support reform until it is specifically directed at the place where they 

make their living. While the local indigent defense system may work very badly for 

indigent people accused of crime, it may work pretty well for the local judges and 

lawyers. Or even if it doesn’t work very well for the professionals, at least they have 

learned how to negotiate in the current system and they are reluctant to exchange 

it for a system that may or may not serve them as well. Thus, it can be difficult 

to convince folks on the local level that they have a problem, much less that they 

need to change the ways they have been doing things. Anyone hoping to actually 

reform our current system must understand that it is really thousands of different 

local systems. This does not mean that a regional or national reform effort cannot 

succeed, but any reform strategy must either have the authority to impose reform 

despite local misgivings or be prepared to engage in a protracted effort one courthouse at a time. 

4. A Role for the Federal Government 

I suspect there will be little dispute about the fact that the right to counsel is 

neglected and that the neglect is nationwide in scope. The issue of what the Congress can and should try to do about it is more controversial. 

As an early step, I think it would be useful if the federal government would make 

grants available to reward and encourage indigent defense reform. Currently, federal grants and assistance coming to North Carolina for public safety or criminal 

justice almost never make their way to indigent defense. 

I know that many are suspicious of further federal involvement in what they 

think should be the responsibility of the state or county or city. I can tell you about 

one federal program that funded an indigent defense project in North Carolina that 

has had a very positive impact. In 1980, the federal government awarded an LEAA 

grant to North Carolina to fund an Appellate Defender’s Office for one year. That 

was the first statewide indigent defense program in North Carolina. During that 

first year a thorough evaluation was conducted and published. The Office of the Appellate Defender was picked up for state funding the second year and has lifted the 

quality of indigent representation for appeals for 29 years. The success of that office 

helped set the stage for other statewide defenders and for the acceptance of IDS in 
34 

2000. The lawyer who had been the first Appellate Defender in 1980 served as the 

first Chair of the IDS Commission in 2000. That small and limited time investment 

by the federal government paid large dividends for reform in North Carolina. 

Any funding from the federal government should be aimed at improving the status quo rather than merely filling the budget gap for state or local programs. I 

would reward programs that agree to standards consistent with the recommendations of the Right to Counsel Committee’s report and groups like American Bar Association, the National Legal Aid and Defender Association and the National Association of Criminal Defense Lawyers. I would also encourage innovators. A few of 

our thousands of local systems can serve as pilot programs as we try to discover 

better ways to accomplish the goal of creating a truly effective system of indigent 

defense. While many jurisdictions fail to provide even minimal representation, others have tried new approaches. These experiments should be encouraged. All programs that are funded should be evaluated to determine whether they should be 

continued. 

Thank you again for your invitation, thank you for your interest in this very important problem, and I am happy to answer any questions you may have. 
35 

ATTACHMENT 
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Mr. SCOTT. Mr. Hall? 

TESTIMONY OF JOHN WESLEY HALL, PRESIDENT, NATIONAL 

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, LITTLE 

ROCK, AR 

Mr. HALL. Mr. Chairman, I am here on behalf of the National 

Association of Criminal Defense Lawyers. And we are the organization that represents the mission of the United States criminal defense lawyers to ensure due process of those accused of crime. We 

have 12,000 direct members and approximately 40,000 indirect 

members through our state and local affiliates, and we are committed to preserving fairness within the criminal justice system. 

The sixth amendment to the United States Constitution guarantees to every accused person the right to effective assistance of 

counsel, and it is one of the hallmarks of American justice. It is 

also a core value of our constitutional guarantees, because it is in 

the Constitution explicitly. Defense counsel is recognized by the 

sixth amendment. The court is not; the prosecutor’s not. But the 

defense counsel is. 

Criminal defense lawyers are, of course, the natural defenders of 

all these rights. As already noted by the Chair, 80 percent of all 

persons accused are represented by appointed counsel, and public 

defense is, in fact, the backbone of American criminal justice. 

And public defenders, I submit to you, get no respect at all. I do 

a fair amount of post-conviction work, and I asked the clients, 

‘‘Who represented you at trial?’’ And they said, ‘‘I didn’t have a lawyer; I had a public defender.’’ And that is an appalling comment at 

what people convicted of crime think about their representative. 

They shouldn’t think that way, but they do because criminal defense—excuse me—appointed criminal defense lawyers are just 

overwhelmed in their work. They have a constitutional and ethical 

duty not to take any more cases when they get overwhelmed. 

In Louisiana, lawyers in some counties have sued the court or 

the state to say, ‘‘I cannot take any more cases; I need help. I am 

overwhelmed. My clients are being convicted because I can do nothing more to defend them when I have to.’’ There is a case in Louisiana, New Orleans for instance, where they have 19,000 cases, 

misdemeanor cases, per public defender. That is 7 minutes a case. 

You cannot represent somebody in 7 minutes. 

And the example of the death penalty Mr. Quigley raised—if the 

state wants to have a death penalty, then they have to pay for it. 

They have to pay for the prosecution, they have to pay for the investigation, and they have to pay for the defense. And 998 out of 

1,000 death penalty cases have appointed counsel. Occasionally 

somebody can afford to pay for counsel; usually they cannot. 

The soundness of our entire system depends upon the accuracy 

of results. Mr. Crotzer’s case points that out. If the wrong person 

is convicted, that means that the perpetrator is still on the street. 

While he spent 20 years in jail, the guy that actually did it is still 

out there. He may have been arrested later for that crime but 

maybe not. 

But all this erodes public confidence in the system of justice. And 

I agree with Mr. Gohmert that there are, in fact, good examples. 

We should study those examples to learn from them. 
44 

But every state manages its own public defense system, and 

some have no system at all. But those systems, the good systems, 

are the exception rather than the rule. I don’t think that even new 

money is necessarily required; just require that when you give, say, 

a million dollars for—or excuse me—a million dollars for prosecution that some percentage of that should be guaranteed for the defense, be it 10 percent, 5 percent, something so that at least we see 

how it works at the state and local level. Because they will take 

all this money, and they will put it all in prosecutors; they will put 

it all in investigators and give nothing for defense because defense 

is secondary to them. 

But I said before, it is a core value of the sixth amendment, and 

don’t let it become an empty right. It continues to be an empty 

right in some states, and it should stop being an empty right. 

Thank you. 

[The prepared statement of Mr. Hall follows:] 
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PREPARED STATEMENT OF JOHN WESLEY HALL
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Mr. SCOTT. Ms. Billings? 

TESTIMONY OF RHODA BILLINGS, CO-CHAIR, NATIONAL 

RIGHT TO COUNSEL COMMITTEE, FORMER JUSTICE AND 

CHIEF JUSTICE OF THE NORTH CAROLINA SUPREME 

COURT, LEWISVILLE, NC 

Judge BILLINGS. Good morning, Chairman Scott and Chairman 

Conyers and distinguished Members of the Subcommittee. Thank 

you for the opportunity to comment on the issues that are raised 

by the report of the National Right to Counsel Committee, of which 

I am a member. 

Having listened to the statements of the Members of the Subcommittee and of my co-witnesses, I have decided to depart completely from my prepared remarks, in part because I think everyone here expresses the same agreement that there is a serious 

problem, a real crisis, in indigent defense across America. A system 

of criminal justice that does not convict the guilty fails society because it leaves on the streets those people who have committed 

crimes and will probably commit them in the future. But a system 

of criminal justice that convicts the innocent, does not exonerate 

the innocent, is totally contrary to our entire American view of justice. 

And we know that people are being convicted who are innocent 

of the crimes. The rate at which our citizens are being incarcerated 

or, even if not incarcerated, are given criminal records that interfere with their ability to find employment and earn a living for 

themselves and their dependents, a rate that is the highest of any 

nation in the world, is a national disgrace. 

I have some statistics on a report from the Pew Center on the 

States and their report released a little over a year ago entitled, 

‘‘More than One in 100 Adults Are Behind Bars’’. That report also 

deals not just with the ones who are behind bars but those who are 

under some present supervision in the form of parole, probation or 

incarcerated. 

In my state of North Carolina, one in 38 adults are under that 

kind of control. In the state of Virginia, it is better; it is one in 46 

adults. In the District of Columbia, it is one in 21. In New York, 

it is one in 53. In Texas, it is one in 22. Those are people that society has either taken away their liberty or has given them a mark 

that prevents them from gaining employment. 

Are we as a Nation that bad? I don’t think so. What we have had 

is an explosion in the kinds of behaviors that are made criminal. 

What we have had is an explosion in the length of sentences that 

are imposed on citizens who are convicted of crimes. And what we 

have had is a system that does not protect from a finding of guilt 

those people who are wrongly accused. 

Yes, there are dedicated criminal defense lawyers across this 

state and this Nation. But, as Bob Johnson told you, we don’t have 

enough of those people, and the people who are dedicated to the defense function are burned out in a very short period of time. They 

have so many cases; they can’t do a good job no matter how dedicated they are because they simply don’t have the resources. They 

don’t have the time. They finally give out of energy. 
61 

I am proud of what North Carolina has done, and Tye has been 

a tremendous asset to the state and was our first director of the 

Office of Indigent Defense Services—set in place a number of policies and a number of studies that have, I think, moved North Carolina very far ahead. But we are a long way from having solved the 

problem, because it is, in large part, a problem of having the money 

and the time to give to those people who are providing the defense 

the things that they need in order to succeed—the training. 

In my state—which you will notice that my experience as a lawyer was that the first time I was in court, shortly after I graduated 

from law school, I defended a person charged with murder. My husband tells and in my statement I tell about my husband representing a defendant who was charged with common law robbery, 

something that has potential sentence of 20 to 30 years. The judge 

pressured, pressured, pressured him to accept a plea of guilty. His 

client accepted a guilty; he refused to. 

That pressure still comes from some judges. We have to stop it. 

The judge says, ‘‘If you don’t accept the plea, I will extend the sentence to be a maximum for whatever he is sentenced for or convicted of.’’ And he was convicted of simple assault in about 30 days. 

The judge says, ‘‘Okay, now it is time for me to set your fee—4 

days of trial, $75.’’ My husband turned and walked away and said, 

‘‘I didn’t try this case for the money, your honor. You can keep your 

$75.’’ 

Those are the kinds of things that we see throughout the system 

time after time after time. What we are here today for is to talk 

about what can we do about it. All governments are struggling 

with budgets. All governments are trying to spend their money 

wisely. How do we get the attention of state legislators who are 

struggling with budget to see that this is an important priority? 

And there is where I think, in addition to the other suggestions 

that have been made, that we can have the Federal Government 

provide leadership in showing the states, bringing it to their attention, the problems that we have in indigent defense and assisting 

in getting them to recognize the problem and that this is a more 

serious problem than some of the things that they are using their 

money to support. 

Thank you. 

[The prepared statement of Ms. Billings follows:] 
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PREPARED STATEMENT OF RHODA B. BILLINGS
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Mr. SCOTT. Thank you, and now we recognize ourselves under 

the 5-minute rule. 

Justice Billings, you are not on the supreme court now—— 

Judge BILLINGS. Correct. 

Mr. SCOTT. If counsel was so ineffective, how do you get a final 

judgment? Why isn’t the supreme court overturning convictions on 

the basis of ineffective counsel? 

Judge BILLINGS. There are, I think—I would give two answers to 

that question. One is that the United States Supreme Court has established a standard for ineffective assistance of counsel. 

Mr. SCOTT. And does that mean that that burden has not been 

met, notwithstanding the fact that you can show that your attorney 

was asleep during the trial? 

Judge BILLINGS. You have to be able to show not only that counsel was ineffective but that, in the absence of that ineffectiveness, 

the result would have been different. And that is a very difficult 

thing to show when you don’t have the evidence that backs up 

what—that is you don’t have the evidence that would have been 

presented to the court had counsel been effective. 

The other thing, of course, and the other second sort of answer 

to your question, Chairman Scott, is that the appellate courts really are not able to substitute their judgment for that of the jury. 

They don’t know what evidence was out there but not obtained. 

And they don’t have the ability to say, ‘‘Well, I don’t believe this 

witness, who is an inmate who testified that the defendant made 

a statement confessing his guilt, when in fact that inmate who is 

the witness against the defendant was only attempting to curry 

favor so that his sentence might be reduced or he might get some 

benefit from the state.’’ So there is no way that really the appellate 

courts can rectify the deficiencies that result from ineffective assistance—— 

Mr. SCOTT. Well, Justice Billings, let me ask you another question, just a kind of philosophical question. Is a guilty person entitled to a fair trial? 

Judge BILLINGS. Yes. 

Mr. SCOTT. If you are on appeal and have to show that the result 

would have been different, that is that there would have been an 

acquittal—if he is in fact guilty, you find he wouldn’t have gotten 

an acquittal if you had a fair trial. And therefore, how, on appeal, 

can a guilty person be guaranteed a fair trial if on appeal the question is: Is he guilty? 

Judge BILLINGS. Well, we don’t know if he is guilty if he was not 

given a trial in which the—— 

Mr. SCOTT. But if you can’t prove his innocence on appeal, that 

is that if you found the evidence they would have found that I 

didn’t do it—if he in fact did it. 

Judge BILLINGS. The problem, I think—I am not, I guess, maybe 

I am not quite following the question. 

Mr. SCOTT. Well, if they did it—you are on appeal. If they found 

out—any evidence they find would only confirm the fact that he in 

fact was guilty. 

Judge BILLINGS. But, you see, the appellate court doesn’t get additional evidence. The appellate court—— 
72 

Mr. SCOTT. Well, whatever evidence they got, it wouldn’t have 

been a different—it would not have been a different result. And 

therefore, under the present system, a guilty person really isn’t entitled to a fair trial, because when he gets on appeal, he can’t prove 

his innocence; he can’t prove that it would have been any different 

because if he had gotten a fair trial, he probably would have been 

found guilty. 

Judge BILLINGS. That is presupposing that the person is guilty, 

but we don’t know until we have had a fair trial whether he is 

guilty. 

Mr. SCOTT [continuing]. That is true. But if he is in fact guilty, 

according to this scenario, he really isn’t entitled to a fair trial because, on appeal, unless he can show some difference, that is he 

would have been acquitted—he shouldn’t have been acquitted; he 

was guilty. 

And so they have a sham trial, he gets on appeal, and he is really in a—and like, you are right, you don’t know whether he is 

guilty or not. So if a guilty person isn’t entitled to a fair trial and 

you get on appeal, an innocent person is stuck with having to prove 

his innocence. 

Judge BILLINGS. Chairman, I would say that everyone is entitled 

to a fair trial. If, as the result of that fair trial, the person is found 

guilty, well, absolutely they should suffer the consequences of their 

guilt. 

Now, one of the things that we have seen happening in some of 

the states—and again making reference to my own state of North 

Carolina, we have an actual innocence commission that has been 

put in place as the result of the number of exonerations that we 

have been seeing, primarily as the result of DNA testing. Now, 

those commissions are looking back at the question of did this person’s—was this person’s trial fair and is there other evidence. 

Mr. SCOTT. That is to show whether they did it or not, whether 

they are in fact innocent. 

Judge BILLINGS. Where they are in fact. 

Mr. SCOTT. And if the person is in fact guilty—— 

Judge BILLINGS. They would not recommend that it be reviewed 

further. 

Mr. SCOTT. And if a person on appeal cannot represent, as part 

of the allegation, that I didn’t do it—if he in fact did it but just 

didn’t get a fair trial, there is nothing there for him. He is not entitled—a guilty person is not entitled to a fair trial. 

Judge BILLINGS. I still say that our Constitution entitles everyone to a fair trial. 

Mr. SCOTT. Well, in the present system, there is nothing to guarantee that for a person who is in fact guilty. 

Judge BILLINGS. There is nothing to guarantee that a person who 

is in fact guilty will not be found guilty and punished. 

Mr. SCOTT. Even if the trial is not fair, because when he gets on 

appeal, he did it. So the fact that he got a unfair trial—there is 

no reversible error for a guilty person being convicted in an unfair 

trial. 

Judge BILLINGS. I cannot say that it is not—there are a lot of 

cases that are reversed on appeal even though the defendant may 

be guilty. The appellate process is not to determine guilt or inno-
73 

cence so much as it is to determine whether there was a fair trial. 

And if some defect in the trial violates the rules, then the appellate 

courts will reverse and send it back for a fair trial to determine 

whether the defendant in fact is guilty. 

Mr. SCOTT. That is the way it ought to work, but as you have 

heard, unless you can—on ineffective counsel, you have to show the 

result would have been different, which only an innocent person 

can do, not a guilty person. So if you have someone like Mr. 

Crotzer, who was innocent, he can pursue his case because he was 

in fact innocent. Had he in fact been guilty and gotten that kind 

of representation, what would have happened? 

Judge BILLINGS. The—— 

Mr. SCOTT. My time is expired. I have got a bunch of other questions. [Laughter.] 

Let me go to the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. The present Chair of the Crime Committee in Judiciary is the finest one that I have ever worked with since I have 

been on the Committee, which goes back an incredibly long amount 

of time. But he has a—he also is a psychological student, and he 

uses reverse psychology in some of his questions, which could confound the normal mind. I am used to it, though. [Laughter.] 

I want to commend him for this series of hearings that he has 

held. This is an enormous subject. And I am not concerned with the 

media, except there is only one reporter in the Judiciary Committee during this hearing. Chairman Scott made me feel a lot 

more comfortable when he told me they are all looking at it up in 

the gallery in their offices. I want to believe that, too. [Laughter.] 

And that puts a finger on the problem, doesn’t it? This is not a 

sexy subject. Who wants to listen? Hey, look, let us—look at all the 

talking heads and drama shows and crime shows and law, how 

prosecutors bust criminals, all that going on, and here we are talking about a whole history of a serious constitutional problem, and 

we scrape up one reporter. 

And I commend all six of you this morning because nobody—we 

have been extremely legalistic, and I am so glad that nobody has 

raised the question of race or racism. I am proud of you. And I am 

not raising it either; I want to keep this discussion clean of that. 

But it occurred to one smart-aleck staffer that the reason for most 

of this is race. So I commend all of you for wanting to do something 

about it. 

We apologize to Rhoda Billings. Her sign should read Chief Justice Rhoda Billings. Since we are putting on she is the former justice, why don’t we put on former chief justice? And she has done 

such—all of you have done such a commendable job. 

Professor Luna deserves a hearing on the constitutional questions that he raises. That could be a panel of serious discussion, because I respect your integrity and the way you pose not only the 

problem but the solution to the problem. All of you have done such 

a great job. 

Now, the question is—and I think it was Malcolm Hunter who 

put it succinctly—it is not just spending, but how will we revisit 

the standards and make them workable? I think that is the crux 

of which I hope our Chair will continue these hearings. 
74 

Now, this raises another subject for the Committee. This is one 

part of the Constitution that is failing to uphold its commitment. 

I mean, everybody—I walk around with a Constitution in my pocket. This thing is failing; we are failing miserably, and this is the 

first major effort to redress it. 

And so one of the questions then—and we are going to be in contact now; you are part of our extended legislative committee now. 

There are a lot of—there is so much going on that we could go into 

this further, but it is a huge undertaking. You could put another 

Subcommittee—we could create another—he has got so many problems: disparity, the state of the prisons, the fact that many people 

are further criminalized after they are incarcerated. He has got 

stacks of stuff. 

And so we have got to look at this as effectively as—you have 

brought in people who have dedicated your careers—Johnson could 

have—all of you could have gone on into much less trying aspects 

of the law or the practice of law, and yet you are here. And that 

is what makes me so very proud of you. We have got a huge job 

to do, and, when we do it, we make the Constitution believable. 

I close with this thought. I keep asking myself how people in this 

country, the greatest democracy, wealthiest, most powerful that 

civilization has ever recorded—and yet you have an election and 12 

percent of the people even bother to cast a ballot, some of them 

people who would have had to pay with their lives to try to cast 

a ballot not that long ago. 

And I think that it goes, Professor Luna, into making people believe that this all amounts to something. This is one of the things 

I am inquiring into. ‘‘Why didn’t you vote?’’ ‘‘Well, we like you, Conyers; we know you are going to get reelected. And, you know, I was 

busy, on my way to work. I am being foreclosed on.’’ And so this 

is what plays a much larger role in the psychological dimension of 

our citizens who say, ‘‘Vote for what?’’ 

We got a prison-to-pipeline system going in nearly every state in 

the union, and they are not all bad people or sub-Klansmen or people with a fanatical racist attitude. Look, folks, it is just the system, Conyers; all these people we are bringing into Federal court 

in your city, all punks on the corner, you arrest them one night, 

there is another group there that are back selling narcotics. 

And they will be in—the next week, they will be brought in in 

chains. And in your heart, you know they are done for. The odds 

against any of them—and it is not that they are all innocent or 

that they were framed, but the system goes for—someone said it— 

overincarceration, overprosecution. 

Look, we caught this guy on the corner, and you know what? And 

with disparity kicking in, another one of his problems, he is going 

to get the max, first time. Sure, he violated the law, but those of 

us who make the law have to ask the question: Is this what this 

country is really all about? 

Is there any way, Luna, that we can devise a system that doesn’t 

coddle criminals or allow us to be told that we are soft on crime 

but yet can understand the dimensions of a community where you 

got 70 percent of the people unemployed? They talk about a 9-percent unemployment rate. Are you kidding? 
75 

And the people that are driving around and looking flashy, they 

are all violating the law hand over fist and everybody knows it, and 

so kids know. We have got graduates now that can’t find a job. People are saying—and it really hurts—‘‘I am not going to college. 

What is the diff? I can make as much money without going to college. What do I need a degree for?’’ 

It is incredible that we could have come to this situation, and 

yet, as you say, we are the primary shareholders in General Motors 

and at the same time that they are closing plants in Detroit, Hamtramck, Trenton and moving out of the country with billions of taxpayer dollars. So I can’t tell you how important your insights are 

to me and how important this Committee is to me. 

Mr. SCOTT. Gentleman from Puerto Rico? 

Mr. PIERLUISI. Thank you, Mr. Chairman. I commend you as 

well. 

The first thing I am going to say is that it is so much easier for 

elected officials to talk about law enforcement as opposed to the 

rights of the accused, and that is why this is—it is a tough one for 

many. 

But all of us who have been officers of the court know that this 

is about justice; it is about the adversarial system that we are supposed to have in America. And the way it works is by both sides 

having access to competent counsel, the prosecution as well as the 

defense, the accused. Right now, it is clear that this is not working. 

And one thing that was mentioned in here—I believe it was, 

well, both Mr. Johnson and I believe also Professor Luna—is that 

we talk about funding. Perhaps this is not a matter of spending 

more money, but we have to also look for a balance in the way that 

the Department of Justice uses its resources. 

There is a wide range of Federal programs assisting prosecutors, 

assisting police and prevention as well, so we have to then determine ways in which we can use Federal funding to improve the 

way we go about complying with the sixth amendment. It could be 

in the area of standards. It was mentioned by Mr. Hall. It could 

be in the area of innovation and quality, trying to spur that. Perhaps we are talking about formula grant programs. It could be discretionary programs, but we have to be creative. 

We have to deal with this. We cannot simply let it continue happening because it ends up with a travesty of justice, like in your 

case, Mr. Crotzer, and in so many others. I wonder, then, what is 

the best way of dealing with this from the point of view of the Federal Government and the point of view of limited Federal resources. 

So I just throw the question, and I assume that any of you, particularly Mr. Johnson or Professor Luna or any of you, could address it—creative ideas, ways in which we can come up with programs at the Federal level to improve the way that we are handling this, because frankly it is really, really, really disturbing. And 

it should be disturbing. 

Mr. JOHNSON. We will pass it down. 

Mr. Chairman, remember, I raised that, and, as you have described, I think it is a very important issue that when you are considering funding some aspect of the state criminal justice system, 

that there be direction to the Department of Justice, if we are routing it through Justice, that that be parsed to all parts of the sys-
76 

tem, that you can’t, as you very accurately recognize, that you can’t 

fund one part of the system and continue to have a system that is 

going to deliver justice because the other parts have to also come 

into play. 

You can’t fund specialty courts unless you are also going to fund 

the defense aspect of the specialty courts. You can’t put enormous 

amount of money into drug interdiction if you are going to deal 

with the drug problem through the criminal justice system. You 

can’t just provide that to drug task forces and to prosecutors to 

prosecute that. You also have to provide funds if you are going to 

have a system of justice to the defense side, too, so that we can effectively deal with those and perhaps not quite as harshly as we 

historically have been doing. 

Mr. HALL. Mr. Chairman, I would suggest that you look at the 

Administrative Office of the Courts. They fund the Federal defender system. And the Federal defender employees make as much 

as the U.S. attorneys make. They are adequately staffed. They 

have caseload numbers. And when they reach a caseload maximum, they put other people on staff, the same as the U.S. attorney 

does. 

Just look at that system. It is administered throughout the Federal Government by the Judiciary on the defense side, but the Department of Justice has an equal balance through the Federal defender. 

The problem is, what happens when it gets down to the state 

level? You give the money to the states, and they get whatever 

number of millions of dollars for prosecution; none of that goes for 

defense. And that just gives another overwhelming advantage to 

the prosecution. Some part of that money could be delegated to the 

defense. So you are not spending any more, but you are requiring 

them to guarantee the sixth amendment right to counsel in these 

new prosecutions that they are trying to instill. 

Mr. LUNA. I would commend Chairman Conyers for his words. 

And just to add a little—this is to add on to what he said. If you 

placed a prison wall around North Dakota, South Dakota and Wyoming and counted every person as an inmate, it would not equal 

the total prison and jail population in America. And only to give— 

you would have to add American Samoa, Guam and the U.S. Virgin 

Islands penal colonies for it to get very close. That is the problem 

is we are looking into obviously indigent defense and, as was said 

earlier, it is constitutionally required. There is no doubt about that. 

But unfortunately, it is at the very end of the line. 

There is a lot that happens before then to lead to this problem. 

Overcriminalization is a real problem. The abuse of the criminal 

justice system, the incentive structures that police and prosecutors 

have to arrest and to prosecute—those are very troubling in our adversarial system. In terms of what Congress can do, I think there 

are many things that it can do that are consistent with the Constitution. 

I would throw this out. I know this won’t be very popular with 

law enforcement and with the prosecutor’s office, but one possibility is to simply end Federal funding and the Byrne Grants, 

which have, among other things, led to the scandal in Tulia, Texas. 

And that is a possibility. That is a very easy way to end disparity. 
77 

I understand that is probably unlikely, given the constituents and 

their desires for Federal funds. 

I think a way forward that is very plausible is for the Federal 

Government to be a role model. The Federal criminal code, if you 

want to call it—and it is no criminal code; it is spread throughout 

the U.S. Code—contains more than 4,000 different provisions that 

are punishable as crimes. That is quite simply ridiculous. Mandatory minimums, which are being addressed by Members of this 

Committee, should be looked at and, I believe, eliminated. You 

have sentencing guidelines—are absolutely indescribable, truly indescribable, and they should be looked at as well. 

And I would advocate your support for Senator Webb’s call for 

a study commission on the criminal justice system as a whole because, again, indigent defense is constitutionally required. Truly, 

we should be outraged that the states are not meeting their obligations, but it is part of a larger problem as to why, at the end of 

the day, they are not getting representation. 

Mr. PIERLUISI. Can I use a bit more of my time? Actually, I think 

it expired a moment ago, Mr. Chairman. 

Mr. SCOTT. The gentleman’s time is expired. The gentleman is 

given an additional 2 minutes. 

Mr. PIERLUISI. Just thought a variation of your proposal on the 

Byrne Grant could be that you track caseloads. You track what is 

happening and then you condition this funding upon complying 

with the constitutional requirement and improving upon your 

record, tying one thing to another. That could be an avenue. 

I wonder, are there recent studies comparing the conviction rates 

and length of sentences between defendants represented by appointed counsel as opposed to those represented by privately hired 

attorneys? Are there any recent studies? Because if not, the Federal Government could also—Congress could provide some funding 

to conduct them. But do you know of any? 

Mr. LUNA. I personally don’t. Maybe Chief Justice Billings might 

have heard of something. 

Judge BILLINGS. I am trying to remember—and, Tye, maybe you 

can help—that I think in some of the studies that Margaret 

Gressens from your staff is conducting that there is some information on that disparity in the study that she did. But I don’t have 

it—— 

Mr. SCOTT. Which way is the disparity? 

Judge BILLINGS. That those who are represented by private counsel, in similar situations, get much shorter sentences, come out 

with a much better result, but I really can’t support this. It is just 

something that is a memory of something that I have read in an 

effort that the IDS in North Carolina has conducted, but I can’t be 

sure about it. 

Mr. CONYERS. Mr. Chairman, for a moment. 

Mr. SCOTT.—Puerto Rico yield? 

Mr. PIERLUISI. I yield. 

Mr. CONYERS. I would like to put this on the record because I 

would like—I would like you six to help me develop it. We have 

had all of you here. I would like to invite some people that may 

have a different experience and even a different view. 
78 

I remember Reed Walters, the district attorney from Jena, Louisiana, in September 3 years ago, who went to a school there and 

he lectured the students about—that were involved in the protest, 

and he said: I can be your best friend or your worst enemy; I can 

take away your lives with a stroke of my pen. I would like Attorney 

Walters to be a witness at one of these hearings. 

I would like to have the U.S. attorney for the Eastern District 

of Michigan be a witness. And I would like to—I think we should 

entertain, with the openness of which this Committee operates, 

people who may have a different—a legitimate different point of 

view from what has been expressed here. I think it is important 

that we listen. 

There are some people that seriously and honestly believe that 

locking them up and throwing away the key apply to as many people as we can get our hands on. And I think there ought to be a 

hearing of that point of view, just to see, get a feel of where we 

are, Chairman Scott. 

Mr. SCOTT. Thank you, the gentleman’s time is expired. We will 

start another round. 

And, Mr. Hunter, could you describe the agency that you head 

right now? Is it a support group or do you provide actual court representation? 

Mr. HUNTER. The Center for Death Penalty Litigation is a nonprofit law firm. We actually litigate. We represent clients at trial 

and—— 

Mr. SCOTT. Just the death penalty? 

Mr. HUNTER. Just for death penalty cases. Prior to that, I was 

the director of the Office of Indigent Defense Services, which Chief 

Justice Billings was a commission member, one of my bosses in 

that, and that was a administrative office that oversaw the provision of indigent defense for people all over North Carolina. 

Mr. SCOTT. Now, do you have public defenders, as opposed to 

court-appointed attorneys? 

Mr. HUNTER. We have a mix. We have public defenders in about 

40 percent of the state, mainly where we have our larger towns, 

and then we have an appointed list in our more rural areas in 

North Carolina. 

Mr. SCOTT. And do you provide resources for attorneys’ education, professional CLE and that kind of stuff? 

Mr. HUNTER. We do provide training. We have manuals, you 

know, that we make available, actually free of cost. You can 

download them from off the Internet. 

Mr. SCOTT. Now, how much does that service cost? One of the 

things that occurs to some of us—that a resource like that statewide would be better than trying to have each county figure out 

what they are doing or even a national so that each state doesn’t 

have to replicate the same kind of resource. How much does that 

cost to keep the Services Commission up and running? 

Mr. HUNTER. I think, well, the cost of our office is—I don’t 

know—is about maybe a million or a million and a half dollars. The 

total cost of indigent defense in North Carolina is, I think, around 

maybe a little bit higher than the middle of the road if you look 

at cost per citizen for indigent defense and you look at the 50 

states. The last time I looked at one of Mr. Scanshenberg’s 
79 

rundowns of that, we were a little bit above the average. We were 

in the 20’s among the 50 or 51 jurisdictions—— 

Mr. SCOTT. And how much money was spent—— 

Mr. HUNTER. I don’t remember—well, we—— 

Mr. SCOTT. I am looking for what portion of the defense cost was 

spent on the Indigent Services Commission staff. 

Mr. HUNTER. Well, less than 1 percent. 

Mr. SCOTT. Okay. 

Mr. Crotzer, how long after the conviction, your conviction, did 

they test the evidence, the DNA? 

Mr. CROTZER. Approximately 23 years. 

Mr. SCOTT. Why did they still have the evidence? 

Mr. CROTZER. Well, they thought they didn’t. My evidence was 

found in a FDLE crime lab in the basement in a file cabinet where 

the maintenance man probably would look. And it sat there in a 

climate-controlled environment, five microscopic slides. 

Mr. SCOTT. And did the DNA point to the person that actually 

did it? 

Mr. CROTZER. What the DNA did was totally exclude me. My 

lawyers told me that I was the most fortunate unfortunate person 

they ever met because BHR was double rape, and this biological 

evidence from the actual rape kits, the swabs, cuttings from the 

undergarments—all those things were intact in those five microscopic slides from both rape victims. So what it did—it excluded 

me. And the individual that you are asking about, as far as him 

ever paying for the crime, the statute of limitations would not 

allow him to be prosecuted for that. 

Mr. SCOTT. But it did point to him? 

Mr. CROTZER. No, it did not—because they were never allowed to 

ask for DNA. They couldn’t approach him because he was never incarcerated. 

Mr. SCOTT. Do they know who it is? 

Mr. CROTZER. They found out who he was through two people 

that were charged with me, two blood brothers that their homeboy 

grew up with. So that is how they found out who he was. But he 

wouldn’t even come forward even after knowing that he would not 

be charged to even testify on my behalf to try to free me prior to 

DNA testing. 

Mr. SCOTT. Mr. Hunter, you talked about a fair share of resources. Is the prosecutor’s office in an area more expensive to run 

than defense? 

Mr. HUNTER. Generally, yes. It really depends on the area. You 

know—— 

Mr. SCOTT [continuing]. All cases, some cases where the person— 

you can do a freebie on; there is not a whole lot of defense work 

to be done. 

Mr. HUNTER. Well, if you look—that is true, Mr. Chairman. If 

you look at the typical what we call district court, which is our 

lower-level court, there is usually an assistant district attorney 

who is in there handling cases. And there might be 100 or 150 

cases that are resolved in a day with one assistant district attorney 

in that case. 

Defense lawyers, you cannot have 150 clients in 1 day; even on 

the 7-minute rule you can’t have 150 clients in 1 day. So we talk 
80 

about parity in funding. They are really not mirror-image functions, especially, I think, at the lower level where a lot of the work 

has been done by law enforcement and the prosecutor is just carrying that to the court. 

Defense has a duty to do an independent investigation, which I 

would say it is almost never done in lower-level cases, and then advise the client on how to proceed. So that is quite a different role 

than the prosecutor’s role, which is largely consulting with the arresting law enforcement officer who has already done an investigation and a report. 

I know that doesn’t work—you don’t need to tell me, Mr. Johnson—that doesn’t work perfectly every time. The point I am making is that the roles are really not mirror images. And I think 

sometimes that can make it even worse, the disparities in funding, 

especially at the lower level. 

Mr. SCOTT. Let me ask Mr. Hall, on the lower level, what is it 

about misdemeanor cases that makes resolving ineffective counsel 

issues more difficult? 

Mr. HALL. Misdemeanor cases usually don’t end up being a part 

of the ineffective assistance claims that are brought. Those are 

brought by people in prison saying, ‘‘I shouldn’t be here at all because my lawyer was ineffective.’’ 

But people are herded through the criminal justice system at the 

low end for misdemeanors. They are given offers they can’t refuse: 

Take probation and be done with it. And then they find out later 

that that probation or short term in jail ended up costing them 

more. 

For instance, the poor are especially vulnerable for those types 

of outcomes because they can’t pay a fine; they can’t pay a lawyer. 

So they end up going to jail in lieu of paying a fine sometimes, and 

then they find out there are collateral consequences. For instance, 

somebody pleads to an offense and now they can’t stay in public 

housing anymore; they are not entitled to some type of public assistance and even get kicked out of college for misdemeanors. 

Mr. SCOTT. Do most states have automatic rights of appeal de 

novo for misdemeanors? 

Mr. HALL. Many states do; I don’t know how many do. My state 

for one does. Most of the states around me do. But that doesn’t 

mean that those rights will ever be exercised. 

The person goes off to jail, gets a 5-day sentence, for instance, 

and that may cost the county $500 to keep that person for that 5 

days. And that is added cost when they shouldn’t have ever been 

prosecuted in the first place because it is an overcriminalization 

problem in part. It is throw everybody in jail, as Mr. Conyers said, 

also in part. 

And the focus of the system just seems to be convict them all; 

let God sort it out. And it should be everybody should get a measure of justice to at least decide whether or not they are really 

guilty before they plea to it. Sometimes it is easier to plea than to 

confess; at least that is the view that they see in the lower-level 

courts. 

Mr. SCOTT. Well, particularly it is true if the pleading just gets 

you the collateral consequences later. You don’t serve any jail time 
81 

now, and you walk out of court. And you think that is the end of 

it until you try to get a job. 

Mr. HALL. And you don’t even know about the collateral consequences sometimes for years. Sometimes you find out the next 

day, but sometimes you don’t find out for a long time. 

Mr. SCOTT. Professor Luna, you mentioned the moral hazards. Is 

one of the moral hazards that is not being paid for in the system 

the fact that you are not having good literacy programs in the third 

grade and those children get into the cradle-to-prison pipeline? 

Mr. LUNA. That is a problem. I don’t think it quite fits the definition of moral hazard, but certainly it is a problem. The possibilities 

in the individuals—I mean, this is in a very real sense—and I don’t 

disagree with anything that has been said here. But in a very real 

sense, the criminal justice system has become a war on the poor. 

And that should concern everyone. I have no doubt that that is 

something that needs to be addressed. Again, my concern is how 

to address it, rather than whether it needs to be addressed. 

Mr. SCOTT. One of the things that keeps coming up is the excessive caseloads. Why can’t lawyers ethically say no to additional 

cases when they are obviously—when, I mean, 19,000 in Louisiana—why don’t they just say no and not accept the cases? 

Mr. Johnson? 

Mr. JOHNSON. Mr. Chairman, oftentimes the defenders have a lot 

of pressure put on them by the court. The court will tell them that 

they are going to defend this person, and it takes a lot of courage 

when you are supporting a family as a defender to say no and put 

themselves at risk. 

And then the head of their agency may not be as sympathetic to 

them saying no. It is both an individual and an agency responsibility to draw the line. And if there is a lot of pressure in the system for them to just bow to the wishes of the system—— 

Mr. SCOTT. And do any lawyers put on the record the fact that, 

at the beginning of the case, that they have not had an adequate 

time to prepare because of their caseload and let the appellate 

courts see that? 

Mr. JOHNSON. Mr. Chairman, I understand that that has been 

done around the country, but they will put it on the record, and 

it won’t be of any significant consequence that they put it on the 

record, and then go on from that. Again, all the circumstances surrounding—— 

Mr. SCOTT. Because ineffective counsel is for harmless error? 

Mr. JOHNSON. Right. If I might, Mr. Chairman, add one thing on 

another matter that Mr. Conyers had—or Chairman Conyers had 

raised. And that is there are a lot of prosecutors in this country 

who think that incapacitation is protecting public safety, and they 

honestly believe that. That is, I suggest—and if I would like to 

have you consider this aspect of it—we do criminal justice in the 

United States quite differently from the rest of the world. 

Every place else in the world, prosecutors are appointed; they are 

not elected. Everyplace else in the world, they are big systems 

where people in those systems have a time to think about criminal 

justice policy and what is the appropriate thing to do. I do a fair 

amount of work with international prosecutors and understand the 
82 

way that they can think about criminal justice systems in their 

system. 

In the states, we have over 2,400 little empires like mine, where 

I am the absolute authority as to criminal justice. Most of the prosecutors of that over 2,400 are in very small systems. They are moving cases. They don’t have time to think about criminal justice policy, what is right. The answer for them is real easy: Put them in 

prison. And it doesn’t go any further than that. 

Very few big systems, like Chicago or L.A., where they sit back 

and can think about and study—in other countries—you have one 

prosecution system in England, one in Ireland. In Canada, it is one 

for every province. In Australia, it is one for every state. And they 

sit back and really think about criminal justice and what is the 

right thing to do. 

In other countries, prosecutors don’t lobby. In the states, we hire 

lobbyists. We are in the halls of the legislature every day. That influences criminal justice policy. And that is what drives the criminal justice policy in the states and the, in my mind, the major reason that we have the type of system we have. 

Mr. SCOTT. Justice Billings? 

Judge BILLINGS. One obviously should never speak unless they 

have the facts on which to base their statement, and I just want 

to correct my sort of side comment about a study on disparity of 

sentences. What this was was not disparity of properly assigned 

counsel versus appointed counsel; it was disparity between guilty 

pleas and going to trial. 

And this raises another issue that we really haven’t talked about 

that is also a matter of great concern with the indigent defense system. And that is that because of the inability of counsel to investigate because counsel aren’t appointed soon enough, we have a lot 

of people who are sitting in jail awaiting trial, and that period of 

time that they are sitting in jail awaiting trial, they lose jobs; they 

are unable to support their families. They reach the point where 

they will plead guilty simply to get out of jail. 

And the study that I was remembering incorrectly was that following—the sentences following jury trials are 44.5 months or 33⁄4

years longer than those following guilty pleas, which is a pressure 

on people to plead guilty because, if they exercise their right to jury 

trial, they will be punished for exercising that right, which is another travesty within our system. 

Mr. SCOTT. I would suspect that there is a difference between 

court-appointed and public defenders. Public defenders are criminal 

law specialists; court-appointed in a—you don’t know what you are 

going to get. You might have a real estate specialist taking a case 

that they don’t know a lot about. But a public defender is a criminal law specialist, so I think you might get better representation 

there if there is a rational caseload. 

Mr. Hunter? 

Mr. HUNTER. Well, I think you get more variety. You can get absolutely great lawyers who are court appointed. Most real estate 

lawyers, frankly, unless real estate is terrible, they are not interested in accepting an appointed case. But you can also get—they 

are not real estate specialists but they are lawyers that, frankly, 

are not making it in the private sector, and so they are appointed 
83 

cases. You know you don’t have to—your client doesn’t have to 

agree to hire you. He is stuck with you. 

And that, I think, is another problem with our indigent defense 

system that we haven’t touched on is the fact that clients have so 

little power. In lawyers in private practice, the market operates in 

some way. People don’t always choose wisely when they have the 

money to hire a lawyer, but in general I think the market works. 

We don’t have that in indigent defense. 

I mean, one of the innovations I would love to see is to have a 

system where people who require appointed counsel get to pick 

their lawyer from a list. I just think that one thing might make a 

big difference in both the way lawyers feel about their clients and 

about the way the client feels about the lawyer. One thing about 

a hired lawyer is you have committed to that lawyer. You went 

somewhere and you decided this is the person who I want to represent me. If someone is just presented to you, of course you don’t 

have the same feeling; you didn’t make the decision. 

And so that is one. It wouldn’t cost any money; it would just be 

a different way of trying it. And I would like to see that. I think 

that might, you know—that is an innovation I would just like to 

see tried somewhere and see where it goes. But I think that would 

be an improvement without spending any more money. 

Mr. SCOTT. Thank you. 

Mr. Hall, did you have a comment? 

Mr. HALL. Yes, sir, again I would suggest you look at the Federal 

model. In my jurisdiction, there are probably 20 assistant U.S. attorneys and maybe seven in the Federal defender’s office, but the 

Federal defender cannot represent everybody in a multidefendant 

conspiracy case. They represent one and the rest go to appointed 

counsel under the Criminal Justice Act. 

And in the Eastern District of Arkansas, there are about 5,500 

to 6,000 lawyers in that district, but only 39 are on the appointed 

list, and they have to go through screening by the district court to 

get on the list. They are all criminal law specialists, and I am 

proud to say I am on that list. 

Mr. SCOTT. That is in the Federal system. 

Mr. HALL. That is in the Federal system. 

Mr. SCOTT. Well, I want to thank our witnesses for being with 

us today. The Members may have additional written questions for 

witnesses, which we will forward to you and ask that you answer 

as promptly as you can so the answers may be part of the record. 

The Brennan Center for Justice has submitted written testimony 

which, without objection, will be included in the record. 

[The information referred to follows:] 
84 

PREPARED STATEMENT OF MELANCA D. CLARK, COUNSEL, 

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW
85 
86 
87 
88 
89 
90 

*Note: The information referred to, ‘‘Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,’’ a report of the National Right to Counsel Committee, April 2009, 

is not reprinted here but is available at the Subcommittee. The report can also be accessed at: 

http://www.nlada.org/DMS/Documents/1239831988.5/ 

Justice%20Deniedl%20Right%20to%20Counsel%20Report.pdf 

Mr. SCOTT. And also the reports that I indicated, ‘‘Justice Denied: America’s Continuing Neglect of Our Constitutional Right to 

Counsel,’’ a report of the National Right to Counsel Committee,* 

and ‘‘Minor Crimes, Massive Waste: The Terrible Toll of America’s 
91 

**Note: The information referred to, ‘‘Minor Crimes, Massive Waste: The Terrible Toll of 

America’s Broken Misdemeanor Courts,’’ a report of the National Association of Criminal Defense Lawyers, April 2009, is not reprinted here but is available at the Subcommittee. The report can also be accessed at: http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/ 

$FILE/Report.pdf 

Broken Misdemeanor Courts,’’ by the National Association of 

Criminal Defense Lawyers,** will also be made part of the record. 

Without objection, the hearing will remain open for 1 week for 

the submission of any additional material. 

And without objection, the Subcommittee stands adjourned. 

[Whereupon, at 11:22 a.m., the Subcommittee was adjourned.] 

(93) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
94 
95 
96 
97 
98 

f 
99 
100 

f 
101 
102 

f 
103 
104 

f 
105 
106 
107 
108 
109 
110 
111 
112 

Æ