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S. HRG. 107–917

PROTECTING THE INNOCENT: PROPOSALS TO

REFORM THE DEATH PENALTY

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 18, 2002

Serial No. J–107–86

Printed for the use of the Committee on the Judiciary

(

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COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington, prepared 

statement .............................................................................................................. 61

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 22

prepared statement .......................................................................................... 116

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 126

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 144

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 25

prepared statement .......................................................................................... 234

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 18

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina, 

prepared statement .............................................................................................. 239

WITNESSES 

Delahunt, Hon. William D., a Representative in Congress from the State 

of Massachusetts .................................................................................................. 3

LaHood, Hon. Ray, a Representative in Congress from the State of Illinois ..... 5

Liebman, James S., Simon H. Rifkind Professor of Law, Columbia University 

School of Law, New York, New York .................................................................. 10

Logli, Paul A., State’s Attorney, Winnebago County, Illinois, Rockford, Illinois, 

on behalf of the National District Attorneys Association ................................. 13

Otis, William G., Adjunct Professor of Law, George Mason University, Falls 

Church, Virginia ................................................................................................... 16

Scheck, Barry, Co-Director, Innocence Project, Benjamin N. Cardozo School 

of Law, New York, New York .............................................................................. 7

Yackle, Larry, Professor of Law, Boston University School of Law, Boston, 

Massachusetts ...................................................................................................... 12

QUESTION AND ANSWER 

Response of Mr. Liebman to a question submitted by Senator Sessions ............ 37

SUBMISSIONS FOR THE RECORD 

Accuracy in Media, Reed Irvine, Editor, Washington, D.C., report ..................... 38

Amnesty International, Washington, D.C., statement ......................................... 47

Barlyn, Bennett A., Deputy Attorney General, Division of Criminal Justice, 

Appellate Bureau, Trenton, New Jersey, statement ......................................... 49

Cassell, Paul G., Wall Street Journal, June 16, 2000, article .............................. 63

Crenshaw, Clay, Assistant Attorney General, State of Alabama, Montgomery, 

Alabama, letter ..................................................................................................... 65

Criminal Justice Legal Foundation, Michael Rushford, President, Sacramento, 

California, press release ...................................................................................... 66

Current and former prosecutors, law enforcement officers and Department 

of Justice officials, joint statement ..................................................................... 70

Delahunt, Hon. William D., a Representative in Congress from the State 

of Massachusetts, prepared statement ............................................................... 72

Del Papa, Frankie Sue, Attorney General, State of Nevada, Carson City, 

Nevada, statement ............................................................................................... 74

Department of Justice: 

Bureau of Justice, report ................................................................................. 76

Page

IV

Department of Justice—Continued

supplementary data .......................................................................................... 88

Eisenberg, Ronald, Deputy District Attorney, Philadelphia, Pennsylvania: 

capital litigation report .................................................................................... 111

comment ............................................................................................................ 114

Graci, Robert A., Assistant Executive Deputy Attorney General for Law and 

Appeals, Criminal Law Division, Pennsylvania Office of Attorney General, 

Philadelphia, Pennsylvania, statement .............................................................. 119

Hoffmann, Joseph L., Indiana Law Journal, Fall, 2001, lecture ......................... 128

Kenny, Hugh, Senior Assistant Attorney General, Office of the Attorney General, State of Wyoming, Cheyenne, Wyoming, letter ........................................ 140

LaHood, Hon. Ray, a Representative in Congress from the State of Illinois, 

prepared statement .............................................................................................. 142

Liebman, James S., Simon H. Rifkind Professor of Law, Columbia University 

School of Law, New York, New York, prepared statement .............................. 146

Logli, Paul A., State’s Attorney, Winnebago County, Illinois, Rockford, Illinois, 

on behalf of the National District Attorneys Association, prepared statement and attachment ........................................................................................... 164

Mangino, Matthew T., District Attorney of Lawrence County, Pennsylvania, 

York Sunday News, June 9, 2002, article .......................................................... 185

New York Times, June 18, 2002, editorial ............................................................ 188

Otis, William G., Adjunct Professor of Law, George Mason University, Falls 

Church, Virginia, prepared statement ............................................................... 189

Pryor, Bill, Attorney General, State of Alabama, Montgomery, Alabama, letter 

and attachments ................................................................................................... 201

Rubin, Paul H., Atlanta Journal-Constitution, March 13, 2002, article ............. 219

Scheck, Barry, Co-Director, Innocence Project, Benjamin N. Cardozo School 

of Law, New York, New York, prepared statement .......................................... 220

Schulze, Victor-Hugo, II, Deputy Attorney General, Office of the Attorney 

General, State of Nevada, Las Vegas, Nevada, letter ....................................... 231

Sneider, Jaime, Columbia Daily Spectator (Columbia University), article ........ 236

Tucker, William, Wall Street Journal, June 21, 2002, article ............................. 245

Twist, Steve, Arizona Attorney, November, 2000, article .................................... 248

Victim and survivor support for the Innocence Protection Act, joint statement 251

Voices of support, Innocence Protection Act, list and attachments ..................... 255

Washington Post, June 18, 2002, editorial ............................................................ 262

Willing, Richard, USA Today, June 18, 2002, article ........................................... 263

Wilson, James Q., Deseret News, July 11, 2000, article ...................................... 268

Yackle, Larry, Professor of Law, Boston University School of Law, Boston, 

Massachusetts, prepared statement ................................................................... 271 

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PROTECTING THE INNOCENT: PROPOSALS TO 

REFORM THE DEATH PENALTY 

TUESDAY, JUNE 18, 2002

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 10:17 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feingold, Specter, and Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, and I apologize for the delay, 

but we were having a vote and thought there was going to be a second one on the floor. I hate to be holding up Congressman LaHood 

and Congressman Delahunt, who are not only two of the best members of the other body, but two close friends. 

It has been a year since our full Committee held a hearing to examine the need for reform of the capital punishment system. Since 

then, like waves piling sand on the shore, more and more evidence 

has accumulated, exposing a death penalty system that is broken. 

A year’s time has also exposed more of the toll that this broken 

system is taking on the lives of those wrongfully convicted. 

A year ago, I spoke of 96 exonerated capital prisoners. Now, we 

have reached 101. I was just introduced to Ray Krone, the 100th 

capital prisoner to be exonerated. He is here today. He served 10 

years in prison, 3 of them spent on death row. Then Ray Krone was 

proven innocent. I don’t think any of us can even imagine what one 

day on death row would be like, knowing we had not committed the 

crime. 

In fact, DNA evidence pointed squarely to the real killer in that 

case. Because they had locked up the wrong person, police stopped 

looking for the man who had committed the crime. But while they 

had the wrong person locked up, the man who committed the crime 

went out to sexually assault another woman. 

On its front page today, USA Today tells Ray Krone’s story and 

reports how shabbily our Federal and State laws often treat 

exonerees like Ray for the time lost behind bars. After more than 

a decade in State prison for a crime he did not commit, Ray Krone 

got an apology from the prosecutor and $50, and he was sent on 

his way. In case those who are taking notes didn’t hear that, after 

spending 10 years, 3 months and 9 1/2 days in prison, he was given 

$50 and told to start his life over again. 

2

Governor Ryan of Illinois, who showed great courage two years 

ago by announcing a moratorium on executions in his State, recently announced the results of the commission he appointed to 

study problems in the Illinois system of capital punishment. The 

commission recommended 85 changes and improvements. Incidentally, this was a commission whose members represented many 

points of view across the political and ideological spectrum. 

A significant number of those 85 recommendations have been 

embraced by even those who steadfastly support the death penalty. 

Senator Feingold chaired a hearing on the Ryan commission report 

just last week, and I commend him for the excellent work he has 

done on that. 

In May, the State of Maryland announced a moratorium on executions to investigate concerns about racial and geographic disparities in that State’s capital punishment system. 

Just two weeks ago, the Supreme Court let stand the Fifth Circuit Court of Appeals decision in the ‘‘sleeping lawyer’’ case. This 

was the case in which the Texas Court of Criminal Appeals said 

it didn’t violate a defendant’s right to counsel when his lawyer 

slept all the way through the trial. The Texas Court said basically 

that the Constitution said only that you were entitled to a lawyer; 

it didn’t say you were entitled to have the lawyer stay awake. The 

Fifth Circuit Court of Appeals said that unconscious counsel 

equates to no counsel at all, and the U.S. Supreme Court has let 

that stand. 

So all of these are reasons are why we must have legislative action. For more than two years, I have been working to pass a bill 

called the Innocence Protection Act. I introduced it in February of 

2000. Around the same time Congressman Bill Delahunt, of Massachusetts, and Congressman Ray LaHood, of Illinois, introduced the 

Innocence Protection Act in the House of Representatives. 

We have 26 cosponsors in the Senate, and I thought there were 

233 in the House, but Congressman LaHood tells me it is 236 now. 

That is Democrats and Republicans, and I think it is safe to say 

they go across the spectrum from those who support the death penalty to those who oppose it. 

It is hard to get 236 cosponsors for Love Your Puppy Day, let 

alone on a third-rail issue like death penalty reform. I think the 

whole country should thank the Congressmen for what they have 

done. Reflecting the strong and growing interest in these reforms, 

House Judiciary Chairman Sensenbrenner and Crime Subcommittee Chairman Smith have scheduled a hearing on this bill 

this afternoon. 

It is incredible momentum generated in support of reform, but 

that doesn’t mean that all the reformers speak with the same voice. 

Among the members of this Committee, four of us—Senators Specter, Feinstein, Feingold, and myself—have drafted legislation proposing different types of changes to the system. 

What is most significant is not the differences between these 

bills, but the fact that each of us knows, and all of our cosponsors 

agree, that reform is needed before more innocent defendants are 

wrongfully convicted and sent to death row. 

Today, in addition to having Ray Krone here, sitting right beside 

him is Kirk Bloodsworth. I have gotten to know the Bloodsworths 

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and they are fine people. Kirk was wrongfully convicted of the rape 

and murder of a young girl, a heinous crime, one that calls out for 

punishment of the person who did it. But the problem was they 

had the wrong person, and the wrong person was convicted and 

spent nine years trying to prove his innocence. Both of these cases 

were ultimately solved by DNA evidence, so we need to provide access to testing, where available. 

What causes innocent people to be convicted in the first place? 

In June of 2000, Professor Jim Liebman, who is going to testify 

today, and his colleagues at the Columbia Law School released the 

most comprehensive statistical study ever undertaken of modern 

American capital appeals. They found serious errors in two-thirds 

of all capital cases, mostly commonly because of grossly incompetent defense lawyers. 

We owe it to exonerees like Kirk Bloodsworth and Ray Krone to 

ensure that more innocent defendants are not convicted and sentenced to death for crimes they did not commit. As a U.S. Senator 

and as a former prosecutor, I can say we owe it to the American 

people to find the real killers and keep them off the streets, instead 

of resting easy and thinking we have solved the problem by locking 

up the wrong person. The real killer is still on the street, still looking for new victims. We owe it to our democratic system of Government and to the way of life we cherish to prevent the erosion of 

public confidence in our criminal justice system. 

So I thank our first witnesses. I am especially grateful to them 

for taking the time to come here this morning, especially when they 

have got to hold a hearing this afternoon. 

Gentlemen, the last thing in the world I am going to do is determine who goes first in the other body, so I will leave it to you guys. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

STATEMENT OF HON. WILLIAM D. DELAHUNT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS 

Representative DELAHUNT. I will proceed, Mr. Chairman. On behalf of our other colleagues, some 236 in the House who have cosponsored the Innocence Protection Act, let me thank you for convening this hearing today and inviting Ray and myself to testify. 

I also want to offer our gratitude for your leadership. It has been 

truly remarkable, Senator, and it is a wonderful legacy that I know 

once this proposal is signed into law, you can look back on with 

profound pride. 

I also am aware that you have been working with Senator Specter and Senator Feinstein and other members of the Committee to 

develop a consensus, and I am pleased to report to you that we are 

pursuing a similar effort in the House. As you indicated, this afternoon we will be having a hearing before the Crime Subcommittee 

and I am hopeful that our efforts in the House will result in an end 

product that we can all embrace. 

Let me suggest that this bill is much more than simply preventing wrongful convictions and giving justice to the wrongfully 

convicted. It is also about restoring confidence in the integrity of 

our entire justice system, a system that is the backbone of a 

healthy, vibrant democracy and really separates us from other naVerDate Mar 21 2002 08:22 May 02, 2003 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\HEARINGS\86617.TXT SJUD4 PsN: CMORC
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tions, but whose success depends on its ability to maintain the confidence of the American people. 

As you have indicated, that confidence has been profoundly shaken by recent findings about the rate of serious reversible error in 

death penalty cases, as well as a growing number of cases reported 

in the national press in which innocent people have been exonerated. You mentioned Kirk Bloodsworth, who spent 9 years in prison in Maryland, including 2 on death row, and Ray Krone, who 

spent 10 years in prison in Arizona, 3 of them on death row, and 

Marvin Anderson, who is also with us today. 

By the way, Senator, I think we should note that our bill and our 

House version, which is a mirror image of the bill that you filed, 

would increase that compensation at the Federal level from $5,000 

per year served in cases of those convicted of capital crimes to 

$100,000 on an annual basis, and I truly wonder if that is sufficient, Mr. Chairman. 

DNA really provided us with a great opportunity to examine the 

frailties of the system. It was DNA that revealed the frailties in the 

system, and it also provided us with insights in how to address 

those deficiencies, how to correct them. DNA testing taught us that 

the best safeguard against wrongful convictions is a qualified lawyer with the resources necessary to present a vigorous defense in 

capital cases. That is what we have learned because of DNA. 

It is cases like Marvin Anderson and Ray Krone and Kirk 

Bloodsworth that I believe caused respected judges, judges like 

Sandra Day O’Connor, to express concern publicly that the system, 

and I am quoting Justice O’Connor, ‘‘may well be allowing some innocent defendants to be executed.’’

Well, as he will shortly testify, Professor Liebman examined over 

4,500 capital sentences handed down since 1976 and discovered 

that the courts had found serious reversible error in 68 percent of 

those cases. That is an error rate of almost 7 out of 10, and I think 

we can all concur that is simply unacceptable. 

Now, some have suggested that the high rate of reversals demonstrates that the system is working. Well, I would suggest that is 

nonsense. We cannot know whether the appeals process is catching 

all the errors or not. We just simply can’t determine that. We can’t 

make that assessment. But what we do know is that the errors are 

not being caught at trial and innocent people are being convicted, 

while the guilty, as you indicated, remain free to prey on our communities. 

The Act before us focuses on the two most effective steps that we 

can take to ensure greater fairness and accuracy in the administration of justice—access to post-conviction DNA testing and the right 

to adequate legal services in death penalty cases. 

DNA has exonerated 12 of those who have been freed from death 

row, and another 96 who were wrongfully convicted of serious 

crimes. In at least 16 of those cases, the same test that exonerated 

an innocent person has led to the arrest and prosecution of those 

that actually perpetrated the crime. This is as much about public 

safety as it is about preventing wrongful convictions. 

Yet, DNA testing is often opposed by prosecutors and must be 

litigated sometimes for years. Evidence that might have established innocence has been misplaced or destroyed. Our bill would 

5

help ensure that biological material is preserved and DNA testing 

is made available in every appropriate case, but DNA is not a 

magic bullet that will eliminate the problem of wrongful convictions. 

We must take steps to prevent those convictions from happening 

in the first place, and the single most important step is to ensure 

that every indigent defendant in a capital case has a competent attorney. The Innocence Protection Act would encourage States to develop minimum standards for capital representation, and most importantly would provide them with the resources to help ensure 

that lawyers are available to meet those standards. 

As you indicated, Senator, you were a prosecutor. I was also an 

elected prosecutor for more than 20 years, and I am fully cognizant 

of the fact that the adversarial process can find the truth only 

when both lawyers are up to the job. 

Some have suggested that our society cannot afford to pay for 

qualified counsel in every capital case. The truth, and I know you 

share this, is that we cannot afford to do otherwise if our system 

of justice is to have the confidence of the American people. 

So with that, Mr. Chairman, thank you again. I look forward to 

working with you and Senator Feingold and other members of the 

Committee and my fellow puppy and good pal, Ray LaHood, in 

making this a reality. 

[The prepared statement of Mr. Delahunt appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, and I think of the days 

when both you and I were prosecutors in adjoining States. I think 

we both came to the same conclusion that it is a lot easier to prosecute cases if you knew there was competent counsel on the other 

side. Among other things, you don’t have to try the case again ten 

years down the road. 

Congressman Lahood, you have been such a strong and consistent voice in this and I appreciate it because, like Congressman 

Delahunt, you carry a great deal of respect in your party and 

among both Republicans and Democrats on both sides of the aisle. 

So I am delighted to have you here, sir. 

STATEMENT OF HON. RAY LAHOOD, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF ILLINOIS 

Represenative LAHOOD. Thank you, Senator. Thank you, Mr. 

Chairman. I want to express my thanks to you for the extraordinary leadership you have provided, and also to Senator Feingold. 

I know, Senator, you had a hearing recently about this and about 

the commission that Governor Ryan established in Illinois, and 

that really highlights some good work that went on in Illinois and 

we appreciate your leadership on this issue, also. 

I will be brief, Mr. Chairman, because I think you and Congressman Delahunt have really captured the essence of the legislation. 

The one thing that I would say is that Bill and I were on C–SPAN 

this morning touting your leadership and the hearing today, and 

I know it is being broadcast on C–SPAN III. 

One of the things that I really believe is that we have a flawed 

system, and I think your legislation here and our legislation in the 

House will correct a flawed system. These two gentlemen sitting 

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behind us and sitting in front of you are an example of a flawed 

system, a system that went wrong, a system that really did not 

prosecute people who committed a crime, but prosecuted innocent 

people, and they served the penalty for having to sit on death row 

for an enormous amount of their own personal life. 

That flawed system needs to be fixed. In my opinion, we are 

about 60 percent to the goal line. When you look at where we were 

a couple of years ago when the three of us were standing up talking about this bill, and now we have 236 cosponsors in the House, 

we have come a long way. But we need to cross the goal line, and 

the goal line is really to pass legislation and have the President 

sign it. 

What will take place in the House today is a hearing by the 

Crime Subcommittee of Judiciary. Bill will be there to hear testimony, and what will happen here today is an important further 

step in our goal. I hope that through the leadership of you and Senator Feingold and others, and Governor Ryan and Governor 

Glendening, the momentum is really moving, and the front-page 

story, the banner story in USA Today. 

So we have made a lot of progress, but we need to finish the 

other 40 percent and pass this legislation and have it signed into 

law to fix a flawed system, a system that does not allow currently 

for people to be wrongfully convicted and have to serve on death 

row. I think once we do that, we will have achieved an awful lot 

in really improving the criminal justice system and making sure 

that the correct people are convicted and put behind bars, and 

wrongfully people will not have to serve on death row. 

Thank you for your leadership, and we will continue to keep on 

doing what we are doing in the House. Our goal is to really try and 

get a bill marked up and passed in the House, and I know that is 

your goal, and I hope we can really finish this important legislation 

this year and get it signed into law. That is our goal and we are 

going to keep working on it until we achieve that. 

Thank you very much. 

[The prepared statement of Mr. LaHood appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you. It is my goal, also, and again 

looking at the list of your 236 cosponsors, there is not a common 

thread ideologically and politically around those 236, except for the 

fact of wanting to have justice done. I feel that way and a lot of 

prosecutors I know feel that way, and I appreciate you being here. 

Senator they both have to attend to matters back on the other 

side. Do you have any comments? 

Senator FEINGOLD. I just want to compliment both of you on your 

terrific bipartisan leadership on this issue. It is a pleasure to be 

working with both of you on this issue. 

Thank you, Mr. Chairman. 

Represenative LAHOOD. Senator, I assume our statements will be 

put in the record. 

Chairman LEAHY. Yes, the full statements will be put in the 

record. 

Represenative LAHOOD. Thank you. 

Chairman LEAHY. I appreciate both of you coming over. It is good 

to see you both. 

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Represenative LAHOOD. Thank you very much. 

Representative DELAHUNT. Thank you, Senator. Thank you, Senator Feingold. 

Chairman LEAHY. When I started, I mentioned Kirk Bloodsworth 

and Ray Krone in my opening statement, but I have also met 

Marvin Anderson here today. Mr. Anderson was convicted of robbery and rape and kidnapping, all crimes he did not commit. He 

spent a lot of years protesting his innocence. 

I must say, Mr. Anderson, you also had some extraordinary help 

from your family. I know you have mentioned your appreciation to 

them before, and I do so, too. 

Mr. Anderson proved his innocence. As in Mr. Krone’s case, the 

DNA evidence pointed to the actual perpetrator. Again this was at 

a time when everybody thought the books were closed and we had 

somebody in jail. But the actual perpetrator was out free, while an 

innocent man was behind bars. 

Our next witnesses will be a panel of Barry Scheck, the Co–

Founder of the Innocence Project at the Benjamin N. Cardozo 

School of Law; Professor James Liebman, the Simon Rifkind Professor of Law at Columbia Law School, in New York; Mr. Larry 

Yackle, Professor of Law at Boston University Law School, in Boston, Massachusetts; State’s Attorney Paul Logli, from Winnebago 

County, Illinois, and Professor William Otis, Adjunct Professor of 

Law at George Mason University Law School. 

We will take a moment to get all your gentlemen lined up here, 

and I will mention Mr. Scheck is Professor of Law at the Benjamin 

N. Cardozo School of Law. He is the Co–Founder of the Innocence 

Project, which has either represented or assisted in the representation of more than half of the 108 men exonerated through post-conviction DNA testing. Some of them had also been sentenced to 

death. 

Mr. Scheck, we will start with you and then I will introduce Professor Liebman. Go ahead, sir. 

STATEMENT OF BARRY SCHECK, CO–DIRECTOR, THE INNOCENCE PROJECT, BENJAMIN N. CARDOZO SCHOOL OF LAW, 

NEW YORK, NEW YORK 

Mr. SCHECK. Thank you very much, Mr. Chairman. 

Chairman LEAHY. Welcome back. 

Mr. SCHECK. It is good to be here. 

I think that when you introduced this legislation two years ago, 

there were 67 individuals who had been exonerated with post-conviction DNA tests, and we are now up to 108. I think that the main 

reason that the pace of these exonerations has accelerated is the 

passage of something like 25 statutes now in different States that 

in some form authorize post-conviction DNA testing, as well as the 

growth now of innocence projects at 35 different law schools across 

this country. 

This is a small but very important class of people to whom attention must be paid, and I have no doubt that if the legislation before 

this Committee now is passed that within two or three years we 

can double the number of people that are exonerated. But we are 

in a race against time because as we sit here today, 75 percent of 

the time the biological evidence in these cases is lost or destroyed 

8

or literally being degraded by bacterial contamination and it is disappearing. 

As was noted by you in your introduction and by Congressmen 

Delahunt and LaHood, this is a profound pro-law enforcement piece 

of legislation, because every time an innocent person is arrested, 

convicted, sentenced, and executed, God forbid, the real assailant 

is out there committing more crimes. 

If you take a look at Ray Krone’s case and think about some of 

the issues that have been dividing members of the Committee on 

what the standard should be for getting access to the evidence for 

purposes of a DNA test, whether it should be the one that is in the 

Innocence Protection Act dealing with non-cumulative material evidence that could show innocence or a higher standard, think about 

Ray Krone’s case. 

Here, after his conviction, there was some blood and some saliva 

on the tank top of the victim. It would not be immediately apparent, frankly, to prosecutors or anyone else that even if you did 

DNA testing, which wasn’t done in the initial trials, one of which 

resulted in him being sentenced to death—even if you did it and 

you excluded him as being the source of the blood or the saliva, 

that wouldn’t necessary prove his actual innocence. But the truth 

is, when you extract the DNA profile and you put it in a databank, 

you can get a hit on a convicted offender, which is exactly what 

happened in his case. 

Just speaking on a totally practical level as one who is out there 

in the trenches trying to get access to the evidence for people in 

Ray’s position, it is sometimes hard, unfortunately, for law enforcement officials to imagine the different things you can do with 

pieces of evidence and the use of this databank. 

So if you set that initial standard too high, frankly, as some are 

proposing, the Ray Krones of this world frankly are going to rot 

away and may never see the light of day, nor will the person who 

really committed the crime be apprehended. That is what is so different about this kind of post-conviction legislation. 

What I think divides some of the Senators here in terms of the 

competing versions of this legislation that is before the body is one 

issue of time limits. Time limits for those of us who are really 

working these cases are of critical importance. The idea that there 

will be a sunset provision in these cases is a serious problem. 

The truth of the matter is it is very, very hard when you are 

looking at these old cases to even find the lawyers who represented 

these defendants, the lawyers on appeal, the lawyers at trial. Many 

of them are disbarred. They have disappeared or they have died. 

It is impossible very often to get transcripts. In order to make 

a proper motion to get access to the evidence, you have to have the 

transcripts of the trial, and many times they are incomplete. Certainly, these inmates, who are indigent, who have no representation in a post-conviction phase, can’t access to them. 

It, of course, is most difficult to find the evidence. Take the case 

of Marvin Anderson. Marvin Anderson was a young man in 1982, 

a model student, a volunteer fireman, who was convicted in Hanover, Virginia, because a woman who was kidnapped and raped remembered the assailant as saying something about he, a black 

man, had a white girlfriend. 

9

The only person in Hanover that they really knew that fit the 

age range that had a white girlfriend was Marvin Anderson. Even 

though he really didn’t fit the description, he was brought in and 

eventually identified. The police literally had in their files some information about a man on a bicycle who was a very good suspect 

for this crime. 

Marvin was convicted wrongly and sentenced to prison. As late 

as 1988, evidence as to who the real assailant was was brought before Governor Wilder. It failed in an effort to get him a pardon at 

that stage. Years passed. Marvin went before parole boards. This 

is true of so many of our clients. They said, well, if you admit to 

this crime and show remorse, we will let you out early. Marvin said 

‘‘I didn’t commit this crime.’’

Eventually, he was released on parole, but he and his mother, 

who is here with us today, did not give us this fight. We at the Innocence Project in New York and our Capital Region Innocence 

Project in the D.C.–Virginia area couldn’t close this case because 

we knew what kind of a man he was. 

Believe it or not, the swabs in this case were stapled to the underlying paper that were found by accident that resulted in a DNA 

test that proved Marvin innocent and identified the person who 

really committed the crime. So it is unrealistic to have time limits 

in these cases. 

[The prepared statement of Mr. Scheck appears as a submission 

for the record.] 

Chairman LEAHY. I think it also underscores again what we have 

been all saying. It is not just the case, as important as that should 

be, of freeing the innocent, but allowing those in law enforcement 

to go after the person who is the real perpetrators who are still out 

there and are still a danger to society. 

Professor Liebman is the Simon Rifkind Professor of Law at Columbia Law School. He has taught since 1985 and is the coauthor 

of A Broken System: Error Rates in Capital Cases, and the followon Broken System II: Why Is There So Much Error in Capital Cases 

and What Can Be Done About It?

I believe you are also assistant counsel to the NAACP Legal Defense and Education Fund. Am I correct, Professor? 

Mr. LIEBMAN. Yes. 

Chairman LEAHY. We are always happy to have you here, and 

please go ahead, sir. 

Incidentally, we are hurrying it along because I am not sure 

when the voting will start again on the floor and we may have to 

cut out. All statements will be put in the record in full. The importance of this hearing is to make a record, so that when you get 

back to your statements, if you see things in there and think I wish 

I had added this point or that point, or answered this question 

more fully—this isn’t a ‘‘gotcha’’ kind of hearing—just add that in 

and it will be part of the full record. 

Professor Liebman, go ahead, sir. 

10

STATEMENT OF JAMES S. LIEBMAN, SIMON H. RIFKIND PROFESSOR OF LAW, COLUMBIA UNIVERSITY SCHOOL OF LAW, 

NEW YORK, NEW YORK 

Mr. LIEBMAN. Thank you, Mr. Chairman. I am going to focus my 

testimony today on the need to improve the quality of legal representation in State capital trials. 

My testimony is based, as you mentioned, Mr. Chairman, on a 

comprehensive study by a team of Columbia University researchers. We looked at three things: the amount of error in capital cases, 

the causes of that error, and what can be done to avoid it. 

We began this study 11 years ago following a request from Senator Biden, who was then Chair of this Committee. Senator Biden 

asked us to do some research, and that got us on our way. I am 

pleased to be back here, 11 years later, to provide some additional 

findings. 

Five findings are particularly pertinent today. First, State death 

penalty verdicts are fraught with reversible error. Of nearly 5,000 

State capital verdicts reviewed for error during our 23-year study 

period, 68 percent were found to contain reversible error and had 

to be sent back for re-trial. 

Second, reversible error is serious error. We know this for a number of reasons. For one thing, 90 percent of those errors were found 

by elected State judges, who can be voted out of office if they reverse cases for no good reason. 

Where we have data, nearly 80 percent of the reversals were because of four clearly serious errors: egregiously incompetent defense lawyers, prosecutorial suppression of evidence of innocence or 

mitigation; misinstruction of juries; and biased judges and juries. 

These errors are so serious that curing them changes the outcome on retrial 82 percent of the time where we have data, including 9 percent that resulted in acquittals on re-trial. 

Third, the review process is so overwhelmed by serious capital 

mistakes that it cannot catch all of those mistakes. We conducted 

case studies on four individuals who were convicted and given a 

death sentence, though they were innocent. In all four of those 

cases, the State and Federal courts had upheld their verdicts and 

approved the defendants for execution. 

It fell to college students in one case and posthumous DNA testing in another case to prove that these defendants whom the courts 

had approved for execution were innocent. In each case, the courts 

actually recognized that the evidence was weak and noted it. The 

courts also saw that there were errors in the case and noted that. 

Yet, in each case, the courts upheld the verdicts and sent the innocent defendant on to be executed because of very strict prejudice 

rules and very strict procedural default rules that the courts have 

had to adopt in order to enable them to cope with the amount of 

error they find in these cases. So reviewing courts do not catch all 

of the error in the cases. 

Fourth, the result of so much error is that it causes the system 

to be unable to achieve its important law enforcement goals. Over 

the 23-year period, barely 5 percent of the death verdicts that were 

imposed were carried out. 

11

As a result, the usual, normal outcome of a capital verdict as the 

system works today is that it will be reversed, and when it goes 

back for re-trial it will be replaced with a non-capital sentence. 

When add up the costs of all those reversals and retrials that 

end in non-capital verdicts, the cost per execution, on the best 

available estimate is $23 million. The cost in anguish to frustrated 

victims in these cases is immeasurable. 

Fifth, at the core of all of these errors and costs is a single problem: the absence at many State capital trials of adequately trained 

and compensated lawyers. The single most common reason for reversals at the State post-conviction and habeas level is egregiously 

incompetent lawyers. That problem accounts for one-third of all of 

those reversals. States that spend the least on their capital trials 

and tend to spend the least on capital defense have the highest 

error rates. 

Most crucially, those States and counties that impose death sentences more often per 1,000 homicides, the ones that reach out and 

grab the weak and marginal cases as well as the strong cases, have 

much higher error rates, and they also have much higher innocence 

rates. Baltimore County, which wrongfully sentenced Kirk 

Bloodsworth to die despite his innocence, is one of those high death 

sentencing counties. Phoenix, Arizona, which wrongfully sentenced 

Ray Krone to die despite his innocence, is another high death sentencing county. 

The most important way to keep the system from imposing death 

verdicts in weak cases—the best way to confine the death penalty 

to the worst of the worst cases—is to have serious, careful adversarial testing at the trial phase so the weak cases and the innocence cases don’t get through. 

If states invest in competent, careful screening of cases by wellcompensated lawyers at the front end of the system, that will pay 

for itself many times over in saved reversals, saved delay, and 

saved anguish to victims at the back end of the process. 

These findings support many of the provisions of the bills before 

the Committee, and I am prepared to talk about those if there is 

time. But I commend the Committee, Mr. Chairman, for its efforts 

to address this very crucial cause of the breakdown in the States’ 

death penalty systems. 

[The prepared statement of Mr. Liebman appears as a submission for the record.] 

Chairman LEAHY. Thank you, and thank you again for taking the 

time to be here. 

Professor Yackle is Professor of Law at Boston University Law 

School. He teaches courses on constitutional law and the Federal 

courts. He has written more than two dozen amicus curiae briefs 

in the U.S. Supreme Court. He is the author of four books and a 

number of articles on constitutional law and the jurisdiction of the 

Federal courts. 

So, Professor Yackle, I am delighted to have you here and I appreciate you taking the time. I feel like I am going back to law 

school here today, which is a good feeling, I must admit. I kind of 

miss those days. 

12

STATEMENT OF LARRY YACKLE, PROFESSOR OF LAW, BOSTON 

UNIVERSITY SCHOOL OF LAW, BOSTON, MASSACHUSETTS 

Mr. YACKLE. You are one of the few. 

Chairman LEAHY. Well, you don’t miss it in your last year. I find 

after I had been out, first in private practice, and then I spent a 

number of years as a prosecutor, I was wishing I could go back for 

at least one semester so I could say, wait a minute, let me tell you 

how it really is. That would have been nice, but I feel I get these 

tutorials every few days here. 

Please go ahead, sir. 

Mr. YACKLE. Thank you, Senator. I have to say that I am getting 

a tutorial myself this morning. I had thought until I came today 

that only members of Congress could change history by revising 

and extending their remarks, and now I find that the rest of us can 

do that. 

Chairman LEAHY. Well, it varies Committee by Committee, but 

this is a Committee where we try to get as much information as 

we can. 

Mr. YACKLE. I am pleased to be here to be associated with these 

hearings. I know the Committee is considering a number of bills, 

all of them important, and in my view laudatory bills to reform the 

criminal justice system, particularly in capital cases. I think all of 

these bills are extraordinarily important and I am just privileged 

to be here to be associated with your efforts. 

My assignment is very narrow. I want to address only one title 

in one of the bills, the bill authored by Senator Specter. This is 

Title I of his bill, 2446. It addresses a glaring problem in the capital justice system in the United States. 

Under current law, it is possible that men and women can be executed before the courts have decided whether their convictions 

and sentences are valid. It sounds incredible, but it is quite possible that this can happen. The purpose of Title I in Senator Specter’s bill is to prevent that happening. 

That goal in itself is sufficient to justify Title I, but there are 

other purposes as well. The idea in this title is to ensure that there 

are stays of execution in all death penalty cases while the courts 

are doing their work, and until the courts are finished with their 

work, and only at that time, would a stay be lifted such that an 

execution could be carried out. 

Today, of course, courts have power to issue stays of execution, 

but it requires a good deal of litigation in order to determine 

whether a stay will issue in a particular case. This litigation often 

is conducted late at night, in the 11th hour, sometimes requiring 

telephone conversations. It keeps judges and lawyers, including Supreme Court Justices, up through the night laboring to determine 

whether a stay should issue. All of this is wasted effort. In all of 

these cases, a stay should already be in place in order that this 

kind of frenzied, hectic litigation over stays is eliminated. 

In addition, today, under current law, when a stay is issued it 

tends to be short-lived, so that the adjudication that occurs in the 

wake of a stay tends to be on a very short fuse. Judges do their 

work then with their eye on the clock, racing the clock in order to 

get their work done before a stay expires. 

13

That is not adjudication that is likely to be thorough and careful 

and effective, and that is the kind of adjudication we need in capital cases. There ought to be a stay in place that relieves courts of 

that kind of anxiety over time. 

Finally, that sort of litigation that is required today over stays 

of execution generates mistakes. All of us know if we work faster 

than we really can, we are likely to make mistakes. In these capital cases, when serious mistakes are made, only two things can 

happen. 

One, we need further wasteful litigation later in order to correct 

those mistakes. Or, two, what is worse, mistakes may never be corrected at all and men and women may be put to death even though 

they had valid claims, but the courts were unable, for want of time, 

to determine the validity of those claims. 

Over ten years ago, the Judicial Conference of the United States, 

through a Committee chaired by former Justice Powell, proposed 

something in the nature of what Senator Specter’s Title I would do. 

What we need is a system in which there are stays of execution 

early on in every case, stays that carry through all stages of adjudication and are lifted only at the end, when Federal courts have 

determined whether claims are valid or not. 

[The prepared statement of Mr. Yackle appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. That is helpful. 

We will go to Paul Logli, the State’s Attorney in Winnebago 

County, Illinois. He has been a prosecutor for 18 years, the last 16 

as State’s Attorney—twice the amount of time I served as State’s 

Attorney in Vermont. 

Before that, you were a judge on a local circuit court. Am I correct on that? 

Mr. LOGLI. That is correct, Mr. Chairman. 

Chairman LEAHY. Well, I am always delighted to have State’s Attorneys before us. Your State and my State and Maryland and a 

couple of others use the term ‘‘State’s Attorney.’’

Mr. LOGLI. That is correct. 

Chairman LEAHY. I appreciate having you here. Go ahead, sir. 

STATEMENT OF PAUL A. LOGLI, STATE’S ATTORNEY, WINNEBAGO COUNTY, ILLINOIS, ON BEHALF OF THE NATIONAL 

DISTRICT ATTORNEYS ASSOCIATION, FALLS CHURCH, VIRGINIA 

Mr. LOGLI. Thank you, Mr. Chairman. Like you, I am a Vice 

President of the National District Attorneys Association, which, in 

searching our records, I know that you served as a vice president 

of our Association. 

Chairman LEAHY. You are showing some good history. I was 

that, and I was about to become President-elect of the National 

DAs Association. I gave up the glory of that for what turned out 

to be a number of years of anonymity in the U.S. Senate. I enjoyed 

both. 

Mr. LOGLI. We appreciate you being here. 

Like you, Senator, I want to emphasize to this Committee that, 

as a prosecutor, we represent the only trial attorneys in the counVerDate Mar 21 2002 08:22 May 02, 2003 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\HEARINGS\86617.TXT SJUD4 PsN: CMORC
14

try whose primary ethical obligation is to seek the truth wherever 

it takes us. 

We would ask that a copy of the National District Attorneys Association’s policy on DNA be added to this record. 

Chairman LEAHY. It will be. 

Mr. LOGLI. Thank you. 

Our Association has consistently embraced DNA technology as a 

scientific breakthrough in the search for truth. Since the mid–

1980s, when DNA evidence was first introduced, we have fought for 

its admission in criminal trials and we have been instrumental in 

providing training to prosecutors on using DNA evidence. We have 

been using DNA evidence to convict the guilty and free the innocent for over 20 years. 

We have always supported the use of DNA testing where such 

testing will prove the actual innocence of a previously convicted individual and not serve as a diversionary attack on a conviction. 

The issue of post-conviction DNA testing such as contemplated 

by your Act, Senator, involves only cases prosecuted before adequate DNA technology existed. In the future, as we use DNA testing in the investigations and prosecutions currently pending, the 

need for this post-conviction DNA testing will actually cease, hopefully, as we go through the cases where DNA testing can be used 

to show actual innocence. 

We need to emphasize that post-conviction testing should be employed only in those cases in which a result favorable to the defendant establishes proof of the defendant’s actual innocence. We 

feel that requiring only that the results be material, non-cumulative evidence and not specifically prove innocence could waste 

valuable resources, unnecessarily burden the courts, and further 

frustrate victims. The resources for DNA testing are finite and they 

should be used wisely. 

The National District Attorneys Association believes that postconviction relief remedies must protect against potential abuse and 

that such remedies must respect the importance of finality in the 

criminal justice system. 

Now, moving on to competency of counsel, no one, especially 

prosecutors, wants incompetent defense lawyers on the other side 

of the counsel table, especially in a murder case. We don’t want to 

have to re-try cases again. Victims don’t want to have to go 

through the trauma of a trial again. It benefits no one, especially 

victims, to have to re-try a major case. 

Having said that, we believe that federally-mandated or coerced 

competency standards for State court defense counsel are difficult, 

not very workable, and may be unnecessary, as the system is starting to show in the various States. 

Our system of criminal law is inherently a State system. Some 

95 percent of all criminal trials are at the local level of government, 

and because of that, the State judiciary is entrusted with serving 

as the arbitrator for all facets of the court system, including who 

can practice in the trial courts. 

Of the 38 States that currently allow a death sentence to be imposed as a criminal penalty, 22 of those States already have either 

a statute or a court rule that establishes standards for competency 

of counsel at the trial, appellate, or post-conviction level. 

15

Now, I recognize that not all States have competency standards 

and there are some things that Congress can do to motivate that. 

In many States, the criminal justice system is strapped for cash, 

both on the defense side and the prosecution side. We are having 

a difficult time attracting and retaining young lawyers to be prosecutors or defenders. When we can’t attract and retain them, then 

we truly have competency problems. 

We have spoken with other members of this Committee and 

other members of Congress about programs to enhance the ability 

of young lawyers to stay in the system, such as student loan forgiveness, and we know that the Senators are familiar with that. 

You are doing it for some of your staff attorneys. The military does 

a bonus to encourage lawyers to stay on. 

We believe that to truly motivate competency, it would be most 

helpful for the Congress to allow student loan forgiveness and to 

encourage training, especially ethics training at national centers 

such as the National Advocacy Center for prosecutors, State and 

Federal, in Columbia, South Carolina. We want to provide incentives to young people to come into the system and stay in the system, and we believe that that, more than federally-mandated 

standards, would ensure competency of counsel on both sides, prosecution and defense. 

Chairman LEAHY. Why not do both? 

Mr. LOGLI. Well, I think that we can do that. I think that if you 

want to have some type of universal standard, the way to encourage that is to provide that type of loan forgiveness money or training money to the States as an incentive. But to take money away 

from the States, from already cash-strapped systems, would be selfdefeating, in our opinion. 

We really want to work together with the Senate in getting a 

form of this bill through. We think it is workable. We embrace the 

use of DNA technology, we embrace counsel competency, and I believe that we are not really that far apart on a successful bill. 

[The prepared statement of Mr. Logli appears as a submission for 

the record.] 

Chairman LEAHY. Well, thank you. The student loan area I find 

appealing. We do this in some regards with teachers, and sometimes with doctors in rural underserved areas. For example, I know 

Senator Durbin has a bill for public defenders. 

On a personal level, my oldest son, who is recognized as a very, 

very good trial lawyer in our State, has been actively recruited by 

a number of prosecutors, both in Vermont and here in this area. 

He has had to turn those offers down because he couldn’t have paid 

his student loans had he gone there. 

Professor Otis is an Adjunct Professor of Law at George Mason 

University. In 1992, he was Special White House Counsel to then–

President Bush. He spent most of his career in the Department of 

Justice, in the Office of the U.S. Attorney for the Eastern District 

of Virginia, where he was chief of the Appellate Division. 

We are glad to have you here, Professor Otis. Please go ahead, 

sir. 

16

STATEMENT OF WILLIAM G. OTIS, ADJUNCT PROFESSOR OF 

LAW, GEORGE MASON UNIVERSITY, FALLS CHURCH, VIRGINIA 

Mr. OTIS. Thank you, Mr. Chairman, Senator Specter, Senator 

Feingold, Senator Sessions. Innocent citizens are being killed because of deficiencies in our law, but not, I am afraid, deficiencies 

some of the proposals before you will rectify. Instead, they risk 

compounding these deficiencies by creating unnecessary costs to 

carrying out the punishment our most brutal killers have earned. 

It is said that the system is broken. It is not broken. To the contrary, the administration of the death penalty is more fair and accurate today than at any time in our country’s history, and seldom 

have its benefits been more evident than they are now: as we have 

had more executions in the last decade, the murder rate has gone 

down every single year. 

No one doubts that every reasonable precaution should be taken 

to ensure that only the guilty are executed. To the extent the movement for reform seeks to advance that goal, all will applaud its intent. But in its present form, I respectfully believe that the movement is misdirected. It aims at the occasional problem, while ignoring the epidemic danger to the innocent, namely that thousands of 

them are murdered every year. 

The innocents who most deserve this Committee’s attention are 

not convicts who want what will often turn out to be just another 

means to string things out and game the system. The real innocents are ordinary citizens gunned down by unrepentant killers we 

should execute, but because of the multitude of hurdles already 

built into the system so often we don’t. 

Almost 1 in 10 of the roughly 3,700 inmates on death row has 

at least one prior conviction for murder. This teaches a startling 

lesson: that just in recent years, more than 300 innocent people 

have been killed, not by legal error, but by criminals we knew had 

done it before. 

This emphatically does not mean that all those repeat killers deserved execution after their first murder, although one must wonder if the death penalty should have been imposed on at least some 

of them. It does highlight, however, that the most glaring deficiency in our system is neither excessive use of capital punishment, 

what with only one execution for every 200 murders, nor insufficient scrutiny of death penalty cases, what with post-conviction review already averaging more than ten years. 

It is that we don’t carry out the death penalty with the assurance needed to fully realize two of its principal benefits: general deterrence and incapacitation of those like Ted Bundy or John Wayne 

Gacy, for whom killing was a sport. As a result of our hesitation, 

the real protection of innocence our Government owes its citizens 

is not nearly what it should be. 

What this suggests is that we must consider whether capital 

punishment is underutilized. Although Professor Liebman’s study 

purports to find an error rate of 68 percent in death penalty cases, 

that is a misleading number sometimes used to imply that 68 percent of those sentenced to death have been ‘‘exonerated.’’ But nothing approaching that is true. 

By far the more telling statistic is that over 90 percent of those 

who faced re-trial after appellate reversal were again convicted. 

17

And the most telling statistic of the Liebman study is this: zero. 

Zero is the number of factually innocent persons Professor Liebman 

or any other serious scholar has claimed to be able to demonstrate 

were executed in at least the last 40 years—zero. 

The great majority of our citizens support capital punishment, 

and it could scarcely be otherwise, what with the memory of Timothy McVeigh still fresh, and Osama awaiting the only justice that 

will fit him. The minority seeking to abolish the death penalty understands this, and thus that a straightforward attack on it cannot 

work. 

A more subtle strategy has been devised: ‘‘stealth abolition’’, abolition in which capital punishment technically remains on the 

books, but is never actually imposed because the practical barriers 

to its imposition will be made prohibitive. 

Like any mechanism in the law, no matter how just or how fitting, the death penalty can be effectively repealed simply by putting it in the concrete boots of excessive cost and unending delay. 

This sort of stealth abolition is the unstated agenda of some of the 

groups supporting the proposals before you. If they want outright 

abolition, let them say so directly and win their case with the public. 

No just person wants a judiciary where innocent people are being 

railroaded or just fumbled into the death chamber. That is the picture the stealth abolitionists paint: that, for example, defense lawyers have the resources of a church mouse, the brains of a pumpkin, and the system the overall reliability of an airline schedule. 

Having worked in the courts for almost a quarter of a century, 

I can tell you that it is nothing like that. Of course it is possible 

to discover some poster boy blunderer among the thousands of 

cases each year, but the sleeping defense lawyer is essentially an 

urban myth. 

Certainly, we can improve. In my judgment, more targeted reforms for DNA testing and improved performance by counsel would 

be welcome, and I will be happy to discuss those with you if you 

are interested. We should protect the innocent people in our country. We just need to remember who they really are. 

[The prepared statement of Mr. Otis appears as a submission for 

the record.] 

Chairman LEAHY. Well, Professor Otis, I think that perhaps Congressman LaHood would be surprised to be considered a stealth abolitionist. I think he is as strong an advocate of the death penalty 

as anybody I know and he is the chief Republican sponsor in the 

other body on this legislation. 

I would think that you would agree, and we all agree on the need 

to protect society. I wore a shield for eight years to do just that. 

But I think you would agree that society is not protected when the 

wrong person is locked up and the person who committed the crime 

is out free. 

I should note that the Columbia University death penalty study 

came about as a result of a request from this Committee for evidence about capital punishment reversal rates. It has been widely 

acclaimed. It recently won the 2002 prize of the Law and Society 

Association. Of course, Professor Liebman can speak for himself. 

18

Senator Specter—like me, a former prosecutor, and he in a much 

larger venue—has one of the pieces of legislation before us, referred 

to earlier in reference to the question of when stays of execution 

are given. Senator Specter, like most members of this Committee, 

is juggling about three different places he is supposed to be. So before I begin my own questions, I will yield to Senator Specter for 

any statement he wishes to make. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you very much, Mr. Chairman. I would 

like to make an opening statement and shall be relatively brief. 

I commend you for your leadership on this important subject and 

the others who have brought forth legislation, and I thank you for 

convening these hearings and join in urging that we move ahead 

on a markup and trying to get some legislation enacted. 

There is no doubt, with the modern scientific evidence on DNA, 

that we could exonerate many people who are in custody if they 

had access to DNA treatment. The risk is always present that the 

innocent may be executed and those executions might be avoided 

if individuals have access to DNA material. 

I believe that the best remedy is to legislate a constitutional 

right under the fifth section of the Due Process Clause of the 14th 

Amendment. One Federal district judge has made that holding. We 

know that the Congress has been very, very slow to act, really inactive, leaving the issue to the courts. 

The whole change in constitutional law in criminal cases has 

been made by the courts—Mapp v. Ohio on search and seizure in 

1961; Gideon v. Wainwright, right to counsel, in 1963; Miranda in 

1966, Escobito in 1964, and so on. It is really a legislative responsibility, and we have the authority under Article 5 of the 14th 

Amendment and I think we ought to move ahead to make it a constitutional right. 

The second aspect that the legislation touches is the issue on 

adequacy of counsel. There have been many, many examples to 

show that the requirements for counsel have to be changed very 

substantially to provide for adequacy of counsel. 

The legislation that I have introduced touches one more area on 

a case that very much surprised me when I found it, called Alzine 

Hamilton, a U.S. Supreme Court decision in 1990 where four Justices had voted for certiorari in a capital case. For some technical 

reason, certiorari was not granted and the defendant was executed. 

That is a consequence too horrendous to be characterized. 

So this is a subject which requires our immediate attention and 

we can legislate to stay the execution where four Justices have 

voted for cert. Why cert was not granted is not discernible from the 

Supreme Court records. 

In making these arguments, I do so in the context of fairness to 

the accused, and also in the context of fairness to society. I believe 

that the death penalty is a deterrent, and I think we will not be 

able to maintain it unless we do it fairly. 

When I was district attorney of Philadelphia, there were about 

500 homicides a year and I would not permit the death penalty to 

19

be requested without my own personal review and limited it to 

three, four, five, six cases a year at the most. 

But without getting into the rationale of why I do believe it is 

a deterrent, I do think it is an effective deterrent. But to maintain 

it, we are going to have to very, very materially change the procedures for the application of the death penalty. 

Mr. Chairman, I am going to leave, but I am going to come back 

for a round of questioning. Thank you. 

Chairman LEAHY. Thank you, and I will work with you on that. 

I have been reviewing, actually, some of your recommendations this 

weekend and I will look at it. 

We will take about a three-minute break and then begin the 

questions. 

[The Committee stood in recess from 11:23 a.m. to 11:28 a.m.] 

Chairman LEAHY. Thank you all very much. 

Professor Scheck, the Innocence Protection Act, as you know, permits DNA testing if it establishes new, non-cumulative evidence 

that is material to a claim of innocence. Ironically enough, we know 

that in some of these cases where DNA evidence is tested, it has 

conclusively proven the guilt of the person asking for it. So it cuts 

both ways. 

Under the Innocence Protection Act, testing, it would be allowed 

if it established new, non-cumulative, material evidence. Mr. Logli 

has suggested that testing should only be permitted if it proved an 

inmate’s actual innocence. Which standard do you think is most appropriate, and why, based on the cases you have handled? 

Mr. SCHECK. Well, I think the standard of new, non-cumulative 

evidence would be the better standard. It is funny that Mr. Logli 

and I were talking before the hearing started because Illinois and 

New York were the first two States that had post-conviction DNA 

statutes and the standard in Illinois is similar to the one in your 

bill, Mr. Chairman, and in New York as well. 

The one thing that I think we can agree upon is that there has 

not been a vast flood gate of cases of people coming forward and 

choking the system with requests. The real hard work here, frankly, is vetting the cases and, in accordance with the standards, finding the transcripts, finding the evidence. That is the real issue in 

these cases. 

So I think the lower standard is appropriate. Particularly in our 

experience, those prosecutors who are willing to look at a case and 

say, well, this could an instance where somebody was wrongfully 

convicted, a DNA test could show it, we might find the right person—they will agree. 

Those who are looking for whatever reason not to agree will 

never see a case where they think that—if you raise it to a standard like actual innocence, it is just not going to happen, and the 

three men that are behind me over here may very well not have 

seen the light of day. 

So I think that standard works, and it has been working in now 

what I think is many States. As many as I think 18 have a standard that reflects the one enunciated in the Innocence Protection 

Act. 

Chairman LEAHY. Well, if you have 18 States doing it already, 

why do we have to act? 

20

Mr. SCHECK. Well, we really have to act because the time limit 

question, I think, is the most important one. For example, in the 

State of Idaho, on July 1 the time limit is going to run. So the theory is everybody in Idaho that could prove their innocence with a 

post-conviction DNA test had to do it within one year. In Florida, 

it is two years. The time limit is running in Delaware; it is running 

in Louisiana and Michigan. 

There is no way in the world that these applications are going 

to be researched adequately. It takes our office between 3 and 5 

years to perfect an adequate claim that Mr. Logli and his colleagues would say, yes, this is a case where we ought to go forward, because it is so hard to find the transcripts and it is so hard 

to find the evidence. So the time limit, in my judgment, is really 

terrible. 

Take Kentucky. Actually, this is an issue that really goes toward 

Senator Specter’s view, which I thoroughly agree with, of establishing this as a constitutional right. In Kentucky last week, a student from the Innocence Project found blood stain evidence in an 

old murder case that was found by a window where there had been 

a sign of forced entry. 

The police and the prosecutors at the time of the trial said, well, 

this comes from the assailant, but it wasn’t typed. So they asked 

the prosecutor to type it. The prosecutor went into court and said, 

‘‘type it? I want to destroy it,’’ and asked the judge to destroy the 

evidence. The more frightening development is that the judge 

granted the motion. 

So then we had to go to the Kentucky appellate courts, and just 

last week they issued an order prohibiting the destruction of the 

evidence. But because the Kentucky post-conviction DNA statute is 

only available for people that are on death row, Michael Elliot, who 

is serving a life sentence—according to the appellate court, they 

couldn’t order the evidence preserved or the DNA testing. 

So we had to go to Federal court pursuing the constitutional 

right theory, seeking through a 1983 action to enjoin the destruction of the evidence and to get access for purposes of DNA testing. 

Now, I have no idea whether Michael Elliot is guilty or innocent, 

but I can tell you, and the Wall Street Journal confirms, that when 

we finally get an appropriate case and we get the evidence to the 

laboratory, about half the time these people who are insisting on 

their innocence, the results come out in their favor. 

Chairman LEAHY. Come out in their favor? 

Mr. SCHECK. Come out in their favor. 

Chairman LEAHY. Professor Liebman, your study was done following a request from this Committee, with both Republicans and 

Democrats requesting it. In the time I have left, and then we will 

go to Senator Feingold and Senator Sessions, do you want to respond to the criticisms voiced by Mr. Otis? 

Of course, at some point here we are also going to make sure, 

Mr. Otis, you get a chance. 

Mr. LIEBMAN. Yes, thank you, Mr. Chairman. I would like to 

make three points. 

First, Mr. Otis talks about stealth abolition. I will tell you what 

is bringing about stealth abolition in this country. It is high rates 

of serous error in the capital system. All of those capital verdicts 

21

that don’t belong there because they have error in them, because 

the defendants are innocent, are clogging the system. That allows 

the worst of the worst offenders to hang back behind all of the 

undeserving cases that are there because of serious errors. 

If you didn’t have all of these seriously flawed cases clogging the 

system, you could move the worst of the worst cases up to the front 

of the line and get the system working the way it is supposed to 

and the way Americans expect the capital system to work. Americans do not expect a system that can only execute 1 1⁄2 percent of 

the people on death row every year, 5 percent over 23 years. That 

is stealth abolition, and it is because there is so much error in 

these cases. 

The way to solve the problem is get competent counsel at trial 

so that only the valid cases involving the worst of the worst offenders get through. The weak cases should be screened out at that 

stage, as our adversarial system is supposed to do. That would go 

along way towards making the system work appropriately. 

Indiana adopted standards a few years ago very much like those 

in Senator Specter’s bill. The result is that they have had fewer of 

these really weak cases get through, much more reliable verdicts, 

and the system is saving money. 

Mr. Otis’s second claim is that zero innocent people have been 

proved to have been executed. As Mr. Otis knows, that is very difficult to prove. When there is a train wreck, the first thing you do 

is you go count the people who were killed and then you say, my 

gosh, what are we going to do about this? 

In the capital system, you can’t do that. You can’t tell the innocent executed from the others, for a reason I will get to in a second. 

What do you do in a situation like that? You study risk. In fact, 

even when we can count the dead innocent, we study risk so that 

we can avoid innocent people dying. 

If Ford Motor Company said we’re going to wait until somebody 

dies and then we will try and figure out if our cars are safe, people 

would say that is crazy. You have got to study and avoid risk, before tragedies occur. That is what our study did. I agree with Justice O’Connor who looked at the evidence of risk, and found a likelihood that innocent people have been executed and will continue 

to be executed unless things like the Innocence Protection Act are 

passed. One reason you can’t study how many innocent people are 

executed is the point Professor Scheck mentioned. A lot of the evidence is destroyed that you would need to study it. In a number 

of cases, prosecutors with DNA samples that could have proved an 

innocent person was executed have refused to turn over the evidence for testing and instead have destroyed the evidence. 

Finally, sleeping lawyers are not a myth. They happen. Many 

people have been executed in this country, despite the fact that 

their lawyers slept through their trials. 

Chairman LEAHY. Burdine v. Johnson. 

Mr. LIEBMAN. Burdine. He was the lucky one, though. He got relief. But a number of the cases we counted as having no errors in 

fact involved defendants represented by sleeping lawyers. But the 

courts let it pass. They approved the case for execution. The same 

is true of defendants represented by lawyers on drugs, or abusing 

alcohol during the trial. 

22

The disbarment rate among defense lawyers in capital cases is 

about 40, 50, 60 percent in some States. Luckily for everybody else, 

it is about 1 or 2 percent of all lawyers. But when you are a capital 

defendant, the disbarment rate goes way up in many States. So 

this is not an urban myth. This is a real problem and there are 

real solutions for it in these bills. 

Chairman LEAHY. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. Let me first commend you for all your leadership on this issue and for holding this 

hearing. I have a full statement I would like to submit for the 

record, if I could. 

Chairman LEAHY. It will be included. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Chairman LEAHY. We will also submit for the record statements 

from any other Senators, but also a number of items, including the 

editorial in the Washington Post today and articles from the New 

York Times, and so forth. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I would like to first make a brief comment about the competing 

proposals for reform of the death penalty system. Mr. Chairman, 

I am very proud to be an original cosponsor of your bill, the Innocence Protection Act. Whether my colleagues support your bill or 

have their own approach to the problem, like Senators Specter and 

Feinstein do, I am very pleased that there is obviously a growing 

consensus on the Committee, and I think in the whole Congress, 

as was demonstrated by the testimony of the House members, that 

the current death penalty system is broken. 

I was almost amused by the reference to stealth abolition because I am an abolitionist, but I can say for sure, and you can put 

it on the record, that the people who are working on these issues 

are not necessarily abolitionists. Some of them clearly are for the 

death penalty, but they simply can’t justify a system that may have 

innocent people on death row and that may have already executed 

innocent people. 

I can’t prove it, Professor Otis, but my instincts tell me there is 

no question that we have executed innocent people, and that we 

will do it again unless we do something about this awful system. 

I am somewhat comforted by the almost shrill tone that is being 

adopted by those who don’t think we should even be inquiring into 

these things. This is an embarrassment for our country and we are 

literally whistling past the graveyard if we think this system isn’t 

broken and doesn’t have to be changed. It has to be changed. 

Yes, Congress should enact the Innocence Protection Act without 

delay. But during the last two years since you first introduced your 

bill, Mr. Chairman, the States and the Federal Government have 

executed more than 140 people, and during this same time period 

more than a dozen death row inmates have been found innocent 

and released from death row. 

With each execution, our Nation runs a real risk of executing an 

innocent person, as I indicated, if we have not already done so. 

23

How many more innocent people must bear the ultimate nightmare 

of being sentenced to death for a crime they did not commit before 

Congress acts? 

Yes, as we have indicated, Governor George Ryan certainly did 

the right thing, I think a courageous thing, when he suspended 

executions over two years ago to allow time for a thorough review 

of the death penalty system in Illinois and for reform proposals to 

be considered. 

I also think we should here in Congress heed the wise example 

also set by Maryland Governor Paris Glendening, who is a governor 

who recently put into effect a moratorium in the State of Maryland. 

I have introduced a bill that would apply the Illinois model to the 

rest of the Nation. The National Death Penalty Moratorium Act 

would place a moratorium on Federal executions and urge the 

States to do the same while a national commission on the death 

penalty examines the fairness of the administration of the death 

penalty at the Federal and State levels. 

Professor Liebman, it is good to see you again. The study conducted by you and released in June 2000 concluded that there was 

a disturbingly high rate of reversible error in capital cases, and 

that rate is 68 percent. The study found that the two primary reasons for this high error rate were inadequate counsel and police or 

prosecutorial misconduct. 

The Innocence Protection Act, as well as the Specter and Feinstein proposals, of course, address access to DNA testing and competent counsel, but these bills are silent on the issue of police or 

prosecutorial conduct. We also know that troubling racial and geographic disparities plague the Federal system, as well the State 

systems. In fact, concerns about racial and geographic disparities 

resulted in Governor Glendening’s decision last month to put the 

moratorium on in Maryland. 

Let me ask you two questions. What percentage of the cases reversed for serious error involved access to DNA testing or competent counsel? 

And, second, if you could make only two or three additional reforms, what are the two or three reforms to address police or prosecutorial misconduct you would like to see? 

Mr. LIEBMAN. Senator Feingold, it is good to see you. The last 

time I saw you was at Columbia when you gave a fine speech. 

Let me go to the second question, which is what can be done 

about this. I do think that the problem of prosecutorial misconduct 

is a serious one, and we have some recommendations about that in 

our study. One of those recommendations is that there ought to be 

open files in these cases. 

Many prosecutors use open files policies, but many do not. If 

somebody’s life is on the line, it would seem elementary, and I 

think most citizens in the country assume, that everything that the 

prosecutor should be available to the jury when it makes its decision. But in many jurisdictions in this country, evidence is not 

turned over. 

What happens in those places is that it takes 10 or 15 years of 

court proceedings fighting over that record. Finally, the defendant 

gets the record, the case to be overturned, and then you have got 

to what’s in it requires back and re-try it 15 years later. Think of 

24

all of the time, money, expense and frustration that would have 

been avoided by simply turning over the evidence in the first instance right at trial. 

The second thing that we would propose is a number of steps on 

the part of prosecutors to try to limit the capital prosecutions that 

they bring to reach only the worst of the worst cases, without 

sweeping in the weaker and more marginal cases that impose so 

much of the burden of error in these cases. 

I think the Illinois proposal to limit the number of aggravating 

circumstances in that statute is a very good one. Let’s get rid of 

the broad factors that sweep in so many of the weak cases that 

cause so much error and cost, and instead focus only on the very 

worst of the worst. 

I think those are two very good proposals. 

You asked how many DNA cases there are. The most crucial 

thing about DNA is it provides a kind of window into the system. 

But most capital cases do not have biological evidence in them. 

They are not rape murders. They are murders in the course of robbery or burglary. 

But there is no reason to think that the miscarriages of justice 

that lead people to get convicted when they are innocent and that 

DNA reveals are not also occurring in other cases. It’s just that we 

don’t have a window into those cases, and that is why we need the 

other reforms that we have discussed. 

Senator FEINGOLD. Thank you, Professor. 

Let me ask Mr. Scheck and then Professor Liebman again, given 

the number and complexity of problems plaguing the current administration of the death penalty, isn’t it unjust and unconscionable for executions to proceed while these problems go unaddressed 

or proposals for reform are being debated? 

In other words, isn’t there a need for at least a moratorium, Professor Scheck? 

Mr. SCHECK. I certainly think so. When you look at public opinion polling, I think that is where really now a majority of the 

American people are, even those who in principle as a moral matter would support capital punishment as a morally appropriate response to the most heinous of crimes. 

This is a difficult situation for now four years or more the American Bar Association has been in favor of a moratorium on capital 

punishment, and more and more people that study this system 

carefully have come up with these conclusions and come up with 

all these issues, all these recommendations that your hearing covered last week, which are win-win propositions for the criminal justice system. 

A thoroughgoing moratorium effort that considers all the problems of mistaken eyewitness identification, junk forensic science, 

ways to reform the interrogation procedure by videotaping interrogations, which is both an improvement in the form of the evidence 

for the prosecutors as well as protection for the accused—all these 

things, I think, are going to be a net plus for the system. 

It is an improvement of law enforcement that will benefit everyone in society. So there is a profound good that comes from this 

moratorium effort for the whole system, including, of course, the 

capital punishment system. 

25

Senator FEINGOLD. Thank you, Professor. 

Professor Liebman, would you just respond to that? 

Mr. LIEBMAN. Senator Feingold, the overriding proposal and recommendation that we made after 11 years of study and a number 

of comprehensive statistical analyses was that more study is needed at the local level, at the county level, at the State level, and at 

the national level. 

The Illinois study is a wonderful example. A lot of people thought 

they knew the problem with the Illinois statute. But they didn’t. 

It took the study commission’s comprehensive analysis to discover 

that the problem was Illinois’s overbroad death penalty statute. 

But that is not what people were talking about before they conducted that study. 

We need to know more than a single study at a university with 

limited funds can produce. The studies that have been conducted 

in a few States around the country have revealed that a lot more 

can be learned. And more needs to be done nationally. I commend 

the Senator because the definition of the study that needs to be 

conducted to really figure out what is happening and figure out 

what needs to be done to fix the death penalty is comprehensively 

laid out in your bill. 

Senator FEINGOLD. Thank you. 

My time is up, Mr. Chairman, but just let me say I appreciate 

the chance to pursue these questions, but I want to be very clear 

that I think your Innocence Protection Act is an extremely important piece of legislation. If we are able to move it or any other 

version that the chairman believes would be acceptable in this Congress, it would be an enormous step forward on this issue, and I 

thank him for his leadership again. 

Chairman LEAHY. I thank you for that, and it is my intent to try 

to get enough consensus so we can move a bill this year. I understand from Congressman Delahunt and Congressman LaHood they 

want to do that in the House. 

Senator Sessions, also a former prosecutor, has waited here patiently. Please go ahead. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. 

All of us want the highest standards in our courts of law. There 

is no one that has a greater feeling for that than I do. You stand 

in court as a Federal prosecutor or a State prosecutor and you announce that you represent the United States of America. You are 

an officer of the court. 

I know Mr. Logli and Mr. Otis have done that and feel the honor 

of that calling, and you want justice. There are plenty of guilty people. Why would anyone want to prosecute or pursue someone who 

is innocent? 

Can there be errors? Yes, there can be errors. We want to make 

sure our system works effectively to eliminate that, but I do not believe our system is broken. I agree with Mr. Otis that the system 

has never been better. A death penalty case for a prosecutor is a 

tremendous mine field to negotiate. There are so many possibilities 

and so many parts of the system designed to make it provide the 

26

ultimate protection for the defendant that it is very difficult to proceed successfully through a prosecution when you seek the death 

penalty. The jury has to agree, and a judge in Alabama has to 

agree, and then you go through the appellate process. 

The routine appeals in my State are like those in most States. 

You get a direct appeal from the trial court verdict of guilty. 

Mr. Yackle, I guess you could say you want an automatic stay 

here, but the stays occur. You get an automatic appeal to the Court 

of Criminal Appeals in Alabama, then to the Alabama Supreme 

Court. Then the defendants take their next step, which is a State 

habeas review. Then they go to the trial court, then the Court of 

Criminal Appeals, and then the Alabama Supreme Court. 

Then if the death penalty is still in place and has not been reversed through those six levels of review, then they file in Federal 

court seeking Federal habeas corpus review and go from the Federal trial court, to the Federal appellate court, to the U.S. Supreme 

Court. 

Sometimes the U.S. Supreme Court does not hear the case. Well, 

they shouldn’t. They don’t hear most of the appeals that come up, 

and just because they don’t hear a case does not mean that the defendant is wrongly accused. Indeed, overwhelmingly most of these 

cases don’t deal with guilt or innocence; they deal with some procedural objection to the system. 

My best judgment is that the death penalty is a deterrent, that 

it does save lives, that it is effectively carried out throughout our 

country, and if someone can come up with specific ways to make 

it better, I am willing to listen to that. 

The Emory University study says that there are 18 murders deterred by one execution. Whether those numbers are accurate or 

not I don’t know, but I believe there is a deterrent effect. Whether 

it is 1, 5, 10, 18, or more, I don’t know, but my best judgment is 

it does deter. 

So what we want to create is a system that works. We do not 

need to panic. We do not need to be telling the American people 

that there is not justice in our courts in America, and I feel very 

strongly about that. 

Mr. Liebman, your study covering the years 1973 to 1995 were 

the years in which all those retroactive Supreme Court opinions 

came down. You had Gregg v. Georgia in 1976, Strickland v. Washington, Batson v. Kentucky, Beck v. Alabama. That is when retroactively the Supreme Court said things you have been doing, 

States, that have been legal and consistent with the law, we don’t 

agree anymore that they are legal, we reverse those, resulting in 

hundreds of reversals of cases—virtually all cases reversed around 

the country that had to be re-tried again, convince another jury, oftentimes unanimous verdicts required. 

So I don’t think this system is nearly as bad as you would say. 

Indeed, my attorney general in Alabama, Bill Pryor, notes that in 

the last 5 years error rates in Alabama would be less than 5 percent. So I think we need to get this thing straight. 

Mr. Logli, have you supervised the trial of death penalty cases? 

Mr. LOGLI. Yes, Senator. My office has engaged in capital prosecution on at least 6 occasions in the 16 years that I have been the 

State’s Attorney. 

27

Senator SESSIONS. So it is not that often, really. 

Mr. LOGLI. No, and I think I represent most local prosecutors. It 

is a rare prosecution indeed. My jurisdiction has between 20 and 

45 murders a year, and to seek it in only 6 cases in 16 years, I 

think, speaks that we conduct very serious reviews and seek it only 

when the evidence is overwhelming and when the aggravating factor is apparent. 

Senator SESSIONS. Do you have an appellate system there that 

is similar to what I described for Alabama, multiple appeals? 

Mr. LOGLI. Yes, sir. 

Senator SESSIONS. And, secondly, does the trial judge, in your 

opinion and your experience, tend to be more alert to protect the 

rights of the defendant in a death penalty case than in a non-death 

penalty case? 

Mr. LOGLI. No question about it, Senator. 

Senator SESSIONS. They bend over backwards, don’t they? 

Mr. LOGLI. Absolutely. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Chairman LEAHY. If you want to take more time, please feel free. 

You have sat here patiently and I have been trying to be pretty 

flexible in giving time to members. 

Senator SESSIONS. Well, I thank you for that. 

Mr. Otis, the appeals of many of these cases that result in reversals deal with the types of evidence that could be introduced at 

sentencing or maybe the jury selection procedures, maybe the 

charge the judge gave to the jury. 

Isn’t it true that overwhelmingly the cases that are reversed are 

for these kinds of errors and not relating to guilt or innocence of 

the defendant? 

Mr. OTIS. Yes, that is correct, Senator Sessions. As a matter of 

fact, in my experience as an appellate lawyer factual innocence was 

very seldom litigated in the court of appeals. Almost always it 

would be a procedural question. 

But beyond that, in the death penalty context, even in the relatively rare case in which there is an error at the trial phase that 

might be interpreted as affecting the determination of guilt, that 

itself does not establish exoneration. I talk about that in my written statement in a case that the Committee might know about it. 

It was a case in Maryland, the Trevor Horn murder, where a hit 

man was hired to kill a quadriplegic 8-year-old so that his father 

could get the kid’s trust fund. Now, the arrangement that the father made with the hit man was in part undertaken in a series of 

telephone conversations that were recorded on a telephone answering machine tape. 

In Maryland, it happens that there is a two-party consent rule; 

that is, a conversation cannot be recorded without the consent of 

both parties to it. That is relatively unusual. Most States have oneparty consent. 

Because this series of telephone conversations negotiating a 

$5,000 fee to kill the child—because they had not been undertaken 

with two-party consent, the court of appeals in Maryland threw out 

the conviction, but it didn’t have anything to do with the truthfulness or authenticity of the evidence in that case. 

28

Nonetheless, this is exactly the kind of case that would show up 

in Professor Liebman’s study as an ‘‘illegal conviction’’ that the 

court of appeals had to overturn to ‘‘save a wrongly convicted man 

from death row.’’ In fact, because there was no question about the 

truthfulness or authenticity of the tape or the identity of the killer, 

most of us would think that it was not the convict who was deprived of justice. It was Trevor Horn’s family and all the rest of us 

who were deprived of justice. 

Senator SESSIONS. Mr. Logli and Mr. Scheck, just on DNA, that 

can be a very clarifying scientific test. It is not always conclusive. 

There may be a lot of arguments to be made that it is not absolutely dispositive of whether or not an individual committed a 

crime, but fundamentally it can put somebody there or suggest 

somebody was not there. 

Mr. Scheck, I have got a letter from the attorney general of Alabama complaining about the Innocence Project in the State, in 

which he offered a DNA test. The sentencing group didn’t agree to 

take it, didn’t follow up on it, and then after the death penalty 

order was issued, then you rush in at the last minute and demand 

the DNA test, delaying the execution. 

So I guess I will let both of you discuss this. Sometimes, I think 

those who desperately want to defeat the death penalty sentence, 

in my experience, use every procedural advantage they can get to 

and often blame the system. Sometimes, it is their own fault. 

Would you comment on that? And, Mr. Scheck, I will give you a 

chance to respond. 

Mr. LOGLI. Well, I believe that if DNA testing can reveal the 

truth, can reveal actual innocence, then it should be sought, whether it is asked for by the State or by the defense. That is why our 

belief is that the standard here should be that if the test is ordered 

and if the results are exculpatory that they prove actual innocence. 

It would be inappropriate to allow DNA testing that doesn’t go 

to actual innocence. What is the point? Yet, that standard would 

not deter any appropriate DNA testing in those cases where there 

is an assertion of actual innocence. 

As Professor Otis has pointed out, in most of our appeals there 

is no assertion of actual or factual innocence. In very few cases, 

there is that assertion. It is technical or procedural. But in those 

cases where there is that assertion and where the tests can show 

that, then by all means do the test, but not just based on materiality toward a claim of the defendant. 

Senator SESSIONS. Mr. Scheck? 

Mr. SCHECK. Well, first, before I respond specifically to the Alabama case, very frequently DNA testing now on a blood stain or 

a saliva stain or even a hair at a crime scene may not in and of 

itself prove actual innocence right away. What it can do is provide 

significant and material proof that, in conjunction with additional 

evidence, can establish that a person did not commit the crime and 

that another person did. 

It is really, I think, self-defeating for law enforcement to use as 

a threshold for getting the initial DNA test actual innocence as a 

standard instead of the lower standard, because what is going to 

happen, as has been demonstrated in case after case out of these 

108 exonerations, is you are not only going to lose the opportunity 

29

to get a DNA result that is highly exculpatory that does lead to 

other evidence that exonerates the individual, but that same evidentiary chain is also going to lead to the apprehension of the real 

assailant. 

Now, Senator Sessions, in that case at issue there, Danny Joe 

Bradley was a man on death row, still is on death row in the State 

of Alabama. Students from the Innocence Project years ago asked 

to do DNA testing on vaginal swabs from the victim, a step-daughter that had been taken from the home where Mr. Bradley was and 

found in a riverbed. 

I don’t think anybody contested that the best evidence, the one 

that Mr. Logli would insist that we test, would be the vaginal 

swabs from the victim of this rape murder. The problem was and 

the difficulty is that the only evidence that could be found by the 

Alabama authorities was semen stains on a bedspread and sheet 

in the home where the young women slept. 

So they offered to do the testing on that, which was not the best 

evidence, instead of going forward with an evidentiary hearing, 

which still hasn’t taken place incidentally, on tracking down the 

vaginal swabs. 

The biggest problem, Senator Sessions, that we have in all of 

these cases is going back and finding the evidence in these old 

cases. And it is not just in these post-conviction exoneration cases, 

but it is in the cases where I have been working with prosecutors 

all across the country on old, unsolved murder cases. Where is the 

evidence? Is it in the police department? Is it in the property room? 

They are old cases. They have moved them. Is it with the court reporter? Is it at the crime lab? It is in all kinds of different places 

and you have to find it. 

So in that Alabama case, the problem was to this day they have 

never found the vaginal swabs. Now, we ultimately went back to 

the trial judge and persuaded him, an Alabama State court judge, 

and he gave us some testing on the bedspread. It did not come out 

in Mr. Bradley’s favor, but there is still an effort to find those vaginal swabs which would be the determinative test. 

Senator SESSIONS. The only point I would just say is they offered 

that. You could have had it earlier had you asked for it, and the 

people didn’t ask for it until the last minute, thereby delaying the 

execution and going through a pretty prolonged procedure. That is 

just the life of a prosecutor in these cases. This is not unusual. 

Chairman LEAHY. The life of the prosecutor was never an easy 

one, as you know and Senator Specter knows and I know and as 

State’s Attorney Logli knows. It is never an easy one, but it is not 

supposed to be. 

Senator SESSIONS. Well, defense lawyers are officers of the court. 

If they need evidence, they ought to ask for it promptly. 

Chairman LEAHY. Senator Specter. 

Senator SPECTER. I concur that the life of a prosecutor is not an 

easy life, but it is a fascinating life. 

Senator SESSIONS. Yes, it is. 

Chairman LEAHY. The best job I ever had. 

Senator SPECTER. Senator Sessions was a U.S. Attorney and Senator Leahy was district attorney in Burlington, Vermont. People 

ask me if district attorney was the best job I have ever had and 

30

I tell them no. Assistant D.A. was the best job I had. I didn’t have 

to administer an office, just take the files in and try the cases. 

I am going to propound a series of questions. The hour is late 

and the chairman and others have been here for a long time and 

I have had other commitments. In the course of a five-minute 

round, there is not much that can be asked and answered, but 

what I am going to do is propound a number of questions and to 

the extent they can be answered orally, fine. To the extent they 

can’t be, I would like to have your written answers. 

On the issue of the stay, I did not know about the case of Alzine 

Hamilton as Natural Mother and Ex–Friend to James Edward 

Smith v. Texas until I read about it in Professor Derschowitz’ book, 

Supreme Injustice, and had a hard time accepting that there could 

be a case where four Justices had voted for certiorari, certiorari 

was not granted, and the man was executed. There is another case, 

Herrera v. Collins, where certiorari was granted, with the Court 

not ordering a stay, but in this case the courts of Texas ordered a 

stay. 

One of the questions which I would like you to respond to is do 

you see any problem with the Congress of the United States giving 

direction to stay executions where four Justices have voted for a 

writ of certiorari? 

This Committee has taken on some interesting questions. One of 

them tangentially related is the television issue, where Senator 

Biden and I have introduced legislation to televise the Court. We 

tried to get it televised specially in Bush v. Gore. I would be interested in your observations as to whether there 

is any separation of powers or any reason why Congress shouldn’t 

step into that and make sure that people are not executed where 

four Justices have ordered a stay. 

On the adequacy of counsel issue, you have the traditional problem of States’ rights. What standing does the Congress of the 

United States have to set standards for defense lawyers? 

The Supreme Court, as we all know, in Miranda has conditioned 

the death penalty on—Miranda was the warnings case. I am thinking of the 1972 case involving Georgia. Help me out. 

Mr. LIEBMAN. Furman v. Georgia. Senator SPECTER. Furman v. Georgia. So the Supreme Court of 

the United States said in Furman v. Georgia that you can’t impose 

the death penalty unless you have an itemization of aggravating 

and mitigating circumstances. What is the route to exercise congressional authority to require that States have a standard for 

counsel in death penalty cases? I think the States have a lot of motivation here to keep the death penalty. It is very popular in the 

States which disregard the issue of adequacy of counsel. 

The third question relates to the issue of DNA and the unwillingness of the legislative branches to act. Of course, the most famous 

case is Brown v. Board of Education, where there should have been 

action by the legislatures, by the Congress, state legislatures, and 

the executive branch, but it was left to the Court. Obviously, the 

Court has been a great institution. 

It took a long time for the Federal Government to intervene in 

State criminal proceedings. Brown v. Mississippi was the first case 

in 1938, where they took an African American and brought him 

31

over into Alabama and had a mock lynching and then they brought 

him back. Finally, the Supreme Court of the United States said 

‘‘too far. We are going to step in on due process grounds.’’

But how do we motivate legislatures to move on items like DNA, 

where the evidence is so conclusive that innocent people are being 

detained, and doubtless some innocent are being executed, where 

really shouldn’t have to wait for the Supreme Court of the United 

States to take that action? Really, in my opinion, they should have 

taken it by this time, and this Committee, I think, Chairman 

Leahy and others, are going to take the lead and try to move 

ahead. 

Well, my red light is on. 

Chairman LEAHY. No, no, please go ahead. We have been trying 

to be very flexible with people’s time, and I appreciate the panel 

being willing to take time. So feel free to continue. 

Senator SPECTER. Well, let me start with a basic question, Professor Liebman. What is the best approach to try to get legislatures 

like the Congress to act on due process constitutional rights when 

they are as glaring as the DNA right ought to be? That may be a 

little loaded, but go ahead. 

Mr. LIEBMAN. I agree, Senator Specter, that there is a lot that 

needs to be done and it is not happening on its own, and so there 

needs to be some, as you put it, motivation to make it happen. 

I also believe that the Congress probably has a pretty broad, 

often unexercised, power to try to do things under Section 5 of the 

14th Amendment. But that view is controversial and it treads on 

territory that the Supreme Court doesn’t like to have tread on. 

Senator SPECTER. Why is it controversial, Professor Liebman? 

Mr. LIEBMAN. Because every institution guards most carefully 

what is most sacred to it, and the Court’s ability to say what the 

Constitution means is what it considers to be its most important 

function. 

Now, my view is that that is an important function of all members of the Government and they all ought to exercise it. But I 

would suggest that damages and habeas corpus rights and procedures are statutory matters that everyone agrees are within Congress’ power, and that the necessary motivation can be created 

through those mechanisms. Congress undoubtedly can say that if 

States want to continue to have the protection of the exhaustion 

rule that federal habeas review is not available until the case has 

gone through the State courts, then those States have to provide 

adequate counsel and other kinds of protections. Congress clearly 

can say that if states don’t provid those protections, then cases do 

not have to be exhausted in the State courts and can go straight 

to Federal court. 

That would give the States a very strong motivation to say, well, 

we are going to provide the right to truly adequate counsel, because if we don’t, we are going to cede our power to resolve cases 

in the first instance. You could also do this through mechanisms 

allowing capital defendants denied statutory rights damages, or as 

a condition that states need to meet to qualifty for Federal money 

to obtain. 

32

Senator SPECTER. Professor Scheck, do you have a problem with 

having the Congress legislate to stay an execute where four Justices have voted to grant cert? 

Mr. SCHECK. No, I don’t, but I would like to go back to the DNA 

question for a second, Senator, because I think the provision of 

your bill with respect to using Section 5 of the 14th Amendment, 

not just for inmates on death row but for all State inmates, is exactly the right approach. 

Indeed, we are not going to have any problems as in the City of 

Boerne case with the Religious Reformation Act with this kind of 

legislation for a constitutional right of access to DNA testing that 

could prove actual innocence. Indeed, I included in my testimony 

and I commend to your attention the opinion of Judge Luttig from 

the Fourth Circuit in the Harvey case. 

We have been litigating—and I think you averted to it in your 

opening remarks—Section 1983 actions for injunctive relief to get 

access to DNA evidence. Judge Charles Wiener, in Philadelphia, a 

Federal judge, granted access in the Godschalk case because we 

don’t have a State statute yet for post-conviction DNA testing in 

Pennsylvania. 

It was the case of a man with no criminal record who was 

brought in. He confessed, supposedly, to two rapes in Montgomery 

County, Pennsylvania. It took years, until Judge Wiener gave us 

access to the evidence on the constitutional theory that your bill 

embodies. He spent nine years trying to get the evidence. We got 

the evidence. The DNA tests were performed. They showed that he 

didn’t commit the two rapes. They were committed by somebody 

else and he was exonerated. 

Now, Judge Luttig’s decision in the Fourth Circuit—and Judge 

Luttig is, I think, a jurist whom everybody regards as very conservative. I think he produces more clerks for Judges Scalia and Thomas than any other Federal judge in the system. He thoroughly supports this constitutional right of access for purposes of DNA testing 

in his opinion. It is very comprehensive and well-thought-out, and 

I think speaks directly to the proposal you have made. 

Senator SPECTER. Professor Yackle, take up the question of mandating adequacy of counsel. Can the Congress do that, and if so, 

how, without creating a hue and cry and States’ rights. 

Mr. YACKLE. I do think there are ways to do that, Senator, without raising any problematic constitutional questions. The Innocence 

Protection Act includes a scheme that I think is perfectly valid in 

that respect. 

There are ways to do things that raise constitutional questions 

and ways to do them that invite constitutional objection. I think 

generally this body ought to do what the Court does. When there 

is a way to do something without raising a constitutional objection, 

that is the way to do it. I think in the case of counsel standards, 

there are perfectly straightforward ways to set about doing it. 

Senator SPECTER. Well, I agree with you. If there is a way to do 

it without raising constitutional objections, we ought to do it that 

way. But we ought to do something and we do precious little on 

these subjects. 

Mr. YACKLE. You and I are in perfect agreement. 

33

Senator SPECTER. Mr. Logli, what is the best argument for congressional assertion of authority in these areas which have been 

traditionally reserved to the States? 

Mr. LOGLI. I believe there is a role for Congress. I believe that 

when we look at counsel competency standards—and keep in mind 

Illinois has adopted counsel competency standards not only for defense counsel, but also for prosecutors, and that has not been challenged by Illinois prosecutors. 

Now, those standards don’t apply to the elected State’s attorneys, 

but my assistants have to have a certain amount of experience, a 

certain amount of trials under their belt, a certain amount of training. They have to be certified as capital litigation counsel. 

Now, if the Congress wants that to occur in all the States, I 

think they can do that through legislation that combines with other 

methods we talked about previously. I am not sure you were at the 

hearing at that particular time. You may have been called away. 

But when we talk about longevity of public defenders, longevity of 

assistant prosecutors, I think we have to look at incentives to keep 

them there. Student loan forgiveness would help. 

So let’s say you put together a list of universal standards, recommendations, what people should have under their belt to try a 

capital case, and tie that into student loan forgiveness for prosecutors and defenders, tie it into training funds for prosecutors and defenders. 

We have a tremendous facility for prosecutors, both State and 

local, at the National Advocacy Center in Columbia, South Carolina. Let’s keep the funding there and increase that funding. Let’s 

set up a similar establishment for defense counsel. I would like to 

use Federal funds in that way as a carrot and not as a stick to encourage States. 

Many of them already have those standards. Twenty-two States 

that have the death penalty have counsel competency standards, 

out of the 38 States. So I think there is a role for Congress, more 

than just a bully pulpit, but it should be put together as part of 

an entire package to encourage good lawyers to come into the system and stay. 

You talk about the best job in the world. I do believe I have the 

best job in the world. I believe I work with some of the finest people, lawyers, in the world, but it is getting increasingly difficult to 

attract and retain them, and that is a real competency issue on 

both sides of counsel table. 

Senator SPECTER. Professor Otis, I will give you the last word. 

What is your view on making DNA evidence, both in capital cases 

and other cases, a constitutional right to have access to it? 

Mr. OTIS. Senator Specter, I learned early on in my career as an 

Assistant U.S. Attorney—the best job in the world—not to give 

seat-of-the-pants answers to difficult and problematic constitutional 

questions. 

Senator SPECTER. Well, you tried all those cases as an Assistant 

U.S. Attorney. You got a sufficiently long recess to be able to research all the issues that came up and get consultation and come 

back with a formulated judgment? 

Mr. OTIS. I would be happy to do that. Having said that, I will 

say that I am not familiar with any case that would provide an 

34

analogy for it; that is, I do not know of any instance in which Congress has required by legislation the States to examine and process, much less to put in evidence, a particular kind of factual material. 

I guess the closest analogy would be fingerprints. Now, fingerprints are probably the best we have right now insofar as conclusive scientific evidence. DNA is a powerful tool, but I am not aware 

of any move in Congress, and there is certainly no statute you have 

passed to require the submission of fingerprint evidence. 

I think the way that these things are best done, and the way 

that they have been done in the past is, for example, for the Congress to legislate standards to be used in Federal cases, which Congress can plainly do. Then, as we have so often seen, States will 

model their own statutes after that. Largely, that happened with 

the Federal Sentencing Guidelines, you may remember. 

Senator SPECTER. Do you think Congress should have legislated 

to bar the introduction of coerced confessions in State criminal proceedings? 

Mr. OTIS. I don’t think Congress needed to do that because the 

Fifth Amendment to the United States Constitution forbids compelled testimony against oneself. 

Senator SPECTER. Well, they were using coerced confessions all 

over the country before Brown v. Mississippi, including in Pennsylvania in the Treetop Turner case, all over the country, not just in 

the South. 

Mr. OTIS. I think the Supreme Court is the organ of the Federal 

Government that has the authority to enforce the United States 

Constitution. 

Senator SPECTER. Well, I agree they have the authority, but 

doesn’t Congress have authority to enforce the Constitution? 

Mr. OTIS. It has the authority to enforce the Constitution over 

those matters that are reserved to its power. Traditionally, the operation of State governments, and certainly something as detailed 

as the specific kinds of evidence that may be introduced or must 

be introduced in State proceedings, is beyond anything with which 

I am familiar that Congress has ever required. 

Senator SPECTER. Well, I think you are right. Congress hasn’t, 

but they should have. It is just a first cousin, but shouldn’t Congress have barred segregation in schools before Brown v. Board of 

Education? 

Mr. OTIS. Well, it seems to me the Supreme Court did what 

needed to be done. The Supreme Court saw that——

Senator SPECTER. What took them so long after Plessy v. Ferguson? 

Mr. OTIS. Well, I don’t know. I guess it is the Senate that advises 

and consents to who sits on the Supreme Court, not law professors. 

Senator SPECTER. We have a share in that. We have had some 

pretty lusty debates on this question, with nominees coming before 

us and saying the Due Process Clause is meaningless, there is no 

Due Process Clause, it is only original intent. 

Mr. OTIS. Once the Supreme Court had acted, of course, President Eisenhower federalized the National Guard and enforced the 

Supreme Court’s order that took root in the United States ConVerDate Mar 21 2002 08:22 May 02, 2003 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 C:\HEARINGS\86617.TXT SJUD4 PsN: CMORC
35

stitution. I think all of us believe that that was exactly the right 

thing to do. 

Senator SPECTER. Well, President Truman took some action in 

the executive branch without waiting for the Supreme Court to act. 

I am just giving you one person’s opinion and I don’t think we 

ought to wait for the Supreme Court. I think we ought to make a 

determination as to what is a constitutional right. 

When you have people who are incarcerated, and especially with 

the death penalty, and DNA may establish their innocence, that to 

my way of thinking rises to the level of a constitutional right. 

I had a unique opportunity—and this will be my concluding 

statement, Mr. Chairman—to be an assistant D.A. at a time of the 

revolution of Mapp v. Ohio, and argued the first cases in the State 

appellate courts as chief of the appeals division and saw what the 

Court did. And it was the Warren Court; it was the Court after 

Brown v. Board, and there they went—Mapp v. Ohio—and they 

changed the law, overruled Wolf v. Colorado. Then Gideon comes 

up two years later, and then Escobito and Miranda. That kind of seeing the Constitution formulated everyday in the 

criminal courts by order of the Supreme Court made me wonder 

why somebody else didn’t do it first. So I am glad Senator Leahy 

and some of the rest of us are going to try to do that. 

Thank you, Mr. Chairman. Thank you very much, gentlemen. 

Chairman LEAHY. I thank the senior Senator from Pennsylvania 

for coming back. I know you had about 12 other things going on 

and I appreciate it. 

Professor Liebman, when Senator Sessions raised the question 

whether your study took account of changes in the Supreme Court 

case law in the late 1970s, did you take account of those? I wasn’t 

quite sure. 

Mr. LIEBMAN. Absolutely, Mr. Chairman. I am glad you gave me 

a chance to respond to that. There were, as Senator Sessions pointed out, cases where hundreds of death sentences were overturned 

at once. He suggests, and this suggestion has been made repeatedly, that our study counted those reversals. It did not count those 

reversals. It says clearly that it did not count those reversals. But 

some people who don’t like all the error our study revealed continue to say that we did count those wholesale reversals. 

We waited until there was a presumptively constitutional statute 

in each State and then we started counting error and calculating 

error rates under the modern system. Senator Sessions referred to 

a statement by the Alabama Attorney General that there is a 5-

percent error rate in Alabama. The way the State’s attorney general got that 5 percent error rate for Alabama is to assume that 

cases that are stuck in the courts and have not been reviewed are 

cases where the sentence or the verdict or the conviction is valid. 

What we did was to wait and only count those cases that have 

actually been reviewed. When you only count the cases that have 

actually been reviewed in Alabama, without making assumptions 

about what you don’t yet know because cases have not been reviewed, you get a reversal rate of about 70 percent in Alabama. 

So I appreciate the opportunity to point out that we were very 

careful to avoid those obvious problems when we conducted our 

analyses. 

36

Chairman LEAHY. Thank you very much, Professor Otis, State’s 

Attorney Logli, Professor Yackle, Professor Scheck, Professor 

Liebman. Thank you very much. 

The record will stay open for both questions and statements not 

only of the Senators, but any additions any of you wish to make. 

Thank you. 

The Committee stands adjourned. 

[Whereupon, at 12:20 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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