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IMPACT OF FEDERAL HABEAS CORPUS 

LIMITATIONS ON DEATH PENALTY APPEALS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

DECEMBER 8, 2009 

Serial No. 111–66 

Printed for the use of the Committee on the Judiciary 

( 

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

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

DECEMBER 8, 2009 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3 

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

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Member, Subcommittee on the Constitution, 

Civil Rights, and Civil Liberties ......................................................................... 6 

WITNESSES 

Mr. Stephen F. Hanlon, Chair, American Bar Association Death Penalty 

Moratorium Project Steering Committee, Partner, Holland and Knight LLP 

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

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

The Honorable Gerald Kogan, Chief Justice (Retired), Florida Supreme Court, 

Co-Chair, Constitution Project Death Penalty Committee 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

Mr. Michael E. O’Hare, Supervisory State’s Attorney, Civil Litigation Bureau, 

Office of the Chief State’s Attorney, Connecticut 

Oral Testimony ..................................................................................................... 32 

Prepared Statement ............................................................................................. 34 

Mr. John H. Blume, Professor of Law, Director, Cornell Death Penalty 

Project, Cornell University Law School 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

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

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

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 5 

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................... 60 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 65 

(IV) 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Report entitled ‘‘Final Technical Report: Habeas Litigation in U.S. District Courts.’’ 

This report is available at the Subcommittee and can be accessed at: 

http://law.vanderbilt.edu//article-search/article-detail/download.aspx?id=1639 

(1) 

IMPACT OF FEDERAL HABEAS CORPUS 

LIMITATIONS ON DEATH PENALTY APPEALS 

TUESDAY, DECEMBER 8, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:15 p.m., in room 

2237, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Scott, Johnson, Jackson Lee, Chu, Sensenbrenner, King, Gohmert, and Jordan. 

Staff Present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; Keenan Keller, Counsel; Michelle Millben, Counsel; Reuben Goetzl, Staff Assistant; (Minority) Paul Taylor, Counsel; Caroline Lynch, Counsel; and Demelza Bare, Clerk. 

Mr. NADLER. Good afternoon. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. We will begin by recognizing myself for 5 minutes for an 

opening statement. 

Today’s hearing examines the impact of the Federal habeas corpus rules on the application of the death penalty in the United 

States. It is incumbent upon those who support the application of 

the death penalty to ensure that it is administered fairly and that 

every risk of error is wrung out of the system. 

The right to petition for a writ of habeas corpus is really the last 

line of defense against error and injustice in our legal system. 

While executive clemency is still a possibility, it is subject to the 

political winds in ways that the independent judiciary is, hopefully, 

not. 

In recent years, the right of habeas corpus has been the object 

of derision and subject to attack. The ‘‘Antiterrorism and Effective 

Death Penalty Act of 1996’’ was an especially egregious example of 

the extent to which some have been willing to go to expedite the 

use of capital punishment. Its main flaw is that it sets strict time 

limits for habeas petitions: 1 year generally and, if a State qualifies, 6 months in capital cases. 

The standard is even more disturbing. It gives extreme deference 

to State court decisions. It prohibits the court from granting relief 

for any claim adjudicated on the merits in State court unless the 

State decision rejecting the claim is, quote, ‘‘contrary to or involved 

an unreasonable application of clearly established Federal laws as 

2 

determined by the Supreme Court of the United States,’’ unquote, 

or is, quote, ‘‘based on an unreasonable determination of the facts 

in light of the evidence presented in State court proceedings,’’ unquote. 

At the same time, resources to assist defendants in State court 

proceedings have diminished. In many ways, we have made a 

mockery of the administration of justice and the search for the 

truth. 

What is really ironic about all of this is that, while these changes 

were sold to Congress as a way to move the cases and make the 

system more efficient and bring closure more rapidly, in fact it has 

had the opposite effect. The time it takes for these petitions to 

move through the process has increased substantially. Since the 

‘‘Antiterrorism and Effective Death Penalty Act of 1996’’ and the 

restrictions on the Great Writ, the time for moving through the 

process has increased substantially and confusion about existing 

legal standards has been widespread. 

I want to commend our colleague, the gentleman from Georgia, 

for introducing legislation to correct this situation. I am pleased to 

be an original cosponsor, and I look forward to working with him 

to bring reason and justice back to this important process. 

While there is always a push to move faster with executions, the 

record indicates that this rush to execute has called into question 

the fairness and accuracy of our machinery of death. We stand 

alone in the industrialized world in our commitment to capital punishment. Even Russia has a longstanding moratorium on executions. It is a disgrace, and the limitations on the Great Writ only 

exacerbate the problem. 

I think we would do well to remember Justice Blackmun’s observation in his opinion dissenting from the Supreme Court’s decision 

denying review in a Texas death penalty case, Callins v. Collins, 

in 1994, when he stated, ‘‘Twenty years have passed since this 

court declared that the death penalty must be imposed fairly and 

with reasonable consistency or not at all. And despite the effort of 

the States and courts to devise legal formulas and procedural rules 

to meet this challenge, the death penalty remains fraught with arbitrariness, discrimination, and mistake. 

‘‘From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored to develop 

rules that would lend more than the mere appearance of fairness 

to the death penalty endeavor. Rather than continue to coddle the 

court’s delusion that the desired level of fairness has been 

achieved, I feel obligated simply to concede that the death penalty 

experiment has failed. It is virtually self-evident to me now that no 

combination of procedural rules and substantive regulations ever 

can save the death penalty from its inherent constitutional deficiencies. 

‘‘Perhaps one day this court will develop procedural rules of 

verbal formulas that actually will provide consistency, fairness, and 

reliability in a capital sentencing scheme. I am not optimistic that 

such a day will come. 

‘‘I am more optimistic, though, that this court eventually will 

conclude that the effort to eliminate arbitrariness while preserving 

fairness in the infliction of death is so plainly doomed to failure 

3 

that it and the death penalty must be abandoned altogether. I may 

not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessens us all,’’ close quote. 

If anything, after years of exonerations of death row inmates because of DNA evidence, and in other areas of the criminal law and 

notorious decisions like the Fifth Circuit’s, in which the court held 

that an attorney sleeping through a capital trial is not reversible 

error, is not the ineffective of assistance of counsel, Justice 

Blackmun’s admonition rings truer today than it did a decade and 

a half ago. And the restrictions on post-conviction review imposed 

by the 1996 act look not only like a failure in terms of shortening 

the process—they have, as I said, gravely lengthened the process— 

but look even more dangerous in terms of restricting the availability of constitutional rights and the vindication of the actual 

right of innocence. 

I look forward to the testimony of the witnesses on this very important and timely subject. 

The Chair now recognizes the distinguished Ranking Member of 

the Subcommittee for 5 minutes for his opening statement. 

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

As we consider the need to strike the right balance between finality in capital cases and confidence that only the guilty have 

been sentenced to death, it makes sense to first consider how the 

most significant measures Congress has passed in decades to protect the innocent have been implemented. 

I am referring to the ‘‘Justice for All Act of 2004,’’ which was enacted on an overwhelmingly bipartisan vote and unanimously in 

the Senate. I worked with colleagues on both sides of the aisle and 

on both sides of the Capitol to see that this legislation made it to 

the President’s desk. 

DNA samples can help to quickly apprehend offenders and solve 

crimes if law enforcement agencies have access to the most up-todate testing capability. Additionally, DNA technology is increasingly vital to ensuring accuracy and fairness in the critical justice 

system. DNA can identify criminals with incredible accuracy when 

biological evidence exists, and DNA can be used to clear suspects 

and exonerate persons mistakenly accused or convicted of crimes. 

The ‘‘Justice for All Act’’ was designed to provide the necessary 

funding to ensure that these critical programs include the equipment and training necessary to eliminate the backlog of DNA samples in need of testing and to provide greater access to potentially 

exculpatory evidence of those who have been wrongly convicted of 

crimes. 

‘‘Justice for All’’ legislation also provides that up to 25 percent 

of authorized grants to States can be used to provide training to 

defense attorneys for appellate representation and to establish a 

system of appointment of competent counsel in capital cases. It also 

provides that there shall be notification 180 days after any direct 

appeal of a conviction is complete before any biological evidence can 

be destroyed. This will ensure that the evidence in the case is preserved to benefit both the defendant and the government if the conviction is reversed. 

In addressing concerns relating to DNA testing portions of the 

legislation, I considered that on one side of the debate there were 

4 

a group of people who wanted to have no time limit at all, such 

that a motion could be made for testing at any time as long as the 

defendant was still alive and in jail. On the other side of the debate, there were people who wanted to have a hard and fast limit 

and the shorter the limitation, the better, to prevent defendants 

from gaming the system and waiting until witnesses had died and 

the DNA had evaporated so that there would not be enough evidence to conduct a retrial. 

The compromise that was worked out, I think, was a fair one. 

Under that compromise, for the first 5 years after conviction, there 

is a rebuttable presumption in favor of the DNA test. After 5 years, 

there is a rebuttable presumption against the DNA test. But the 

defendants can have their motion granted if the court finds that 

the applicant was incompetent at trial, there is newly discovered 

DNA evidence, or that denial of the motion to retest would result 

in manifest injustice or for good cause shown. 

The legislation also struck a balance regarding the standard for 

obtaining a new trial by requiring that there be compelling evidence that a new trial would result in an acquittal. This represents 

a compromise between the preponderance of the evidence and clear 

and convincing evidence standards. 

I mention this experience by way of example. I have no preconceived notions regarding the issues before us today, but if a 

searching analysis reveals that there is any need to amend the 

Federal habeas laws, I hope that similarly fair compromises can be 

reached. 

The ‘‘Justice for All Act’’ is a vast improvement over what had 

prevailed prior to its enactment, but there is still room for improvement in its implementation. As the Department of Justice’s inspector general explained last year, the Office of Justice Programs has 

been reluctant to exercise appropriate oversight over ‘‘Justice for 

All Act’’ programs. And that means that this Committee has also 

failed to exercise appropriate oversight over the last few years. 

If this Committee is interested in exonerating the innocent and 

also in solving crimes that lead to the incarceration of very dangerous criminals, they could do no better than by strengthening the 

post-conviction DNA programs that the ‘‘Justice for All Act’’ has already put in place. I hope we can find the time to do that, and 

soon. 

Let me say that I am going to have to leave this hearing now 

because I have a press conference on the Copenhagen conference 

over in the Capitol Visitor Center, but I will be interested in reading what the witnesses have to say. 

And I thank the Chairman for giving me the time. 

Mr. NADLER. I thank the gentleman. 

And before the gentleman leaves, I would simply want to observe 

that most of the province of this hearing is to deal with the problem of when there is no DNA evidence. When there is DNA evidence, in some ways, it is simpler. 

Thank you. 

I will now recognize the distinguished Chairman of the full Committee for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

5 

Your constitutional wisdom, which was in your opening statement—not exhaustive but it was very fulsome—leads me with very 

little to add. And so I will submit my statement for the record, and 

add that Chairman Scott and I are looking toward ways that we 

can improve this legislation so that Chairman Johnson will still 

consider us among his best friends. 

And I yield back the balance of my time. 

[The prepared statement of Mr. Conyers follows:] 

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

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDI- CIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

CIVIL LIBERTIES

In 1996, when Congress passed the Antiterrorism and Effective Death Penalty 

Act, I expressed scepticism about whether the bill would have any realistic impact 

on the prosecution of terrorism. In light of the fact that we needed to pass sweeping 

legislation after the tragic World Trade Center attacks, my concerns appear vindicated. However, my concerns about the legislation’s impact on death penalty jurisprudence were precisely on target. The bill re-wrote the law on Federal habeas corpus and appears to have unleashed a series of unintended consequences that we do 

not yet fully understand. 

For that reason, I welcome today’s hearing and look forward to a lively discussion 

with our witnesses. 

The writ of habeas corpus is one of the most fundamental safeguards in our Constitution to prevent the imprisonment and execution of innocent people. The Constitution states that the ‘‘writ of habeas corpus shall not be suspended,’’ except ‘‘in 

cases of rebellion or invasion’’ or when ‘‘the public safety may require it.’’ 

From the 1950s to the early 1970s, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to extend many of the procedural protections previously limited to federal court defendants to state criminal defendants. 

During this time, the Court also expanded the scope of habeas by allowing more opportunities for state prisoners to obtain federal relief when state police, prosecutors, 

and judges violated their constitutional rights. The confluence of these two developments produced an exponential increase in habeas filings. 

First: The writ of habeas is most important in the context of death penalty cases. The death penalty is our society’s most severe and permanent punishment. Putting aside my position about the fairness of the death penalty, as a procedural matter, before we permit the execution of an individual, we must have appropriate, constitutional due process. 

In the past few decades, 139 people on death row have been exonerated based on 

their innocence. Some of these individuals died while in prison and were only exonerated posthumously. This is not only unacceptable, but it undermines the very integrity of our criminal justice system. 

Second: I believe we should revisit the restrictions placed on the habeas 

petitions of death row inmates in the Antiterrorism and Effective Death 

Penalty Act of 1996. When we considered this Act over a decade ago, I raised the 

concern that this Act was over broad and could harm the administration of justice. 

Through this Act, we created a 1 year statute of limitations for the filing of a habeas petition after the completion of a direct appeal and we created a highly deferential standard of review of state court findings by federal courts. Under this new 

standard of review, it is possible that some innocent people will not receive relief 

through the habeas process if a claim was adjudicated on the merits in state court. 

In these circumstances, a federal court can only overturn such a claim if it was contrary to clearly established federal law or based on an unreasonable factual determination. 

The one year statute of limitations is also troubling. Many capital defendants are 

indigent and cannot afford an attorney to represent them in a habeas appeal, so it 

is particularly burdensome to have such a short statute of limitations for these individuals to file for habeas relief. This burden is made heavier by the fact that the 

process of filing a habeas petition is complex and requires the exhaustion of state 

court claims. Based on this statute of limitations, about 1 in 20 capital defendants 

have been denied any federal review of their case. 

Third: Further, although our intention was to improve the efficiency of 

the criminal justice system, this has not occurred. In fact, an independent 

study commissioned by the Department of Justice demonstrates that the average 

6 

amount of time from the conviction of a capital defendant to the processing of their 

habeas petition now takes 6.3 years. Prior to this Act, the average amount of time 

for the processing of a capital defendant’s habeas petition was 5 years. 

While the case processing time has increased significantly over the past fifteen 

years, there are also fewer evidentiary hearings held to consider the issues raised 

in habeas petitions. Moreover, there are also fewer grants of habeas petitions at the 

district court level than prior to this Act. 

These data collections issues are critical to determining the Committee’s future 

action in this area. Consequently, I am very interested to hear from the witnesses 

today about their interpretation of the recent data on habeas petitions for capital 

defendants. 

The United States continues to be the only western nation that actively pursues 

a program of capital punishment. Last week the Russia government announced that 

it has begun the process of abolishing the death penalty. When notable cases, raising the question of innocence arise, our criminal justice program is subject to worldwide scrutiny. The writ of habeas is one of the principle protections given to individuals and we must thoughtfully consider our role in regulating the process by which 

prisoners may seek redress, especially since habeas is the last step in our criminal 

justice system to ensure that an innocent person is not executed or wrongfully imprisoned. 

Mr. NADLER. I thank the gentleman. 

It is usually the custom of this Subcommittee that, after asking 

the Chairman and Ranking Member and the Chairman and Ranking Member of the full Committee, we ask other Members to put 

their statements into the record. But, in view of Mr. Johnson’s 

sponsoring the legislation, I will ask Mr. Johnson if he wishes to 

make an opening statement. 

Mr. JOHNSON. Yes, I do. And thank you, Mr. Chairman and 

Chairman Nadler. 

And, also, whenever offered some help from the Committee 

Chairman, Chairman Conyers, I would be remiss not to be intrigued with how we can improve this bill. And so we will be working on it together, along with Congressman Scott and others who 

have voiced interest in this. 

Today, we are here to discuss an issue that is near and dear to 

my heart, Federal habeas corpus reform. There is a whole lot more 

that needs to be done to restore the Great Writ to its intended purposes. This is just a small beginning, a humble beginning, which 

takes on the fact that, even if it is a DNA-based conviction, if the 

DNA is found after you are killed by the State, you know, it is just 

a theoretical matter at that point, and that is not fair. 

Earlier this year, I introduced H.R. 3986, the ‘‘Effective Death 

Penalty Appeals Act.’’ I was pleased to work with Chairman Nadler, Chairman Conyers, Chairman Scott, and Chairman Cohen, all 

of whom have cosponsored the legislation, to ensure that the bill 

addresses a key failing of the habeas system as it pertains to inmates on death row. 

Congressman John Lewis of Atlanta, a tireless advocate for civil 

rights, was also closely involved in developing this bill, which has 

been endorsed by Amnesty International, the NAACP, and the 

ACLU. 

The civil rights and civil liberties advocacy community, which I 

want to tip my hat to for protecting the rights that we take for 

granted in this country, that community has been integrally involved in the drafting of this bill and in laying foundations for 

more comprehensive reform in the months and years to come. 

7 

Without their hard work, legislation would be less efficient and less 

effective. 

My bill, H.R. 3986, would empower Federal courts to grant habeas corpus petitions for inmates facing execution when newly discovered evidence convinces the court of probable innocence. 

As the law stands today, death row inmates can be stranded in 

a procedural no man’s land, condemned to die, even if there is compelling new evidence and even if their habeas lawyers were ineffective in some way. Imagine that, in America, you can be killed by 

the state without new evidence of your innocence ever getting a 

hearing. The status quo is inhumane, unconstitutional, and unacceptable. 

Justice Stephens recently wrote that Section 2452(D) is arguably 

unconstitutional, to the extent it bars relief for an inmate sentenced to death who can present newly discovered evidence of innocence. 

The Johnson-Nadler bill—and I thank Chairman Nadler for his 

work on this bill—this bill will fix the law as it stands to protect 

innocent Americans from execution. I can imagine few more urgent 

tasks as we restore America’s reputation as the white light on the 

hill that everybody respects and appreciate the rights that the people are given under our system of government. 

So I look forward to hearing the witnesses’ views of this legislation, and I am equally interested in their thoughts on the broader 

issues at hand. 

Today, we are not only considering the merits of the JohnsonNadler bill, we are laying the groundwork for comprehensive reform of Federal habeas corpus. I want to emphasize that it is possible to legislate a system that is equitable and efficient, but only 

if we commit to finding real common ground and renounce the 

counterproductive legislative tactics that have stymied effective 

criminal justice reforms in recent years. 

The legislative branch sometimes fails to recognize that the judicial branch is coequal, in terms of our branches of government. And 

perhaps, once this is passed, it will help to restore fairness. 

We need to pass the ‘‘Effective Death Penalty Appeals Act,’’ and 

quickly, before another potentially innocent American is executed. 

We should also commit to fully reforming those statutes during the 

111th Congress. It will be a long time until the composition of Congress is as favorable for such reform as it is now. 

I look forward to leading on this issue and working closely with 

both of my Chairmen, and all of the Chairmen actually, and the 

advocacy community to move legislation that will help restore fairness to Federal habeas corpus without compromising efficiency. 

I thank our distinguished panel for their attendance, and I thank 

Chairman Nadler for holding this important hearing and for his indispensable assistance in helping to develop H.R. 3986. 

I yield back the balance of my time. 

Mr. NADLER. Thank you. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing, which we will only do, hopefully, if there are 

votes on the floor. 

8 

We will now turn to our panel of witnesses. As we ask questions 

of our witnesses, the Chair will recognize Members in the order of 

their seniority in the Subcommittee, alternating between majority 

and minority, provided the Member is present when his or her turn 

arrives. Members who are not present when their turn begins will 

be recognized after the other Members have had the opportunity to 

ask their questions. The Chair reserves the right to accommodate 

a Member who is unavoidably late or is only able to be with us for 

a short time. 

I will now introduce our witness. 

Stephen Hanlon is a partner at Holland and Knight, currently 

managing the firm’s community services team, which provides pro 

bono legal services for indigent clients. 

Mr. Hanlon has worked on civil rights issues, particularly indigent defense systems, claims for survivors of the Rosewood massacre, death penalty litigation, prisoner rights, medical experimentation without consent, and racial discrimination. He is also a 

member of the American Bar Association Death Penalty Moratorium Project, and currently chairs the Constitution Project’s board 

of directors. 

He received his JD from the University of Missouri-Columbia 

School of Law and his BS from St. Louis University. 

The Honorable Gerald Kogan served on the Florida Supreme 

Court from 1987 to 1998, including 2 years as chief justice. He 

served on the faculty of the University of Florida, the University 

of Miami, Nova University, the University of Virginia, and New 

York University. 

Before serving on the Florida Supreme Court, Justice Kogan was 

a member of the U.S. Army Counterintelligence Corps, a practicing 

attorney, Dade County chief prosecutor, a circuit judge in Florida’s 

11th Judicial Circuit, and an administrative judge of the criminal 

division. 

Since his retirement, he heads the National Committee to Prevent Wrongful Executions, along with co-chair Charles Baird, a 

former judge of the Texas Court of Criminal Appeals. He attended 

the University of Miami, where he received his bachelor’s degree in 

business administration and his juris doctorate degree. 

Michael O’Hare has served the State of Connecticut as the supervisory assistant State’s attorney for the Civil Litigation Bureau 

since 2002. He currently supervises all Federal habeas corpus litigation for the State of Connecticut arising from challenges to State 

convictions. 

Mr. O’Hare served in the U.S. Army Judge Advocate General’s 

Corps and as a staff judge advocate in the Reserves from 1979 to 

2009, which included deployment to Iraq in 2003. He retired from 

the Army with the rank of colonel. 

He has also worked in the Justice Department’s Office of International Affairs in the Criminal Division, the narcotics section of 

the Criminal Division as a member of the State of the Connecticut’s capital litigation unit. In 2005, Mr. O’Hare successfully led efforts to defeat State and Federal habeas corpus challenges to the 

execution of convicted serial killer Michael Ross. 

John Blume is professor of law at Cornell Law School and the 

director of the Cornell Death Penalty Project. He is the co-author 

9 

of the ‘‘Federal Habeas Corpus Update,’’ an annual compendium of 

habeas corpus developments. 

In addition to his academic work, he has argued eight cases before the United States Supreme Court. Since 1996, Professor 

Blume has served as one of several consultants to the Defendant 

Services Division of the Administrative Office of the United States 

Courts on habeas corpus issues. 

Professor Blume is a 1978 graduate of the University of North 

Carolina at Chapel Hill, a 1982 graduate of Yale Divinity School, 

and a 1984 graduate of Yale Law School. He has been at Cornell 

Law School since 1993. 

I am pleased to welcome all of you. Your written statements, in 

their entirety, will be made part of the record. I would ask each 

of you to summarize your testimony in 5 minutes or less. 

I am supposed to say that, to help you stay within that time 

limit, there is a timing light at your table which switches from 

green to yellow to red. I am informed that the power has failed. It 

is back; the power is back. So you can’t filibuster anymore. This is 

not the Senate anyway. You couldn’t in any event, nor can we. But 

when 1 minute remains on your time, the light will switch from 

green to yellow, and then red when the 5 minutes are up. 

Before we begin, it is customary for the Committee to swear in 

its witnesses. If you would please stand and raise your right hand 

to take the oath. 

[Witnesses sworn.] 

Mr. NADLER. Let the record reflect that the witnesses answered 

in the affirmative. 

You may be seated, and we thank you. 

I now recognize for 5 minutes Mr. Hanlon. 

TESTIMONY OF STEPHEN F. HANLON, CHAIR, AMERICAN BAR 

ASSOCIATION DEATH PENALTY MORATORIUM PROJECT 

STEERING COMMITTEE, PARTNER, HOLLAND AND KNIGHT 

LLP 

Mr. HANLON. Thank you, Mr. Chairman. 

I would like to focus my remarks on the recommendation in my 

written statement that, as part of any anticipated AEDPA reform, 

that the funding of State trial and particularly State post-conviction representation be seriously considered. 

In 1989, the United States Supreme Court, in the Giarratano 

case, refuses to find a constitutional right to State post-conviction 

counsel. And the result is that, throughout the States now, we either have no State funding or grossly inadequate State funding, 

particularly for State post-conviction counsel. 

It was about that time, in the late 1980’s or early 1990’s, that 

Justice Kogan and other members of the Florida Supreme Court 

came to us in the private bar and asked us to provide pro bono 

counsel since the State simply was not adequately funding postconviction counsel. And then I learned for the first time of the enormity of this problem. 

These cases raised for the first time ever the issues of ineffective 

assistance at trial, prosecutorial suppression of material evidence, 

and juror misconduct, and a host of other serious constitutional 

10 

*The report entitled ‘‘Final Technical Report: Habeas Litigation in U.S. District Courts,’’ is 

not reprinted in this hearing record but is archived at the Subcommittee and can be accessed 

at http://law.vanderbilt.edu//article-search/article-detail/download.aspx?id=1639. 

issues involving facts which are almost entirely outside the trial 

record. 

I have been practicing law now for approximately 43 years. I 

have done a wide range of civil trial practice: constitutional litigation, civil rights litigation, class action litigation, securities litigation, probate litigation. I have never seen anything in my experience approaching the factual and the legal complexity of capital 

post-conviction litigation. This can fairly be characterized as the 

brain surgery of our profession. 

In the past 18 years, I and many members of my law firm have 

represented several men on death row. And it continues to astonish 

me that we cannot establish a right to adequately funded post-conviction counsel. A man’s life is at stake. 

I think both Professor Blume’s written testimony and Justice 

Kogan’s testimony give you a very good idea of the massive additional complexity that AEDPA has introduced into this area of the 

law. My experience with AEDPA—and I have been involved in this 

work both before AEDPA and after AEDPA—is that it has dramatically increased satellite litigation in death penalty cases, which has 

nothing to do with—— 

Mr. NADLER. Excuse me. Could you explain what you mean by 

‘‘satellite litigation’’? 

Mr. HANLON. A host of procedural and technical questions that 

are unrelated to guilt, innocence, death-worthiness or constitutional error. And both the courts and counsel—and by counsel I 

mean not only defense counsel, I mean the State—are engaged in 

a wide variety of technical litigation, which again is well described 

in both Professor Blume’s testimony and Justice Kogan’s testimony, 

which is significantly slowing down this process and keeping us 

from getting to the merits of these cases. 

There is a study that has been done by professors at Vanderbilt. 

This was a study that was funded by the National Institute of Justice, Office of Justice Programs, the Department of Justice. It was 

a collaborative effort with the National Center for State Courts, 

and it reviewed capital cases filed in 2000, 2001, and 2002, in the 

13 Federal districts with the highest volume of capital habeas filings. And it found that capital habeas cases that terminated in 

Federal district court lasted an average of 29 months, almost twice 

the 15 months they took before AEDPA. I have a copy of that study 

and I ask permission to include that in the record. 

Mr. NADLER. Without objection.* 

Mr. HANLON. Thank you. Again, this is not only tying up State 

court—Federal court time, it is tying up the efforts of defense counsel and the Attorney Generals and the States attorneys around the 

country. 

Our concerns about AEDPA and the additional complexity that 

it has added to the process are very real and substantiated. I urge 

to you proceed with great caution in your consideration of AEDPA 

reform. 

[The prepared statement of Mr. Hanlon follows:] 

11 

PREPARED STATEMENT OF STEPHEN F. HANLON


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Mr. NADLER. Thank you. Mr. Professor, Judge Kogan. 

TESTIMONY OF THE HONORABLE GERALD KOGAN, CHIEF JUSTICE (RETIRED), FLORIDA SUPREME COURT, CO-CHAIR, 

CONSTITUTION PROJECT DEATH PENALTY COMMITTEE 

Judge KOGAN. Thank you very much, Mr. Chairman. I want to 

start out by showing you basically where I come from and what my 

experience has been in this field. Not only was I the chief prosecutor of the Capital Crimes Division in Miami, I personally appeared before jurors asking the jurors to impose the death penalty 

on the defendant who was there sitting in the courtroom and was 

being tried. 

I had members of my staff, my associate prosecutors, also ask jurors under certain circumstances to impose the death penalty. 

When I left the State attorney’s office I defended these particular 

cases. Later on I went on the trial bench and I tried death penalty 

cases as a trial judge. And starting in 1987 until the end of December 1998, I was a member of the Supreme Court of the State of 

Florida. And every single time a judge in the State of Florida imposed the death penalty on an individual, that case came before us 

on the court for our review and our decision as to what ought to 

be done with it. 

As a matter of fact, 28 people were executed in the State of Florida while I was sitting on the Supreme Court. And in most of those 

cases, I in fact went ahead and signed off approving the imposition 

of the death penalty. 

As a matter of fact, on nine occasions while I was chief justice 

I presided over these proceedings and I was the last person who 

made the final decision as to whether or not the defendant would 

suffer death or would not. And of course at that particular time, 

everything had been done. All the habeas corpus proceedings had 

been filed. All the post-conviction relief matters had been disposed 

of, and I was the one who stood between that person living or 

dying. 

And I remember when I said there are no stays of execution because all of that has been decided and when governor’s counsel 

heard that he told me what was proceeding on about putting the 

hood over the head of the person to be executed. He told me that, 

Mr. Chief Justice, the electricity—because in those days Florida 

only had the electric chair—has been turned up to 2,500 volts. And 

what do you think went through my mind at that time? With all 

of my experience, I knew that every day in this great country of 

ours with the greatest legal system in the world, I know that innocent people have been convicted of crimes they have not committed. 

I said God help us if we have made a mistake here. We are human 

beings. We are trying to work a system that we would like to believe is perfect. But being human beings we are not perfect and we 

can make mistakes. And then what seems like an eternity I was 

told the electricity was turned off and the attending physician had 

pronounced that individual dead. 

In over 40 years of practicing in the death penalty field, both as 

an attorney, prosecutor, judge, trial and appellate, I have participated in the final decision in more than 1,200 capital cases. That 

does not mean all 1,200 people received the death penalty. But 

21 

they were subject to the death penalty at some point along in those 

particular proceedings. 

And I learned one thing, that the most important thing that we 

have going for us is a system which allows us to permit the highest 

court in this land, the U.S. Supreme Court, to be able to consider 

those issues that manifestly affect whether or not people live or die 

after they have been convicted of a capital offense. 

And we should do everything in our power—and of course you 

folks have power to see to it that all persons who are charged, especially in death penalty cases, have the ability to have these 

issues resolved by habeas corpus. Not in a year, not in 6 months 

as the current law requires, but whenever it arises. 

We cannot as a civilized society tell these people you don’t have 

any more rights because it is procedurally barred. That is absolutely absurd to say you have got to die because something wasn’t 

filed on time or due to some peculiar reason we cannot consider 

what may manifestly be evidence of innocence. 

And, Mr. Chairman, you mentioned something before about 

DNA. DNA is wonderful. There is only one problem with it. DNA 

only is present in a very limited number of cases. It does not consider those cases where people are convicted because of false identification or because of a false confession that in some way has been 

induced from their lips by law enforcement action and other items 

that come up as well. So you are right about that. Not so much to 

worry about the DNA, although there was a time that all of you 

gentlemen recall when prosecuting attorneys fought the defendant’s ability to get DNA. 

Mr. NADLER. Not so long ago a time. 

Judge KOGAN. But I think now that—that is true. That is very, 

very true. And so from my background, you can see that I have had 

up front experience, I have been out there on the street with law 

enforcement looking at the dead bodies. I commiserated with the 

members of the families of these people who have been killed. But 

still I say that our system must provide all the safeguards that we 

possibly can in regards to preserving that very, very sacred writ of 

habeas corpus. And I think that Congress needs to reexamine the 

situation and come up with a comprehensive law. And I commend 

Congressman Johnson for taking a step in that direction. And I 

think this is a very, very worthwhile endeavor by this Committee 

and by Congress. 

And I thank you for the opportunity for having said my piece, so 

to speak. 

[The prepared statement of Judge Kogan follows:] 

22 

PREPARED STATEMENT OF THE HONORABLE GERALD KOGAN


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Mr. NADLER. And thank you. Mr. O’Hare, you are recognized for 

5 minutes. 

TESTIMONY OF MICHAEL E. O’HARE, SUPERVISORY STATE’S 

ATTORNEY, CIVIL LITIGATION BUREAU, OFFICE OF THE 

CHIEF STATE’S ATTORNEY, CONNECTICUT 

Mr. O’HARE. Thank you. Thank you, Chairman Nadler, Members 

of the Subcommittee. I am Michael O’Hare—— 

Mr. CONYERS. Turn your mic on, please. 

Mr. O’HARE. I am sorry. Members of the Committee, I am Michael O’Hare, an Assistant State’s Attorney from the State of Connecticut, and I am speaking on behalf of the State today. Thank 

you for the opportunity to address the Committee on an issue of 

great importance to the State. 

The bill is important to the States because it has a direct effect 

on the ability of the States to carry out the lawful judgments of 

their courts, the lawful and constitutional judgments of their 

courts. As a prosecutor and as a Federal habeas practitioner, the 

proposed legislation raises a number of concerns for me. I will focus 

on two that I think are most significant. 

First, I believe that the proposed amendment to section 2254(d) 

is of questionable constitutionality. And second, I think—— 

Mr. NADLER. Could you, sir—please don’t assume that everybody 

automatically knows which section is which by number. You might 

characterize what amendment you are talking about and what position you are talking about. 

Mr. O’HARE. I am sorry, Mr. Chairman. I am talking about the 

provision that sets forth the standards for Federal habeas corpus 

relief in AEDPA, the section that provides that you are entitled to 

relief if you can show that there has been an unreasonable application of clearly established Federal law or an unreasonable determination of the facts. 

I also believe that if enacted the amendment to section 2244— 

and that is the section that bars successive petitions—would effectively prevent the States from ever carrying out an execution. 

The proposed amendment to section 2254(d), that is the section 

that sets forth the standards that must be met to obtain Federal 

habeas corpus relief, seeks to add a provision that would provide 

relief for claims of actual innocence raised by petitioners who have 

been sentenced to death. It is well established, however, that congressional enactments must be based on the Constitution. If a Federal statute—if a statute enacted by Congress exceeds Congress’ 

constitutional authority, it is unconstitutional. 

Here I believe that the proposed amendment exceeds congressional authority because it creates a remedy for a claim of actual 

innocence. As Justice Scalia pointed out in his dissent in In re: 

Davis, and also as the Court as a whole stated in Herrera v. Collins, the Constitution has never been interpreted to provide Federal 

habeas corpus relief for claims of actual innocence. 

And the reason for this is clear. Under our Federal system, Federal courts may, of course, determine whether State courts have 

properly applied the provisions of the procedural protections that 

are required by the United States Constitution. But there is nothing in the Constitution to provide Federal courts with superior auVerDate Aug 31 2005 14:00 Mar 31, 2010 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 H:\WORK\CONST\120809\53944.000 HJUD1 PsN: 53944
33 

thority in determining the facts. The claim of actual innocence is 

a factual claim and under our constitutional system I believe that 

the States have the final say in adjudicating such a claim. Indeed 

in Barefoot v. Estelle and other cases the United States Supreme 

Court has said that the role of the Federal courts in Federal habeas corpus claims is not to retry facts or review State factual determinations, but rather it is to determine whether the State court 

judgment has been determined in compliance with the procedural 

requirements under the Federal Constitution. 

Because the proposed amendment here seeks to provide relief on 

a factual claim I believe it exceeds Congress’ power to act and is 

therefore unconstitutional. 

The proposed amendment to section 2244 seeks to remove the 

barrier to successive petitions with respect to claims of actual innocence raised by petitioners who have been sentenced to death. If 

this provision is enacted, because it removes the barrier to second 

or successive factual innocence claims, it would effectively authorize an unlimited number of claims of actual innocence. As such it 

becomes a vehicle for perpetual delay and would ultimately prevent 

States from carrying out executions. I don’t believe that such a rule 

would be in the public interest or in the interest of justice, and I 

would urge the Committee not to adopt these amendments. 

Thank you. 

[The prepared statement of Mr. O’Hare follows:] 

34 

PREPARED STATEMENT OF MICHAEL E. O’HARE


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Mr. NADLER. I thank the gentleman. Mr. Blume, you are recognized for 5 minutes. 


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TESTIMONY OF JOHN H. BLUME, PROFESSOR OF LAW, DIRECTOR, CORNELL DEATH PENALTY PROJECT, CORNELL UNIVERSITY LAW SCHOOL 

Mr. BLUME. Mr. Chairman, Members of the Committee, thank 

you for this opportunity. 

The Nadler-Johnson bill is a laudable effort to address a critical 

problem in the criminal justice system: The conviction and execution of the innocent. I think the problems with habeas corpus are 

much deeper than that, and I want to talk about a few of those instances today. But I do want to first say that I think that Mr. 

O’Hare is clearly wrong that this bill is unconstitutional. If he were 

right, then the Supreme Court itself acted in a completely lawless 

and ultra vires manner when it sent Troy Davis’s case back to the 

District Court for further fact-finding. They could not have done 

that had they not at least implicitly recognized a right not to be 

executed if you are innocent. 

I want to talk about three issues briefly. The first was mentioned 

by Chairman Nadler in his opening response, is the statute of limitations. The statute of limitations in AEDPA has produced Draconian results. A number of death sentence inmates and literally 

thousands of non-death sentence inmates have been deprived of 

any Federal habeas corpus review of their convictions in death sentences because of this. 

I want to briefly talk about one case. Kenneth Rouse was convicted and sentenced to death in North Carolina for the crime that 

he allegedly murdered, raped, and robbed an elderly white female. 

Mr. Rouse is African American. He produced uncontradicted evidence in Federal court that one of the jurors who convicted him 

and sentenced him to death’s mother was also convicted, raped and 

robbed by a different African American male and he lied about that 

fact during voir dire for the purpose of getting on the jury to sentence Mr. Rouse to death. 

That uncontradicted evidence received no Federal review whatsoever. Why? Because his attorneys filed his habeas petition 1 day, 

yes, 1 day late. And they did so despite the fact that there was a 

good faith dispute about whether that filing was timely. 

That is shocking and that is unconscionable and that shouldn’t 

be allowed in a civilized society but it goes on in this regime. 

Second, I would like to talk about Federal procedural default. As 

Mr. Hanlon mentioned in his remarks, there is this sort of Byzantine set of procedural rules that are now in place in the habeas system. And these also produce Draconian and unjust results. John 

Eldon Smith was executed in the State of Georgia despite the fact 

that there was widespread discrimination against women in the 

grand jury process that led to his conviction and death sentence. 

His co-defendant’s lawyers objected. Mr. Smith’s lawyers did not 

object. What was the result? Mr. Smith was executed. Mr. Smith’s 

co-defendant received a new trial and was sentenced to life imprisonment. 

It is absolutely clear that had Mr. Smith’s lawyers objected it 

would not have made one bit of difference to the judge because that 

judge overruled the objection made by his co-defendant, but yet one 

person lived and one died because one set of lawyers knew the 

rules of the road and the other set of lawyers didn’t. 

40 

Again, that is shocking and unconscionable and it should not be 

allowed. It also means in these capital cases a substantial amount 

of time and effort is spent on the riveting questions such as was 

there a State rule? Is it consistently and regularly applied? Is it 

adequate? If all of these procedural obstacles were eliminated we 

could streamline the review, we could achieve more justice and the 

system would work better and produce just results. 

Finally, I wanted to talk a little bit about 2254(d), which was 

also mentioned in the Chairman’s opening remarks. Section 

2254(d) says that a Federal court cannot grant relief unless the 

State court’s decision was contrary to or an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States or constituted an unreasonable 

determination of the facts. 

Now, I realize that is quite a mouthful. And this particular language has no pedigree in habeas. We don’t know where Congress 

actually got it from when it passed AEDPA in 1996. But I will say 

that proponents of the AEDPA assured Members of Congress that 

if they passed this that meritorious claims would be vindicated. 

President Clinton’s signing statement said the same thing. But 

that promise has been broken. In Neal v. Thigpen for example, a 

case out of the 5th Circuit, Mr. Thigpen presented evidence that 

persuaded that court that his conviction and death sentence was 

obtained unconstitutionally. His lawyers presented virtually no evidence of mitigation, despite the fact that there was uncontradicted 

evidence of the extreme abuse to which he was subjected to when 

being placed in the State mental institution, including being repeatedly gang raped by other members there. The 5th Circuit 

agreed that his lawyer’s performance was unreasonable, they 

agreed that it was prejudicial, but they said they could do nothing 

because while the State court decision was wrong, it was not so off 

the mark and thus AEDPA tied their hands. 

Again, that should not be allowed. If there is a constitutional violation the Federal court should have the power to remedy it. This 

court should go beyond just the question of innocence, engage in 

sweeping reform and untie the hands of the Federal courts and 

allow them to get down to the business of remedying constitutional 

error. 

Thank you. 

[The prepared statement of Mr. Blume follows:] 

41 

PREPARED STATEMENT OF JOHN H. BLUME


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Mr. NADLER. Thank you very much. I will begin the questions by 

recognizing myself for 5 minutes. Let me start by asking Mr. 

O’Hare, since one of the major purposes of AEDPA, which I think 

you referred to also, was for finality and to reduce the number of 

post-conviction appeals and, more importantly, to reduce the time 

of litigation between an adjudication of guilt and execution of sentence, but since the result seems to have been a great lengthening 

of the time—because of all of the—as Judge Kogan referred to it— 


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satellite litigation, and all of these other questions of whether the 

statute was met and so forth, do you think that ought to be reviewed or revised because in fact the central purpose of the statute 

has gone the other way? It seems to have backfired? 

Mr. O’HARE. Well, in my view, Mr. Chairman, that additional 

litigation arises when the State—and I represent the State and I 

have done this—we move to dismiss petitions on the grounds that 

they are filed in violation of the statute of limitations—— 

Mr. NADLER. Excuse me. That is exactly my point. Wouldn’t it be 

better, instead of wasting a lot of time, money, and effort as to 

whether the procedures were followed properly, to get to the heart 

of the matter on the merits? 

Mr. O’HARE. No, I think the heart of the matter on the merits 

has been resolved in the State courts and I think the point of 

AEDPA is to allow that ruling to stand unless there is a clear constitutional error. 

Mr. NADLER. Okay. Now, based on a study commissioned by the 

Department of Justice—well, as I said, it is now obvious that capital habeas petitions now take twice as long as they did prior to 

AEDPA’s enactment. Let me ask Judge Kogan, since the primary 

purpose of AEDPA was to improve the efficiency in the habeas 

process, do you think the act should be modified? Same question. 

Judge KOGAN. Well, obviously I think the entire habeas corpus 

position has to be looked at again and a whole new regimen of 

what is going to happen in these situations adopted by the Congress. Because if you don’t do that you are going to get involved 

in things that are really superfluous. Procedural matters are all 

well and good. The only problem with procedural matters is they 

obscure the thing you are really looking at. 

Mr. NADLER. That is an interesting philosophical point of view, 

which is exactly the opposite of Mr. O’Hare’s view, which seems to 

be better to spend time on the procedural obstacles to vindicate the 

right of a State not to have their determinations looked at on merits by a Federal court. Which I disagree with, Mr. O’Hare, but that 

is his position as I gather it. 

Now let me ask you further, Judge Kogan, based on our—because of the provision in the AEDPA that a Federal court cannot 

grant habeas on a claim decided unless it is contrary to or involved 

in unreasonable application of clearly established Federal law or 

based on unreasonable determination of the facts in light of the 

evidence, could there be circumstances where innocent individuals 

are denied habeas relief? 

Judge KOGAN. Sure, it could do that. In other words you are looking at is the lower court making a mistake? That is really what you 

are looking at. And the whole point is that if you are going to go 

ahead and start talking about whether or not something is reasonable or unreasonable, you have to go to the highest level in favor 

of the person who is filing that particular petition. Because remember, the whole system of justice is not just to convict the guilty, it 

is also to protect and prevent the innocent from being convicted. 

Mr. NADLER. Although some people’s view seems to be that the 

purpose of the Federal justice system is to protect the right of the 

States to make determinations whether right or wrong. 

45 

Professor Blume, in light of what we have been discussing, do 

you have any specific suggestions on how to modify the current law 

to ensure that individuals whose Constitutional rights have been 

violated are ensured meaningful review of their habeas petitions in 

Federal court? 

Mr. BLUME. Yes, I would suggest that 2254(d) be eliminated. 

Mr. NADLER. Just eliminated? Not modified? 

Mr. BLUME. Yes, it has created a perverse incentive system in 

many ways, in that the less the State courts say, the more deference they get in Federal court. 

Mr. NADLER. In other words, the less they say the more deference they get because they don’t say enough to hang themselves? 

Mr. BLUME. To hang themselves. And the Supreme Court has focused solely on the result at the lower Federal court. There is a 

presumption that the State courts got it all right when they in fact 

say nothing. I don’t think that is what the people who passed 

AEDPA intended, but that it is how it has played out and it has 

led to numerous Draconian and unjust results. The elimination of 

procedural default would also get down to the business, as you 

said, of getting to the merits, and avoiding—— 

Mr. NADLER. Besides eliminating 2254(d) in its entirety, would 

you have any other suggestions? 

Mr. BLUME. Yes, I would get rid of the procedural default doctrine and if you want to leave the statute of limitations at least create a fair equitable tolling provision. 

Mr. NADLER. And what would a fair equitable tolling provision 

look like? 

Mr. BLUME. A fair equitable tolling provision I think would take 

into account that some attorney errors would justify Federal review. Right now Federal courts have interpreted that such lawyers’ 

egregious mistakes, no matter how egregious, does not toll the statute of limitations. And because many of these inmates have no 

right to either a lawyer or an attorney of their choice—and there 

have been shocking examples of attorney malfeasance in this— 

there should be some exceptions to statute of limitations for attorney error. 

Mr. NADLER. And one further question before my time expires. 

Do you think it should make any difference in the degree of review 

of attorneys’ misconduct or lack of effective representation with respect to tolling the statute if the attorney was selected by the defendant or is assigned to him? 

Mr. BLUME. I don’t know that that should necessarily be. I think 

I would really want to focus more on the attorney’s conduct. It may 

be that he might be selected poorly but they are not really in the 

position to know what they are getting. 

Mr. NADLER. My time has expired. I recognize the distinguished 

Chairman of the full Committee, the gentleman from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. Could I solicit the 

views of those that are on the panel with Mr. O’Hare about the 

question of constitutionality? I want—I am here to help Mr. Johnson. So what I would like to ask all of you to do, is help us figure 

out how we can improve this really important piece of legislation. 

But let’s look at the constitutional question first. Could you start 

us off, Mr. Hanlon? 

46 

Mr. HANLON. Well, I would start—I read briefly Mr. O’Hare’s 

statement before coming in—sitting down here. And I note that he 

starts off citing dissenting opinions in the recent Supreme Court 

case. And I think Professor Blume is absolutely right that the action that the court took in Troy Davis’s case is the strongest message that I think can be sent to this Committee and others that 

there is a constitutional right involved when we are dealing with 

the execution of a possibly potentially innocent man. And I think 

that is why the Court sent the case back. 

Justice Stevens weighed in on this, and I just don’t think you can 

make the case that the law as it stands right now holds that there 

is no constitutional right to be free from execution of a potentially 

innocent man. 

Mr. CONYERS. Judge Kogan? 

Judge KOGAN. Well, as everybody knows, we do have an amendment to the U.S. Constitution that talks about nobody’s life, liberty 

or property can be taken without due process of law. And due process of law has been defined over the years by all courts, including 

the U.S. Supreme Court, to include those things that arguments 

such as Mr. O’Hare’s might have years ago been valid, but really 

aren’t any more. 

What do we mean by due process of law? Simply has the law 

treated this particular litigant, in this case the defendant, fairly? 

And that is really the issue. And the court can always decide 

whether or not that person has been treated fairly and do it under 

the due process clause. 

Mr. CONYERS. Thank you. Professor Blume? 

Mr. BLUME. Yes, I addressed this in my opening remarks but let 

me go with a little more detail. Yes, it is true that prior to In re: 

Troy Davis the Supreme Court had said we have never explicitly 

decided whether there is a right not to be executed if you are innocent. That of course is a statement that I think most people on the 

street in this country would find shocking. That in this country, 

supposedly the greatest democracy in the world, the greatest defenders of civil liberties, that it is not enough to obtain a new trial. 

That you are just innocent of the offense for which you were convicted and sentenced to death. 

But despite that fact I think it is true the court could not have 

done what it did in In re: Davis. It took the case and said we are 

sending it back to the district court to determine if Mr. Davis is 

innocent in light of the statutory criteria it met, unless it first decided implicitly that there is a constitutional right not to be executed unless you are innocent. They would have had no power to 

do that without at least making that determination. So I think 

Davis speaks clearly to the fact that there is now a constitutional 

right not to be executed while you are innocent. Thus this Committee has and the Congress has the power to pass it and I think 

also to influence the decision of what is the standard for innocence, 

which is something this bill takes on. 

Mr. CONYERS. Well, Attorney O’Hare, what seems to be disturbing some of the people at this hearing about your analysis? 

Mr. O’HARE. Well, I think they have stated what disturbs them 

about my analysis. But I would respond by saying that I believe 

on that issue the Court spoke most clearly in Herrera v. Collins, 

47 

where they declined to hold that there is a right to relief on a claim 

of actual innocence—for a right to Federal habeas corpus relief on 

a claim of actual innocence. And I think that is the state of the law 

and their action on the order in Troy Davis does not alter that. 

And I think that the real issue is not whether or not a person 

can be executed if he is innocent of the crime. I think the issue is 

where that decision is made. And I believe that the decision—if the 

decision is made in a State proceeding that complies with the requirements of the Federal Constitution, then that should be the 

final decision on that issue. And I think that that is the basis of 

our Federal constitutional system. And I believe that in Herrera v. 

Collins the United States Supreme Court, the entire court in this 

case, declined to hold that there is a basis for relief on a claim of 

actual innocence in Federal habeas. 

Mr. CONYERS. If it turned out that many here today were correct, 

you could reconcile yourself with a new position on this subject? I 

mean, is this deeply held and you don’t have any question about 

it? Or is it something that you can accept after you review the 

kinds questions that have been raised about it? 

Mr. O’HARE. Well, Mr. Conyers, I am a practitioner and I apply 

the law as I believe it exists. So my position is based on the law 

as I believe it currently exists today and I represent my clients, the 

people of the State of Connecticut, based on that belief. If the Supreme Court were to change and issue a clear opinion indicating 

that there was such a right then certainly I would alter my position. 

Mr. CONYERS. Well, that is pretty decent of you. We appreciate 

that very much. And the reason that I pursue this conversation is 

that we all—some of our views, legal, are deeply held. And I have 

found myself on occasion saying I don’t care what the Supreme 

Court says. As a matter of fact increasingly I have found myself 

with that view. 

So I just wanted to know if you could easily adjust yourself to 

that if the Supreme Court spoke thusly. I have got some issues 

that I think the Supreme Court, with all due respect, was dead 

wrong. So is there any other basis of persuasion that might move 

you to modify your position? 

Mr. O’HARE. Well, Mr. Conyers, as a practitioner, I have to follow 

the law as articulated by the Supreme Court and my own State Supreme Court on matters of State law. And I often disagree with my 

State Supreme Court and sometimes the United States Supreme 

Court. But when I do, I follow the law in representing the State 

of Connecticut. 

Mr. CONYERS. Well, you can’t not follow the law, but that does 

not mean you don’t—you haven’t changed your opinion. Do you see 

what I am trying to convey? I mean, just because the Supreme 

Court says O’Hare is wrong, that does not mean O’Hare says okay, 

I will do it your way. You likely don’t have any other choice. But 

would there be other things that could help you reexamine your position like maybe reviewing this transcript of this discussion? 

Mr. O’HARE. Well, Mr. Conyers, I always keep an open mind on 

these issues. 

Mr. CONYERS. Well, now that is what I was looking for. I wish 

you had said that a few minutes ago instead of about how blindly 

48 

you follow Supreme Court dicta. But I thank you for this discussion. 

Mr. O’HARE. You are welcome. 

Mr. NADLER. The gentleman yield back? 

Mr. CONYERS. Yes. 

Mr. NADLER. I now recognize the gentleman from Virginia for 5 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on 

that just a minute. Mr. O’Hare, you talk about what the law is. In 

the legislative branch we have the opportunity to perhaps change 

the law. And I was wondering since we know what we know with 

findings of DNA where people have had a trial and by all aspect 

its looks like a fair trial, but we know that they just got it wrong. 

Now, do you find it inherently wrong to have—just inherently 

wrong, whether that it is the way it is or not, that there is a system that someone who is factually innocent of the charge ought to 

be executed? 

Mr. O’HARE. My State, my State has very broad rights of postconviction, to challenge convictions in post-conviction proceedings. 

And we have virtually unlimited opportunity for defendants in our 

State who want to present DNA evidence and other claims of innocence to do so in the State courts. 

Mr. SCOTT. If the DNA is kind of outside of the process, that is 

just the umpire after the game has been played. You have a videotape review and they just got it wrong. If there is no DNA, you 

wouldn’t expect any better percentage results than in the case of 

DNA. We know there is DNA, they come and look at it, and whether you got it wrong. If you don’t have the DNA, it is not perfect. 

Some of them are wrong. If you can show that you are factually 

innocent of the charge, is there anything inherently wrong with a 

system that will put you to death anyway? Without an appeal? 

Mr. O’HARE. I think that someone who can show that they are 

factually innocent of the charge should not be put to death. 

Mr. SCOTT. Where in the process would they have the opportunity to have someone put a stop to the proceedings? 

Mr. O’HARE. I think, as I indicate in my testimony, in my view 

it should take place in the State proceeding. 

Mr. SCOTT. In the State court. You trust the State court to get 

it right and the Federal court should have no opportunity to put 

a halt to the State proceedings when someone claiming innocence 

would be denied the opportunity to present the evidence gets put 

to death anyway without the Federal Government being able to put 

a halt to the proceedings? 

Mr. O’HARE. I think that the Federal Government can ensure 

that the defendant—— 

Mr. SCOTT. But there is nothing inherently wrong with a system 

that would put them to death if he is factually innocent of the 

charge? We have questions as to whether factual innocence is— 

whether you have a constitutional right against execution if you 

are factually innocent. Is nothing inherently wrong with that process? 

Judge Kogan, do you have—is there something inherently wrong 

with a system where someone who is factually innocent cannot 

present evidence to show that they are innocent? 

49 

Judge KOGAN. In this country there is. There are some countries 

around the world where I think that routinely happens. But the 

important thing to remember—— 

Mr. SCOTT. That what happens? 

Judge KOGAN. Where they are put to death. Where they just 

have evidence, but they have no chance to present it and even if 

they did present it, they wouldn’t prevail anyway. 

Mr. SCOTT. Does that happen in the United States? 

Judge KOGAN. Unfortunately, I believe so. Let me also say—— 

Mr. SCOTT. And is there something inherently wrong with that? 

Judge KOGAN. Inherently wrong? In a country such as ours that 

prides itself upon the right of individuals to have life, liberty and 

the pursuit of happiness, it sure does. It is just morally wrong to 

execute someone who is innocent of a crime and especially not even 

giving that person the opportunity to come around to show that 

they are in fact innocent. 

And also let me say this. You know, having been on the bench, 

I am not someone who overlooks reality. Courts can be wrong. They 

are wrong many, many times. State Supreme Courts make mistakes. The U.S. Supreme Court makes mistakes. And for us to say 

that let us rely upon a supposed infallibility of a State court is a 

big mistake. 

Mr. SCOTT. Mr. Blume, is there anything inherently wrong with 

putting innocent people to death? 

Mr. BLUME. Yes. I think to me the answer is simple. In this day 

and age in this society it is unconscionable that we would execute 

someone who may be innocent without giving them some fair opportunity to present that evidence. 

Mr. SCOTT. Mr. Hanlon. 

Mr. HANLON. The answer is yes, of course. It is inherently wrong. 

One of the things I would like you to do in your review here is 

question the underlying assumption of AEDPA. AEDPA’s underlying assumption was that there was a need to restrict Federal 

court review in death penalty and habeas litigation. 

This is 1996. There was a study Professor Liebman did at Columbia University from 1973 to 1995 of all death penalty cases during 

that period of time. There was a 68 percent error rate. 47 percent 

of that was out of the State courts and 40 percent out of the Federal courts. Imagine if that were an airline. 

The need to restrict review with a 68 percent error rate is simply 

nonexistent. That is an error rate unheard of in the annals of 

Anglo American jurisprudence. The normal rate of reversals—and 

Justice Kogan, correct me if I am wrong—but I think it is 5 percent, somewhere around 5 and 10 percent. 

Mr. SCOTT. This is in death penalty. 68 percent error rate? 

Mr. HANLON. Yes. 

Mr. SCOTT. And what do you mean by error rate? 

Mr. HANLON. There were serious constitutional reversible errors 

in those cases. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Judge KOGAN. If you would allow to me to interrupt, I was also 

part of that Columbia University study with Professor Liebman. So 

I am very, very familiar as to what took place during that particular study. But as I said before, the problem with all of these 

50 

things is that we have human beings trying to be perfect in operating the system. And you can’t say that we can operate a perfect 

system. There is no such thing. So therefore we have to give this 

escape valve which allows us to correct somewhere around the line 

errors that even the courts themselves will submit. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. NADLER. Will the gentleman yield? 

Mr. SCOTT. I yield. 

Mr. NADLER. You were just saying in that study where they 

found 68 percent error rate, how did they define the error rate? 

Judge KOGAN. I think Mr. Hanlon described it. Actually, it does 

not mean that the person was innocent. It means that there was 

some substantial mistake that occurred during the proceeding that 

would entitle the defendant to either a new trial—— 

Mr. NADLER. As defined by a subsequent court or as defined by 

the people doing the study? 

Mr. HANLON. Defined by the State courts and Federal courts. 

Mr. SCOTT. That was the finding. They were in fact set aside? 

Mr. HANLON. Yes. 

Mr. NADLER. I now yield 5 minutes to the gentlelady from California. 

Ms. CHU. Mr. Hanlon, many of your criticisms of AEDPA seem 

to some back to one major flaw in the way we handle capital cases 

in this country, the lack of well-trained, experienced lawyers to 

help prisoners who are sentenced to death penalties and who lack 

the lack the ability to have representation on their appeals. And 

the statistics are disturbing that seven out of 10 capital cases fully 

reviewed over a 20-year period had serious constitutional errors. 

I doubt that many prisoners that are sentenced to death can afford the cost of a multiyear post-conviction proceeding and yet they 

are not guaranteed counsel after their initial conviction. 

What is the best way to fix this problem? What is the best way 

to make sure that they have adequate legal advice and representation? Should the Federal Government provide defenders to capital 

cases to shepherd them through the Federal process post-conviction 

as we do prior to conviction? 

Mr. HANLON. Well, that is a very good question. The American 

Bar Association has studied this issue for over 20 years now and 

continually promulgated guidelines, recommendations, an exhaustive study of the State systems. Particularly now I want to focus 

on State post-conviction capital litigation. And because we can’t establish a constitutional right to capital post-conviction representation, the funding for counsel in these cases is grossly inadequate 

almost everywhere. And this is just terribly exacerbated by a 1996 

effort to limit Federal review. Under that situation, one would 

think you would want to expand Federal review knowing that the 

problem of adequate counsel in capital post-conviction, in cases 

where this is the first time that this issue can be raised, ineffective 

assistance of counsel, prosecutorial misconduct, suppression of material evidence, juror misconduct, et cetera. 

So what we are recommending here is that the Congress seriously consider funding for these State capital post-conviction defender systems. Because we have at least a 20-year record of failure. We can’t get it. We have tried and tried and tried and we are 

51 

met with well, it is just a matter of legislative grace. We don’t have 

to provide you with any. And faced with that, we go begging but 

we always come up dramatically short. And it seems to me that the 

record is overwhelming right now that we are not going to get that 

funding in the States. And we have only one other place to look for 

it. 

Ms. CHU. And you mentioned that there are Federal training 

programs in place to help States improve training and standards 

for counsels that are appointed to State capital cases. Are the 

States taking advantage of this? 

Mr. HANLON. I frankly don’t know the answer to that question, 

but I will get it for you. One of the bad things that happened in 

1996 is that we lost funding for the Volunteer Lawyers Resource 

Center. Right at the time we had this record established of a 68 

percent error rate and inadequate funding in the States, then we 

lost that Federal funding that we had there. And those were—they 

would help lawyers like me who never tried a misdemeanor case 

to come in and do a capital case and train us. So the training 

money is essential. 

I just don’t know the answer to your question. I just don’t know. 

Ms. CHU. Justice Kogan, you gave a detailed analysis of the 

flaws in the drafting of that process. The last time Congress meddled with habeas corpus we clearly missed the mark and it has 

made it even more difficult and more time consuming for inmates 

to receive proper justice. 

In your testimony you mentioned two pending Supreme Court 

cases that will rule on the same issues that you raise. Why not 

leave it up to the courts to iron out these inconsistencies and confusion of law? 

Judge KOGAN. Well, remember now we have 50 States in the 

United States. And you could very simply wind up with 10 or 15 

different ideas as to what something should be interpreted as and 

what the law should be. 

We have the United States Supreme Court and it is there in the 

Constitution for a purpose, and the purpose is to be the Supreme 

Court of the United States. And this is where these differences 

ought to be ironed out. 

Ms. CHU. Thank you, I yield back. 

Mr. NADLER. And thank you. And I am corrected by counsel. Let 

the record reflect I did not yield to the gentlewoman from California; I recognized her for 5 minutes, as I now recognize the gentleman from Iowa for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I may not ask you to yield 

during this process. I thank the witnesses as well, and the level of 

curiosity that has grown here, but as I listened to Mr. Hanlon talk 

about the statistics of the error rate and defined it, I think a couple 

of you gentlemen, in an accurate way. Process, procedure, legal 

technicalities whatever it might be, but not necessarily innocence. 

And so I would ask first Mr. Hanlon this question. Of this data 

that you put out, do you have data that would reflect the identity 

of the individuals and the numbers of individuals who were executed unjustly who were actually innocent of the crime? 

Mr. HANLON. That data is generally collected by the Death Penalty Information Center and is available on its Web site. Okay? But 

52 

I do want to correct the record. I did not say that these errors were 

procedural, technical, et cetera. My testimony was that the courts 

had reviewed these cases and had found serious constitutional and 

reversible error. 

Mr. KING. Thanks for the clarification, Mr. Hanlon. I did not intend to put words in your mouth, but I would ask you again do you 

have knowledge of any individuals who were executed that have 

been determined to be innocent? 

Mr. HANLON. I think I am going to ask Justice Kogan to answer 

that question. 

Mr. KING. I will be happy to turn this to the Honorable Judge 

Kogan, but I want the record to reflect that I am asking the Honorable Judge Kogan if he can respond to that question. 

Judge KOGAN. I cannot give you names, but I will say this. I am 

going to use DNA as an example of what I am going to refer to. 

Now, say to yourselves, DNA as we all know, first of all, only covers a certain number of cases but say it this way. What happened 

to these people prior to DNA being developed as a science which 

could prove them innocent? I will tell you exactly what happened 

to them. They were executed. Common sense tells you that. You 

can’t say, oh, you know, DNA only arose and was used in recent 

years like it is just something that fell out of the sky. In other 

words, there were innocent people going back to the founding of 

this country. But yet we did not have DNA developed up until the 

nineties where it was able to be used in court to exonerate. So logically, they had to have been executing. 

Mr. KING. Mr. Kogan, I would point out that we have over 40,000 

people a year killed on the highways in America and over 16,000 

that are murdered in America and we will lose an average over the 

last 2 years of 172 troops in Afghanistan. Surely when we look at 

the magnitude of what we are dealing with, do you have a sense 

of the magnitude of how many innocents have been executed over 

a period of time? Do you have any sense of that that you can help 

this panel out? 

Judge KOGAN. I understand that we have had 100 to 150 people 

exonerated by DNA. 

Mr. KING. None of them executed. 

Judge KOGAN. No, none of them were executed but if we didn’t 

have DNA they would have been. 

Mr. KING. Are we certain of that? I am glad this happened. And 

I have been a strong supporter of establishing a DNA data bank 

and all kinds of circumstances because I think the saving of one 

life is worth all the investment we could possibly put into it. I don’t 

want to leave a tone—I would just like to be able to understand 

the magnitude of this. I agree with the necessity to never execute 

anyone and unjustly an innocent person. 

Mr. NADLER. Will the gentleman yield? 

Mr. KING. Yes, I would yield. 

Mr. NADLER. With respect to your question just now, in what 

percentage of death penalty cases is DNA evidence available? 

Judge KOGAN. I can’t give you an exact percentage but it is a 

very, very small amount. 

Mr. NADLER. So in other words, one has to assume that if X percent of people would have been executed but for DNA evidence 

53 

where DNA evidence is available, then probably a similar amount 

of people who are innocent are executed where the DNA evidence 

is not available; would that be correct? 

Judge KOGAN. I don’t know. There is no way for us to quantify 

that at all. But we have to say logically that if now we have exonerated between 100 and 150—and it may be more than that—by 

DNA in capital cases, look at the same percentage for years gone 

by. 

Mr. KING. Justice Kogan, I think you have given an accurate answer on this. We don’t know the number and we don’t know the 

names. And it would be helpful to know the number and the names 

so that we understood the magnitude of this. Is this a way-out-onthe-stretch anomaly or a statistical—and I think we are going to 

have to go look at that data on the Web site, as mentioned to Mr. 

Hanlon. 

But I also want to point out before I turn to Mr. O’Hare, and my 

clock is running out, I watched the O.J. Simpson trial and there 

was DNA evidence there. So some of these things go out the window when it comes time to go before a jury. 

Mr. O’Hare, I wanted to get a clarification that you might be able 

to illuminate the situation and that is if I go to the bill and it reads 

on page 2: ‘‘A sentence of death that was imposed without consideration of newly discovered evidence which, in combination with the 

evidence presented at trial, demonstrates that the applicant is 

probably not guilty of the underlying offense.’’ Can you tell me 

where is that burden of proof on ‘‘probably’’? And how do you define 

‘‘probably’’? 

Mr. O’HARE. Well, I think that if there is going to be a right to 

habeas corpus relief for claims of factual innocence, ‘‘probably’’ is 

far too low a burden of proof. In my State we do have actual innocence claims can be made in post-conviction proceedings and the 

standard is clear and convincing evidence of actual innocence, 

which is a higher and more appropriate standard. 

So I would suggest that a standard of ‘‘probably’’ is far too low 

and too imprecise. 

Mr. KING. Would you agree as our side-bar conversation that 

‘‘probably’’ means preponderance? And if that is the case shouldn’t 

that be an amendment to this language so that it is clear and convincing to us? 

I think that is a good place for me to yield back to the Chairman, 

and I thank the witnesses for their testimony. 

Why don’t you answer the question I asked? Would you agree 

that the bill should be amended for preponderance if that is the intent? 

Mr. O’HARE. I think preponderance would be a much clearer 

standard. 

Mr. KING. I am clearly convinced. 

Mr. NADLER. I thank the gentleman, and I now recognize the 

gentleman from Texas. 

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

being here. 

Mr. NADLER. I am sorry. I recognize the gentleman from Georgia. 

Mr. GOHMERT. I appreciated being recognized. Good to see you 

too. Thank you. 

54 

Mr. NADLER. I am sorry. 

Mr. JOHNSON. Thank you, Mr. Chairman. I will say that a probable cause standard, in other words it is more likely than not—— 

Mr. NADLER. Sir, your mic, please. 

Mr. JOHNSON. That standard is used for arrests, for criminal offenses and also for things like search warrants. And so I just want 

everyone to know that probable cause, which is what this legislation would actually provide for is not a strange or foreign standard 

that is used by the courts. 

Back in 1980, I was a brand new lawyer. I started practicing in 

January 1980, handling misdemeanor cases. And a friend came to 

me and said there is a guy down on death row who really needs 

an attorney, and he is due to get killed, as I recall it was around 

February 26, almost 1 month to go. The death penalty bar was so 

busy that they were willing to entrust that case to a young lawyer 

with no experience. We didn’t have the death penalty seminars to 

get lawyers ready for that kind of work. 

And so Mr. Howard Jones had already exhausted his direct appeals and so now it was State habeas and Federal habeas, on down 

the line. The record on the State habeas level pretty much mirrored the trial court’s denial of the motion for new trial and was 

also in keeping with the Supreme Court’s, the State Supreme 

Court’s denial of any relief in this case. There were a number of 

issues that only ripened about 8 years, 7, 8 years later, so Howard 

Jones from October 1977 until I think it was around March 1984, 

languished on death row. 

His attorney was great friends with the D.A. And the D.A. And 

his attorney were also well-acquainted with the judge. During the 

trial where the defense lawyer filed two motions, both of which 

were misspelled, motion for ‘‘trail’’ as opposed to ‘‘trial’’ and there 

was some other motion with misspellings. It wasn’t a careful approach to representing Mr. Jones. 

To make a long story short, in 1984 a Federal district court judge 

was able to see that this case against Howard Jones was based on 

perjured testimony and also prosecutorial misconduct, and the 

prosecutorial misconduct had to do with allowing the State’s principal witness to testify that there was no deal between he and the 

State. He had already received a 12-year sentence for armed robbery with the murder case being dead docketed. But anyway that 

case ended up, the prosecutor allowed that testimony and the defense lawyer did ask the appropriate question of the State’s principal and main witness. It did ask him and he said no, I’ve not 

reached a deal. Nobody disputed that on the prosecution side. 

So I am saying that to say it went all of the way through State 

court, the appellate direct appeal, and all of the way up to the U.S. 

Supreme Court. Then when I came into the case—well, actually I 

came into the case at State habeas, but then we embarked upon 

the Federal habeas and it was a Federal district judge and it was 

also the public defender for the main witness against my client who 

as he was getting older I guess he wanted to make a death bed confession or something like that. But he was the one who told the 

court who testified that yeah, my client did have a deal, this is 

what the deal was. And so based on that, the judge ruled in favor 

of Mr. Jones. 

55 

Now not to talk about whether or not Mr. Jones was guilty or 

innocent, I think it is important for people to have respect for our 

system of justice. And if our system of justice allows for lies, for 

a conviction to be based on lies, knowingly, then we need to improve that system. So I am just stating for the record that procedurally, procedural issues are important. Certainly procedural requirements are very important. So is the application of substantive 

law and whenever that process is not true, whenever there is a 

question about whether or not witnesses lied, in Troy Anthony 

Davis, several of the identification witnesses testified that it was 

Troy Anthony Davis who pulled the trigger, but now they are all 

saying that they were victimized by police misconduct and they 

wanted to change their testimony. 

So, you know, people do have conversions at some point where 

the truth comes out. And for us not to be able to get at that truth 

in the most important type of case that we can have where a person’s life is at stake, where the State is getting ready to take someone’s life, I think a successive petition, if necessary, in that case 

is not too tough a procedural hurdle for States to overcome. 

I had some questions that I wanted to ask, but I felt like it was 

better for me to give my personal experience with this and to echo, 

everybody has been talking about prosecutorial misconduct and ineffective assistance of counsel, and it does happen in the real 

world. I want to thank the Chairman for allowing me to have a little more time than I should. 

I yield back, Mr. Chairman. 

Mr. NADLER. The time of the gentleman has expired. 

I now recognize the gentleman from Texas. 

Mr. GOHMERT. I do appreciate you all being here, and I am sorry 

I was late. We were going through a Federal district judge impeachment hearing downstairs. 

Just so I know where everybody stands, I would like to ask: Do 

you support the imposition of the death penalty in any cases from 

State court personally? 

Mr. HANLON. I am here on behalf of the American Bar Association, and the American Bar Association, other than certain categories of juveniles, mental retardation—— 

Mr. GOHMERT. So you have no personal opinion? 

Mr. HANLON. I have a personal opinion. 

Mr. GOHMERT. What is your personal opinion? 

Mr. HANLON. My personal opinion is that the death penalty is 

not worth the price. But that is my personal opinion. 

Mr. GOHMERT. I know. You are here representing the ABA. I appreciate that. 

Judge? 

Judge KOGAN. This may surprise you. I am opposed to the death 

penalty because I see the problems in the system and how every 

day we run the risk of executing, and it is a person. For that reason alone. But there are some people who have committed crimes 

that are so heinous and so horrible that actually I think the only 

way society can show its disapproval is by exercising the death 

penalty. 

Now that doesn’t mean run of the mill—— 

56 

Mr. GOHMERT. My time is so limited. I am just trying to get a 

feel where everybody is. 

Judge KOGAN. There are certain people, and on a world scale, 

and on a world scale Adolph Hitler, Joseph Stalin, Mao Tsetung—— 

Mr. GOHMERT. But they weren’t tried in State court. 

Mr. O’HARE. I have argued to uphold death penalties, and I do 

in certain situations support the imposition of the death penalty. 

Mr. BLUME. My personal opinion is similar to Mr. Hanlon’s. I 

think it is not worth the time and effort. 

Mr. GOHMERT. Thank you. That lets me know where everyone is 

coming from personally. Since we do in our court proceedings allow 

questions so we know where people are coming from personally. 

When I look at the proposed bill, I do have concerns about the 

word ‘‘probably.’’ Yes, we have all kinds of law on the words ‘‘probable cause,’’ but ‘‘probably’’ is going to create all kinds of new case 

law. And so if the idea were to drag litigation out, drag things out 

to prevent any further execution in any case, then this would seem 

to be a good word to use. 

Also, the law as it exists right now has some limits on how many 

shots at the apple you get as well as exhaustion requirements, and 

it is my understanding under the proposed law that there is no exhaustion requirements of other remedies as well as potentially unlimited opportunities to continue to pursue a writ of habeas corpus 

under that bill. 

Is that your understanding? Mr. Hanlon, is that your understanding that there is no limit to the number of writs that may be 

brought under the proposed bill? 

Mr. HANLON. You mean under Congressman Johnson’s bill, is 

there any limit to the number of proposed writs? 

Mr. GOHMERT. That is correct. 

Mr. HANLON. I am not sure that I know the answer. I know there 

is no specific limit articulated in the bill. 

Mr. GOHMERT. Then that would be subject to court interpretation, but the bill itself does not limit it. 

I have to tell you, I appreciate Mr. Johnson’s comments. I was 

appointed to appeal a death penalty case in Texas and I have had 

three death penalty cases that I tried as a judge. Two had the 

death penalty sentence imposed and one did not. The one I was appointed to appeal, though, the court kept dragging—the highest 

court in Texas kept dragging its feet on whether or not to render 

a decision. Frankly, I had done a very effective case of pointing out 

that I didn’t have a problem with the death penalty, but in that 

case the rules were not followed and needed to be reversed. But my 

client kept begging me, please, it has been so long, tell them just 

give us a decision, leaving me on death row for an unlimited period 

is cruel and unusual. Don’t make me sit here day after day after 

day not knowing whether I am going to die next month or not die 

next month. Am I going to get close and be pulled back. Let’s just 

do it. It is cruel and unusual to make me sit here for such a long 

period of time. 

So I see the pendulum swing back and forth, but I want to make 

sure that we don’t go as far as we had back in the sixties and seventies, forgetting the victims and victims’ rights. I think we have 

57 

done a good job with the DNA laws that we have passed, and I applaud the majority’s efforts in making sure that we get better results in trials, but I would hate to see us completely eviscerate a 

State’s rights to impose punishment. 

Thank you. 

Mr. NADLER. Thank you. 

The gentlelady from Texas is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and I 

thank the witnesses as well. I want to make a statement just for 

the record that this hearing is on the impact of Federal habeas corpus limitations on death penalty appeals. And I appreciate the honesty of the witnesses, but this is not a hearing on your position on 

death penalty. I am sure many of us would have differing views on 

how we would approach our analysis of the moral validity of the 

death penalty. And many of us quarrel with ourselves in particular, 

Judge, on the framework which you used, heinous and horrific 

crimes. You probably have personal quarrels with your own morality. 

But I think this hearing is important because many of us have 

lived through the crisis of death penalty cases becoming political 

footballs. I think that is an abuse of justice. I think that is a heinous, immoral act. When in essence the political future of those 

who are entrusted to make fair and unbiased decisions are based 

solely on the latest poll, whether or not I will win the conservative 

vote, whether or not I can go into a primary and be successful. 

And why am I speaking from that perspective, because I have 

had real life experience over a period of years in trying to secure 

not biased results, not feeding false information to distort the decision-making process of an elected official, but giving them our very 

best so they can make the right decision or giving the very best to 

the Supreme Court so they can in essence put in place a stay. But 

obviously if you are addressing the conservative court versus another type of court, and of course we have lived under now what 

has been called a conservative court for more than two decades. 

So let me give you an example of what we face in particular in 

the State of Texas. One particularly troubling case is the case of 

Todd Willingham, who was executed by lethal injection in Texas in 

2004. Todd Willingham was accused of deliberately trapping his 

three children inside of a burning house. He contended that he did 

not set the fire and was asleep on the morning that the house 

caught fire, but managed to escape with burns while his daughters 

died inside. Before Willingham’s execution, his attorneys were able 

to procure expert evidence proving that he did not cause the fire 

that killed his daughters. Yet the Governor’s office of the State of 

Texas declined to even read the report. Todd Willingham was executed without an opportunity to appeal with evidence that could 

have very well saved his life. A heinous crime, certainly something 

that would distort the hearts and minds of individuals as to why 

this person should live. 

Chairman Nadler, if I could, I would like to officially ask for a 

full hearing on the Todd Willingham case. I think it is a case in 

point, and I have written a letter. 

Mr. NADLER. If the gentlelady will yield, that is in the works. 

58 

Ms. JACKSON LEE. Thank you. I am so grateful for the leadership 

of this Committee. 

Let me move quickly and just indicate, that is one glaring case 

out of the State of Texas, one Governor by the name of Governor 

Rick Perry. 

The second case was with a Kristian Oliver, executed on November 6, 2009, one case that I personally got involved with because 

it was represented that there was new evidence dealing with DNA 

on a rifle. Certainly someone died. No one would ever diminish the 

loss to these families. But someone died, and we asked for a 30- 

day stay. It was rejected. The Governor did not respond. 

Mr. Blume, if I can quickly ask the question as to what the legislation Mr. Johnson has offered, and I am an original cosponsor, 

would have done to these cases when I believe it was truly tainted 

by political aspirations and political concerns as opposed to the 

basic raw facts of a simple process of justice, and not even justice, 

but a procedural road map in order to allow new evidence to be 

presented. 

I would like Judge Kogan and Mr. Hanlon to answer those cases 

as well. 

Mr. BLUME. Certainly I know about the Willingham case more 

than the second one. I do believe that the bill, if enacted, would 

have created a forum for Mr. Willingham to present his new evidence. To me, it is a clear case of someone who was executed even 

though they were innocent in this country. 

Ms. JACKSON LEE. Mr. Hanlon, are you familiar with the Todd 

Willingham case out of Texas? 

Mr. HANLON. I am. I read Jeffrey Toobin’s article. And I agree 

with Mr. Blume. 

I want to address this question of factual innocence, if I may. My 

colleagues at the ABA have given me the DPIC Web site numbers. 

There have been 137 death row exonerations; 17 people found factually innocent through DNA evidence; 122 overwhelming evidence 

of innocence undermine the validity of the conviction, for a total of 

139. 

Let me tell you what is even more disturbing to me than that, 

and that is in many, many of these cases how lucky we were to find 

it. 

In Chicago, some Northwest journalism students worked. We 

were just lucky that there was a law professor there who put his 

students out to do an investigation, to unearth it and produce the 

exonerations. I can say in my review of these cases I am convinced 

to a moral certainty that we have executed innocent people. It is 

almost inconceivable that we haven’t done that given the luck that 

we have had many, many times throughout the system. 

Ms. JACKSON LEE. Judge Kogan? 

Mr. NADLER. The time of the gentlelady has expired. The gentleman may answer the question. 

Ms. JACKSON LEE. The question was would a procedural road 

map help to void political decisions or decisions that might cloud 

the opportunity for new evidence to be presented? 

Judge KOGAN. There is no question you would need a road map 

to do that, and it should be set up and done. 

59 

Let me make one comment. I just remembered something. A 

number of years ago I was on an American Bar Association panel 

at the Inns of Court in London, and it was an international gathering. And the moderator of that panel, in front of a huge audience 

said, you know in order for a country to become a member of the 

European Union, they have to abolish capital punishment in their 

countries. He said how come the United States still has capital 

punishment? I said very simply because our elected public officials 

who have something to say about that feel that the American people are in favor of the death penalty. Then he told us something 

that I never knew before. He said in every one of the European 

Union countries, the general populace is in favor of the death penalty, but we don’t worry about that because we are their elected officials and they have confidence in our ability to know more about 

these problems and the issue of the death penalty than they do and 

they trust us to do the right thing. 

Ms. JACKSON LEE. A potent statement, and I think the right note 

to end my questioning on. Thank you, gentlemen, very much. 

Mr. NADLER. I now recognize the gentleman from Georgia for a 

unanimous consent request. 

Mr. JOHNSON. Mr. Chairman, I would like to submit three letters, one from NAACP and the other from Amnesty International, 

and the third from the ACLU. All of these documents show that 

these organizations are in favor of H.R. 3986. 

Mr. NADLER. Without objection, they will be admitted for the 

record. 

[The information referred to follows:] 

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Mr. NADLER. Without objection, all Members will have 5 legislative days to submit to the Chair additional written questions for 

the witnesses, which we will forward to the witnesses and ask 

them to respond as promptly as they can so their answers may be 

made part of the record. 


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Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

I thank the Members and witnesses. With that this hearing is 

adjourned. 

[Whereupon, at 3:10 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

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