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45–332 PDF 2008

S. HRG. 110–626 

THE ADEQUACY OF REPRESENTATION IN CAPITAL 

CASES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 8, 2008 

Serial No. J–110–84 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Chief Counsel 

LAUREN B. PETRON, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 56 

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts, 

prepared statement .............................................................................................. 78 

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

statement .............................................................................................................. 80 

WITNESSES 

Greco, Michael S., former President of the American Bar Association, and 

Partner, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Boston, Massachusetts ................................................................................................................. 3 

Stevenson, Bryan, Executive Director, Equal Justice Initiative, Clinical Professor of Law, New York University School of Law, Montgomery, Alabama .. 6 

Temin, Carolyn Engel, Senior Judge, Court of Common Pleas of the First 

Judicial District of Pennsylvania, Philadelphia, Pennsylvania ........................ 8 

Verrilli, Donald B., Jr., Partner, Jenner & Block LLP, Washington, D.C. ......... 10 

QUESTIONS AND ANSWERS 

Responses of Michael Greco to questions submitted by Senator Kennedy ......... 22 

Responses of Bryan Stevenson to questions submitted by Senator Kennedy ..... 24 

SUBMISSIONS FOR THE RECORD 

Constitution Project, Washington, D.C., report (excerpts) ................................... 35 

Current and retired judges who served on the Supreme Court, Courts of 

Appeal, and/or Superior Court in California, joint letter ................................. 54 

Greco, Michael S., former President of the American Bar Association, and 

Partner, Kirkpatrick & Lockhart Preston Gates Ellis LLP, Boston, Massachusetts, statement and attachments ................................................................ 58 

Sessions, William S., former Director, Federal Bureau of Investigation, Washington, D.C., statement ........................................................................................ 82 

Spangenberg, Robert L., President, Spangenberg Group, West Newton, Massachusetts, statement .......................................................................................... 85 

State Bar of Texas, Task Force on Habeas Counsel Training & Qualifications, 

report ..................................................................................................................... 106

Stevenson, Bryan, Executive Director, Equal Justice Initiative, Clinical Professor of Law, New York University School of Law, Montgomery, Alabama, 

statement .............................................................................................................. 117 

Temin, Carolyn Engel, Senior Judge, Court of Common Pleas of the First 

Judicial District of Pennsylvania, Philadelphia, Pennsylvania, statement ..... 135 

Verrilli, Donald B., Jr., Partner, Jenner & Block LLP, Washington, D.C., 

statement .............................................................................................................. 140 

(1) 

THE ADEQUACY OF REPRESENTATION IN 

CAPITAL CASES 

TUESDAY, APRIL 8, 2008 

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Subcommittee met, pursuant to notice, at 10:20 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Russell D. 

Feingold, Chairman of the Subcommittee, presiding. 

Present: Senator Feingold. 

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

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I call the Committee to order. Good morning and welcome to this hearing of the Constitution Subcommittee 

entitled ‘‘The Adequacy of Representation in Capital Cases.’’ We 

are honored to have with us this morning some very distinguished 

witnesses. I appreciate the effort they have made to be here today, 

and I also want to thank the Ranking Member, Senator 

Brownback, for working with me to put this hearing together. And 

I am sorry that he is understandably unable to attend. I very much 

appreciate his commitment to exploring these critically important 

issues related to capital punishment. 

I will start by making a few remarks, and then we will turn to 

our panel of witnesses for their testimony. 

As a result of the litigation before the Supreme Court challenging the constitutionality of lethal injection as a method of execution, there is currently a de facto moratorium on executions in 

this country. This presents us with an opportunity while executions 

are paused to take stock of one of the most serious problems still 

facing many State capital punishment systems, and that is the 

quality of representation for capital defendants. And that is the 

purpose of this hearing. 

Specifically, today we will examine the adequacy of representation for individuals who have been charged with and convicted of 

capital crimes at the State level. We will discuss the unique challenges of capital litigation, and the unique resources and training 

capital defenders need to be fully effective. 

The Supreme Court held in 1932, in Powell v. Alabama, that defendants have the right to counsel in capital cases. The Court explained that an execution resulting from a process pitting ‘‘the 

whole power of the state’’ against a prisoner charged with a capital 

offense who has no lawyer, and who may in the worst cirVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
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cumstances even be illiterate, ‘‘would be little short of judicial murder.’’ 

Those are strong but appropriate words. Over the following decades, the Supreme Court continued to recognize the importance of 

the right to counsel, ultimately concluding in 1984 in Strickland v. 

Washington that the Sixth Amendment guarantees not just the appointment of counsel, but the effective—the effective—assistance of 

counsel. 

Yet as the witnesses today know from the variety of perspectives 

they bring to this issue, these constitutional standards are just the 

beginning. The work done by a criminal defense attorney at every 

stage of a capital case and the experts and resources available to 

that attorney can literally mean the difference between life and 

death. 

This is not a hypothetical. The right to effective assistance of 

counsel is not just a procedural right; it is not just lofty words in 

a Supreme Court decision. Failing to live up to that fundamental 

obligation can lead to innocent people being put on death row. 

Just last week, an inmate in North Carolina, Glen Edward Chapman, was released after nearly 14 years on death row, bringing the 

number of death row exonerees to 128 people. A judge threw out 

Mr. Chapman’s conviction for several reasons, including the complete failure of his attorneys to do any investigation into one of the 

murders he was convicted of committing—a death that new evidence suggests may not have been a murder at all but, rather, the 

result of a drug overdose. Local prosecutors decided not to retry 

Mr. Chapman and dismissed the charges. According to North Carolina newspapers, Mr. Chapman’s incompetent defense was mounted 

by two lawyers with a history of alcohol abuse. News reports indicate that one admitted to drinking more than a pint of 80-proof 

rum every evening during other death penalty trials, and the other 

was disciplined by the State bar for his drinking problems. 

Yet despite all this, Mr. Chapman on the day of his release is 

quoted as saying, ‘‘I have no bitterness.’’ This after nearly 14 mistaken years on death row. 

Mr. Chapman’s story is astounding, but it is not unique. The 

quality of representation in capital cases in this country is uneven, 

at best. And the story also illustrates a critical point: The right to 

counsel is not abstract. It absolutely affects outcomes. Supreme 

Court Justice Ruth Bader Ginsburg has stated it about as plainly 

as possible: ‘‘People who are well represented at trial do not get the 

death penalty.’’ 

Obviously, inadequate representation is not unique to capital 

cases. But the challenges presented in a death penalty case are 

unique, and the consequences of inadequate representation catastrophic. Capital cases tend to be the most complicated homicide 

trials, and the penalty phase of a capital case is like nothing else 

in the criminal justice system. To do these cases right, at the trial, 

penalty, appellate, and State post-conviction stages, requires vast 

resources and proper training—not only for the defense attorneys 

who need to put in hundreds of hours of work, but also for the investigators, the forensic professionals, mitigation specialists, and 

other experts. 

3 

Yet those resources are not available in all too many cases. We 

will hear more about that from our witnesses today. These realities 

have led people of all political stripes—both supporters and opponents of the death penalty—to raise grave concerns about the state 

of capital punishment today. Judge William Sessions, the former 

FBI Director appointed by President Reagan, was unable to join us 

in person today, but he submitted written testimony, which without objection I will place in the record. In it he notes that while 

he supports capital punishment, ‘‘[w]hen a criminal defendant is 

forced to pay with his life for his lawyer’s errors, the effectiveness 

of the criminal justice system as a whole is undermined.’’ 

Unlike Judge Sessions, I oppose the death penalty. But as long 

as we have a death penalty, we owe it to those who are charged 

with capital crimes, we owe it to our criminal justice system, and 

we owe it to the principles of equal justice on which this Nation 

was founded, to make sure that they have good lawyers who have 

the resources they need to mount an effective defense. 

This is not just the right thing to do. It is not just a high aspiration we should try to achieve at some point in the distant future. 

It is a moral imperative. And it is one that this country has failed 

to live up to for far too long. 

We will now turn to the testimony from our witnesses. Will the 

witnesses please stand and raise your right hand to be sworn? Do 

you swear or affirm that the testimony you are about to give before 

the Committee will be the truth, the whole truth, and nothing but 

the truth, so help you God? 

Mr. GRECO. I do. 

Mr. STEVENSON. I do. 

Judge TEMIN. I do. 

Mr. VERRILLI. I do. 

Chairman FEINGOLD. Thank you very much, and you may be 

seated. I want to welcome you and thank you for being here with 

us this morning. I ask that each of you limit your remarks to 5 

minutes, as we have a lot to discuss. Your full written statements 

will, of course, be included in the record. 

Our first witness is Michael Greco. Mr. Greco is a former President of the American Bar Association, has served on the ABA 

Board of Governors, and has been a delegate in the ABA House of 

Delegates for more than 20 years. He is a partner at the law firm 

of Kirkpatrick & Lockhart Preston Gates Ellis in Boston. 

Mr. Greco, thank you for your record and what you have done, 

and thank you for joining us. You may begin. 

STATEMENT OF MICHAEL S. GRECO, FORMER PRESIDENT OF 

THE AMERICAN BAR ASSOCIATION, AND PARTNER, KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP, BOSTON, MASSACHUSETTS 

Mr. GRECO. Thank you, Mr. Chairman, and thank you very much 

for giving the American Bar Association the opportunity to present 

testimony this morning on the subject of today’s hearing, the adequacy of defense representation in capital cases and its impact on 

the administration of the death penalty. 

This subject relates directly to Americans’ most cherished constitutional principles: protecting the rights and freedoms of all citiVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
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zens, and ensuring that justice is done for all. My written statement to the Subcommittee details the many serious problems that 

the ABA’s 4-year survey, just completed, has found with the administration of the death penalty in the United States. In the several 

minutes I have to speak, I will focus my remarks on two points: 

one, the deplorable quality of defense representation in death penalty cases in our country; and, two, the ABA’s recommendations as 

to what measures Congress and death penalty jurisdictions should 

take to correct the situation that now exists. 

I note at the outset that the American Bar Association has not 

taken a position on the constitutionality or appropriateness of the 

death penalty. 

So the first issue, What has the ABA survey determined about 

the quality of death penalty representation in the United States? 

The ABA’s findings, taken as a whole, establish that ineffective 

death penalty representation is pervasive throughout the States, 

and that the administration of the death penalty in America is 

shameful. 

State governments for decades have failed to take necessary 

steps to address longstanding and systemic problems in administering the death penalty. As a consequence, too many defendants, 

especially those of low income, do not receive fair trials, and mistakes leading to injustice occur far too often. 

Conducted by the ABA’s Death Penalty Moratorium Project, the 

ABA survey examined the death penalty systems in eight States. 

State-based assessment teams, composed of experienced and respected individuals, conducted the surveys in each State. The research teams collected comprehensive data in 12 important areas, 

starting with the most important area—competency of defense representation. 

While the scope and detail of the problems may differ among the 

States, most of the identified problems are disturbingly universal 

throughout all the States. Ineffective defense representation was 

found to exist in every State surveyed. Effective representation in 

a death penalty case requires lawyers with specialized training and 

experience in death penalty cases, fair compensation to the lawyers 

who undertake these cases, and funding for defense lawyers to engage necessary investigators and experts. These key elements are 

now generally being ignored in death penalty jurisdictions. 

A comprehensive study conducted in the year 2000 established 

that between 1973 and 1995, State and Federal courts reviewing 

capital cases determined that retrials or resentencing were necessary in 68 percent of the cases reviewed. Competent defense 

counsel with adequate resources would have averted the constitutional errors that led to a miscarriage of justice, that led to cruel 

and unusual punishment for defendants, that led to lack of closure 

for victims’ families, and to terribly wasteful use of taxpayer 

money. The ABA assessment criteria included five separate recommendations regarding competency of defense counsel. 

Not one—not one—of the States surveyed fully complies with any 

of those criteria. Most egregiously, two of the States surveyed failed 

to provide for the appointment of counsel at all in post-conviction 

proceedings, leaving death row defendants desperate for legal assistance. The various causes that have contributed during the past 

5 

three decades to the current crisis are detailed in my written statement and are well known to many of us in this room. It suffices 

to say that these causes have greatly increased the risk that an innocent person may be executed, and that, in your words, Mr. 

Chairman, in your introduction, judicial murder may be committed. 

But rather than focusing on the reasons that our justice system 

continues to fail indigent defendants, let me address instead what 

we must do to remedy the situation. What should Congress and the 

death penalty jurisdictions do? What measures to take to address 

and correct the deplorable situation? 

First, Congress should carefully reexamine its policies and correct or repeal those that may have contributed to the current situation. For example, data should be collected on the effect that the 

Antiterrorism and Effective Death Penalty Reform Act of 1996 has 

had on the administration of the death penalty in our country. 

Next, Congress should consider new legislation to address the systemic problems that are detailed in the ABA survey, and implementation of any newly enacted legislation that affects death penalty procedures must be carefully monitored and evaluated. Congress needs to place greater emphasis on adequate funding to help 

death penalty jurisdictions eliminate the injustices detailed in the 

ABA survey. 

This may be a little controversial, but I will say it in any event: 

The ABA believes that Congress should consider providing financial incentives to States or withholding funding from States that 

fail adequately to fund a competent death penalty system, as Congress has done in other areas. 

Finally, the ABA guidelines discussed in my written statement 

provide death penalty jurisdictions with a clear blueprint for reform. Congress should express its approval of implementation of 

the ABA guidelines in every way possible. Significant resources— 

financial and human—must be committed by Congress and by 

death penalty jurisdictions to ensure that our justice system is fair 

and that innocent lives are not taken. 

I close by quoting one of my predecessors and good friend, former 

ABA President John J. Curtin, Jr., of Boston, who nearly two decades ago said this: ‘‘A system that will take life must first give justice.’’ 

Thank you, Mr. Chairman, on behalf of the American Bar Association for this opportunity to address this important subject. 

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

for the record.] 

Chairman FEINGOLD. Thank you so much, Mr. Greco. 

Our next witness is Bryan Stevenson. Mr. Stevenson is the 

founder and Executive Director of the Equal Justice Initiative in 

Montgomery, Alabama, and a clinical professor of law at NYU Law 

School. Since 1985, Mr. Stevenson has represented indigent defendants and death row prisoners and has secured relief for dozens of 

condemned prisoners. He is a recipient of the prestigious MacArthur Foundation’s Genius Award and many other national 

awards for his work. 

Mr. Stevenson, thank you for joining us and please proceed. 

6 

STATEMENT OF BRYAN STEVENSON, EXECUTIVE DIRECTOR, 

EQUAL JUSTICE INITIATIVE, CLINICAL PROFESSOR OF LAW, 

NEW YORK UNIVERSITY SCHOOL OF LAW, MONTGOMERY, 

ALABAMA 

Mr. STEVENSON. Thank you, Mr. Chairman. I want to first extend my appreciation to you for convening this hearing and for 

your leadership in promoting fairness in the administration of 

criminal justice. 

It is unfortunate, but I do not think controversial, for me to assert that our criminal justice system is incredibly wealth-sensitive. 

We have a criminal justice system in this country that in most jurisdictions treats you much better if you are rich and guilty than 

if you are poor and innocent. And while that is deplorable and horrific, in death penalty cases, it is unacceptable. This legacy of inadequate legal representation has now created an environment where 

the death penalty in most jurisdictions is fundamentally flawed by 

unreliability that is largely created by an inadequate indigent defense. 

The U.S. Supreme Court has created standards, but these standards have not been met or satisfied in most death penalty jurisdictions. I would like to talk about this in three areas: first at the trial 

stage, then on direct appeal, and then in post-conviction. 

You noted in your opening statement that we have now had 

nearly 130 people released from death row after being proved innocent. During that same 30-year time period, there have been 1,100 

executions. This means that we are dealing with a rate of error in 

death penalty administration in this country that suggests that for 

every eight people executed, we have now identified one innocent 

person. The ratio of innocent people is actually much higher because we have not achieved finality in the other 3,500 cases, but 

it is a shocking rate of error. 

It is my view that in most of those cases, wrongful convictions 

were largely the result of bad lawyering. While we have introduced 

DNA and other techniques to help us expose wrongful convictions, 

bad lawyering is the common denominator. 

At the trial level, we have seen gross underfunding of capital defense work. In my State of Alabama, 60 percent of the people on 

death row were defended by lawyers appointed by courts who, by 

statute, could not be paid more than $1,000 for their out-of-court 

time to prepare the case for trial. 

In Texas, hundreds of death row prisoners are awaiting execution after being represented by lawyers who could not receive more 

than $500 for experts or mitigation services. 

In Oklahoma, in Mississippi, in Florida, in Virginia, in Georgia, 

and, in fact, in most of the States where the death penalty is most 

frequently imposed, there are hundreds of death row prisoners 

whose lawyers had their compensation capped at rates that made 

effective assistance impossible. And yet we have done nothing to 

confront that history. These are the cases that are now moving toward execution, and in the next 3 years, these condemned prisoners face death on those unreliable verdicts. 

The problems at trial are animated by horrific incidents: sleeping 

lawyers, drunk lawyers, abusive lawyers. I was in Oklahoma last 

month testifying in a case where a death row prisoner had been 

7 

represented by a lawyer who was abusing drugs and alcohol; was 

actually admitted to a rehab center 3 weeks after the trial; who actually threatened his client 2 months after meeting him; asking the 

bailiffs to take off his handcuffs so this man could whup him, and 

notwithstanding all of this conflict, was allowed to represent this 

man. Not surprisingly, he was sentenced to death. Previously, the 

defendant was represented by an attorney who waived closing argument and presented no evidence at the penalty phase. This kind 

of advocacy is, unfortunately, not the exception. In too many jurisdictions, it is the norm. 

The problem of trial advocacy is aggravated by problems on appeal. I have attached to my statement today a brief that was recently filed on behalf of a death row prisoner in Alabama. It is the 

main brief, the only brief to present and preserve issues in this 

death row prisoner’s case. It is 11 pages long. It presents not a single coherent constitutional issue. This week, my office will file papers at the Alabama Supreme Court begging that court for the 

right to let a death row prisoner whose lawyer has failed to file a 

brief back into court. This is the third instance this year where a 

death row prisoner has had his appeals forfeited because a lawyer 

simply never filed a brief. These problems on direct appeal do not 

get resolved in post-conviction because our court has yet to recognize a right to counsel for even death row prisoners in collateral 

review. 

There are 3,500 people on death row in this country. There are 

hundreds that are literally dying for legal representation. They 

cannot find lawyers. We do not provide them a constitutional right 

to counsel, and so we rely on pro bono lawyers, volunteer legal aid. 

In many jurisdictions, these lawyers cannot be found. We have two 

people in Alabama whose appeals will expire in the next 6 weeks 

if they do not find lawyers. We have not found them yet. 

These problems of collateral review are also compromised by limits on compensation to appointed counsel. In my State, an appointed lawyer who represents someone on death row in collateral 

appeals by statute can only be paid $1,000. These problems are aggravated in many ways by post conviction law, by recent pronouncements from this Congress, and by the courts. 

I just want to conclude by echoing one of the recommendations 

that was made by Mr. Greco. The Antiterrorism and Effective 

Death Penalty Act has absolutely aggravated the problem of bad 

lawyering. By insulating review of bad lawyering from Federal 

courts, we are tolerating greater and greater incompetence in these 

cases. We have now precluded remedies for constitutional violations because if the lawyer does not object, those issues do not get 

reviewed. 

I just want to conclude by saying that none of our work to make 

the death penalty fair on race issues, on access issues, on resource 

issues can be achieved until we deal with bad lawyering. Just one 

quick example: I will be arguing a case at the Eleventh Circuit in 

a couple of months dealing with race bias. It is a case out of Selma, 

in Alabama. In that case, the prosecutor excluded all African-Americans from serving on the jury; he excluded 16 black people. It is 

a majority black county where an African-American was tried by 

an all-white jury. The prosecutor, in justifying these reasons, actuVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
8 

ally said that six of the African-Americans ‘‘looked like they were 

of low intelligence.’’ Since the defense lawyer did not object, every 

court that has reviewed that evidence of bias and discrimination 

has upheld it. 

The problem at the Eleventh Circuit will be getting the judges 

to confront this kind of race bias, what it means to that whole community to have someone executed with that kind of discrimination 

and bigotry, and what it means for this man that the lawyer failed 

to do his job. Because the lawyer failed to do his job, the court is 

not obligated to talk about the merits of the claim. 

This problem of bad lawyering is central to fair and just administration of the law. Until we solve it, we are going to be fundamentally thwarted in our efforts to create reliable justice in these cases, 

and I really commend this Congress and the leadership of this 

Committee in helping us achieve that result. 

Thank you. 

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

Chairman FEINGOLD. Thank you, Mr. Stevenson, for your interesting testimony. 

Our next witness is Judge Carolyn Engel Temin, a senior judge 

of the Court of Common Pleas of the First Judicial District of Pennsylvania in Philadelphia. She has presided over hundreds of capital 

cases. Before joining the bench in 1984, Judge Temin was an Assistant District Attorney in Philadelphia County, and she has also 

worked at the Defender Association of Philadelphia. She is the 

principal author of the Pennsylvania Bench Book for Criminal Proceedings and has been honored with numerous awards over the 

course of her distinguished career. 

Judge Temin, thank you for joining us today, and you may begin. 

STATEMENT OF CAROLYN ENGEL TEMIN, SENIOR JUDGE, 

COURT OF COMMON PLEAS OF THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA, PHILADELPHIA, PENNSYLVANIA 

Judge TEMIN. Thank you very much, Senator Feingold, for having a hearing that would bring these issues to the forefront. 

As a sitting judge, I can tell you that nothing is worse than presiding over a penalty phase of a death case in which you are watching a lawyer do a bad job. 

Since the recent trilogy of appellate cases coming down from the 

Supreme Court, it has become much easier in my jurisdiction to repair some of these problems on appeal on collateral attack. In 

Pennsylvania, you can only raise ineffective counsel on collateral 

attack, so, number one, you have to wait until it is time for the collateral attack after you have exhausted your direct appeal possibilities. 

I also want to emphasize that collateral attack, although it is 

better than nothing, is not a very good panacea for the problems 

of ineffective assistance of counsel. These hearings, these post-conviction hearings, are extremely expensive and extremely laborious. 

They involve hiring all the people that should have been hired initially by trial counsel, by presenting that evidence to the post-conviction judge. And then if the defendant is granted a new penalty 

phase hearing and if that is eventually affirmed by the Supreme 

9 

Court of Pennsylvania, then doing it all over again at a new penalty phase hearing—and I can tell you after having presided over 

a number of them that nothing is worse than what I call a ‘‘standalone penalty phase hearing,’’ where you basically pick a jury, 

bring 12 people in off the street, and tell them, ‘‘We don’t have to 

worry about the guilt phase. The defendant has already been found 

guilty of murder in the first degree. You folks just have to decide 

life or death.’’ These hearings present numerous problems, both for 

the prosecution and the defense. How the facts of the case are presented to the jury hearing only the penalty phase is a big problem. 

And these cases are often brought 20 and 30 years after the original trial where records are lost, witnesses die, and there may be 

irreparable prejudice to the defense. In fact, that issue is presently 

before me where the Defender Association in a case has raised the 

issue of whether the State, having been responsible for appointing 

a lawyer who has been found to be ineffective by the Supreme 

Court of Pennsylvania, is estopped from holding another penalty 

phase hearing because of prejudice caused to the defendant. 

So, in my view, being able to get a new penalty phase on collateral attack is not the answer. The answer is to provide effective 

counsel in the first place. And I sit in a jurisdiction, Philadelphia— 

by the way, it is not just a State issue. Many States have statewide 

Defender Associations. In Pennsylvania, each county is different. 

So it can be a county-by-county problem as opposed to a State-byState problem. We try to provide effective counsel. We have an excellent Defender Association, but they will only accept 20 percent 

of all murder cases. That is their policy. 

For the rest of the cases, we rely on court-appointed counsel and 

then privately retained counsel. Court-appointed counsel must go 

through a certification program, which, of course, they sometimes 

only sit through. We also require the appointment of two counsel 

in every capital case, one of whom is the mitigation counsel, who 

has to be also trained in a separate course. But I will tell you that 

my experience is that private appointed counsel fall generally far 

below the standards of the Defender Association counsel. 

I would just in my remaining time like to talk about what I think 

are things that can be done to ensure that every defendant in a 

capital case has effective assistance of counsel. 

One is a suggestion that may sound revolutionary, it is done in 

other countries, and that is to say that every defendant in a capital 

case should be entitled to court-appointed counsel. This is done in 

other countries that do not have capital punishment. Bosnia and 

Herzegovina for one, which is an emerging democracy, allows defendants to have their own choice of court-appointed counsel in any 

case punishable by more than 10 years. 

Then I think we have to adopt the standards, the ABA standards, as the law, as the minimum standards for appointed counsel. 

And, third, we have to fund either specialized capital defender offices or existing defender offices to provide effective representation. 

Defender offices are able to develop their own what I call ‘‘stable 

of experts,’’ so they are able to provide very good and effective experts in every case. And we would not have to rely on private counsel. The worst counsel are the privately retained counsel over 

whom the court has absolutely no control at all. With court-apVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
10 

pointed counsel, we have some control over the preparation of the 

case, and also if counsel are doing a bad job before the trial, we 

can replace them. 

So these are the things that I suggest, and I would suggest that 

the Congress can do some of the these that have been suggested 

by other panelists to encourage States to adopt the ABA standards 

and provide effective appointed counsel. And I want to underscore 

what Justice Ginsburg said, which Senator Feingold quite rightly 

referred to. The quality of counsel can often make the difference between life and death. We know that. And it isn’t just following a 

laundry list of things that a lawyer must do. There are many subtle things that go into making an effective counsel: ability to connect with the jury, ability to strategize—just very subtle things 

that I as a trial judge see every day. And I think that these things 

are best provided by Defender Associations who have the ability to 

train their staff and have the ability to find adequate experts to 

represent their clients. 

Thank you. 

[The prepared statement of Judge Temin appears as a submission for the record.] 

Chairman FEINGOLD. Thank you so much, Judge Temin. 

Our final witness is Donald Verrilli. Mr. Verrilli is a partner at 

the Washington, D.C., office of Jenner & Block. He has argued numerous cases before the U.S. Supreme Court, including Wiggins v. 

Smith, in which he successfully defended the right to effective 

counsel at the penalty phase of a capital proceeding. He is also an 

adjunct professor of constitutional law at the Georgetown University Law Center. 

Mr. Verrilli, thank you for being here today, and you may begin. 

STATEMENT OF DONALD B. VERRILLI, JR., PARTNER, JENNER 

& BLOCK LLP, WASHINGTON, D.C. 

Mr. VERRILLI. Thank you, Mr. Chairman. I personally am very 

grateful that you have focused attention on this critically important 

issue that ought to matter to all of us in this profession a very 

great deal. 

I have got a somewhat different perspective on this set of issues. 

I am a civil litigator, not a criminal lawyer. But I have for more 

than 20 years devoted a portion of my time pro bono to the representation of condemned prisoners on death row. I became involved in that because, as a law clerk more than 20 years ago, reviewing emergency stay applications with pending executions, it 

became painfully obvious to me that the quality of lawyering for 

those on death row and facing execution was abysmally bad, and 

I have tried over the course of my career to do something about 

that in a small way. 

The Wiggins case, which managed after a 10-year odyssey to 

make its way to the Supreme Court, was a product of that, and it 

was a case for me that was quite illustrative and opened my eyes 

to what I think the real significant problems are. A key part of that 

problem, I think, begins with the unique nature of capital trial. 

Of course, the defendant’s life is on the line, and a critically important part of the defense counsel’s job is to do everything possible 

to try to disprove the defendant’s guilt. Then, of course, there is an 

11 

entirely separate phase in a capital trial, the penalty phase in 

which the—if the defendant is found guilty, the question becomes 

life or death, and the defense lawyer’s job is to put together that 

case for life. And what we learned through the Wiggins case is that 

that is an extraordinarily laborious job. It requires hundreds, if not 

thousands, of hours of attorney time. It requires often tens of thousands of dollars’ worth of expert assistance to build a meaningful 

case for life. 

Indeed, when we took over the Wiggins case in the State postconviction review, after the direct appeals were concluded, the first 

thing we learned as we dug in was that the trial lawyers simply 

had not done that. They had not put together anything with respect to trying to prove a case for life at the sentencing phase of 

the trial. So that is what we dug in and did, spent the kind of 

hours and resources I just described. And what we learned was 

that, in fact, this defendant, Mr. Wiggins, had had a horrific, horrific childhood and background, subject to awful abuse from his 

natural mother, who was an alcoholic, taken away at age 6, put 

into foster care where he was sexually molested by the foster father 

for a period of 6 years, removed from that home, put in another 

home where he was gang raped by the natural kids, naturally left 

that circumstance, ran away, became homeless. 

That was the kind of background that we discovered through our 

efforts that had not been discovered before, had not been presented 

to the jury, and when we did present that evidence in the context 

of showing what counsel should have done in the initial trial, we 

were fortunate enough eventually to prevail in front of the Supreme Court. And so maybe you could think of that as a success 

story, I supposed, in that eventually justice was done in that case. 

The death sentence was vacated, and then Mr. Wiggins did not receive a death sentence on retrial. But really that is a failure, that 

story. That is a failure of the system. All of those thousands of 

hours of effort, all of those many years of time, all of the lack of 

closure for the victim’s family, all the resources the State had to 

put in were totally unnecessary. They were all the product of bad 

lawyering at the outset. 

And so I think that the notion that having this kind of focus on 

the post-conviction review with private pro bono firms coming in to 

do this work to save the day is really a mistaken notion. What we 

need is to be in a situation where you do not have to confront this 

kind of problem. And it seems to me it is pretty clear what the answer is, and it is twofold: One is training, and I feel quite certain 

that had Wiggins’ trial lawyers received appropriate training— 

which they did not—they would have understood about the nature 

of the case they needed to build. And the other is, of course, resources. If you can contrast the thousands of hours of attorney time 

and the tens of thousands of dollars of disbursements for experts 

that we put in, the amount of time and the amount of money that 

is normally afforded—and Mr. Stevenson described very well, I 

think, the kinds of limits that prevail around this country, and you 

can see the vast gap between the two. The answer seems pretty 

glaringly obvious that this is about resources, that if you want to 

get effective lawyering, it has to be paid for. And that seems to me 

ought to be front and center in the debate. 

12 

Thank you. 

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

for the record.] 

Chairman FEINGOLD. Thank you, sir, and I thank the entire 

panel. 

Just before we move into questions, Senator Leahy, the Chairman of the Judiciary Committee, who, of course, has long been 

dedicated to this issue, has asked that his statement be placed in 

the record, and without objection, it will be placed in the record. 

Mr. Greco, capital punishment can be a highly divisive issue, yet 

my understanding is that the teams that conducted the State-byState evaluations for the ABA State Assessment Project, which 

found so many problems with the capital defense systems in all 

eight of the States that were studied, consisted of local experts 

from a variety of perspectives. Can you tell us a little bit more 

about the diversity of viewpoints that made up these State teams? 

Mr. GRECO. Yes, Mr. Chairman. First, we deemed it important 

that the experts doing the State surveys be from the State in which 

the survey was being done. To that end, we had on the assessment 

teams prosecutors, defense counsel, legislators, current or retired, 

judges, current or retired, bar leaders, and other people, and access 

to others in the community so that the effort was made to make 

the assessment team as broadly representative of all aspects of the 

criminal justice system as possible. And we think we had such diversity on the assessment teams. 

Chairman FEINGOLD. And I take it—and I hope I am right about 

this—that these teams were comprised of people who both supported and opposed the death penalty, and they all agreed that 

there were major flaws in each of these State systems. Is that correct? 

Mr. GRECO. That is correct, Mr. Chairman. There was no litmus 

test for someone being appointed to be for or against the death penalty or for or against the moratorium. We wanted open-minded people who would look at the fairness of the State’s capital system. 

Chairman FEINGOLD. Judge Temin, you have explained that in 

Philadelphia there is a mixed system of representation for indigent 

defendants in capital cases, with some being represented by the 

Defender Association, but many more securing representation 

through court-appointed counsel. Is it true that not many lawyers 

are willing to take court appointments in capital cases? And why 

do you think that is? 

Judge TEMIN. Yes, it is true. We have a very small group of lawyers that take appointments, and it makes it very difficult for us 

to list those cases in a timely manner because of the lawyers’ 

schedules rather than the court schedules—sort of the opposite of 

the usual situation. 

The reason is because it is such—well, first of all, they are underpaid. They are really providing pro bono representation. The 

lawyers are paid approximately $7,000 apiece for the team, which 

is far below what they are actually putting in and far below what 

they charge to their private clients. 

And then getting experts is a very laborious process. Our court gives out about $1,500 to $2,000 automatically at the request for 

an expert. Experts do not work for that amount of money. They reVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
13 

quire 2 and 3 times that amount. And generally what happens is 

the lawyers have to bargain with the experts to get them to not 

charge their usual fee, and then petition the court specially for 

each expert to ask us to allow additional funds, which we generally 

do at the trial level, and then at the administrative level, that is 

sometimes cut down the lawyer’s request for additional fees, which 

they are allowed to ask for, but they have to petition and file very 

specific, laborious petitions showing all their time. Usually the administrative judges feel it is their job to cut those down a little bit, 

and a lot of lawyers that I know have stopped—a lot of very good 

lawyers refuse to take appointments because it is just too much 

trouble to do. As a result, we have a very small number of lawyers 

who are able to take court appointments in capital cases. 

Chairman FEINGOLD. And I take it, apart from the set fees, that 

it is difficult for lawyers to obtain additional compensation in these 

cases? 

Judge TEMIN. Yes, they have to file a specific, very detailed petition stating all their time and so forth. 

Chairman FEINGOLD. OK. Mr. Stevenson, following up on that, 

many States place limits on the fees that attorneys can be paid in 

a capital case, including limits as low as $2,000 in Mississippi. But 

most States that have caps also permit those limits to be waived 

in certain circumstances, often by allowing the attorney, as was 

just suggested by Judge Temin, to petition the court for additional 

compensation. 

In your experience, are these types of waiver provisions effective 

in allowing attorneys to be compensated adequately for the work 

necessary to properly defend in a capital case? 

Mr. STEVENSON. No. I mean, the problem is that you have to do 

the work before you know whether you are going to get paid. If you 

are a private lawyer in a system where you have other paying clients and you have other economic pressures, it just becomes unreasonable to do that kind of hopeful litigation. 

And so, even when local judges frequently support the lawyer’s 

appeal, as the Judge mentioned, there are administrative bodies 

that have the authority to cut these vouchers or cut these payments that have even been authorized by judges. So you have to 

worry about two levels of authorization—the local level and the administrative level. Most lawyers in a competitive economic environment simply cannot afford to give hundreds of hours of work to the 

system for free or without assurances that they will be paid. 

That is aggravated by a larger problem. These improvements in 

compensation—and that is what we are talking about at this universe, where the caps have been waivable and what not—have all 

come in the last 5, 6, 7 years. I just want to emphasize that the 

majority of people on death row in this country were represented 

by lawyers at a period of time when even these waivers of caps 

were not available. And we have done absolutely nothing to assist 

those people whose convictions were fundamentally flawed by very, 

very rigid compensation caps. 

Chairman FEINGOLD. Mr. Verrilli, say a bit more about why the 

sentencing phase of a capital case is so different from non-capital 

criminal cases and why it takes so much preparation. 

14 

Mr. VERRILLI. Yes, Mr. Chairman. I do think that is a critical 

point. Some decades ago, the Supreme Court insisted that we have 

a heightened degree of reliability in our capital sentencing process 

to minimize the degree of mistake. And one important part of that 

heightened degree of reliability has been the requirement that the 

sentencing jury be afforded the opportunity to have a comprehensive sense of the defendant’s background and character, that the 

sentencing judgment is not just about the crime, it is about the defendant’s background and character, as well as the circumstances 

of the crime, in order to allow the sentencing jury to make what 

Justice O’Connor described as a ‘‘reasoned moral response’’ about 

what the appropriate level of culpability should be. And the only 

way that a sentencing jury is going to be able to give that reasoned 

moral response and have it be one that we as a society can rely 

on as a just response is if the lawyers have done their job in preparation for that hearing. And what that means is just an extraordinary amount of digging into the defendant’s background. You 

have got to learn all kinds of things that are very difficult to find. 

You have got to dig out information that may be decades old. You 

have got to track down witnesses that may have dispersed to the 

four corners of the globe. And you have got to get people very often 

to talk about subjects that are extremely difficult that they do not 

want to talk about—sexual abuse, drug abuse, other kinds of issues 

that are plainly relevant to that reasoned moral response and take 

a huge amount of work. Very often you really need experts to help 

do that. 

But that is the link, Mr. Chairman, I think, between the nature 

of the proceeding and what the Constitution requires that proceeding to be like and the nature of the lawyer’s job and the reason 

why we have got such a pervasive pattern of ineffectiveness of inadequate representation. 

Chairman FEINGOLD. Thank you. 

Mr. Greco, the ABA’s detailed assessments of eight States’ capital punishment systems led it to renew its call for a nationwide 

moratorium on executions, and those studies actually covered many 

issues. But how big of a role did the quality of indigent defense 

play in the ABA’s decision to advocate for a moratorium? 

Mr. GRECO. It was perhaps the primary reason for the call of the 

moratorium. And if I can go back in history slightly, in 1997, Mr. 

Chairman, the ABA House of Delegates adopted the moratorium 

resolution. How did that come about? Father Robert Drinan, who, 

after leaving Congress after 10 years in Congress, became—to our 

great joy—a leader in the American Bar Association. He chaired 

the ABA Section of Individual Rights and Responsibilities. It was 

Father Drinan who in 1997 convened a number of us to ask, Isn’t 

it time that the ABA takes a position opposing the death penalty? 

We debated it, we discussed it, and it was felt that it had to be 

done incrementally, that at that moment, an abolition resolution 

was not timely. But could we make the case that indigent defendants were not getting adequate legal representation because people 

on death row were being found innocent after years and years of 

incarceration, because there was racial discrimination in sentencing—all these problems needed to be brought to the attention 

of the American people by recommending a moratorium—let us 

15 

stop executing people, until each State that has the death penalty 

determines that it is administering the death penalty fairly. 

The Sixth Amendment to the U.S. Constitution, Mr. Chairman, 

mentions lawyers, legal representation. It has been pointed out to 

me that no other profession is mentioned in the Bill of Rights except lawyers. Why is that? The answer is, I think, self-evident: the 

Founders felt that access to adequate legal representation when 

one’s liberty or life is at stake is so paramount that they expressly 

wrote into the Sixth Amendment that lawyers shall be available to 

represent citizens who are accused of a crime and whose liberty or 

life is at stake. 

We have to make good, we have to do better, on that promise in 

the Sixth Amendment, Mr. Chairman. 

Chairman FEINGOLD. Thank you, sir. 

This question is for any of the witnesses who would like to address it. As you all know, the 1984 Supreme Court case of Strickland v. Washington sets out the constitutional minimum requirements for what constitutes effective assistance of counsel. How effective is that constitutional minimum in providing defendants 

with the legal assistance and resources needed to defend against 

capital charges? 

Mr. STEVENSON. Well, I will begin. It has been quite inadequate 

as a mechanism for ensuring adequate representation, and there 

are three reasons for that. One, first of all, to enforce that right, 

you have to have a lawyer. You have to have a lawyer who can do 

the kind of work that Mr. Verrilli’s firm did in the Wiggins case. 

That kind of work is not possible unless there is access to a lawyer, 

and, of course, as I stated earlier, there is no right to counsel to 

have the lawyer make the showing that Strickland requires. And 

so in many of these jurisdictions, even in death penalty cases, people cannot even get to the point where they show that their lawyer 

was ineffective. That is the first problem. 

The second problem is that enforcement of the Sixth Amendment 

has largely been abandoned, in my judgment, by the Federal courts 

as a result of the 1996 Antiterrorism and Effective Death Penalty 

Act. When this Congress passed the AEDPA, it insulated from review constitutional violations like the Sixth Amendment right to 

counsel, as a result of taking away from Federal courts the discretion to exercise de novo review. 

Now these claims get procedurally defaulted. They get barred. 

They get shielded from Federal scrutiny, and as a consequence of 

that, the AEDPA has fundamentally undermined the rights provided in Strickland. 

And, finally, the standard itself really gives, in my judgment, too 

much deference to State systems. There was a time when we would 

presume prejudice if the lawyer was drunk, if the lawyer was 

asleep during trial, if the lawyer was intoxicated. You would presume prejudice. It is just not fair to have a trial with that kind of 

advocacy. What Strickland requires is actually that you prove that 

something happened while the lawyer was asleep or something 

happened while the lawyer was intoxicated, and that kind of showing makes the expense of proving a violation much harder. 

I think if we return to a standard that created presumptive prejudice, and that put the burden on States to provide adequate repVerDate Aug 31 2005 09:20 Dec 03, 2008 Jkt 045332 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45332.TXT SJUD1 PsN: CMORC
16 

resentation, that would advance the Sixth Amendment in a way 

that would make our enforcement of the Constitution achievable. 

Chairman FEINGOLD. Thank you. 

Any other comments on that one? Judge? 

Judge TEMIN. Well, I would just say that if you look at—the first 

prong of the Strickland standard was more often satisfied in appellate review and also in collateral attack. But the second prong, the 

prejudice standard, if you look at the decided cases, was almost 

never met. In order to have prejudice—I do not know what you had 

to show. Almost nobody met that standard. Courts just held that, 

well, yes, the lawyer was asleep, but the defendant was not prejudiced by that. And those of us who are actually in the courtrooms 

and see what happens know that, of course, it was prejudicial. 

But if you look at the decided cases, they show that appellate 

courts were very loath to reverse cases under the Strickland standard. I think the latest trilogy of cases which go to more of a checklist kind of thing where they say the lawyer must do X, Y, and Z, 

or they are pro se ineffective, are doing much more toward granting appellate relief. But as I said in my initial remarks, that is 

very, very difficult and very expensive. 

Chairman FEINGOLD. Judge, your testimony discusses the required training for defense attorneys who take court appointments 

in capital cases in Philadelphia, and that is surely better than not 

requiring any such specialized training. But is sitting through this 

training enough to create an effective capital defense lawyer? 

Judge TEMIN. It is not. Even private counsel who take death 

cases have to be certified. They are not permitted to litigate capital 

cases unless they are certified. And just 2 months ago, I had a capital case in which during the penalty phase the lawyer put the 

mother of the defendant on to beg the jury not to take his life, and 

that was it. And there was nothing I could do about it. I was 

shocked and horrified. I had not seen a hearing like that for 20 

years. This echoed back to the past, because in the past that is 

what lawyers did. They did not prepare at all for the penalty 

phase, and between the guilt phase and the penalty phase, there 

was usually a short recess, maybe a day, for the Commonwealth to 

get their case ready, and the lawyer would take the mother and 

relatives that were there out in the hallway and say, you know, 

‘‘Get on the stand and tell the jury that they should not vote for 

execution.’’ And that was the total preparation. 

In fact, it might interest you to know that in the collateral attacks that are happening on those cases now, the same relatives 

that were on the stand, and they are asked by the prosecution, 

‘‘Well, at the original hearing, didn’t you say that he had a wonderful childhood and everything was fine, and now you are telling us, 

you know, he was abused?’’ And the answer is, ‘‘We were afraid to 

say that he had a bad childhood. We were afraid that the jury 

would hold that against him, and so we said everything was good.’’ 

But even today, we are getting very ineffective counsel who have 

sat through these training courses. 

Chairman FEINGOLD. Mr. Greco, would you care to comment on 

what the ABA State Assessment Reports found with regard to attorney training and qualification requirements? 

17 

Mr. GRECO. Yes, Mr. Chairman. Thank you. Well, we found it deficient, in a word. The ABA guidelines are quite clear about what 

is needed to train lawyers who do death penalty representation. 

And my colleagues on the panel today in their own way have pointed to the importance of adequately trained lawyers to do the defense. 

Let me give you a comparison. I would ask any judge, State or 

Federal, who appoints counsel to defend a death penalty case to 

think of it as appointing someone who is going to do brain surgery 

on a dying person. It is that technical, that important that that individual knows the laws, the contours that go into defending a 

death penalty case. I would ask those judges who make the appointments, ‘‘If it were regarding your family member with brain 

disease, would you want a brain surgeon or the local butcher to 

come in and do the work needed?’’ The answer is self-evident. 

And so training is important. Some States have said to the ABA, 

well, we have rules, look, we have got regulations regarding qualifications. That is a step, but enforcement of those rules, where they 

exist, needs followup to make sure that the end product of that 

training is what it should be. 

So it is a very serious problem, but it really goes back to the subject of this hearing, Mr. Chairman—adequate defense representation, a component of which is training and making sure that the 

people who are appointed to defend these cases, whether pro bono 

lawyers or private lawyers, have the requisite training. 

Chairman FEINGOLD. Thank you, sir. 

Mr. Verrilli, according to a report released last year by the State 

Bar of Texas, compensation for State post-conviction proceedings in 

Texas is generally limited to $25,000, and that has to cover paying 

support staff and hiring experts and investigators. 

Now, that may sound like a lot, particularly compared to a State 

like Alabama, where if post-conviction counsel is appointed, he or 

she is only paid $1,000 total. But according to the ABA guidelines, 

post-conviction representation includes a reinvestigation of the entire case, including reading potentially thousands of pages of transcripts. 

Sir, you have handled State post-conviction proceedings. For an 

attorney that does not have the resources of a national firm’s pro 

bono practice, is $25,000 adequate to properly prepare for and litigate a post-conviction challenge to a death sentence? And what 

kind of odd incentives does capping the fees for post-conviction representation create for the attorneys? 

Mr. VERRILLI. Yes, Mr. Chairman, I think there is no chance that 

that level of funding is going to be enough to get the job done effectively, and there are, it seems to me, three important points to 

make there. 

One is—and I think, Mr. Chairman, you adverted to this—that 

the $25,000 includes the fees for experts. You could spend easily 

half that amount, or more, just for the experts. 

The second point is that this is extremely labor-intensive activity, and it is unrealistic to think that you are going to be able to 

get anything like the amount of work done that you would need to 

get done to be effective within that cap. 

18 

And then, third, of course, because it is a cap, you have got an 

incentive to work hard until you reach the cap, and then what incentive do you have to work at all after that? It seems to me like— 

obviously, $25,000 is better than nothing, but it is nowhere near 

what is adequate to get the job done, particularly in the kinds of 

cases that I have had experience with. 

Chairman FEINGOLD. Mr. Stevenson, would you like to comment 

on that given your work in Alabama and elsewhere? 

Mr. STEVENSON. Well, yes, Senator. I do think that the inability 

of people on death row to get adequate representation in these collateral reviews is a central problem. As Mr. Verrilli indicated, there 

are very few jurisdictions where there is adequate compensation for 

that. Our capacity to involve private firms is increasingly exhausted, and so we now have a generation of death row prisoners 

who cannot access that kind of pro bono assistance. 

We actually went to the U.S. Supreme Court last summer in a 

case that had support from former members of our Alabama Supreme Court asking the Court to revisit this question of whether 

death row prisoners should have a right to counsel. The last time 

the Court addressed this was in the 1980s, and at that time, the 

Court said that no one could show that a death row prisoner had 

been denied counsel for these kinds of collateral reviews. 

Since then, of course, we have had people executed simply because they could not find a lawyer. That has happened in my State. 

That has happened in Texas. That has happened in other States. 

With the introduction of the Antiterrorism and Effective Death 

Penalty Act, which, for the first time, put a time limit on how 

much time is available for a death row prisoner to find a lawyer, 

now you are on the clock once your conviction and death sentence 

is affirmed. You only have 12 months to find that lawyer. 

The problem of finding adequate representation has been greatly 

aggravated by caps on compensation, by the AEDPA, and by a culture that is now tolerating executions in this environment. And so, 

yes, I think it is a huge problem. We have 3,500 people on death 

row in this country, many of whom are going to be at risk of execution in the next couple years, who have not had reliable assessments or evaluations of their convictions and sentences. 

Mr. VERRILLI. Mr. Chairman, if I could just followup on that 

quickly. 

Chairman FEINGOLD. Yes. 

Mr. VERRILLI. In terms of what private firms can do, you know, 

of course, we do everything we can. But I can say from personal 

experience that we get deluged with calls to take on these cases. 

We take on some, but there is no possible way that we could or 

firms could generally fill that gap and take on all these cases. 

Chairman FEINGOLD. Even States that have State-funded public 

defender services face serious shortfalls when it comes to indigent 

defense. Mr. Greco, according to one of the ABA reports, Tennessee 

public defender offices are so underfunded that, on average, each 

lawyer is assigned 600 cases per year, and that is in addition to 

their prior caseload. And in Florida, the legislature makes it a 

habit to provide public defender offices with half the funding that 

State’s attorney’s offices get. 

19 

Can these overworked and underfunded offices capably handle 

capital cases and the enormous amount of work they entail? 

Mr. GRECO. No. Simply no. How can a lawyer, who is working 

as hard as she or he can, handle 14 capital cases at one time and 

do a competent job for each of those 14 individuals? It is impossible. The ABA encourages States to have statewide public defender systems with necessary training and all the necessary support, and manageable caseloads, and assistance from the other 

members of the statewide public defender’s system given to help 

lawyers in the counties where these cases are happening. 

We do not have a handle yet on how many States have statewide 

public defender systems. We think very few. Tennessee is one of 

them. But even when you have a public defender statewide system 

and you burden a lawyer with 600 cases, 12 to 14 of which are at 

any time death cases, it is unrealistic to expect that that lawyer 

is going to do the kind of job that is required. So that has to be 

addressed as well. 

Mr. STEVENSON. Can I just add to that? It is important to recognize that the pressures created by death penalty litigation are part 

of a broader context where there have also been growing pressures 

that really are created by mass incarceration. In 1972, there were 

200,000 people in jails and prisons in this country. Today there are 

2.3 million. The dramatic increase in the number of cases coming 

into State defender programs and appellate defender programs has 

been overwhelming for these offices. And most of them do not have 

segregated, detailed, and designated resources for their death penalty work, so they are trying to manage this tidal wave of cases 

and the reliance on incarceration to deal with a whole host of problems that we did not previously use the criminal justice system to 

manage. 

So, it is important that this problem be put in context, and I 

think it is a huge challenge for these defender programs. 

Chairman FEINGOLD. Thank you, and I appreciate your answer 

to all of my questions. Let me give you each, if you want, a chance 

to say something in conclusion. Mr. Greco? 

Mr. GRECO. Thank you, Mr. Chairman. I recall a saying that I 

first heard when I was a young lawyer in New England thirty-five 

years ago, when friends of ours in Maine would be given to say, ‘‘If 

it ain’t broke, don’t fix it.’’ Well, the death penalty system in the 

United States is broken, and we need to fix it. And I hope that 

under your leadership, Mr. Chairman, some things will get done to 

improve the way the death penalty is administered in our country. 

Chairman FEINGOLD. Thank you. 

Mr. Stevenson? 

Mr. STEVENSON. Well, I would just like to say that I do think the 

death penalty invites a lot of difficult conversation about the morality and the integrity of systems and whatnot. I ultimately think, 

though, that this issue is a lens into a broader commitment to 

human rights and justice. I mean, you do not judge the character 

of a community or a society or the civility of the society or the commitment of that society to justice by looking at how you treat the 

privileged or the powerful or the wealthy. You judge the character 

and the commitment to justice of a society and a community by 

how you treat the hated, the despised, the rejected, the condemned. 

20 

In this country, that’s people on death row. When we ignore their 

basic right to counsel and we do not really do the things that we 

must do to ensure fair and reliable judgment, we not only undermine fairness in that arena, I think we undermine our commitment 

to human rights. I think we vitiate the integrity of the whole system. 

The way we have dealt with death penalty cases and our absence 

of commitment on indigent defense, I think, has changed the moral 

question posed by capital punishment. I think in this country 

where we have tolerated so much bias and discrimination—in my 

State, there are hundreds of people buried in the ground who were 

lynched, and on that history, we are now dealing with the death 

penalty that has horrific racial features. My State produced the 

Scottsboro boys and Powell v. Alabama, and yet we fail fundamentally to meet the legal needs of the poor. And when that happens, 

I think the moral question changes. I think the death penalty in 

this country is no longer a question of whether certain people deserve to die for the crimes they commit. I think the question has 

become: Do States, the Federal Government, do jurisdictions deserve to kill when they fundamentally fail to meet the basic obligation of providing counsel and providing fair and just treatment? 

And consequently, I sincerely hope this Committee can advance the 

necessary work to make equal justice real. 

Thank you. 

Chairman FEINGOLD. Thank you for those excellent remarks. 

Judge Temin? 

Judge TEMIN. Yes, in closing, I would just like to thank you 

again for providing an opportunity to air these issues. It is very important for the Federal Government to recognize the importance of 

what has been said by my colleagues on the panel and to take leadership, because we at the State level then can refer to the Federal 

solution as precedent. And very often the Federal Government has 

taken the lead, and we as State judges have been able to refer to 

that and to follow that. And I hope that will happen because judges 

are somewhat at a loss to prevent a—well, to solve the solution to 

this problem. It has to be done outside of the courtroom, and then 

it will affect the justice in the courtroom. If we do not have effective counsel, we do not have a just system. And I have to second 

what has been said by my colleagues. 

Chairman FEINGOLD. Thank you so much, Judge. 

Mr. Verrilli? 

Mr. VERRILLI. The entire legitimacy of our criminal justice system depends on the right to counsel. It is an adversarial system, 

and without effective counsel, we can have no confidence in the results of our criminal process. 

We in the big firms will continue to do our part to try to redress 

this gaping chasm that now exists. But it is a systemic problem 

that goes far beyond our ability to solve it on a pro bono basis, and 

for that reason, Mr. Chairman, I am very grateful that you have 

focused this Committee’s and the country’s attention on this important issue. 

Chairman FEINGOLD. Well, let me thank all the witnesses for 

their testimony and this thoughtful discussion. I appreciate your 

taking the time to be here, and thank you for your insights. What 

21 

we have learned today about the problems with the representation 

of capital defendants is of great concern to me, and I hope we can 

continue this conversation, and I am interested in seeing what we 

can do in this area. 

Regardless of the outcome of the lethal injection litigation in the 

Supreme Court, executions are eventually going to resume in this 

country. Before that happens, we must aspire to do better, so that 

every person charged with a capital crime has access to an effective, adequately compensated team of lawyers and other professionals, and so that every person already on death row has a full 

opportunity to vindicate their Sixth Amendment rights on appeal. 

It is all too clear from this hearing just how far we are from reaching that goal. 

Finally, before we close, without objection, I will place some 

items in the hearing record. These include the chapters of the ABA 

State Assessment Reports covering defense services; the 2007 report of the State Bar of Texas Task Force on Habeas Counsel 

Training and Qualifications; a March 28, 2008, letter from 17 California judges expressing concern about California’s death penalty 

system; the chapter of the Constitution Project’s Mandatory Justice 

Report on ensuring effective counsel; a May 2007 Spangenburg 

Group report called ‘‘Resources of the Prosecution and Indigent Defense Functions in Tennessee’’; and the executive summary of an 

ABA report entitled ‘‘Gideon’s Broken Promise.’’ 

The hearing record will remain open for 1 week for additional 

materials to be submitted. Written questions for the witnesses 

must be submitted by the close of business 1 week from today, and 

we will ask the witnesses to respond to those questions promptly 

so the record of this hearing can be completed. 

Thanks so much, everyone. The hearing is adjourned. 

[Whereupon, at 11:25 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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