S. HRG. 109–1038 

HABEAS CORPUS PROCEEDINGS AND ISSUES OF 

ACTUAL INNOCENCE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JULY 13, 2005 

Serial No. J–109–29 

Printed for the use of the Committee on the Judiciary 

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HABEAS CORPUS PROCEEDINGS AND ISSUES OF ACTUAL INNOCENCE 

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47–088 PDF 2009

S. HRG. 109–1038 

HABEAS CORPUS PROCEEDINGS AND ISSUES OF 

ACTUAL INNOCENCE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

FIRST SESSION 

JULY 13, 2005 

Serial No. J–109–29 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 6 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 249 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 6 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 4 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 

prepared statement .......................................................................................... 281 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 

WITNESSES 

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

Gerneral’s Office, Phoenix Arizona ..................................................................... 11 

Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia District Attorney’s Office, Philadelphia, Pennsylvania ........................................................... 7 

Scheck, Barry C., Co-Director, Innocence Project and Professor of Law, 

Cardozo Law School, Yeshiva University, New York, New York ..................... 8 

Stevenson, Bryan A., Director, Equal Justice Initiative of Alabama, and Professor of Clinical Law, New York University School of Law, New York, 

New York .............................................................................................................. 15 

Todd, John Pressley, Assistant Attorney General Arizona Attorney General’s 

Office, Phoenix, Arizona ...................................................................................... 18 

Waxman, Seth P., Former Solicitor General of The United States, and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C .................. 13 

QUESTIONS AND ANSWERS 

Responses of Kent Cattani and Seth Waxman to questions submitted by 

Senators Specter and DeWine ............................................................................. 36 

Responses of Thomas Dolgenos to questions submitted by Senators Specter, 

Leahy and DeWine ............................................................................................... 52 

Responses of Barry Scheck to questions submitted by Senators Specter, Leahy 

and DeWine .......................................................................................................... 67 

Responses of Bryan Stevenson to questions submitted by Senators Specter, 

Leahy and DeWine ............................................................................................... 82 

Responses of John Presley Todd to questions submitted by Senators Specter, 

Leahy and DeWine ............................................................................................... 124 

Responses of Seth Waxman to questions submitted by Senators Specter, 

Leahy and DeWine ............................................................................................... 172 

SUBMISSIONS FOR THE RECORD 

Atlas, Scott J., Vinson & Elkins, L.L.P., Houston, Texas, statement ................. 186 

Arizona Daily Star, July 19, 2005, article ............................................................. 188 

Butler, A. Bates, III, Fennemore Craig, P.C., Law Office, Tucson, Arizona, 

letter ...................................................................................................................... 189 

Campbell, Ward A., Supervising Deputy Attorney General Criminal DivisionAWT, Department of Justice, Sacramento, California, Memorandum ............ 192 

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

Gerneral’s Office, Phoenix Arizona, statement .................................................. 206 

CNN, St. Louis Missouri, article ............................................................................ 214 

Page

IV 

DiMarzio, Most Reverend Nicholas, Diocese of Brooklyn, Chairman, Domestic 

Policy Committee, United States Conference of Catholic Bishops, Department of Social Development and World Peace, Washington, D.C., letter ....... 216 

Dolgenos, Thomas, Chief, Federal Litigation Unit, Philadelphia District Attorney’s Office, Philadelphia, Pennsylvania, statement ........................................ 217 

Federal Judges Association, Irene M. Keeley, President, Clarksburg, West 

Virginia, letter ...................................................................................................... 240 

Federal Public Defender, Western District of Washington, Thomas W. Hillier, 

II, Federal Public Defender, Seattle, Washington, statement .......................... 242 

Gallo, John N., Sidley Austin Brown & Wood LLP, Oak Park, Illinois, letter ... 251 

Hemmersbaugh, Paul A., Potomac, Maryland, letter ........................................... 253 

Hughes, Mary Ann, Southern California, statement ............................................ 256 

Kantra, Andrew E., Andrew R. Rogoff, Pepper Hamilton LLP, Attorneys 

at Law, Philadelphia, Pennsylvania, letter ........................................................ 274 

Los Angeles Times, July 13, 2005, article ............................................................. 276 

Former Prosecutors, Law Enforcement Officers, and Justice Department Officials, letter ............................................................................................................ 277 

Lewis, Timonthy K., and Other Judges, Washington, D.C., letter ...................... 283 

Marshall, Prentice H., Jr., Partner, Sidley Austin Brown & Wood LLP, Oak 

Brook, Illinois, letter ............................................................................................ 287 

Mascherin, Terri L., Parnter, Jenner & Block, LLP, Chicago, Illinois, letter .... 289 

Mecham, Leonidas Ralph, Secretary, Judicial Conference of the United States, 

Washington, D.C., letter ...................................................................................... 291 

NAACP Legal Defense and Educational Fund, Inc, Theodore M. Shaw, Director-Counsel, Washington, D.C., statement and letter ....................................... 299 

New York Times, July 14, 2005, article ................................................................. 313 

Perlmutrer, Willa B., Patton Boggs, LLP, Attorneys at Law, Washington, 

D.C., letter ............................................................................................................ 315 

Rainson, Tara A., American Law Division, Congressional Research Service, 

Washington, D.C., Memorandum ........................................................................ 317 

Renne, Paul A., former Assistant U.S. Attorney, District of Columbia, San 

Francisco, California, letter ................................................................................. 335 

Scheck, Barry C., Co-Director, Innocence Project and Professor of Law, 

Cardozo Law School, Yeshiva University, New York, New York ..................... 343 

Stevenson, Bryan A., Director, Equal Justice Initiative of Alabama, and Professor of Clinical Law, New York University School of Law, New York, 

New York, statement ........................................................................................... 355 

Todd, John Pressley, Assistant Attorney General, Arizona Attorney General’s 

Office, Phoenix, Arizona, statement ................................................................... 384 

Tarver, Julia, Paul, Weiss, Rifkind, Wharton & Carrison, LLP, New York, 

New York, letter ................................................................................................... 401 

Washingtonpost.com, Washington, D.C., July 10, 2005, article .......................... 404 

Waxman, Seth P., Former Solicitor General of The United States, and Partner, Wilmer, Cutler, Pickering, Hale and Dorr, Washington, D.C., statement ...................................................................................................................... 405 

White & Case LLP, Vincent R. FitzPatrick, Jr., and Heather K. McDevitt, 

New York, New York, letter ................................................................................ 414 

(1) 

HABEAS CORPUS PROCEEDINGS AND ISSUES 

OF ACTUAL INNOCENCE 

WEDNESDAY, JULY 13, 2005 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:32 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Kyl, DeWine, Sessions, Leahy, and 

Feinstein. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. We 

will proceed with the Judiciary Committee hearing on habeas corpus proceedings and issues of actual innocence. We are going to be 

taking up a variety of subjects today on the very important question of the death penalty. Legislation has been introduced by Senator Kyl, jointly with Senators Hatch, Grassley, Chambliss, and 

Cornyn, which would tighten the time requirements, something 

that has been done back in 1996, but there is a concern about the 

very, very lengthy delays in the habeas corpus proceedings, which 

run as long as 10, 15, or even 20 years of litigation. And at the 

same time, the Committee will be taking up the issues of actual innocence cases, where the Supreme Court has granted cert on a case 

which will test whether a claim of actual innocence will warrant 

review in House v. Bell. The whole issue of the death penalty is obviously a very complex 

one which our society has been struggling with for a very, very long 

time. I personally believe the death penalty is a deterrent, but to 

hear articulated the proposition of law that it is not unconstitutional to execute an innocent person so long as procedural due 

process has been followed candidly shocks me. I think that is an 

unacceptable articulation of law. 

I do not have any magic formula as to how we will eliminate all 

error, but we ought to be working at it a lot harder than we are 

at the present time. When I was District Attorney of Philadelphia—and I do not want to tell too many old war stories—we had 

500 homicides a year, and I would not permit any of my assistants 

to ask for the death penalty in a homicide case without my personal review. And my own experience suggests to me that there are 

cases which are being prosecuted where the death penalty is requested where the prosecutors are really not sure of their case, 

2 

really not sure of the conclusion of guilt. And I think if there is any 

lingering issue as to the issue of guilt, that is something the prosecutor has the duty to pull back on to be absolutely sure or as sure 

as he can be without going into the kinds of evidence which is tenuous and difficult. 

So here we have a very complex issue where there are problems 

on both sides of the equation, enormous delays which ought to be 

precluded, but still at the same time to protect the innocence of 

people. And it is a little surprising to me, candidly, that the Supreme Court has not dealt with the DNA issue long ago. And Congress has the authority to deal with it, and we intend to do so. 

Senator Leahy. 

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

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. You know, it has 

been less than a decade since the Congress overhauled the Federal 

habeas corpus laws prior to the Antiterrorism and Effective Death 

Penalty Act of 1996, or AEDPA. That was a bipartisan compromise, 

but it severely narrowed the scope of habeas jurisdiction. For example, it imposed strict new time limits, procedural bar rules. I 

thought that AEDPA went too far at that time. It increased the 

risk that people were wrongfully convicted, could be left to rot in 

jail, and the nightmare scenario of an innocent person being executed could come to pass. Of course, others thought that it did not 

go far enough. Naturally, that is the nature of a compromise. We 

brought that compromise bill to the floor. 

Now, during the floor debate on it, the distinguished Senator 

from Arizona offered an amendment to eliminate Federal habeas 

except in circumstances where the State’s justice system had 

proved incapable of enforcing Federal constitutional rights. That 

position was rejected. In fact, several Republican members of this 

Committee voted against it. It was rejected by a heavy margin in 

the Senate. 

Now, the habeas bill that is before the Committee, the so-called 

Streamlined Procedures Act, actually goes much further than the 

bipartisan compromise of AEDPA did. I will say more about that 

when we come to a markup, but I do not know what has happened 

that would justify unraveling that compromise made in the Senate. 

We will hear some anecdotal evidence about a case in which habeas 

proceedings have dragged on long after conviction, and I would 

urge consideration first and caution against any rash judgments. 

We should ask some questions before we legislate based on these 

stories, depending on what caused the delay. Is Federal habeas 

being abused, or most of the time was it taken up by State habeas 

or matters attributable to the individual States? And we should ask 

whether they are isolated instances or a systemic problem. 

Habeas corpus has protected the constitutional rights and freedoms of all Americans throughout our history. It really is the Great 

Writ. It is a vital protection that we all rely upon. 

Last October, after we took a closer look, last October, President 

Bush signed into law the Innocence Protection Act of 2004. We 

passed that with overwhelming bipartisan support, including 

Chairman Specter, former Chairman Hatch, Senator DeWine, and 

3 

others. We joined together on it, and we have to continue to work 

together to ensure that its funding promises do not go unfilled. It 

reflects what we learned about the administration of the death 

penalty over years of hearings in this Committee. 

We learned that there is an unconscionably high rate of error in 

capital cases, errors so serious that it not only denies defendants 

their constitutional rights, it undermines the reliability of the verdict. We learned of sleeping lawyers, drunk lawyers, suspended 

lawyers, lawyers too overworked, underpaid, inexperienced, or indifferent to even meet with their clients. And they were defending 

in death penalty cases. 

We learned that more than 100 people had been released from 

death row when it turned out they had the wrong person there. 

The modern miracle of DNA has helped, but that is only the tip 

of the iceberg. We have a number of those people who were wrongfully convicted here in the audience today. Kirk Bloodsworth is 

here. He and his wife are friends of my wife and me. But he was 

a young man who was just out of the Marines. He was arrested, 

convicted, and sentenced to death for a heinous crime, a terrible 

crime. The only thing is he did not commit it. DNA evidence ultimately freed him and identified the real killer. So I am proud to 

have come to know him and his wife, Brenda, through our work together on the Innocence Protection Act, which includes a program 

named in his honor. 

Dennis Fritz spent 12 years serving a life sentence until he was 

finally able to prove his innocence through DNA testing. He testified before this Committee 5 years ago, and I am glad to see him 

back in the audience today. 

Dell Hunt of North Carolina was convicted in 1984 for a murder 

he did not commit. He was freed 19 years later, in 2003, after DNA 

evidence ruled him out as a killer and, just as importantly, identified the true perpetrator of the crime, who then confessed. 

I mention this because, you know, a lot of times we take a sense 

of comfort that we have locked somebody up. There has been a heinous crime, we have arrested somebody, we have locked him up, 

even convicted him, and we have a sense of safety. But if you have 

got the wrong person, that means that killer is still out there and 

could kill again. It is especially important in matters of serial murders or serial rapes, things like this. 

Brandon Moon, convicted of rape in 1987, a law student at the 

University of Texas at El Paso, DNA testing cleared him of the 

crime just a few months ago, almost 20 years later, and then he 

was released with the apology of the district attorney. That does 

not give him back those 20 years of his life, but at least he has 

been released. 

Thomas Goldstein, Gloria Killian, Joseph Estrich—all of them 

were granted Federal habeas relief after presenting substantial evidence of actual innocence. If S. 1088 were the law, they would still 

be wrongfully in prison. 

So let there be no misunderstanding. If S. 1088 were the law, 

exonerees such as these who are in the audience today would still 

be wrongfully imprisoned or worse. That is what we have learned 

since AEDPA, and that lesson has involved saving innocent lives. 

It is what apparently convinced President Reagan’s first appointee 

4 

to the Supreme Court, one of the strongest advocates of States 

rights in the history of the Court, that left without Federal scrutiny, State criminal justice systems may pose unacceptable risks. 

In July of 2001, Justice O’Connor acknowledged in a widely reported speech the serious questions being raised about the administration of the death penalty. Her conclusion was chilling in its common-sense candor. The system may well be allowing some innocent 

defendants to be executed. 

This week in St. Louis, they reopened a murder investigation, of 

course, 10 years after the man was executed for the crime. 

You know, the bill before us would greatly increase the risk, as 

well as the risk of lesser but, nonetheless, life-shattering injustices. 

It would do so without any real evidence, anything beyond anecdotal evidence, that the new regime we enacted less than a decade 

ago to limit Federal habeas is not doing the job. AEDPA put together a large majority in the Congress as a result of a bipartisan 

compromise that is not broken, certainly not in the way this bill 

would presuppose. And there is no need to fix Federal habeas corpus by destroying it. That does not fix it. 

If you want to do anything, let the administrative arm of the 

courts look at this and report back to us if they think there is a 

problem. But let’s not rush through and remove the historic protection of habeas corpus based on some anecdotes or some concerns. 

Thank you, Mr. Chairman. I know I went over time, but this is 

a matter of great importance, and I appreciate you letting me do 

that. 

Chairman SPECTER. Your timing is fine, Senator Leahy. Thank 

you. 

Customarily, it is just the Chairman and Ranking who open, but 

Senator Kyl is the author of the bill, and I will yield to you for an 

opening statement, Senator Kyl. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you very much, Mr. Chairman. 

Let me make it clear that we are not going to fix habeas corpus 

by destroying it. I think the question that the distinguished Ranking Member raises is the appropriate question. What has changed 

in the last 9 years to cause us to revisit the statute? The answer 

is a lot has changed. Let me cite some statistics that I think reveal 

why we need to look at this now, 9 years later. 

In the context of something that President Clinton said when he 

commented with regard to the 1996 Act, it should not take 8 or 9 

years and three trips to the Supreme Court to finalize whether a 

person, in fact, was properly convicted or not. The sad fact is that 

after 9 years of this Act, we still have that situation pertaining in 

far too many cases. 

Let’s look at some of the backlog statistics, and these are from 

the Administrative Office of the Courts. 

In fiscal year 1994, there were 13,359 Federal habeas petitions 

pending before the U.S. district courts, a condition that we decided 

required us to look into this to see if we could—to relieve the courts 

from that kind of burden, 13,300. But by fiscal year 2003, the last 

year for which data are available, that number had gone up by 

5 

nearly 10,000 petitions to 23,218 petitions pending. So today there 

are almost twice as many as there were just 9 years ago when we 

felt that we had a problem that we needed to deal with. 

How about the courts of appeals? Same facts. Fiscal year 1994, 

3,799 habeas petitions pending before U.S. courts of appeal. By 

2003, that number, again, has nearly doubled to 7,025 petitions 

pending before the courts of appeals. 

These delays and backlogs have had a dramatic impact on the 

administration of justice. Consider a comment before the June 30th 

hearing in the House Crime Subcommittee by Ronald Eisenberg, a 

deputy district attorney for Philadelphia. He testified, ‘‘In the last 

decade, the number of lawyers employed exclusively on habeas 

work in the Philadelphia D.A.’s office has increased 400 percent. It 

is very difficult for us to do our job if we have this many habeas 

petitions.’’ 

Now, I am not going to get into anecdotal evidence at this point. 

I will later. Suffice it to say that there are a lot of examples, and 

one that I am going to be talking about is Christy Ann Fornoff, 

who was murdered in Arizona. Her parents are still waiting for a 

final conclusion to the case 21 years after her death. The Congress 

has the authority to deal with this subject. Habeas corpus is a 

guarantee against being held without trial, against executive detention. But the United States courts of appeals and other courts 

have repeatedly held that Congress has the authority to put limitations on habeas corpus. 

The Seventh Circuit concluded in the case of Lynn v. Murphy, 

‘‘Any suggestion that the Constitution forbids every contraction of 

the Federal habeas power bestowed by Congress in 1885 and expanded by the 1948 and 1966 amendments is untenable.’’ 

Mr. Chairman, everybody agrees that it is important to protect 

innocents, and that is why in this legislation, at every point, this 

bill creates an exception for actual innocence claims to all procedural barriers, allowing these claims to go forward. There is no exception to that principle. Innocence claims always trump the procedural barriers. We want to make sure that an innocent person is 

not executed. And I would also note that the cases of actual innocence on death row are exceedingly rare. I would just note that of 

all of the cases that were analyzed in the hearing in the House of 

Representatives, only 36 were actual innocence cases on death row. 

And my office has further analyzed those and found that 30 of 

those cases were resolved in State court proceedings. So only six 

of those cases even reached habeas review, and none of those would 

have been obviated by the legislation that we propose now. And I 

would note that of the anecdotes cited by the distinguished Ranking Member, none of those would have been adversely affected by 

our legislation today. 

So I urge my colleagues in considering this legislation to connect 

up any concerns you have with the actual provisions of our bill. See 

how it works. It does not work the way some people have alleged 

that it works. We always provide the innocence claim, and I believe 

that as a result of the tightening up of some loopholes that have 

evolved over the years since the 1996 law was adopted, we can try 

to get back to a manageable case load of habeas petitions without 

6 

doing any injustices whatsoever. And I am hoping that our hearing 

today will enlighten us further on that process. 

Again, Mr. Chairman, thank you very much for holding this 

hearing so promptly. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Feinstein or Senator DeWine, would either of you like to 

make an opening comment? 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. The only thing I would like to say, Mr. 

Chairman, is I think this is a very big bill, and I was on the Committee when we did the prior habeas bill. And I did not realize that 

the numbers, the pendings, had gone up as they are. I had been 

under the impression that there was a decline. There is a letter 

that we have received from the Federal Public Defender which so 

states. So I think there are a lot of things that I need to reconcile. 

I am particularly interested to hear the witnesses on this point. 

My own view is that an individual should have a timely habeas 

appeal and that the State appeal should be exhausted before there 

is the Federal appeal, but that should all be carried out within a 

given period of time. 

I listened with interest to what the Ranking Member had to say, 

and I think whatever we do, we have to make it available, particularly for the innocent or some unusual claim. 

So I would be very interested to hear what the witnesses have 

to say here today. 

Chairman SPECTER. Thank you, Senator Feinstein. 

Senator DeWine. 

Senator KYL. Mr. Chairman, might I just ask unanimous consent 

to put two things in the record: my full statement and a statement 

from Congressional Research that has the exact statistics which 

Senator Feinstein just— 

Chairman SPECTER. Without objection, they will be made a part 

of the record. 

[The prepared statement of Senator Kyl appears as a submission 

for the record.] 

Chairman SPECTER. Senator DeWine. 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, I just thank you for holding the 

hearing, and I am looking forward to hearing our witnesses. 

Senator LEAHY. Mr. Chairman, if I might note, Senator Feingold 

wanted to be here, but he is, of course, out in Wisconsin for the 

funeral of our former colleague, Senator Gaylord Nelson of Wisconsin. He will have a statement later to be included in the record 

with your permission. 

Chairman SPECTER. Thank you, Senator Leahy. It might also be 

worth noting that Senator Feingold was one of those requesting the 

hearing today, and the bill had been on—it will be the third time 

on Thursday. First we did not have a quorum, and next it was carried over. And it is a complicated subject, and we will give it due 

consideration in Committee. 

7 

Our first witness is Mr. Tom Dolgenos, Assistant District Attorney in Philadelphia. He has been there since 1994. That is a good 

career prosecutor. Magna cum laude from Brown, 1984, and J.D. 

from Yale in 1990. When I was D.A. of Philadelphia, we did not 

have many people with your credentials. I am glad to see you 

there, and I am glad to see you there for such a long time. 

Just a 20-second personal aside, people frequently ask me—they 

probably ask Senator Leahy, too—‘‘What was your best job? Was it 

D.A., Senator?’’ I say, ‘‘No; Assistant D.A.’’ So enjoy it while you 

have it, Tom. 

Thank you for joining us, and we look forward to your testimony. 

STATEMENT OF THOMAS DOLGENOS, CHIEF, FEDERAL LITIGATION UNIT, PHILADELPHIA DISTRICT ATTORNEY’S OFFICE, PHILADELPHIA, PENNSYLVANIA 

Mr. DOLGENOS. Thank you, Mr. Chairman and members of the 

Committee. I am an assistant district attorney in Philadelphia. It 

is my job, and the job of the other lawyers in my unit, to respond 

to hundreds of habeas corpus petitions each year. We are on the 

front lines, and I believe there are some real problems in the habeas system that have recently grown worse, despite the enactment 

of habeas reforms in 1996. I also believe, however, that the proposed Streamlined Procedures Act contains carefully crafted, common-sense responses to some of the worst abuses we commonly 

face. 

I also want to emphasize that these problems are not limited to 

death penalty cases. On the contrary, they apply across the board, 

to all of the convictions that reach the Federal habeas stage—murder, rape, robberies, and other violent crimes. Only a small percentage of these cases involve the death penalty, and the Act would 

help protect the rights of victims and encourage the fair and effective use of the criminal justice system in all of these cases. 

Perhaps the most familiar problem in habeas litigation is delay. 

We see this every day. Criminals who were convicted 5, 10, or 20 

years ago continue to complain about their trials and raise new 

claims. The facts are endlessly re-litigated, and the process goes on 

and on. 

Now, there are many costs associated with delay. The victims 

pay a heavy emotional cost, of course, because they and their families must relive the crimes again and again, without any closure or 

sense of justice. The States also bear the cost of delay because we 

have to pay for prosecutions that never really end. To take a small 

example—and Senator Kyl mentioned this statistic before—in the 

past 5 years, the number of attorneys in my office who are assigned 

as full-time habeas attorneys has increased by 400 percent. 

The public also bears the cost of delay, both because it is expensive to support drawn-out litigation and because time itself dilutes 

the effectiveness of the criminal justice system. Deterrence works 

best when punishment is swift and sure; and when the process is 

open-ended and nothing ever seems final, the system breaks down. 

I want to emphasize one other important point: The truth itself 

is a casualty of delay. As years pass, memories fade. Evidence is 

lost. Witnesses who were once sure cannot remember everything. 

Other witnesses disappear. Some witnesses who never wanted to 

8 

get involved in the first place are extremely reluctant to testify 

again years later. In fact, the longer the process goes on, the more 

opportunities exist for witness tampering and intimidation. After 

all, police and judges cannot protect witnesses forever, and too 

often a ‘‘recantation’’—or other new evidence—is simply the product of coercion or foul play. 

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

5 and 6 years old, and about 15 years later, he presented the Federal district court with the victim’s alleged recantation, but it was 

ambiguously worded. When we investigated, the victim, now a 

young woman, told us that the defense investigator had misled her. 

This investigator had not clearly identified herself as a member of 

the defense team. She had urged the victim to sign the statement 

while assuring her that the assailant would remain in prison. And 

the statement, written by the defense team, had been worded just 

ambiguously enough to make it sound as if her attacker had not 

committed rape, when, in fact, he had. The victim was mortified 

when we told her that she had signed a defense-prepared affidavit 

that was designed to get this man out of prison. The prisoner’s 

strategy had been to create evidence to qualify under the actual innocence standard; otherwise, his claims were barred. 

Now, we were finally able to convince the district court in that 

case that this new evidence should at least be examined first by 

the State court, and the habeas petition is now stayed pending a 

State court hearing. But in the meantime, the victim has been 

dragged back into this case. And the point is that the passage of 

time, repetitive hearings, and re-litigation of guilt do not increase 

reliability. They can discourage witnesses from coming forward in 

the first place, and they can punish those who do. And because 

Federal habeas courts are so far removed in space and time from 

the crime, from the subtleties of State proceedings, and from the 

victims, it is all too easy to create claims as the years pass. 

The only way to restore balance is by Federal statute, a statute 

that makes deadlines meaningful and prevents the litigation of 

new claims. And that is why I support the reforms contained in the 

Streamlined Procedures Act. 

Thank you, Mr. Chairman. 

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

Chairman SPECTER. Thank you very much, Mr. Dolgenos. 

Our next witness is Professor Barry Scheck, Clinical Professor of 

Law at Cardozo School of Law, co-founder and the current Director 

of the Innocence Project, started in 1991, which has exonerated, according to the information provided to me, some 150 people since 

its creation, recognized as a DNA expert on the O.J. Simpson defense team, and has been in various other high-profile cases. 

Thank you for coming in, Professor Scheck, and we look forward 

to your testimony. 

STATEMENT OF BARRY C. SCHECK, CO-DIRECTOR, INNOCENCE PROJECT, AND PROFESSOR OF LAW, CARDOZO LAW 

SCHOOL, YESHIVA UNIVERSITY, NEW YORK, NEW YORK 

Mr. SCHECK. Thank you very much, Senator Specter. 

9 

In an epilogue to his 1995 decision vacating the conviction and 

death sentence of Ron Williamson of Oklahoma, United States District Court Judge Frank Seay wrote: 

‘‘While considering my decision in this case I told a friend, a layman, I believed the facts and law dictated that I must grant a new 

trial to a defendant who had been convicted and sentenced to 

death. My friend asked, ‘Is he a murderer?’ I replied simply, ‘We 

won’t know until he receives a fair trial.’ ’’ 

‘‘God help us, if ever in this great country we turn our heads 

while people who have not had fair trials are executed. That almost 

happened in this case. Accordingly, the Writ of Habeas Corpus 

shall issue...’’ 

Now, Senator Kyl, this is a case cited by Senator Leahy in his 

opening remarks, and Ron Williamson’s sister, Annette Hudson, is 

here today. She measured his coffin 5 days before the execution. 

And Dennis Fritz, who testified with respect to the Innocence Protection Act, who was sentenced for life, is here today. I want you 

to know that on remand of that case, both Ron Williamson, who 

came within 5 days of execution, and Dennis Fritz, who served 12 

years of his life sentence, proved their innocence through a series 

of DNA tests which also identified the real murderer, Glen Gore. 

Gore was the chief witness against Williamson and Fritz, and 

Judge Seay found in his opinion that Williamson’s lawyer was 

grossly ineffective on a number of grounds, including the failure to 

investigate Gore as a possible suspect. He also ruled that suppressed Brady material and refusal by the trial court to appoint an 

expert, an Ake error, were material due process violations. All 

these contentions were rejected by the Oklahoma Criminal Court 

of Appeals as procedurally defaulted and without merit such that, 

under this bill—there is no question about it—Judge Seay would 

have been stripped of jurisdiction to hear this case and reach the 

merits. If S. 1088 had been the law in 1995, Ron Williamson would 

have surely been executed, an innocent man; Dennis Fritz would 

still be in prison; Glen Gore would have had an opportunity to commit more crimes—he was eligible for imminent release. And, needless to say, a civil rights suit that we later filed in this case that 

exposed stunning misconduct would have never come to light. 

The take-home lesson from the Williamson and Fritz case is that 

the wrongly convicted cannot prove their innocence until they have 

competent counsel, appropriate experts, access to exculpatory evidence, and, most important of all, a full and fair hearing on the 

merits of their procedural due process claims. 

The reason we care about procedural due process, after all, is 

that it leads to accurate results, and its opposite leads to the opposite. That is why so many innocence cases do not start out presenting innocence claims at all but, rather, procedural due process 

violations, and proof of innocence only emerges once the rubble of 

these other legal errors are swept aside. So any habeas bill that 

tries to restrict claims that start off with fully developed showings 

of actual innocence will make sure that these innocence claims will 

never come to light, it will bury them. And that is exactly what 

this bill will do. 

I want to make it very, very clear because, Senator, you have 

been talking about the House case, which is now before the United 

10 

States Supreme Court, where six judges in the Sixth Circuit said 

that House, as far as they are concerned, was actually innocent 

based on a DNA test. One judge said, ‘‘I think he gets a new trial.’’ 

And eight judges said, ‘‘Well, we do not think he passes through 

the innocence as a gateway exception,’’ which is a standard that is 

lower than the clear and convincing evidence standard that this 

bill, Senator Kyl, you say uses as a protection in every provision 

to protect the innocent. 

But let’s be very clear about this. In the Williamson and Fritz 

case, there was definitely an ineffective lawyer; there was definitely exculpatory evidence; but they did not have at that point in 

time enough evidence to get even close to this standard. House 

does not have evidence to get close to the standard in the sense 

that if this bill were passed, the Supreme Court may very well 

have to dismiss that writ as improvidently granted and never reach 

this issue in theory, because House’s lawyers procedurally defaulted these claims in the State courts. 

What I must emphasize is this bill says that the innocent, even 

if you have clear and convincing evidence of innocence, which is a 

high standard, could not present it unless the facts underlying the 

claim—if the facts underlying the claim could have been found with 

the exercise of due diligence. And that is what happens all across 

this country. There are lawyers that do not get—you could look at 

almost every case and say there is no due diligence in terms of perfecting these claims. 

One last point before I close. I see my time is about to end. This 

is not a problem that DNA solves. We have 159 post-conviction 

DNA exonerations. We have found in 44 instances the real perpetrator. This is a different list, Senator Kyl, than the death penalty 

ones you were talking about. Somebody go look at this list. There 

is no question these people are innocent. But only 20 percent of 

cases, I must emphasize, have any biological evidence that you can 

perform a DNA test on. Eighty percent of the cases, there is no 

DNA. But what we have learned from these DNA exonerations is 

that the ineffective lawyers, the suppressed Brady material, the 

prosecutorial misconduct, the mistaken IDs, the false confessions, 

there is so much of that out there on other cases that we can only 

get if lawyers have an opportunity for a full and fair litigation in 

the cases of innocence. There are many, many more of them out 

there than anyone ever expected. That is what we have learned in 

the last 10 years. 

There are ways of speeding up these procedures, Senator Feinstein, and you pointed to them. We can create limits. I would suggest this is a very simple matter. If you want to speed up the Federal habeas system, when you get into Federal court you can pass 

a bill that says there is a time limit, but just like in North Carolina 

and some other cases recently, the prosecutor’s entire file—the entire file—should be turned over to the Federal district court judge 

so we can look at it and find any suppressed material and any 

other errors. That is the kind of direction we should be going instead of creating all these procedural bars which are going to lead 

to more litigation; and as Mr. Waxman is going to tell you, I do 

not think the statistics support that there really is a systemic problem. 

11 

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

for the record.] 

Chairman SPECTER. Thank you, Professor Scheck. 

Our next witness is the Chief Counsel of the Capital Litigation 

Section of the Arizona Attorney General’s Office, Mr. Kent Cattani, 

a law degree from the University of California-Berkeley in 1986, 

and he has been with the AG since 1991, represents and supervises 

attorneys in State and direct appeals, post-conviction proceedings, 

and Federal habeas corpus proceedings in Arizona capital cases. 

Just a brief aside, do you work at all with Barnett Lotstein in 

Arizona? 

Mr. CATTANI. I do not personally, but I do know of him. 

Chairman SPECTER. He is an ex-patriot of the Philadelphia D.A.’s 

office. We are practically everywhere. 

Thank you for joining us, Mr. Cattani, and we look forward to 

your testimony. 

STATEMENT OF KENT E. CATTANI, CHIEF COUNSEL, CAPITAL 

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

Mr. CATTANI. Thank you, Mr. Chairman. 

I disagree that there is not a problem with Federal habeas. The 

AEDPA has not solved the problem of excessive delay in Federal 

habeas proceedings, particularly in capital cases in Arizona. Although the AEDPA made several changes that have improved the 

process, in the final analysis delay has increased rather than decreased since the enactment of the AEDPA. I am not suggesting 

that the AEDPA has created the increased delay, but the AEDPA 

has not operated to decrease the amount of delay that we face in 

capital cases in Arizona. 

We have no interest in executing or even incarcerating an innocent person in Arizona. We take very seriously our role as prosecutors, and we have helped to create a system in Arizona that provides multiple opportunities to establish claims of innocence. There 

is no time bar in Arizona to raising a claim of actual innocence of 

a crime or innocence of the death penalty. Since 1993, we appoint 

two highly qualified attorneys in every capital case at the trial 

stage. We appoint yet another highly qualified attorney to represent defendants at the direct appeal stage. And then we appoint 

yet another attorney, another highly qualified attorney to represent 

the defendant in post-conviction relief proceedings stage. Funds are 

made available for investigation, and for expert witnesses. Having 

created this type of system, we are frustrated by the seemingly 

endless round of Federal habeas review in the Federal district 

court and in the Ninth Circuit. 

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

the opt-in provision. The opt-in provision was designed to accelerate Federal habeas review in capital cases on the condition that 

States establish a mechanism to provide for the appointment of 

competent counsel at the post-conviction stage. We anticipated that 

if those provisions were applied in Arizona, the length of the Federal habeas process would be reduced to approximately 3 years. 

The theory underlying the opt-in provisions was that if you ensure 

12 

competent representation in State court, there is less of a need for 

lengthy Federal proceedings. 

Arizona responded to the AEDPA by enacting new standards for 

the appointment of counsel in post-conviction proceedings. Attorneys have to meet specific criteria to be eligible to be on a list of 

qualified counsel that is maintained by the Arizona Supreme 

Court. In 21 cases in which counsel have been appointed from the 

list of qualified counsel, the State has thus far expended over $1 

million to represent these indigent defendants in capital post-conviction proceedings. In some cases, the State has paid in excess of 

$100,000 in attorneys’ fees and costs in a post-conviction proceeding. 

Nevertheless, we have not opted in, and I believe there are no 

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

in? After we enacted these provisions to provide for compensation 

for counsel in the post-conviction stage, defense attorneys temporarily boycotted the system, some out of a concern that it would facilitate expediting review. Others boycotted because they were concerned about whether there would be adequate compensation. 

The Arizona legislature clarified that there is no cap on attor- neys’ fees. Attorneys are paid $100 an hour for up to 200 hours of 

work, even if a post-conviction petition is not filed, and additional 

compensation is paid upon a showing of good cause. 

Attorneys have in fact been compensated well in excess of $20,000 for handling capital post-conviction proceedings. 

In any event, because of these concerns, there was a delay in the 

appointment of counsel in these first cases after the new standards 

were enacted. 

The first case in which we attempted to take advantage of the 

opt-in provisions was in the Anthony Spears case. The Ninth Circuit ruled that the standards that we have adopted for the qualification levels for the attorneys who represent defendants in postconviction are satisfactory. The court refused to allow us to opt in, 

however, because there had been a delay in appointing counsel. In 

Spears’ case, there had been a 20-month delay before he was appointed to represent Spears. We argued that the 20-month delay 

did not prejudice Spears, and, in fact, Spears’ post-conviction counsel never argued in State court that this 20-month delay had created any kind of an impediment to raising claims in the post-conviction process. 

In our view, Spears received the benefit of the opt-in provisions. 

The State has created an opt-in mechanism to appoint competent 

counsel. Spears received counsel appointed under that system. 

It is important to note that our attempt to opt in is not just a 

belated effort for technical compliance. Again, we take very seriously the need to protect the innocent, and in my view, the proposed bill takes that into account. There are provisions to ensure 

that people who are actually innocent of the crime will get Federal 

review. 

I see my time has run out. Thank you, Mr. Chairman. 

Chairman SPECTER. If you need a little more time, go ahead, Mr. 

Cattani. 

Mr. CATTANI. I would just note that to evidence our concern for 

innocence, the Arizona Attorney General’s Office has worked with 

13 

the Arizona Supreme Court and the American Judicature Society 

to study cases in which there has been an exoneration. There have 

been two such cases in Arizona. Significantly, the exonerations 

were the result of State court proceedings. Neither of the defendants had ever filed anything in Federal court. And we certainly try 

to learn any lessons that we can from an exoneration, but I think 

it is important to note that these exonerations were the result of 

State court proceedings. We have a mechanism that allows for the 

development of newly discovered evidence at any time, and I think 

in all of the cases that we have seen in Arizona, the provision for 

newly discovered evidence allows a defendant to pursue this claim 

of innocence. In addition, our rules provide for a free-standing 

claim of innocence; this allows an opportunity to present claims of 

innocence at any time. 

Our frustration with the Federal habeas process is that it does 

not recognize the improvements that have been made to the criminal justice system. The people of Arizona, in particular, the victims 

of violent murders, deserve a better system. Our current Federal 

habeas process is not working, and I urge your careful consideration of the proposed amendments. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Cattani. 

Our next witness is the Honorable Seth Waxman, Solicitor General for 4 years from 1997 to 2001, summa cum laude from Harvard, Yale Law School, Rockefeller Fellow, American College of 

Trial Lawyers, very distinguished record, currently heads the appellate practice at Wilmer, Cutler. Thank you for coming in today, 

Mr. Waxman, and we welcome your testimony. 

STATEMENT OF SETH P. WAXMAN, FORMER SOLICITOR GENERAL OF THE UNITED STATES, AND PARTNER, WILMER, 

CUTLER, PICKERING, HALE AND DORR, WASHINGTON, D.C. 

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

you for the opportunity to speak today. It is a great honor and a 

pleasure to be on the panel and to be surrounded by— 

Senator FEINSTEIN. Turn on your mike, please. Thank you. 

Mr. WAXMAN. To be surrounded by prosecutors from the State of 

Arizona, which, in my experience, is a particularly and, I would 

have to say, uniquely forward-looking State for reasons that Mr. 

Cattani has expressed—the only State, to my knowledge, that has 

attempted in the 10 years since AEDPA was enacted to opt in to 

the system that this Congress created 10 years ago. 

Mr. Chairman, I have been a litigator my entire professional life, 

which, as my children remind me every week, has been very long. 

I have been a trial lawyer and an appellate lawyer. I practice in 

State and Federal courts, in civil and criminal and post-conviction 

cases. And I have done so in private practice and on behalf of the 

United States Government. I am not philosophically, morally, or 

ideologically opposed to the death penalty. To the contrary, while 

I was in the Justice Department, I served for years on a committee 

that recommended to the Attorney General of the United States 

cases in which the Government should affirmatively seek the death 

penalty, and we did so successfully. 

14 

I have no patience in my personal or professional life, as colleagues and family members will tell you, for delay for its own 

sake, procedural games, and maneuvering that gets in the way of 

answering substantive questions and moving on. I understand, I 

think, the sentiment that lays behind this bill that Senator Kyl introduced and that Representative Lungren has introduced in the 

House. I cannot support it. I must and I do oppose it, and I urge 

the Senate to reject it—not because I think the sentiments are misguided, but for four reasons which I would like to tick off in the 

horribly short remaining time. 

I have a written statement that I submitted that I hope the Committee will take a look at. 

Chairman SPECTER. It will be made a part of the record. 

Mr. WAXMAN. I like to keep abreast of what is going on, but I 

must say that I only learned of this legislation late last week, and 

I am struggling to try and understand how all of its interrelated 

provisions apply. But let me just make four points very briefly, 

which I would be happy to elaborate on in response to any questions. 

I have four reasons for opposing this legislation as drafted. Two 

of them relate to AEDPA, which is legislation that I think every 

member of the Committee who spoke referred to and for which I 

had fairly substantial personal involvement in drafting and analysis. Two are more fundamental. 

My AEDPA points are as follows: 

First, I was quite interested to hear the statistics that Senator 

Kyl cited this morning. I had not seen them before. I was also really very interested in reviewing the statistics from the Administrative Office to which Senator Feinstein referred, which are reported 

in a letter to the Committee from Thomas Hillyer. But my bottomline point with respect to AEDPA is I am not aware of any study, 

systematic or otherwise, or any collection of data that looks at the 

effectiveness or ineffectiveness in AEDPA in reducing the particular targeted problems that the Congress of the United States 

legislated to fix. There may be more post-conviction cases now filed, 

but what AEDPA was designed to address is how readily they get 

adjudicated, particularly in Federal courts. And the statistics that 

I saw in Mr. Hillyer’s letter actually suggest, if anything, that 

AEDPA has been quite effective. I urge the Committee to enlist the 

Administrative Office or the Federal Judicial Center, and let’s see 

how the specific provisions of AEDPA have worked out—to identify 

where there continue to be frustrating and unconscionable and indefensible delays in getting to the merits of constitutional claims. 

My second AEDPA-related concern is that any time the Congress 

legislates in a wholesale fashion to substantially revise procedures—particularly in the criminal area, and most particularly in 

the post-conviction area—a wave of litigation is generated, raising 

statutory interpretive questions and constitutional questions. We 

are now only emerging from that wave of litigation with respect to 

AEDPA. And I fear—I think it is a certainty—that this legislation 

will generate a new wave of litigation, both interpretive and constitutional, that will take the Federal courts years to adjudicate 

rather than streamlining these proceedings. 

15 

If I may just have one minute to mention my two more fundamental objections, I will simply tick them off. 

Chairman SPECTER. You may proceed, Mr. Waxman, for a little 

more time. 

Mr. WAXMAN. Thank you. I am totally in favor of streamlining 

procedures where procedures are not, in fact, streamlined and 

where that can be done without sacrificing fairness to both sides 

concerned. But many, I would say most, of the substantive provisions of this bill are, in fact, jurisdiction-stripping provisions. I referred in my written testimony to Sections 2, 4, 6, and 9, which do 

not establish tighter timetables or different standards. They deprive Federal courts of jurisdiction to hear categories of cases. And 

that is, I think, fundamentally inconsistent with long-standing 

statutory and constitutional traditions. I do not think that stripping Federal courts of jurisdiction in categories of these cases is the 

appropriate way to achieve a streamlining function. And I am very 

concerned—and this is really my principal concern here—with the 

number of cases in which substantial majorities of this Supreme 

Court have concluded that fundamental constitutional rights, many 

going to guilt-innocence, were violated and violated in such a way 

that even under AEDPA standards, the writ of habeas corpus must 

issue—and yet which would not even make it into Federal court 

under the provisions of this bill. And I have listed and described 

four of them, one each from the past four terms in the Supreme 

Court, in my legislation. 

Thank you for your patience. 

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

Chairman SPECTER. Thank you very much, Mr. Waxman. 

Our next witness is the Executive Director of Equal Justice Initiative and Professor of Clinical Law at New York University 

School of Law, Professor Bryan Stevenson, nationally acclaimed for 

his work challenging bias against the poor and people of color in 

the criminal justice system; Harvard Law School and Harvard 

School of Government; has an extensive record in assisting the 

poor. 

Thank you for coming in, Professor Stevenson, and we look forward to your testimony. 

STATEMENT OF BRYAN A. STEVENSON, DIRECTOR, EQUAL 

JUSTICE INITIATIVE OF ALABAMA, AND PROFESSOR OF 

CLINICAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, 

NEW YORK, NEW YORK 

Mr. STEVENSON. Thank you, Senator Specter. 

I would like to first just put in context some of what we have 

been talking about today. We should all be mindful of the fact that 

over the last 30 years, the number of people in jail and prison has 

increased dramatically. In 1972, there were 200,000 people in jails 

and prisons. Today there are 2.1 million. 

Since the passage of AEDPA, we have actually added some 

700,000 people to jails and prisons, and anything we talk about 

with reference to the numbers of habeas filings has to be seen in 

that context. It would be very misguided for this Committee or anyVerDate Nov 24 2008 14:46 Feb 18, 2009 Jkt 047088 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47088.TXT SJUD1 PsN: CMORC
16 

one to look at the number of filings without looking at the number 

of people being sent to jail and prison. 

We talk a lot in this legislation about finality, but one threshold 

point I think needs to be clarified. This bill applies to all prisoners. 

It does not focus or expressly limit itself to death penalty cases. 

The reality is that in non-capital cases, which are the overwhelming majority of these filings, there is finality. None of these 

people are out on probation or bail or parole. They are not avoiding 

punishment. If they have a 20-year sentence, whether they have a 

habeas pending for 5 years or 8 years or 12 years does nothing to 

the finality of that judgment. 

So what we are effectively talking about are death penalty cases. 

And when we talk about death penalty cases in this country, we 

have to look at the death penalty States. And with, you know, obviously appropriate deference to my colleagues from Arizona, the 

overwhelming number of death penalties in this country are being 

applied in the Deep South. It is Texas and Florida alone that outnumbers the rest of the death row population in the country by 

themselves, Mississippi, Alabama, Georgia, Virginia, and in these 

States we have had serious problems and continue to have serious 

problems with indigent defense. 

All over the country, there are problems with innocence. I believe 

they start at the trial level, but we have still not done enough to 

make indigent defense appropriate. When you increase the numbers this way and you do not increase the resources for giving people aid, you are going to have wrongful convictions. In my State, 

72 percent of the people who were sentenced to death were represented by lawyers whose compensation was capped at $1,000. In 

Texas, $800 caps on cases; Virginia, $13 an hour. These kinds of 

statutory schemes increase the likelihood of wrongful convictions, 

and I do not think we should be in any way confused about the fact 

there are people on death row, in jails and prisons, who are innocent. 

This bill, I think, wants to kind of speed the process up, but is 

not really focused on where the problems are. The problems, in my 

judgment, begin in State court. Again, Deep South States. We do 

not have a public defender system. The State of Alabama does 

nothing to provide people lawyers when their case is affirmed on 

direct appeal, even in death penalty cases. Our statute says that 

if you can find a lawyer and that lawyer comes to the court, the 

court will appoint that lawyer, but the compensation cap for death 

penalty post-conviction appeal is $1,000. We have had 95 cases 

filed in the last 75 years. In none of those cases did the State do 

anything to provide people with lawyers. That means the cases do 

not get investigated. The cases do not get developed. There is no 

opportunity to explore issues of innocence or fairness until you get 

to Federal court, and this bill would, in fact, insulate many wrongful convictions. 

I have got a client who is innocent. He has been on death row 

for 19 years. He has never filed a Federal habeas petition because 

he has been languishing in the State trial court for the last 15 

years. He could not find a lawyer. He could not force the judge to 

rule. We have an elected judiciary. These problems are the real 

problems of delay. In many States, the length of time in State court 

17 

triples the amount of time people spend in Federal court. And we 

have got to understand that as it relates to these issues, this bill 

would do a lot of very, I think, unfortunate things to insulate 

wrongful convictions and innocence. The counsel problem that I am 

talking about is not addressed here. It in no way limits the application of these provisions to States that are doing the things that 

make State court review meaningful. And what that does is essentially protect States that are unwilling to protect the accused. 

We have seen this in a number of ways. The exhaustion provision, for example, would prevent my client, who has been languishing on death row for 15 years, from getting to Federal court 

if the State courts never address his claims. 

I did a case not too long ago where a death row prisoner had 

been convicted and was mentally ill. The State used an expert who 

testified that this man was not mentally ill, that he was faking his 

mental symptoms at the trial. He was denied relief, came within 

7 days of execution, filed a habeas petition in Federal court. 

Months later, it was discovered that the expert who testified 

against him was a fraud, never graduated from high school, had no 

college degree, had been masquerading as a clinical psychologist for 

7 years in a State mental institution. 

This bill would strip away the opportunity for filing an amended 

petition to get to that claim, which did not go to factual innocence, 

at least at that stage. And we see this all the time. These issues, 

as Professor Scheck talked about, oftentimes start as due process 

claims. 

I was a young lawyer at the Southern Center for Human 

Rights—if I could just have one more minute to complete. 

Chairman SPECTER. Go ahead, Professor Stevenson. 

Mr. STEVENSON. Thank you, sir. I was a young lawyer at the 

Southern Center for Human Rights when we got a case in our office that went to the United States Supreme Court where a prosecutor had basically sent a memo to the clerk to kind of teach the 

clerk how to under represent black people in jury pools. This racial 

bias that was detailed in this memo was hidden, and it was only 

years after that this memo was discovered, it was challenged, and 

the State court said the claim is procedurally barred. And that happens a lot. We have had 25 cases in my State where prosecutors 

have been proved to use preemptory strikes in a racially biased 

manner. Many of those cases, the State courts say they are procedurally barred. 

The case went to the United States Supreme Court, and the 

Rehnquist Court said unanimously, 9–0, this kind of bigotry cannot 

be insulated, cannot be tolerated. And it used language that this 

bill would eliminate to address the merits of that claim. And it is 

those kinds of claims that I think are very much at stake, those 

kinds of concerns. The integrity of our criminal justice system is 

critical, in my view. And there is simply no one in this country who 

wants fair and efficient adjudication of their claims more than innocent people who are sitting in jails and prisons today. They desperately need that. But what this bill will do is actually make it 

infinitely harder for them to ever see the kind of justice that many 

of the people in this room have seen and witnessed and experienced. 

18 

I will end with one last case. We were involved in a case that 

a firm and some lawyers in Birmingham did years ago of a man 

who spent 17 years on death row. Claims were procedurally barred 

in State court. It got to Federal court, and the court granted relief, 

not on factual innocence, because those claims could not be developed, but on ineffective assistance of counsel at the penalty phase, 

something that would be barred from this bill, and a race bias 

claim at the trial, something, again, that would be barred. He was 

given a new trial, and at his new trial he was acquitted. He spent 

17 years on death row. I dare say he would have been executed if 

this bill were law. And I think those kinds of concerns have got to 

urge this Committee to turn this legislation around and please give 

it deeper and more careful consideration. 

Thank you, Senator. 

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

Chairman SPECTER. Thank you, Professor Stevenson. 

Our final witness on the panel is Mr. John Pressley Todd, Assistant Attorney General in Arizona, a law degree from Arizona State 

University, 30 years’ experience as a prosecutor, trial lawyer, and 

appellate lawyer in the Arizona Attorney General’s Office. A real 

career prosecutor, Mr. Todd. Thank you for coming. 

STATEMENT OF JOHN PRESSLEY TODD, ASSISTANT ATTORNEY GENERAL, ARIZONA ATTORNEY GENERAL’S OFFICE, 

PHOENIX, ARIZONA 

Mr. TODD. Thank you, Mr. Chairman. It is a great privilege to 

be here. I also had the— 

Senator LEAHY. Is your microphone on, Mr. Todd? 

Mr. TODD. I am sorry. I also had the privilege of serving 15 years 

with Barnett, investigating and litigating trial cases, frauds and so 

forth. And I spent my first 15 years in the first segment of the 

criminal justice system. I have spent my second 15 years in the 

second segment of the criminal justice system. And Federal habeas 

affects just a small portion of the second segment. If there is a 

problem of innocence, those cases can really only be addressed in 

the States. 

As Senator Kyl mentioned, there are like 23,000 pending habeas 

petitions currently in the whole Federal court system. In one county, in Maricopa, in Arizona, there is double that amount of cases 

tried. The Federal courts cannot simply retry all the State cases. 

It cannot work. 

The system that is in place and that we are asking to be made 

better is a logical, reasonable system. What is good about this bill 

is it undercuts the procedural delay and focuses the Federal courts 

on—if there is any legitimate question of innocence, it focuses the 

courts on that question. 

In any criminal case, there are only two types of errors. There 

is the error where an innocent person is convicted, and there is the 

error when a guilty person goes free. Now, the way we have created our system is, at the time when the evidence is most reliable, 

when the evidence is most fresh, we have a trial, and we provided 

all sorts of procedural safeguards at that trial to be sure that if 

there is an error, it errs on letting the guilty person go free. 

19 

Since common law starting with the Magna Carta, 800 years ago, 

we have left to the jurors the fact-finding process. By the time we 

get to Federal court, factual issues are years and years removed. 

As the first speaker indicated, memories fade, witnesses become 

uncooperative. And to create a system that relies on retrying many 

cases in Federal court, you cannot. It is just physically not possible. 

The problem in Federal court is that instead of raising legitimate 

issues of constitutional merit which have been presented in State 

court, particularly in death penalty cases, individuals feel that they 

have to try and raise a multitude of claims that are without merit. 

And all this does is build delay into the system. The only persons 

who benefit by delay are those who are under a sentence of death 

who are guilty. A person who is under a sentence of death who is 

innocent certainly does not benefit by delay, and no non-capital defendant benefits by delay. 

So this bill has the safeguard of truly innocent people getting 

into Federal court. It does away with the ability of people who are 

simply trying to create delay to postpone the State’s judgment. It 

undercuts this procedural delay. 

Thank you, Mr. Chairman. 

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

the record.] 

Chairman SPECTER. Thank you very much, Mr. Todd. 

Mr. Waxman, I will begin with you. You have had an extraordinary record as an appellate lawyer, Solicitor General, head of a 

big firm’s appellate practice. You object to delay. You oppose the 

bill. What is the answer to these very, very long delays which have 

become epidemic? 

Mr. WAXMAN. I would very much like to work with the Committee of the administrative office or the Justice Department, or 

whoever it is would look at the extent to which delays remain in 

the system and where and why. Before I can answer the question, 

Mr. Chairman, I would need to know. 

I have been involved in cases in which the State courts, for whatever reason, have simply not decided meritorious constitutional 

claims for many years, and no— 

Chairman SPECTER. Mr. Waxman, we will accept your offer, just 

so long as you will not utilize your customary hourly rate. 

[Laughter.] 

Mr. WAXMAN. Mr. Chairman, I will charge the Committee exactly 

what I am charging the Committee today, which is—this is a public 

service— 

Chairman SPECTER. Well, we can double that. 

[Laughter.] 

Mr. WAXMAN. I will tell you what, I will give you 50 percent off, 

and I would be delighted to work with the members from both 

sides to come up with—to figure out where the problems are and 

come up with a solution that is fair to both sides. 

Chairman SPECTER. We are going to take you up on that because 

you have had the experience to have some really unique insights. 

Professor, Scheck, you raised a proposition of making the entire 

State court record available to the judge on habeas corpus proceedings. Amplify what you mean by that. Is that record now not 

available customarily? 

20 

Mr. SCHECK. Actually, there are a lot of problems even getting 

transcripts in place. What I am really talking about, when you get 

to the issue of innocence, is the entire prosecution file. Obviously, 

during the course of a criminal case the defense is not entitled to 

the— 

Chairman SPECTER. The entire prosecution file, so it is more 

than the trial record, obviously. 

Mr. SCHECK. Yes. And that is exactly—take the case of Darryl 

Hunt who is here in the audience, who spent 20 years in prison for 

a crime he did not commit. I will bet you that Judge Ludick and 

Judge Wilkinson, who actually rejected his claim when there was 

some DNA evidence showing that he was innocent in some Brady 

claims, would really like to see that as well, because when he went 

into Federal court, it was a closed case, but he could not even get 

a hearing. Then after his case came down we finally got a new 

DNA test that identified the real perpetrator. 

And here is my point, when the real perpetrator was identified, 

we found in the prosecution’s file exculpatory evidence indicating 

that the police knew about him. 

Chairman SPECTER. Let me stop you there because of the limitations of time, and turn to the prosecutor. 

Mr. Dolgenos, how about that, would you be willing to follow Professor Scheck’s idea and turn over the entire file? 

Mr. DOLGENOS. I think that is a terrific over-reaction, Mr. Chairman. 

[Laughter.] 

Mr. DOLGENOS. Concerns of— 

Chairman SPECTER. Give us a little under-reaction. 

Mr. DOLGENOS. Police investigations and law enforcement investigations are filled with material, witness statements and police information that it is important to keep confidential. There are discovery rules in State court. 

Chairman SPECTER. How about redacting all the confidentiality? 

Professor Scheck is suggesting if there is some exculpatory evidence in your file. 

Mr. DOLGENOS. Well, exculpatory evidence is absolutely subject 

to discovery in every State court. The question is whether or not 

States can enforce or have their own rules of discovery. If we have 

a policy in Federal court where we hand over the entire prosecution 

and police file, the funnel’s absolutely backwards. Then the Federal 

proceeding becomes the main event and the State proceeding becomes merely a preliminary, simply—and I do not think there is 

any basis for that. I mean obviously Brady violations are very important and— 

Chairman SPECTER. Mr. Dolgenos, I hate to cut you off but I 

want to ask Mr. Cattani a question, and I also want to observe my 

time limit. 

Habeas corpus, the subject matter we are dealing with, constitutional standing. Does the Congress have the authority to strip the 

courts, the Federal courts of jurisdiction on constitutional issues, 

Mr. Cattani? 

Mr. CATTANI. Yes, I think Congress can certainly restrict the 

types of claims that can be raised. 

Chairman SPECTER. Even on constitutional issues? 

21 

Mr. CATTANI. Yes. I think this Congress has the authority to do 

that. And the jurisdictional restrictions are important. What we 

face in the overwhelming majority of our cases is a relitigation of 

the mitigation investigation as it relates to sentencing. Notwithstanding the fact that we have gone through a mitigation investigation at trial and again in the post-conviction stage, we move into 

Federal court and the attorneys representing the petitioner in Federal court start over with a complete mitigation investigation. This 

means we are no longer focused on guilt or innocence, we are focused instead on whether there is some additional mitigation? And 

of course there is always additional mitigation that can be found. 

There is always someone else somewhere who will say something 

about the defendant’s background. 

In my view, at some point it does become necessary to say we 

have to cut off certain types of claims or we simply will not have 

finality in the process. 

Chairman SPECTER. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

Mr. Cattani, just to follow up just a little bit, you say this Congress has the right to strip the courts of jurisdiction over constitutional matters. Assuming I agree, would you also agree that if the 

Congress is going to remove the ability of a Federal court to have 

jurisdiction on something involving constitutional matters, your 

constitutional rights, would that not be a step that the Congress 

should take only with enormous deliberation? 

Mr. CATTANI. I certainly would agree that there should be careful 

consideration, but I think the proposal that has been made— 

Senator LEAHY. I am not talking about this proposal. I am just 

talking about in general. 

Mr. CATTANI. Certainly. Careful consideration, and I think it is 

important to provide safeguards for actual— 

Senator LEAHY. Those may be your constitutional rights we are 

talking about too. 

Mr. CATTANI. Sure. 

Senator LEAHY. Mr. Waxman, again, thank you for being here, 

and I concur with the Chairman, we much appreciate you taking 

the time because of your own vast experience. 

We are told that this bill is to eliminate inefficiencies in the exercise of Federal habeas jurisdiction, not to eliminate habeas all together. But you said in your testimony that it strips Federal courts 

of jurisdiction to vindicate meritorious constitutional claims. Would 

you elaborate on that a little bit, please? 

Mr. WAXMAN. Well, I will not be able to as much as I would like 

to, but I listed, just so that the Committee could review, four cases 

that were recently decided by the Supreme Court of the United 

States, where substantial majorities of the Supreme Court concluded in Federal court review of State criminal convictions, where 

the State courts had—I believe in all of the cases there was counsel 

in the State courts. The State courts concluded that the writ of habeas corpus need not and should not issue. The Supreme Court of 

the United States, in each of those cases, concluded by a substantial majority that—accepting all of the facts as found by the State 

courts, giving complete deference to the fact finding of the State 

courts—egregious violations of constitutional rights, three of them 

22 

going to the guilt/innocence stage, had been committed to the point 

that the State courts had not only erred in their judgment, but that 

there was an unreasonable application of the facts as found by the 

State court to the settled law as announced by the Supreme Court 

of the United States. 

Now, I am not throwing stones at State courts or State court 

judges. State court judges are human beings just like Federal court 

judges and just like everybody sitting in this room is— 

Senator LEAHY. Except for Senators of course. 

[Laughter.] 

Mr. WAXMAN. Yes, some present company excluded. 

It is part of our tradition, our constitutional tradition, our statutory tradition and our cultural tradition going back to Magna 

Carte, that in criminal cases, and particularly in cases where the 

penalty to be exacted is death, we need safeguards and we need 

some redundancy, and the fact that in our day and age, under 

AEDPA, which has raised the bar very substantially, 6–, 7–, and 

9–Justice majorities of the current Supreme Court have found instances where they have said: Look, taking all the facts as found 

by the State court, even in a case in which there was counsel, we 

have no choice but to conclude, no alternative but to conclude that 

fundamental constitutional rights were violated that require 

issuance of the writ. 

What I am concerned about is that with respect to the four cases 

that I identified over the weekend and have explained to the Committee, those people, if this bill passed, almost certainly would not 

have been able even to get into Federal court. 

Senator LEAHY. Then would you agree—I think you would not 

agree—the principal sponsor of this bill in the House said that if 

a petitioner had meaningful evidence of innocence he would not be 

subject to the bill’s jurisdiction-stripping provisions and the other 

procedural hurdles? Does this bill really create general exceptions 

for people with meaningful evidence of innocence? I could not find 

them. 

Mr. WAXMAN. I fear that it does not, and I would very much like 

to see—if this legislation were going to pass with an actual innocence exception—that standard that you just articulated, rather 

than what is in the bill. 

The reason I say that is as follows. The bill contains, with respect to a number of the jurisdiction-stripping provisions, an exception that can be met if the innocence standard that is already specified in AEDPA is met. Now, that standard, which I have explained 

at the top of page 3 of my testimony, is the standard that the Congress imposed on second or successor petitions under AEDPA. It 

was a major point of AEDPA to reduce or eliminate the opportunity 

for petitioners to file second or successive petitions. And in order 

to invoke that innocence exception, you need to prove under this 

bill, as under the successor provisions of AEDPA, No. 1, that the 

claim of innocence that you are making rests on a factual predicate 

that quote, ‘‘could not have been previously discovered through the 

exercise of due diligence.’’ Even if you had no lawyer, even if you 

found DNA evidence, but a diligent lawyer could have found it, you 

will not meet this exception. 

23 

In addition, under the standard that this bill imports from 

AEDPA, you have to show that the underlying facts that you come 

forward with that could not have reasonably been discovered before, quote, ‘‘would be sufficient to establish by clear and convincing evidence, that but for constitutional error, no reasonable 

fact finder would have found the applicant guilty.’’ 

As a threshold finding, that is breathtakingly difficult, and even 

that is not enough, because you also have to show, to come within 

the innocence exception, that a denial of relief on the basis of your 

constitutional claim was not only error by the State court, but in 

fact was, quote, ‘‘contrary to or would entail an unreasonable application of clearly established Federal law as determined by the Supreme Court.’’ I find it difficult to think that any prisoner, as a 

threshold jurisdictional matter, could make those showings. The 

new evidence establishing innocence might have been discoverable 

earlier. It probably should have been if competent counsel were involved. 

It might show very strongly that the person is likely innocent, 

but would it clearly and convincingly persuade every reasonable 

judge or jury of innocence as a threshold matter? And it might also 

have been wrong but not unreasonable to reject the underlying constitutional claim that innocence is attached to. 

So if we are going to have a bill like this and we want to have 

an actual innocence exception, it seems to me we need to have one 

that does not pose the AEDPA, successive or second petition standard that was designed to—and in my experience has served very 

effectively—to eliminate Federal petitions. 

Chairman SPECTER. Senator DeWine has to leave early, and Senator Kyl has graciously consented to let Senator DeWine go ahead. 

Senator DEWINE. I thank my colleague from Arizona, and I 

thank the Chairman. 

Mr. Waxman, you have cited here cases where you say were S. 

1088 the law, the Federal courts would not even have had jurisdiction to review the meritorious constitutional claims, and then you 

cite these cases. 

I would like to ask the rest of the panel. I do not know if you 

have had a chance to look at Mr. Waxman’s examples here, but if 

any of you have, would you agree with his statement? Mr. Scheck? 

Mr. SCHECK. I not only would agree with it, but I could put into 

the record 27 Supreme Court cases on a section by section basis 

that are affected by this decision. So if you are looking for, certainly as Mr. Waxman said, in the short term, this is going to 

cause an incredible set of delays. 

The other thing is I have a list here—and it is just beginning— 

of 8 individuals who were exonerated who would not have been 

able to get into court. 

I cannot emphasize enough what Mr. Waxman has been saying 

about this bar. What this bill says in Section 4 and in other sections, is if the State court said, oh, there was a procedural default, 

and I have a client—and we have a lot of them, a number from 

your State, Senator DeWine—you know, who are innocent people, 

I cannot get into Federal court for review if a diligent lawyer could 

have found it. 

Now, take my friend, Brandon Moon, who— 

24 

Senator DEWINE. Mr. Scheck, I only have 5 minutes. 

Mr. SCHECK. Oh, I am sorry. Brandon Moon is sitting in this 

room and that is exactly what happened to him. 

Senator DEWINE. Love to hear you for an hour. 

Mr. SCHECK. That is exactly what happened to him. 

Senator DEWINE. Let me ask the people on the panel who are 

in favor of the bill if they could comment, because ultimately we 

get down to specifics. We are talking about real cases, real people, 

real victims, real defendants. Do you agree with what Mr. Scheck 

said? Do you agree with what Mr. Waxman has said? Are these 

cases going to be knocked out of court where the Federal District 

court, if it wants to hear the case, just says, cannot hear it? Yes, 

no? 

Mr. DOLGENOS. Senator, if I may, I do not agree with that. 

Senator DEWINE. So you disagree. All these cases that he has 

cited you have looked at them, you have looked at them, and all 

of these cases that he has cited, you would say no, he is wrong 

about that? 

Mr. DOLGENOS. I cannot make that statement, Senator. I have 

not had a chance to look at the list of cases. 

Senator DEWINE. Will you take a look at that list and give me 

something in writing? 

Mr. DOLGENOS. Absolutely, I would absolutely like to do that, 

Senator. 

Senator DEWINE. Okay. How about the rest of those of you who 

are in favor of the bill, anybody else? 

Mr. TODD. I have looked at one of the cases that Mr. Waxman 

cited, and that was the case that dealt with three witnesses leaving 

during trial, defense witnesses that could establish an alibi and 

happened to be relatives of the defendant. It would seem to me 

that would be an absolute defense, and if those witnesses went to 

Federal court and testified and were credible, that would satisfy 

the bill. 

Senator DEWINE. You could get into court? 

Mr. TODD. That is my opinion. 

Senator DEWINE. Mr. Waxman. 

Mr. WAXMAN. I wish that were the case. I think the case that 

Mr. Todd is referring to is Lee v. Kemna, which was decided by the 

Supreme Court in 2002. I think it is very, very clear that under 

Section 4 of this bill, this case could not get into court. Just very, 

very briefly, it was a case of murder that took place in Missouri. 

The defendant’s defense was alibi. He had three witnesses from 

California who came to testify that he had been in California on 

the day the offense was committed. They were in the Federal courthouse under subpoena, sequestered in a separate room where the 

witnesses were held. They were told during the course of the day 

by an unnamed person who subsequently the Supreme Court opinion reflects was an employee of the State, that the State’s prosecution case was going to take so long, that they would not be called 

till the next day, and they could and should leave. 

When the defense lawyer called them out of the sequestered witness room, he was told that they had left. He asked for a short extension to find them because they were his alibi witnesses. The 

judge said no. He asked that the case be adjourned till the next 

25 

day. The judge said no because he was going to be visiting his 

daughter in the hospital the next day. He asked for an adjournment till the following Monday. The judge said: I have another trial 

starting that day. 

The Court of Appeals in the State court came up with a new 

problem with the case, which is that he had not made his mid-trial 

motion for an extension in writing— 

Senator DEWINE. Mr. Waxman, time is running. But ultimately 

you are saying that that case would not have been—the jurisdiction 

would not have been there. Is that your interpretation? 

Mr. WAXMAN. Absolutely not. Section 4’s treatment of procedural 

bar would have prohibited the court from hearing the case. 

Senator DEWINE. My time is up. Let me just conclude with two 

things. One is, I would ask those of you on the panel or all of you 

on the panel, to take a look at Mr. Waxman’s testimony, look at 

the cases cited that he has cited. Mr. Scheck, are you submitting 

your cases? 

Mr. SCHECK. Yes. And the one I discussed, Williamson and Fritz, 

no question would the guy have gotten into court, he would be 

dead. 

Senator DEWINE. Okay. My point is I want to get those to the 

other panel members, and I would like opinions from all the other 

panel members on those cases, whether or not this bill as written 

currently would bar the Federal court from hearing those cases. If 

I could get all of you to give me an opinion on that. I think that 

is very important. 

I would also just, a final comment, say that we really have not 

heard much from any of you about Section 9 of the Act, which the 

way I interpret it, the Federal court would lack jurisdiction to hear 

any claims at all from a capital defendant as long as the State’s 

been certified as having a procedure in place to provide counsel for 

post-conviction proceedings, very sweeping. We do not have time to 

get a response from any of you, but it seems to me that is quite 

interesting. 

Thank you very much. 

Chairman SPECTER. Thank you very much, Senator DeWine. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you, Mr. Chairman. 

The bill clearly puts up substantial barriers to Federal courts 

even with initial habeas appeals. I would like to ask each of you 

this question, if you could just answer it yes or no. Do you believe 

the bill as written is constitutional? Mr. Dolgenos? 

Mr. DOLGENOS. I do. 

Mr. SCHECK. No. 

Mr. CATTANI. Yes. 

Mr. WAXMAN. I doubt it, in all of its provisions. 

[Laughter.] 

Mr. WAXMAN. Sorry. 

Mr. STEVENSON. No, Senator Feinstein. 

Mr. TODD. I believe that, in my opinion, it would be constitutional. 

Senator FEINSTEIN. Thank you. Sort of a clear division here. 

My friend, Senator Kyl, said earlier that innocence cases take 

priority, and yet as I read page 4, it seems to me that the innoVerDate Nov 24 2008 14:46 Feb 18, 2009 Jkt 047088 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47088.TXT SJUD1 PsN: CMORC
26 

cence exception is curtailed and limited to new law that might be 

retroactive, or new evidence which could not have been discovered. 

Do you agree with that, each one of you? And if not, why not? 

Mr. DOLGENOS. Senator, I do agree with that simply because I 

have seen too many cases where old evidence is submitted to the 

court and rehashed as evidence of innocence when it has already 

been rejected by the State court or has been rejected by a lawyer 

who decides, well, I am not going to use it because I do not think 

it is convincing. In other words, when evidence is stale, that is usually a good reason to think it is not credible. 

Senator FEINSTEIN. Mr. Scheck. 

Mr. SCHECK. The fact is that you can look at these records and 

you can see in case after case, like my friend from El Paso, that 

there was evidence that a diligent lawyer could have found—I 

mean literally in his case there was a DNA test and just one more 

thing had to be done, and it was clear that Brandon Moon was innocent. 17 years he tried to get that. He had no lawyer, until finally he got competent counsel and it was solved like that. 

The problem is in this provision of the bill where innocence is 

supposed to be protected, not only is, as Mr. Waxman, is it a new 

rule, but if somebody could look at it and say, oh, that evidence 

could have been found with due diligence, even if you now have it 

and it proves somebody innocent, you cannot get into court. And 

the United States Supreme Court, as Senator Specter has emphasized, just took cert. in the House case where the issue of actual 

innocence is finally going to be put before them again for the first 

time since Herrera, and House himself could not have brought that 

case to the United States Supreme Court because his lawyer had 

procedurally defaulted and you could have said there is a lot of evidence that you could have found if he did it. That is the problem. 

Senator FEINSTEIN. Thank you. 

Yes? 

Mr. CATTANI. Thank you. I have more confidence in our State 

court system. I think it is important to note that the difference in 

the level of review that you get if you commit a federal crime. You 

simply have your trial, your direct appeal and— 

Senator FEINSTEIN. My question is that the innocence exception 

or the innocence ability to move the cases is really curtailed. 

Mr. CATTANI. Right. And the point I was trying to make is that 

if you compare what happens with a State court conviction with a 

Federal conviction, with the Federal crime you have a direct appeal 

and you have some sort of post-conviction proceeding—that is it in 

the Federal system. And you have that same system in the States. 

Federal habeas review provides another layer on top of that. And 

so I think it is appropriate to have a higher standard to obtain relief in this layer of collateral review. So I am comfortable with this 

higher standard. 

Senator FEINSTEIN. Thank you. 

Mr. Waxman. 

Mr. WAXMAN. Yes, it is curtailed in the respects in which I articulated, I think, in response to Senator Leahy’s question. 

Mr. STEVENSON. Senator, I just want to emphasize I think this 

is a very serious problem for precisely the reasons Professor Scheck 

talked about. Most innocence cases involve evidence of innocence 

27 

that was not presented at trial which could have been. But when 

you are dealing with lawyers who are capped at $1,000 for their 

defense work, who are undertrained, who do not have an opportunity to do it, they do not get it. My innocence case I was talking 

about turns on weapons evidence. He needed an expert. The court 

gave this defense lawyer $500 for his expert. The expert that he 

could bring in to do a ballistics comparison was half blind. 

Senator FEINSTEIN. Was half blind? 

Mr. STEVENSON. Yes, was legally blind in one eye and could not 

use the machine. And so what we had to do was bring the best experts in the country to a post-conviction hearing who all said there 

is no match, this man should be released. But that evidence could 

have been presented at trial. Under this bill, that threshold showing that it could have been discovered at trial, would bar us from 

review, and it is that kind of jurisdiction restriction I think absolutely will increase the execution of innocent people. 

Mr. TODD. That has not been our experience in Arizona. I do not 

know the facts of Mr. Scheck’s case, but DNA has progressed significantly since 1990 its ability to detect and exonerate people. And 

if the new DNA evidence was not available initially, then this 

would be newly discovered evidence that would be certainly appropriate under the bill. 

Senator FEINSTEIN. May I ask one other quick question? 

Chairman SPECTER. Yes, you may, Senator Feinstein. 

Senator FEINSTEIN. Supposing the DNA evidence had been mishandled, it was there but it had been mishandled. Would the bill 

allow the case to go? 

Mr. TODD. Yes, it was newly discovered that it had been mishandled. 

Senator FEINSTEIN. See, what my problem is, I do not know what 

newly discovered really means in terms of the law. It could have 

been there but not used. 

Mr. SCHECK. Newly discovered means that you could have found 

it with the exercise of due diligence, and this bill says as explicitly 

as it can be said, if a lawyer could have found it with due diligence, 

then you cannot bring it into Federal court. So like Mr. Moon, he 

had partial DNA exclusion just as the hypothetical you are giving. 

The lawyer—literally, it showed that it was not his semen but they 

needed to get an exemplar from the victim and her ex-husband in 

order to make the proof. And he waited 17 years trying to get that. 

He would not be able to get into Federal court. 

Once we went and got the exemplar from the wife and the husband, proved him innocent, he could not get into Federal court to 

vindicate his claim under this bill. And House would be out of the 

United States Supreme Court in theory. That is how extreme this 

is. 

Senator FEINSTEIN. Thanks, Mr. Chairman. 

Thank you, Mr. Scheck. 

Chairman SPECTER. Thank you very much, Senator Feinstein. 

Senator Kyl 

Senator KYL. Thank you, Mr. Chairman. 

In 5 minutes here it is going to be hard to go over a lot, so I am 

just going to select two cases, the case that Professor Stevenson 

discussed, and the Williamson case discussed by you, Mr. Scheck. 

28 

I think in both cases, analyzed very carefully, this bill would not 

have prevented the assertion of actual innocence and the exoneration of the individual. Let me quickly go through both and then ask 

for your reaction to that. 

In the Williamson case there were 6 claims that were raised and 

exhausted in the State court. And it was voided in Federal court, 

noting that the 6 claims were fully exhausted and not defaulted, 

and thus would have not been affected in any way by our bill 

standards for unexhausted and defaulted claims. 

The bill would have prevented the Federal District Court from 

granting relief, you state, because the State courts found that the 

grounds for relief were—and I am quoting you—procedurally defaulted or without merit. 

And so let us go back to the provision of the bill. The bill does 

not apply any special gatekeeper to claims that were addressed by 

the State court on their merits. And let us go over and just assume 

even had all of Williamson’s claims been procedurally defaulted, 

which was not true. Then under the bill the defendant nevertheless 

would have still been able to raise these claims, presenting clear, 

previously unavailable evidence of innocence. This has to do with 

the semen and saliva evidence and the DNA. 

And it seems to me pretty clear, and I think you have established 

it, that the DNA evidence showing that the rape victim was not 

raped by the defendant would meet the actual innocence standards. 

So I do not believe that you have established that the bill would 

have denied the assertion of the claims. I know you believe that the 

semen and saliva evidence indicates the defendant was not the perpetrator and would be enough to meet the test. So comment briefly 

on that, and then I have got the case you cited. 

Mr. SCHECK. When you go back and look at the case itself, you 

will see that the Oklahoma Court of Criminal Appeals said that 

some of the ineffectiveness claims were not raised, and they should 

have been on direct appeal. So they procedurally defaulted most of 

them. The ones that they reached were not even the ones for which 

the Federal judge granted relief. So I do not think there is any 

question that under this bill he would have been procedurally 

barred, and I will submit a more extensive analysis if you want. 

But the real point I am trying to make here— 

Senator KYL. Let me just interrupt there. At this point in the 

record it will show that I disagree with you, that a judge reached 

all 6 claims, and I am going to ask that the record of the case be 

put—rather, the decisions in the case be put in the record at this 

point. 

Chairman SPECTER. Without objection it will be made a part of 

the record. 

Mr. SCHECK. Even if he reached the claims, still under this bill 

it still would have been barred. 

The other issue and the key one is, remember, Williamson’s case 

was reversed and remanded on the ineffectiveness claims, and it 

was then afterwards that there was DNA testing that showed he 

was innocent, Fritz was innocent and Gore was the real perpetrator. 

29 

So to the extent you are suggesting that the DNA testing could 

have gotten him into Federal court beforehand, you know, they did 

not have that evidence. 

And my real point to you, Senator Kyl, is that procedural due 

process means something in these cases. I have looked at more innocence cases, I dare say, in the last 11 years, than most people 

will in a lifetime. I go back and look at these cases, and you see 

again and again, whether it is in State or Federal court, there was 

hidden Brady material, there were ineffective lawyers. You know, 

you do find more of that in these cases. 

Senator KYL. My time is just about up and I want to get to Professor Stevenson. We can put some more in the record if you would 

like. 

This case of Hinton that you talked about, I actually think our 

bill would make it easier, not more difficult, and let me just quickly 

go over the fact here. You, in your testimony, detail the evidence 

with respect to his case, and of course I am not familiar with it, 

but if we accept that—talking about the tool mark and ballistics 

evidence that exonerates him, and let us assume that that is correct. And further you asserted the that State of Alabama agrees 

that without a weapons match Mr. Hinton should be released. So 

let us accept that as well, which would seem to establish the clear 

and convincing evidence that is the standard in the law today and 

the standard under the Act. 

Under current law, a defendant has to exhaust the claims for relief in State court, including these actual innocence claims. In Section 2 of our bill, we change the requirement by amending the current 28 USC provision to provide that each claim in a Federal petition must either be exhausted in State court or must present clear 

evidence of innocence, this new evidence that we have talked 

about. So the bill would add a new provision that even if the claim 

had not been exhausted in State court, you could go forward with 

Federal habeas if you have this kind of innocence. 

We were trying to bend over backward to ensure that whatever 

the procedural problems with the State court, you could always 

have the Federal habeas reviewed if you have this degree of evidence. 

Mr. STEVENSON. Just two things as why I say that, Senator. We 

are not convinced we will ever get a ruling in State court. I do not 

know that after 19 years this case will ever be exhausted. And so 

what we have been relying on is language that currently allows us 

to utilize the jurisprudence under AEDPA a futility. Going to Federal court and saying we need relief—this man has been on death 

row for 19 years, and every day, every week, every month, he is 

being injured and victimized in ways that we have a hard time accepting. 

What current law allows us to do at some point is to go to Federal court and say, after 19 years, after 15 years, we think exhaustion is futile. That is what is eliminated in this bill. 

Senator KYL. Exactly my point, we eliminate—we do not eliminate the exhaustion requirement. We add an additional way in 

which you can get to the Federal court with exactly the kind of evidence that you have with a habeas petition. 

30 

Mr. STEVENSON. But, Senator, that would only happen if after we 

complete the State court process— 

Senator KYL. No, that is— 

Mr. STEVENSON. Because your bill says no more futility. We do 

not have the option of saying—the claim would be unexhausted if 

we went to Federal court now. And what your bill does is say that 

Federal judges cannot adjudicate unexhausted claims. 

Senator KYL. We have a disagreement here because we are trying to specifically exempt that kind of situation by this showing of 

clear evidence of innocence, which would enable you to go to the 

Federal court. Let us discuss that further. 

Mr. Chairman, if I could just make one final comment here. 

Chairman SPECTER. Senator Kyl, do you need a few more minutes? Go ahead. 

Senator KYL. No, no. I need just 20 seconds here. 

There was a suggestion that—and I think, Mr. Waxman, you 

were the one that noted that State courts may not always be as efficient as they need to be, and they take a long time and there is 

certainly evidence that that can happen. I would just note that in 

the Fornoff case that I cited earlier, it took a long time in the State 

courts, but it has been in the federal courts since 1992. So Federal 

courts can delay forever just as easily as State courts, and in many 

cases have done so. 

Chairman SPECTER. Thank you very much, Senator Kyl. 

Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. 

Mr. Stevenson, it is good to see you. I tell you, if I were in big 

trouble, I would love to have you defend me. 

[Laughter.] 

Senator SESSIONS. He has done a very good job in Alabama defending people on death row cases, and is an aggressive advocate. 

I know he deeply feels the death penalty is not wise, but so far the 

majority of Americans conclude otherwise. 

I would just say a couple of things, Mr. Chairman, that we need 

to remember. With regard to convictions of crimes, people are allowed to appeal, and in most States there is an intermediate court 

of criminal appeals, and that is in the State system. If you are 

tried in State court—you could be tried in Federal court, of course, 

and have Federal appeals—but if you are tried and convicted in 

State court, your appeal is to usually the intermediate court of 

criminal appeals, and the State pays for that defense, both at trial 

and at that appeal. And then if one is unsatisfied with that, they 

can petition that the case go to the State Supreme Court, and the 

State, if it is approved, the State will pay a defense counsel to represent the person in the State Supreme Court. 

What we are talking about here is what used to be very, very 

rare and has now become just commonplace. The Attorney General’s Office in Pennsylvania has a whole section dealing with Federal habeas appeals, do they not, Mr. Dolgenos? 

Mr. DOLGENOS. We do, Senator, yes. 

Senator SESSIONS. Now, what used to be a very rare thing just 

routinely occurs, and you have sections in your office handling appeals in Federal court. Historically, there has not been—the State 

has not paid for those appeals, have they? 

31 

Mr. DOLGENOS. Historically they did not exist to the extent they 

exist now, Senator. 

Senator SESSIONS. So now we are finding ways to make sure that 

they have those appeals. And then they go up from the Federal 

District Court to the Federal Circuit Court of Appeals and even to 

the U.S. Supreme Court; is that right? 

Mr. DOLGENOS. That is absolutely right. 

Senator SESSIONS. And that is what you do every day. 

Mr. DOLGENOS. Absolutely, Senator. 

Senator SESSIONS. So now we have had a series of appeals all the 

way up to the State Supreme Court, then presumably the conviction is affirmed. Then they go into Federal court, and this occurs 

in every death penalty case, does it not, Mr. Stevenson? You would 

never allow a client to be executed if you had not begun a process 

to review the conviction in Federal court. 

Mr. STEVENSON. We would not if we could get to it, Senator, but 

of course, we have had cases that have not gone to Federal court 

where people have been executed in part because our resources to 

represent everyone are exhausted. We do not have lawyers for everybody on Alabama’s death row, and once they miss the statute 

of limitations, then they are barred from Federal review. 

You know, the last two executions in Alabama were people who 

never had Federal court review. You are right, it is certainly our 

intention to represent everyone. 

Senator SESSIONS. Did either one of those renounce Federal court 

appeals and ask to be executed? 

Mr. STEVENSON. Two of them did, but the other—we have somebody scheduled for execution actually in August, who did not, who 

wants review and was unable to get it because of the statute of 

limitations problem. 

Senator SESSIONS. But you are working to get that. 

Mr. STEVENSON. Well, not at this time, no. I mean I think you 

are absolutely right, there is this appellate—the problem in our 

State is that we have got this cap on compensation for direct appeals of $2,000, a cap on representation in post-conviction of 

$1,000, and we cannot find lawyers for a lot of these folks. We are 

relying on volunteer counsel. 

Senator SESSIONS. Well, it is true that there is no limit now on 

the trial of capital cases, and I think that is good. 

Mr. STEVENSON. Absolutely. 

Senator SESSIONS. And that is the most important thing, that is 

what used to count, the trial. Now we drag these cases out for 

years. Here, in the Fornoff case, this lady, the conviction of the 

murderer of her daughter, Christy, who was 13, occurred in 1985. 

It was upheld by the Arizona Supreme Court after appeals, and he 

then filed challenges in Federal District Court where it remained 

for another 7 years. Finally in 1999 the district court dismissed the 

case, dismissed the appeal. Then a few years later the Ninth Circuit sent it back for more hearing. It is still pending. 

The Benjamin Brenneman case in 1981, the 12-year-old was kidnapped, assaulted and killed. He was convicted, a defendant was, 

sentenced to death, filed a habeas petition in Federal court in 1990. 

15 years later it is still before the same court. I mean judges have 

32 

lifetime appointments in Federal court. We cannot cut their salary. 

And if they sit on a case, justice is denied. 

Michelle and Melissa Davis in 1982, those two girls were killed. 

The aunt’s boyfriend confessed. In 1992 the courts finished their review of the case. Today, 23 years later, after the girls were murdered, the case remains before the Federal District Court. 

Michelle Malander, that case was she was kidnapped and murdered in ’81. The case remains before the same Federal District 

Court where the appeals began in 1992. 

Do you not think—and there are some other cases in which it— 

I will just ask you, sir, from Philadelphia there, you handle these 

cases regularly. Do you not think that it would be legitimate that 

the judges have a time limit that they have to rule on these cases 

one way or the other instead of just letting them sit, and does not 

this undermine the integrity of the legal system when we cannot 

get a decision? 

Mr. DOLGENOS. Absolutely, Senator, and I see no other method 

for addressing those kinds of delays than through a congressional 

statute. And I think when you lower the innocence standard you 

are asking for more litigation into the future. I think when you 

eliminate the diligence requirement for discovery of evidence or 

presentation of evidence of innocence, you are again begging for 

these cases to go on further, longer, rather than shorter. I think 

we have to remember that ultimately these cases implicate victims 

who have been through a great deal, and it is important that we 

do not subject them to additional trauma here in Federal court. 

Senator SESSIONS. Mr. Chairman, just briefly, Mr. Clay Crenshaw, who handles the appeals in the State of Alabama, they are 

sort of nemeses’s. They go against one another a lot on these cases. 

He notes that on the Rule 32 appeal, this is like the Federal habeas, you have already had your direct appeal to the Alabama Supreme Court, may have often had an appeal to the Federal court 

system. Now you have a new claim of some kind you want to make 

in the State court as a post-conviction appeal. He reports in an affidavit he filed sometime ago that the attorneys representing these 

inmates, even though they may not be paid fully for this post-conviction, they have been paid to appeal but this post-conviction repetitious filing, the attorneys, 92 were out-of-state attorneys from 

large law firms who have given their time to this. The Equal Justice Initiative, that is Mr. Stevenson’s group, has got 18 of the 

cases. Alabama attorneys, 17. Three of the cases are proceeding pro 

se. 

There are attorneys representing most of these defendants, and 

if there is a good case there of innocence I think we have plenty 

of attorneys that are willing to represent them, even in these multiple appeals, post-conviction. 

Chairman SPECTER. Thank you very much, Senator Sessions, and 

thank you, gentlemen, for coming in today. 

Senator LEAHY. Could I ask just one more question? 

Chairman SPECTER. Sure. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

I wanted to follow up with things. I want to put in a statement 

from Senator Feingold and some other material if I might. 

33 

Chairman SPECTER. Without objection, all the statements will be 

made a part of the record. 

Senator LEAHY. Just one for Mr. Stevenson. Section 6 of S. 1088 

would strip Federal courts of jurisdiction to entertain claims going 

to a sentence. If the State courts decide that any error was not 

prejudicial, would not the State courts say that any errors with respect to a sentence is not prejudicial to preclude a Federal court 

from looking at those claims? 

Mr. STEVENSON. Absolutely, and, Senator, in every ineffectiveness claim there is a prejudice standard which would in effect 

mean claims of ineffective assistance of counsel at the penalty 

phase, where the lawyers do nothing to present mitigation, would 

effectively be barred. One of the tragic things, the court has made 

a lot of progress in the last years, in my judgment, have declared 

you cannot execute people who are mentally retarded, you cannot 

execute people who are juveniles. But in many States there are no 

procedures in State court for making those proofs. This bill would 

again bar people who could prove mental retardation and other 

constitutional defects from review. 

In all of those State court cases there is always the judgment 

that the claim is without merit, non-prejudicial, harmless, and I 

think it is a de facto bar on any kind of sentencing phase relief in 

Federal habeas. 

Senator LEAHY. Thank you. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Leahy. 

Thank you gentlemen for coming in. This is obviously a matter 

of the utmost gravity, and the Committee will be considering it 

very, very closely. 

Senator Kyl. 

Senator KYL. May I have a little more time, Mr. Chairman? 

Chairman SPECTER. Sure. I am going to have to excuse myself. 

We have a stem cell proceeding, press conference. We are coming 

to grips with stem cells, life instead of death, and that is scheduled 

at 11:30. Would you be willing to chair the hearing? 

Senator KYL. Yes, I would be happy to, Mr. Chairman. Actually, 

in view of that, what I can do is just make a couple of closing comments here, put some questions in the record. 

Chairman SPECTER. Fine. 

Senator KYL. And you have indicated we are going to continue 

to work anyway, and we certainly have some expert advice that we 

can rely upon here. 

Chairman SPECTER. Proceed. 

Senator KYL. If you would just permit me then. It is clear from 

some of the testimony that there is some misunderstanding about 

both I think what we are trying to achieve, and also I think the 

actual provisions of the bill. I will just cite one example. We really 

have tried to provide a Federal court remedy where there has not 

been an exhaustion in State court where you have the clear and 

convincing evidence. If we have not accomplished that satisfactorily, I need to know that. But I think we have. 

And so I want to be sure that the objections to the bill are actually based upon features of the bill rather than general concerns 

34 

that people might have about trying to modify the 1996 law just 

as a fundamental basis. 

Secondly, you notice that we have two witnesses from Arizona 

today, and that is not by accident. Arizona has tried very, very 

hard, and Mr. Cattani noted it, under both Democrat and Republican Attorneys General and Governors, and State legislature, 

which has been mostly Republican, but certainly under the current 

Democratic Attorney General and his predecessors, we have tried 

very, very hard to meet the ability to have the expedited provisions 

to qualify under Chapter 154, for example, and gotten whacked 

down at every turn. I mean I will say it a little bit more bluntly 

than Mr. Cattani did. You heard from the testimony how far Arizona has tried to go here, and the Ninth Circuit still says, sorry, 

you do not qualify. 

There are some things about the bill that are not working well, 

and I agree, Mr. Waxman, with you, or perhaps, Mr. Scheck, it was 

you who said that we need to have an analysis of exactly how the 

bill has worked. It is true, as Professor Stevenson said, that it is 

not necessarily the fact that the huge increase in petitions, the 

doubling of petitions, is due to the ineffectiveness of the Act, there 

are also a lot more cases pending. Undoubtedly that accounts for 

part of it. 

So we do need to understand what effect the Act has had, but 

I think it is undeniable, from the testimony, for example, Mr. 

Dolgenos’ testimony, that whatever the effect, it has not adequately 

addressed the problem of volume and delay here, when you have 

got cases anecdotally that go on for decades and you have to increase the number of people in the office just to handle these kind 

of petitions. 

So clearly we have not yet solved the problem. There are problems and we need to solve them, and I want it clear here that in 

no way am I going to countenance any change in the law that results in a situation where somebody who is actually innocent cannot get his or her day in court. That is why we tried to build in 

this actual innocence exception. We may not have done it quite the 

way that some of you want us to do it, but that is my intention. 

But there is something else that those of you who oppose the bill 

have to account for, and Mr. Waxman, you certainly addressed this 

point, justice delayed is justice denied. Our prosecutors and our 

courts are overburdened, and victims have rights too. When 

Christy Ann Fornoff’s mother testified in the House—and I am not 

going to repeat the testimony here at this point—it makes you realize that we are not doing our job up here of providing a criminal 

justice system that meets the needs of our society. Some of you are 

focused strictly on the defendant, and I am glad you are because 

we can never let the innocent person be executed, for example. 

But we also have to look at the rights of every victim of crime, 

and the obligation of society. And we are the decision makers here 

and we do have the constitutional right to legislate with regard to 

habeas corpus, there is no question about that. And therefore, I 

think after 9 years it is time to look at this and to acknowledge 

that it is not doing the job that we wanted it to do, that no State 

has qualified under Chapter 154, none. 

35 

Well, obviously something is wrong here. We tried to set up a situation where you could get expedited proceedings and it has not 

worked. So we do need to address this. We do need to deal with 

it. And I appreciate the testimony that all of you have provided. It 

is not all in agreement, but it is all in good faith, and it has all 

been edifying to all of us I am quite sure. Though the rest of you 

did not necessarily volunteer at the great rate that Mr. Waxman 

did, I suspect that all of you are available for continued consultation by the members of the Committee, and I for one am going to 

take you up on that because I appreciate your interest and your expertise in the area. 

I just wanted to make that statement. I know we do not have another round here, but we will get some questions to you on the 

record, and I would appreciate the chance to continue to consult 

with all of you. 

Thank you again, Mr. Chairman, for holding the hearing. 

Chairman SPECTER. Thank you very much, Senator Kyl, for your 

initiatives on this very important subject, your leadership. It is obviously a matter of the utmost gravity, and we want to pursue it. 

We have some homework. A number of people have undertaken to 

do some follow-up work. Mr. Waxman has, to give us his expertise 

on trying to find an answer to the issue of delay, and at the same 

time being very sensitive to the issue of innocence. But we will be 

wrestling with this issue on the Committee, and we will be following up. I think it has been a very useful session with a lot of 

experience and a lot of knowledge here at the witness table today. 

Thank you all very much. 

[Whereupon, at 11:27 a.m., the Committee was adjourned.] 

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

[Additional material is being retained in the Committee files.] 

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Æ 


47088.408