SECTION: CAPITOL HILL HEARING

LENGTH: 31686 words

HEADLINE: HEARING OF THE CRIME SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE
 
SUBJECT: CAPITAL PUNISHMENT
 
CHAIRED BY: REPRESENTATIVE GEORGE W. GEKAS (R-PA)
 
LOCATION: 2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.
 
TIME: 1:30 PM. EDT DATE: TUESDAY, JUNE 20, 2000

WITNESSES:
 
REP. RAY LAHOD (R-IL);
 
REP. WILLIAM DELAHUNT (D-MA);
 
GEORGE H. RYAN, GOVERNOR, STATE OF ILLINOIS;
 
STEPHEN BRIGHT, DIRECTOR, SOUTHERN CENTER FOR HUMAN RIGHTS;
 
WARD CAMPBELL, DEPUTY ATTORNEY GENERAL, SACRAMENTO, CALIFORNIA;
 
JAMES E. COLEMAN JR., PROFESSOR OF LAW, DUKE UNIVERSITY;
 
PETER NEUFELD, THE INNOCENCE PROJECT, NEW YORK;
 
GERALD KOGAN, ALLIANCE FOR ETHICAL GOVERNMENT, UNIVERSITY OF MIAMI SCHOOL OF LAW;
 


BODY:
 REP. GEORGE W. GEKAS (R-PA): We note the presence of a hearing quorum, with members on both sides of the aisle assembling for the purpose of this hearing. The chairman of the committee, Mr. Hyde, is present as are other members. And importantly enough, the two members who are co-sponsors of the principal piece of legislation before the Judiciary Committee are also in attendance: the gentleman from Illinois, Mr. LaHood; and the gentleman from Massachusetts, Mr. Delahunt.

We will proceed with an opening statement on the part of the chair, who will be doubling for the chairman of the subcommittee on crime, Mr. McCollum of Florida. I will ask unanimous consent that the opening statement of Chairman McCollum be made a part of the record, and we will summarize by stating that this testimony that we are to receive today, along with the overall debate that is to be had in this very important subject matter, emanates principally from the rapid developments in the collection and use of DNA evidence. And the people in law enforcement and out are convinced that this is truly the wave of the future in the prosecution of cases with the proper use of evidence. It does not, however, in any way dampen the interest of law enforcement officers in bringing criminals to justice. It is simply that we want to make sure that the innocent are protected in every stage of the proceedings that begin with charges being made against them and end up in court.

The bill speaks for itself. And, of course, the cosponsors will more eloquently than any other be able to pronounce its main attributes, and we will be able to weigh their projection of the evidence before them and of their testimony as we proceed with the overall debate in this important matter.

With that, the chair yields if need be to the gentleman from Virginia, Mr. Scott, who is poised, I believe, for an opening statement. The gentleman from Virginia.

REP. ROBERT C. SCOTT (D-VA): Thank you, Mr. Chairman. I would like to thank you for scheduling this hearing on the Innocence Protection Act of 2000.

Our system of criminal law and procedures is premised on the presumption of innocence, the golden thread of common law dating back to the Romans. One Roman was quoted as saying that it is better to let the crime of a guilty person go unpunished than to condemn the innocent. Mr. Blackstone in his commentaries wrote that the law holds it is better that ten guilty persons escape than one innocent suffer.

In recent years, the advent of DNA has shown us, however, that we have been violating this principle with astounding frequency. The FBI data reveals that about 25 percent of suspects who are DNA tested are exonerated. As bad as it is to be wrongfully accused of committing any crime, it would seem unimaginable to languish on death row for years for a murder you didn't commit. Yet that is exactly what is happening all over the country.

Since the death penalty was reinstated in 1977, 87 people on death row have been exonerated. In at least one instance we will hear about today, the number of exonerations in one state has exceeded the number of executions. While DNA is uncontrovertible proof that innocent people are sentenced to death in this country, despite our reverence for the presumption of innocence, DNA evidence is simply a way of revealing that there are fatal flaws in the system.

The real question we have to answer, Mr. Chairman, is what is wrong with the system where but for the DNA evidence innocent people would be put to death. Death penalties have been erroneously meted out based on our willingness to tolerate significant defects in our system, as we have seen in the recent case of the ramparts situation in Los Angeles or the former boxer Ruben Hurricane Carter.

Police and prosecutorial misconduct is one serious flaw. We add to that the inaccurate witness identifications, the use of jailhouse snitches, confused confessions by mentally retarded defendants, and ineffective representation. All of those have led to the unjust application of death penalties.

A 23 year study conducted by Professor James Leibman (sp) of Columbia University involving 4,500 capital cases in 34 states revealed that courts found serious reversible error in 68 percent of the capital cases. Of these, 82 percent were not sentence to death upon retrial, including 7 percent who were found to be innocent of the capital charge.

I understand that the Innocence Project finds that about a third of the cases it handles in which DNA evidence is still available convicted defendants who were found to be outright innocent. When we consider that the reason they were convicted is due to flaws in our criminal justice system, there is every reason to believe that the percentage of erroneous convictions is the same in the cases where the DNA evidence is not available.

The notion that flaws in our system can be addressed through a governor's clemency powers is clearly an inadequate response to the serious problem. Our criminal justice principles are designed to ensure a fair trial for all accused persons. The ultimate questions of life, death, or freedom should not depend on the political popularity of the moment, the political popularity of the governor or the defendant, or whether the governor is in an election campaign, or any such vagary.

Furthermore, the governor's office is an inappropriate forum to decide such cases. The governor has no subpoena power, no right to or opportunity to cross-examine key witnesses or to observe witnesses subjected to cross-examination by advocates familiar with the case. Nor does the governor have other investigatory powers to ensure fairness.

The forum for testing the reliability of evidence is the trial, not the political forum of the governor's office.

H.R. 4167 goes a long way in addressing these flaws in our criminal justice system which puts innocent people on death row. However, there are flaws in the administration of the death penalty in this country which 4167 does not address. There has been overwhelming evidence, for example, that for some time now the death penalty has been administered in a racially discriminatory manner.

A March 1994 study by the Subcommittee of Civil and Constitutional Rights of this committee entitled, "Racial Disparities in the Federal Death Penalty Prosecutions 1988-94," revealed the following, and I quote, "Racial minorities are being prosecuted under federal death penalty law far beyond their proportion in the general population or the population of criminal offenders."

Analysis of prosecutions under the federal death penalty provisions of the Antidrug Abuse Act of 1988 reveals that 89 percent of the defendants selected for capital prosecution have been either African American or Mexican American. In February of that year, then U.S. Supreme Court Justice Harry A. Blackman, after voting to uphold death penalties for a number of years, wrote the following: "Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all. And despite the efforts of the states and the courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake."

Mr. Chairman, I believe that it is our responsibility to ensure that people are not mistakenly put to death or deprived of their freedom on account of preventable errors of laws in our criminal justice system. We have a bill before us which would take us a good way towards providing that insurance and a list of witnesses who can guide us in our efforts. And I look forward to their testimony and working with you in furtherance of this vitally important goal. Thank you, Mr. Chairman.

REP. GEKAS: We thank the gentleman. We now recognize the gentleman from Michigan, Mr. Conyers, the ranking minority member, for an opening statement.

REP. JOHN CONYERS, JR. (D-MI): Thank you, Chairman Gekas, and I thank you for calling this hearing. And I also commend the chairman of the full committee, Henry Hyde, who is here as well. I want to say to my colleague Mr. Scott, that is one of the most moving statements that I have heard you make in the time we have served together.

I'm not surprised to see the persons that are here, members of Congress, Mr. Delahunt and Mr. Lahood, to take up this. I just have a relatively few minutes worth of comments because the hearing is very timely.

This month, researchers at Columbia University released a study that should give pause to even the strongest supporters of the death penalty because it found that a shocking two out of three death penalty convictions have been overturned on appeal. They were overturned because of police and prosecutorial misconduct as well as serious errors by incompetent court appointed defense attorneys with little experience in trying capital cases.

How can we contend that we provide equal justice under the law when we do not provide adequate representation to the poor in cases where a life hangs in the balance? As Sister Helen Pregin (sp) said, the death penalty is a poor person's issue. Always remember that. After all of the rhetoric that goes on in the legislative assembles, in the end when the deck is cast out, it is the poor who are selected to die in this country. Seventy-five percent of those whose death sentences were set aside were later given lesser sentences after retrials in plea bargains or by order of the judge. An additional 7 percent were found not guilty on retrial.

We the Congress must bear our share of responsibility for this deplorable situation. In 1996, we defunded the Death Penalty Resource Centers, the state offices which ensure adequate representation to the poor in capital cases. The Judiciary Committee has been singular in its leadership of the rush to execute. Since 1994, we have created countless new capital crimes, and at the same time, in the so-called Effective Death Penalty Act, we reduced appeals for those on death rows. Rather than making sure that a capital case is done right, this committee decided we should just get it over with.

In short, while others like Governor Ryan in Illinois have recognized the flaws in the death penalty, the Congress still just doesn't get it. The system is broken. Regardless of our differences of opinion about the death penalty, I hope we can agree that an error rate of one out of three is simply too high. If we are not going to abolish the death penalty, we should at the very least begin to reform this flawed system of punishment.

And so I cosponsor the bill that is before us. It would institute a few extremely significant reforms in the death penalty. It is by no means a cure-all, but it is a reasonable starting point. The most important reforms in the bill are ensuring that convicted offenders have a chance at proving their innocence through DNA testing. I think the American people would be shocked to discover that this is not the law or the practice already.

Ensuring that the indigent defendants have access to competent counsel in capital cases -- it is far too frequent an occurrence that an indigent defendant in a capital case is furnished a lawyer who has never tried a death penalty case. It is common for these inexperienced attorneys to give up after a client is found guilty and present no evidence at the sentencing phase. This is literally the phase of a trial where a man's life hangs in the balance.

Still unaddressed are the massive racial disparities referred to by Mr. Scott in the death penalty. Since its reinstatement, the death penalty has been used to execute 143 African American persons for killing white victims only, and 11 whites have been put to death for killing a black victim. In fact, more than 80 percent of those on death row are there for killing a white person, even though whites make up only half of the homicide victims each year.

How can our nation tolerate a system of justice that places more worth on one person's life than another? We are also not addressing the morality of state sponsored killing. Last year, during the debate on juvenile justice legislation, we heard much criticism about the contribution of pop culture to a culture of violence. It is ironic that as these critics claim to deplore violence, they offered amendments that imposed the death penalty in connection with juvenile crime. Which cheapens the value of life more, a video game or a society that executes innocent people?

We also must recognize that we are not just holding a hearing today. We are also holding a vigil. On June 22nd, in Texas, Gary Graham is scheduled to be executed. There are many who believe that Graham is innocent because he was convicted on the testimony of one eyewitness in a rigged police lineup. Graham's attorneys have now found new witnesses who contend that he was not the man who committed the crime.

Unfortunately, DNA testing won't help Gary Graham because he was convicted on no evidence, not even a shred of physical evidence. And that's why I have asked my friend the chairman, Henry Hyde, of the Judiciary Committee to consider a wider ranging set of hearings on the death penalty. And I hoping that with this proposal and the measure before us, we will take that first courageous step. Thank you.

REP. GEKAS: We thank the gentleman. We invite the remainder members of the committee to submit their opening statements, if any they have, for the record, so we can proceed with our fellow members who are poised to testify.

We have with us today the gentleman from Massachusetts, William Delahunt, who represents the Tenth District in Massachusetts, who is a graduate of Middlebury College and a lawyer by education at Boston College, who served in many different capacities in law enforcement in his area, as well as having served in the Coast Guard for many, many years. He is a member of the Judiciary Committee, and has been a valuable contributor to the issues that the committee has considered over the years, since 1996.

Mr. LaHood, Ray LaHood, comes to us from Illinois, the 18th District. He is a graduate of Bradley College and presently serves on the board of that institution.

He is best known throughout the land as the speaker designate in the House of Representatives who wields the gavel with aplomb and fairness throughout all of the times that he is appointed to do so.

He came to his job very honestly because he was a stalwart administrative assistant to the beloved Robert Michael (sp), long time minority leader in the House of Representatives. And Mr. LaHood is not a member of the Judiciary Committee, but he might as well be.

We begin with the testimony of the gentleman from Massachusetts, Mr. Delahunt.

REP. WILLIAM D. DELAHUNT (D-MA): Mr. Chairman and members of the subcommittee, the system by which we trial capital cases in this country is failing. A recent Columbia University study, as alluded to by Mr. Conyers, concluded that some seven out of ten death penalty cases contain serious reversible errors. A failure of such magnitude calls into question the fairness and integrity of the American justice system itself.

In January, Gov. George Ryan imposed a moratorium on executions in Illinois pending a report by a commission he established to review the causes of what he called his state's abysmal record in capital cases. Since 1976, when the death penalty was reinstated in Illinois, 12 executions have occurred. At the same time, 13 men have been exonerated, and these exonerations were prompted by reporters from the Chicago Tribune and journalism students at Northwestern University, who developed evidence that overturned the death sentences.

This was not a case of the system correcting itself. And while I applaud and admire the work of the journalism students, it should not be left to them to discover the truth. The system, the system itself, must be accountable.

Before I continue, let me acknowledge the critical role played by Gov. Ryan, a conservative Republican and a proponent of the death penalty. Governor, it was your dramatic, and I might add, courageous action that precipitated this unprecedented national debate on the question of wrongful convictions, and we are all in your debt.

A sense of fundamental fairness is a distinctly American trait. And I submit that no law, however popular, will long survive if its fairness in its implementation is in doubt. Proponents of the death penalty should take note of this. Public support for capital punishment has declined from 80 percent in 1994 to 65 percent today. And if these problems are not addressed, efforts to repeal the death penalty will gain momentum in states like New Hampshire, where a conservative Republican legislature enacted an repeal measure, only to be vetoed by a Democratic governor.

So it is in all our interest, whether you support the death penalty or whether you oppose it, to address the problems that have been identified in Illinois because the Illinois experience is not aberrational. It is the norm. And this has been confirmed by the previously mentioned Columbia study of over 4,000 capital cases in 28 states during a 23 year period.

Now some have suggested that the high rate of reversals show that the system is working. But that is nonsense. We cannot know whether the appeals process is catching all of the errors or not. And we do definitively know that the errors are not being caught at the trial stage, and innocent people are serving lengthy crimes -- rather lengthy sentences for crimes that they did not commit.

It is critical that we restore public confidence, not just in the reliability of capital trials, but in the overall integrity of the American justice system, for the American people presume that truth is relentlessly pursued, that every needed resource and every possible safeguard is incorporated into that effort, especially in capital cases. Yet if it does not occur in capital cases, how can they have confidence that the justice system is less fraught with error in noncapital cases.

According to former FBI director William Sessions, who is the father of our colleague Pete Sessions from Texas, 33 of the first 100 noncapital cases in which DNA was utilized by the FBI led to the exoneration of the primary suspects. In each case, the individual had been positively identified by eyewitnesses and by blood type identification as the perpetrator of the crime. I submit we should find that particularly disturbing.

The search for the truth is a fallible process. It is, after all, a human endeavor. DNA testing has allowed us to examine what went wrong. It has been, if you will, a spotlight on the frailties of our justice system. Judges, jurors, police eyewitnesses, defense attorneys, and prosecutors themselves are all human beings. And I can personally testify as a prosecutor as having made almost tragic mistakes.

But we do have the means at our disposable to minimize the possibility of error, especially where lives are at stake. The Innocent Protection Act will do just that. Its two main provisions embrace the most important tools for minimizing the possibility of error, DNA testing and competent legal services. And while I welcome, I'm sure with many others, the forensic use of DNA, we cannot forget that in a substantial majority of cases biological evidence susceptible to DNA testing simply is unavailable. And DNA testing has revealed that the most significant problem with the death penalty is the lack of adequate legal services.

Capital cases are complex matters. That cannot be handled by lawyers who lack the proper training, experience, and resources to prepare a proper defense, let alone by lawyers who are incompetent, unprepared, or impaired by substance abuse, which has been the case.

That is why the bill provides for minimum standards for competency of counsel and gives states resources to apply them. These measures do not impose an undue burden on the system. And given what we have learned, we should act with a sense of urgency. We must prevent the conviction and execution of innocent people, and we must ensure that the truly guilty are held responsible and are punished. And only if we do this will we be worthy of the moral authority we so often proclaim. Thank you, Mr. Chairman.

REP. GEKAS: We thank the gentleman, and we turn to the gentleman from Illinois.

REP. RAY LaHOOD (R-IL): Thank you, Mr. Gekas. Thank you for chairing this committee. I think I also want to pay special thanks to Chairman Hyde. I know that we wouldn't be having this hearing without the fact that he really has agreed to hold this hearing. I think I have probably talked to the chairman at least once a week about this legislation, and I am so grateful to him for agreeing to hold the hearing, and also for being here, Chairman Hyde. We appreciate that very much.

I also want to thank Gov. Ryan. I think for those of you that know, we have a very big state. Illinois is a very large state. Gov. Ryan could be in many different places in Illinois today, but he has taken the time to come here. He took the time to be with us when we announced our legislation in the House, and I appreciate the leadership. And I know that Chairman Hyde will have some other things to say about the governor.

But if I can say one thing about Gov. Ryan, I think that perhaps when he first got involved in this issue, he really didn't realize what kind of impact he was going to have on this issue. And I think if he'll be remembered for anything in Illinois, it certainly will be for his leadership on this issue.

Let me begin my testimony by saying I am advocate of the death penalty. Since I started running for office in 1994, I have been a proponent of the death penalty. But I believe sincerely in my heart that we have to get it 100 percent correct, that if the death penalty is going to be imposed as a sentence, we have to be 100 percent sure that that is the correct penalty. There is no better time than now to take the appropriate measures to correct the wrongs that have occurred in our capital punishment system across the country.

Since the reinstatement of the death penalty in 1976, over 620 people have been executed nationwide. And during that same time, 87 death row inmates have been exonerated. That is one innocent finding for every seven executions. In my home state of Illinois, 12 people have been executed, while 13 people have been exonerated.

Additionally, according to the recent study which has been alluded to, 68 percent of all death penalty decisions are overturned. That is nearly seven of every ten cases. These statistics alone ought to cause second thoughts in the minds of everyone. In addition to the horror of taking innocent life, the prospect of having a guilty person still on the street is chilling.

And so I have cosponsored this bipartisan bill with my friend Bill Delahunt, which I truly believe will help to address some of the issues. Our bill, the Innocent Protection Act, is a bill that will build safeguards into the federal law to ensure that our country's system is just as fair and just as possible.

There are two elements to our legislation. First, our bill gives those accused of murder access to new DNA technology that may not have been available at the time of their trial. DNA is a relatively new technology, which has already saved the lives of eight innocent people on death row. Kurt Bloodsworth (sp), who is here today in the audience and will testify, was freed due to DNA evidence after being convicted of a crime he did not commit. And I think when you hear his story, you'll find it very compelling.

Although DNA evidence was responsible for freeing eight of the 87 exonerated men, other factors played an important role in the other 79 cases. This brings me to the second key element of our legislation, which is one of competent counsel. Our legislation ensures that the attorneys in whose hands these lives are placed are qualified. The stories of incompetent attorneys are all too familiar.

In Illinois alone, 22 defendants have been sentenced to death while being represented by attorneys who have either been disbarred or suspended at some time during their legal careers. And under our system, our system of laws, where attorneys become so important, it is just critical that these defendants have competent counsel.

In some cases, attorneys have even been found sleeping or under the influence of alcohol during the trial. I believe ensuring competent counsel is a vitally important step in the right direction towards fixing our capital punishment system. The attorney general recently recommended changes in our system to ensure that capital defendants have adequate legal representation.

The death penalty itself is an issue that divides many people, but there should be no division on the idea that those accused of murder should be afforded a capable and competent attorney. If our society is to administer the ultimate punishment, our society should allow the accused to be represented by competent counsel and have access to the most recent technology available.

Regardless of what one thinks of the death penalty -- and there is great division -- we can all agree that we must avoid the ultimate nightmare of condemning an innocent person to death. And I believe that Bill and I begin from the premise that we have a flawed system. And we believe the way to correct our flawed system is to enact this legislation that is being proposed today.

We have over 50 cosponsors now of our legislation, and we welcome any of you that haven't cosponsored it to do so. We think it is a very good bill. I believe the biggest job that we have now is to persuade you, Mr. Chairman, that this is a good bill and that you might hold a hearing of the full committee, mark up this bill, bring it to the House floor. I can't think of any better way to debate the issue of the death penalty, whether the system is flawed or not, than to do it with the 435 members. So I truly hope that you will consider our request, and I'm looking forward to visiting with you as often as you'll have me bother you on the House floor. Thank you, Mr. Chairman.

REP. HENRY J. HYDE (R-IL): Mr. Chairman, Mr. Chairman, I know this is unusual, and we don't usually question the congressional witnesses. But I just have a semiquestion to ask my friend, Mr. LaHood, if I may have your permission.

REP. GEKAS: The gentleman is recognized.

REP. HYDE: Everything you say is, of course, true. And I think particularly besmirching of the legal profession is incompetent counsel being assigned to try death cases. And I have to ask a rhetorical question. What is the matter with the judge? Can't the judge see that counsel is either asleep or not sober or not up to the task, inadequate, and don't judges have a duty to ensure a fair trial? This is rhetorical because the answer to all of those questions is yes.

So in addition to facilitating the use of DNA and better police work and better trial work, we need judges to be a little more sensitive to the quality of justice they are presiding over, which is not part of the legislation, but it ought to be part of our answer to this very difficult --

REP. LaHOOD: Well, if I may, Mr. Chairman, it is a very, very good point, Chairman Hyde. And our bill, although we didn't mention it, does address the issue of making sure that judges give the proper instructions to juries about what they are about to undertake as they deliberate.

Now that doesn't go to the issue that you raised. But the issue you raised is obviously a very, very important issue, and thank you.

REP. HYDE: I think both you and Mr. Delahunt -- REP. DELAHUNT: Mr. Chair, if I just may respond because again --

REP. GEKAS: The gentleman is recognized.

REP. DELAHUNT: Thank you, Mr. Chairman. Within the title dealing with the issue of competency of counsel, one of the most significant provisions is the establishment of standards and a certification process that I believe, Mr. Chairman, would obviate the concerns that you have, and I think that we all share. It would be a professionalizing, if you will, of the system in terms of those who represent individuals subject to the ultimate sanction in a democracy.

REP. HYDE: Well, I just think we need judges, too, to get into this program and be a little more sensitive to the quality of justice they are providing over. Thank you for bringing this to our attention. And even if you are bringing undue pressure on me, I welcome it. (Laughter)

REP. GEKAS: The chair will invoke cloture on any further testimony on the part of the witnesses. We excuse them with our thanks, and we will proceed to the next panel. Before we do, the minority ranking member, Mr. Scott, has requested that the chair inquire if there be any other members who wish to make an opening statement before we begin with the testimony of the next witnesses.

I see some hands, and I wonder, is there anybody on this side of the aisle who wishes to do so? If not, I now ask again of the witnesses, are they willing to withdraw their request for opening statements, submit them for the record, so that we can proceed with Gov. Ryan?

REP. ANTHONY D. WEINER (D-NY): In the spirit of compromise, Mr. Chairman, I'll keep my remarks brief.

REP. GEKAS: We recognize the gentleman.

REP. WEINER: Thank you, Mr. Chairman. And I wanted the opportunity to thank our two colleagues who have just spoken so eloquently.

Mr. Chairman, I am a supporter of the death penalty. But recent reports of inadequate representation, prosecutorial misconduct, of mistaken witness accounts, of the failure to give defendants the high tech tools like DNA that they need, and the dubious use of jailhouse snitches, these reports are accumulating virtually daily. And all of this has led many death penalty supporters to endorse a moratorium on further executions.

Mr. Chairman, one of those people is me. Gov. Ryan, I believe, has a right. Let us take a procedural step back. Let us prepare for a cooling off period to review some of the outstanding cases. There is nothing weak about this approach. There is nothing that makes it soft on criminals. All it does is argue forcefully that justice and a civilized society demands that cases like this, where there is no margin for error, are gotten correct.

At the very least, we should endorse and pass H.R. 4167 that my two colleagues just spoke to. And I think the chairman of the subcommittee and the full committee for holding this hearing.

I yield back my time.

REP. GEKAS: Does any other member wish to be recognized for an opening statement?

REP. SHEILA JACKSON-LEE (D-TX): Mr. Chairman.

REP. GEKAS: The lady from Texas is recognized.

REP. JACKSON-LEE: I will continue to raise these issues throughout this hearing, but I, too, would like to thank my colleagues for their presentation, Gov. Ryan for your presentation and your presence here today. I will wait on your testimony to ask some additional questions. But might I simply say the importance of our presence here today. I like my colleagues do not believe that this is a discussion of whether you are for or against the death penalty.

In some heinous instances, I have advocated or at least have supported legislation that has had the death penalty as it has been tied to the vicious acts against children and other offenses. But I think that this does speak to our very underpinnings and infrastructure of law, of the Constitution, of the Bill of Rights.

If we are to be a nation of laws, to subject or to admit ourselves or submit ourselves to following the law, then it has to be on the basis of having faith in the legal system, in the judiciary system. We are stakeholders in that system. And the only way that we can have a system that all of us, regardless of our economic standing, regardless of whether we are defined as a pauper or a prince, have the sense that we can go into a court of law regardless of the accusations and get a fair trial.

Now you will hear me speak more this afternoon of what we will be facing in Texas on June 22, 2000, and that is the execution of Gary Graham. The discussion on Gary Graham should be nothing more or nothing less than the rightness and the fairness of the trial that he had and whether all of the facts had been presented. I believe not. And so in many instances, I think we need to have added tools, that is the DNA tool, that is a possible moratorium to determine what we are doing right and what we are doing wrong.

I look forward to this hearing to be able to provide us with the data, with the personal testimony, and the evidence of experts to share with us what this Congress, representing the entire nation, should try to do to make it right. I yield back.

REP. GEKAS: We thank the lady. The gentleman from Texas, Mr. Smith, asks for recognition, which is granted.

REP. LAMAR S. SMITH (R-TX): Thank you, Mr. Chairman. I don't have an opening statement, but I would like unanimous consent to put into the record two articles, one from today's Washington Post by Robert V. Pennbianco (sp), and the other from yesterday's Wall Street Journal by Paul G. Cosell (sp).

REP. GEKAS: Without objection, the articles will be entered into the record. It is now the time when we will invite the second panel to approach the table, and we will yield to the gentleman, Mr. Hyde, the chairman of the Judiciary Committee, for purposes of introduction.

REP. HYDE: Thank you, Mr. Gekas. Our witness on the second panel is the Honorable George H. Ryan, governor of the state of Illinois. Gov. Ryan was elected the 39th governor of our state November 3, 1998, and has a distinguished record of public service prior to becoming governor. He was speaker of the Illinois House of Representatives and served in there as a member before becoming speaker. He served as Illinois secretary of state for eight years. He was a lieutenant governor for eight years, and now is the governor.

He is a lifelong resident of Kankakee, Illinois, a pharmacist by profession. He served with the U.S. Army in Korea and later obtained his bachelor's degree in pharmacy from Ferris (sp) State College in Michigan.

Gov. Ryan has taken a vital interest in issues of the death penalty. He has shown that he has a very open mind and a great sensitivity to this complicated and difficult and emotional problem. And by declaring a moratorium on executions in Illinois to have us all catch our breath and study the impact of technology on proving guilt, he has taken a great leadership role and has had influence nationwide.

So it is a great pleasure to introduce Gov. Ryan, and we deeply thank you for coming to give us the benefit of your views.

REP. GEKAS: We thank the gentleman. Gov. Ryan, we as per custom will accept your written statement for the record. We will ask you very kindly to try to restrict your remarks to about five minutes. But if it goes over, I'm not going to object. I won't hit the gavel. I don't think any member will. But we ask you to keep that in mind because we have a long afternoon in front of us.

Governor, please proceed.

GOV. GEORGE RYAN: (Off mike.) How's that? It is backwards here, guys. Back is on, front is off. I'll start over. That's part of the problem with the death penalty. It is all mixed up. (Laughter) Mr. Gekas, I want to thank you for the opportunity and my friend, Congressman Hyde and Congressman LaHood, Congressman Delahunt, and to the distinguished members of this subcommittee for the opportunity to be here. I'm delighted to have the opportunity to come by this afternoon and share some thoughts with you.

My mission, as I was invited here today, was to tell you why and how we came about to the position that we are in on the moratorium for the death penalty. We have had opportunities to do that throughout the state of Illinois. This is the first time that I have had an opportunity to come before the Congress and be a part of this. So I want to compliment Congressman Ray LaHood and Congressman Bill Delahunt of Massachusetts for imposing the Innocence Protection Act, along with Sen. Patrick Leahy of Vermont, who I have also had an opportunity to work with on this issue.

As you all know, in January of this year, I declared a moratorium on executions in Illinois until a commission that I empaneled could get to the bottom of Illinois' broken capital punishment system. In the weeks before my decision, the courts exonerated the 12th and the 13th individuals of crimes for which they had been convicted and sentenced to death. That is 13 people that were wrongly convicted, 13 people who were almost executed for mistakes in our capital punishment system. And those are the 13 of which we know, and it exceeds the 12 inmates we executed in Illinois since the death penalty was reinstated in 1977.

In one case, a man named Anthony Porter (sp) was two days from being executed for allegedly killing two people in 1982. He had ordered his last meal, and he had been fitted for his burial suit. Fortunately, lawyers handling his legal appeal won a temporary stay of execution because of questions over his mental competence and his very low IQ. That gave journalism students from Northwestern University a few more days to investigate.

They obtained a video statement from a Milwaukee man who confessed to the murders and an affidavit from a witness who admitted he gave false statements about Porter during some lengthy questioning by police.

College journalism students saved an innocent man from being executed. It wasn't the civil justice system. I soon realized that Illinois' system was nowhere near perfect, and that as governor I was presiding over a system that was in fact very deeply flawed. And that is because my experience with these two cases were followed by a Chicago Tribune investigation in late 1999 and follow-up reports in early 2000.

These reports created some grave doubts in my mind about our system. The Tribune found that since the death penalty was reinstated in Illinois, half of the nearly 300 capital cases had been reversed for new trial or sentencing hearings. Thirty-three death row inmates had been represented at trial by an attorney who had been disbarred or suspended. And like Congressman Hyde, for the life of me, I can't understand how that could ever happen.

I can't imagine how a judge would let somebody sit in a courtroom in a drunken stupor, a drug induced stupor, or sound asleep in any kind of a case, be it a civil case or a criminal case, but especially in a capital case.

We had 35 African American death row inmates that had been convicted or condemned by an all white jury. I might add that about 100 of the 160 death row inmates in Illinois are African Americans. Prosecutors used jailhouse informants to convict or condemn 46 death row inmates. And in Illinois, we had let these problems fester for far too long. The Illinois system, without question, was clearly broken.

I couldn't guarantee that an innocent man or woman would not be put to death based on the system as it was. I personally believe that providing for the death penalty can be a proper societal response for heinous crimes that shock our sensibilities. Many people believe the same thing. But I also believe there is a deep wellspring of fairness in people all across this country, not just in Illinois. They want a system that is far, that will not convict and execute the innocent.

I called a moratorium because I have grave concerns about our state's shameful record of convicting innocent people and putting them on death row. How do you prevent another Anthony Porter, another innocent person from paying the ultimate penalty for a crime they did not commit?

As I said when I announced the moratorium and many times since, I cannot support a system which in its administration has proven to be so fraught with error and has come so close to the ultimate nightmare, the taking of an innocent life. It is in that spirit of fairness and justice that I believe the Innocent Protection Act was introduced. It seeks to reduce the risk that innocent people are executed. It would ensure that the convicted are afforded an opportunity to prove their innocence through DNA testing. Five of the exonerated 13 in Illinois were cleared by DNA evidence.

DNA technology can indeed protect the innocent, and for that matter, the technology can also strengthen prosecutions. Illinois has been a leader in this area, providing for post-conviction DNA testing since 1998. Through a program we have called the Capital Litigation Fund, we make use of this key evidence pretrial. And I doubled the funding for this program this year so we can increase it. I think it went from 7 million (dollars) to $14 million in our state, so we can have the opportunity pretrial to use key evidence.

One of the most important tools to post-conviction testing, as well as for criminal investigations and prosecutions, is investing in the laboratories and the technicians required to get the job done. We are on the cutting edge of technology in every area you can think of in this country today, whether it is agriculture technology, whether it is biomedical technology, and certainly it is on the cutting edge of criminal technology.

Life has changed in the last 10 or 15 years, more drugs, newer, sophisticated equipment for gangs and criminals to work with. And that means we have to have every tool available to not only prosecute but to defend the innocent. We are doing our part in Illinois. Not only do we allow post-conviction testing, but we have long been at the forefront of forensic sciences.

Illinois has the third largest forensic science lab system in the world. We are behind only the FBI and Scotland Yard. We are the leading state crime lab in the nation. And as I said, my administration is investing 4 million (dollars) in the next fiscal year on statewide training of new technicians. It takes two years to train personnel to handle this fast changing, highly technical field. But we need more resources, resources that could come from the proposed National Forensic Science Improvement Act also before this committee.

That act would create $768 million in block grants over five years to help improve the quality, the availability, the timeliness, and the credibility of forensic services across the country. In Illinois, these block grants could help us catch up with a ten month backlog of cases from Chicago and the state of Illinois. That backlog is 2,500 cases. That is just unacceptable because it really defeats the purpose of the DNA technology.

That means investigators can't match evidence from unsolved crimes against updated records. That means in some cases innocent people are sitting in jail waiting for the evidence that clears them to be processed by the crime lab. It also means that some criminals continue to walk the streets.

For example, DNA evidence helped Chicago police identify and arrest an alleged serial rapist who had been terrorizing the south side of Chicago. There could be other offenders out there, and we could find them if we had the resources to continue to build our DNA databases. We could use the funds from the National Forensic Science Improvement Act to convert the existing Chicago and Illinois state police forensic and suspect files to the national uniform DNA standard. That conversion will help us convict only the guilty and protect the innocent in future cases all across this country and the state of Illinois.

I understand last week that the House Judiciary Crime Subcommittee passed a measure to help steer states clear the DNA backlog, perhaps $50 million over five years to help states process their DNA evidence. This initiative is very important because the DNA case backlog will only grow as more and more sophisticated DNA evidence is obtained in criminal investigations.

This proposal, taken in tandem with the National Forensic Science Improvement Act, would provide major assistance to states trying to improve their justice system. In Illinois, we have had death row inmates, as I said, who were represented by incompetent lawyers. One lawyer represented a defendant in a capital case ten days after he came off suspension by the Attorney Registration and Disciplinary Commission.

The federal government once provided programs for training for lawyers who try capital cases. We could use that program again to ensure criminal defense lawyers have all of the training and assistance that they need. DNA testing is not the only answer to our problems in Illinois. We need to look at the whole system, and my commission is just beginning its work.

Former federal judge Frank McGarr (sp) is the chairman of that commission. The panel is cochaired by former Sen. Paul Simon and former U.S. Attorney Thomas Sullivan (sp). The members include a noted author and former federal prosecutor, Scott Turow (sp). Cook County public defender Rita Frey (sp) lends us her defense expertise for indigent defendants. And former FBI and CIA director, as well as Federal District Court and Appellate Court jurist, Judge William Webster, is serving as a special advisor to the panel.

They are just some of the citizens and attorneys and public servants who have given their time to look at just how the Illinois death penalty system became so broken, and if it is possible to fix.

If we all agree -- I'm sure that we do -- there is absolutely no margin for error when it comes to putting a person to death, then unless the commission can report back to me that there are precautions we can take to build a flawless system, I'm not sure anyone will be executed again as long as I'm governor.

Since I declared a moratorium, a public dialogue has begun on the question of fairness to the application of the death penalty. And as I said when I made the decision, until I can be sure that everyone sentenced to death in Illinois is truly guilty, and until I can be sure with moral certainty that no innocent man or woman is facing lethal injection, no one will meet that fate.

Like you, the members of this panel, I'm a strong proponent of tough criminal penalties, supporting laws and programs to help police and prosecutors keep drug dealers and gun runners and dangerous criminals off the streets. But we must ensure the public safety of our citizens. But in doing so, we must ensure that the ends of justice are served.

It is really all about fairness. It is about right and wrong. And this concept is fundamental to the American system of justice. So I want to thank all of you for the opportunity that I have had to come before you to testify before this panel, and I hope that my recounting of our experience in Illinois helps you to consider these important bills. I know you'll do all that you can to help the governors and the people of this country build a better and more fair justice system throughout the United States.

Mr. Hyde, I want to thank you, Mr. Gekas, and ladies and gentlemen of the panel. Thanks for your time here today.

REP. GEKAS: The time of the gentleman has expired. We thank him. Now we ask you to indulge the questions of the members of the committee. I just have one question as chairman. The question of competent counsel over the years has itself bred strong debate. What is competent counsel? Are you going to have -- does your commission have the duty to determine qualifications of what might be considered competent counsel to be appointed in capital cases, for instance, numbers of years of practice of law, how many cases in criminal court did they defend, those kinds of criteria? Do you have a picture you can paint for us as to qualifications for competent counsel?

GOV. RYAN: Well, Chairman Gekas, I don't. I'm a pharmacist by trade.

REP. GEKAS: You're probably better qualified to tell us.

GOV. RYAN: Well, I may well be. I don't know. But I have a very competent panel that I put together of experienced people that I'm sure can come up with what is competent counsel and what isn't. And I haven't given them any specific direction other than to look at the system and come back with an answer as to whether it can be repaired or not. But I don't think that it takes a whole lot to figure out whether somebody is asleep in a courtroom, whether they are drunk or whether they are not. I mean, that should be a pretty obvious solution.

So I'm sure that the panel will come back. As I said earlier, there were some federal monies at one time I think to train people for cases like this, for capital cases, and that has kind of dried up. And I might add, Mr. Delahunt, and to Mr. LaHood, that there are no dollars in your program, and we ought to have some money in that program. States can use it very much.

REP. GEKAS: The chair now yields to the gentleman from Michigan, Mr. Conyers, the ranking minority member, a period of five minutes for questions to the governor.

REP. CONYERS: Governor Ryan, you set a tremendous example for all of the governors, and all of us in public office as well. I'm proud that you have come here, and I'm proud of what you have done. DNA is the thing that can provide a window into flaws where they are relevant in cases. Could we for the few minutes that we share with each other consider the wider point that was made by Bill Delahunt? If this the circumstance in capital cases, what do you think the circumstances in noncapital cases?

GOV. RYAN: Well, Mr. Conyers, I'm glad you asked that question. I don't know whether you have been prompted or not. But let me see that I had the same thoughts. There has got to be a lot of innocent people sitting in jail throughout the state of Illinois, if not throughout the country that have been represented by the same kind of counsel, are falsely imprisoned or wrongly imprisoned. And as a result of that, I have also ordered a rewrite of the Illinois state criminal code, which is 40 years old.

And as I said earlier, things have changed in 40 years. Crime has a whole new aspect to it. The gangs are different. They have new tools, technology that they use, telephones, electronic communications. The drug situation is like it has never been in this country before. We had a drug problem ten years ago that is a lot worse now than it ever was, and it is a lot more sophisticated. And our laws in Illinois were 40 years old, and we needed to rewrite them, and that's what why we are in the process of rewriting the whole criminal code.

REP. CONYERS: Well, thank you. There were a number of things that prompted that question. You know, I have been on this committee and the Criminal Justice Subcommittee and the Crime Subcommittee for almost all of the years I have been in the Congress. And what I am leading into is the consideration of the role of police in the criminal justice system.

As one who supports the police and regularly enjoys their endorsement, I have to point out to you that in many areas, especially big cities, we seem to be in almost a crime wave among police officers of misconduct, of violence, of perjured testimony, of sometimes refusing to show up, the old blue flue phenomenon. And so I am concerned about this larger question of the police role, of the prosecutors' role.

You know, this isn't going on just among the capital cases. I think we have perhaps a serious problem that I'm not suggesting that you can repair at all from your place or me from mine. But I think that the acknowledgement of it is very important. We have already mentioned the judges. Many judges are fully aware of what is going on in their courtrooms. Prosecutors are really very informed, and police have learned their way around the jury room pretty fairly.

And so what I am suggesting is that there is even, as important as this measure is -- and we do these things one at a time. But I see a larger problem out there in which race is a factor, in which the criminalization of young African Americans is going on, on and on and on. We are now privatizing the prison system.

Have these matters come to your attention, or have you been prompted to consider them the same way we were both prompted to think about the police question?

GOV. RYAN: Mr. Conyers, I believe that that is part of the overall problem. I mean, that is a part of the judges, the prosecutors, the police, the jailhouse informants. Those are all part of the problem with the system within Illinois. That is the only that I can speak to. I would have to assume that it is probably in other areas of the country, maybe nationwide, probably is. But those are all things that need to be looked at and need to be studied, and if there are errors, needs to be corrected.

REP. CONYERS: You are willing to study those as well?

GOV. RYAN: I am.

REP. CONYERS: Thank you.

REP. GEKAS: We thank the gentleman. We now recognize the gentleman from Texas, Mr. Smith, for a period of five minutes for the purpose of examination.

REP. SMITH: Thank you, Mr. Chairman. Gov. Ryan, I just have a couple of questions. The first is that you mentioned a while ago that the death penalty can be a proper societal response for heinous crimes that shock our responsibilities. I just wanted to ask you that if H.R. 4167 were enacted and became law, would you then lift the moratorium in Illinois?

GOV. RYAN: H.R. 41 -- is that what we are talking about here today?

REP. SMITH: Yes, sir, it is.

GOV. RYAN: The Innocent Protection Act. No, no. I can't say that I would lift the moratorium. I have empaneled a group of distinguished people to look at our system in Illinois, and I would certainly let them come back with some report before I would make a decision.

REP. SMITH: Okay, thank you. My second question is that we can all be relieved, as I understand it, that no person executed in Illinois has subsequently been found to be innocent. Is that your understanding as well?

GOV. RYAN: Well, that would be a pretty broad statement for me to make. I don't know that, and only the future, I guess, will tell. I know that through the efforts of some young journalism students at Northwestern, we saved a fellow's life that was innocent.

I have been governor for almost 18 months now. In that time, I have had one death penalty case before me. It was a horrendous case. It was a young woman that was mutilated and murdered and raped. And I had to make the decision whether the person that was found guilty was executed or not. I want to tell you, it was a very anguishing moment.

Somebody said earlier that it is really not -- it shouldn't be up to the governor to make these final decisions; there ought to be other ways to do that. That was a very tough decision for me to make, and I did a lot of research and a lot of work and went back and looked at it on several occasions. But I found that in the end -- and was satisfied that the was guilty and allowed the execution to go forth. That is the only one I have had since I have been governor.

REP. SMITH: But isn't it accurate to say that to date no person who has been executed has subsequently been found to be innocent?

GOV. RYAN: I think that is true probably, from what I have heard. Then there is probably coming on the next panel that could probably better answer that question. That's what I guess has been said. But I can't tell you whether that is truthful or not. I don't know.

REP. SMITH: Thank you, Governor Ryan. I appreciate it.

GOV. RYAN: Thank you.

REP. SMITH: I yield back the balance of my time.

REP. GEKAS: We thank the gentleman. We now recognize the gentleman from Virginia, Mr. Scott.

REP. SCOTT: Thank you, Mr. Chairman. And, Governor, I wanted to again, as others have, congratulate you on taking a stand on a very controversial issue, and just congratulate you on that stand.

GOV. RYAN: Thank you.

REP. SCOTT: I think I was the one that mentioned that the governor's office is an inappropriate place to have this decided. I still think you need the governor involved as a final gate to the gas chamber or the execution, but we should not rely on the governor as an essential part of the criminal justice process.

For example, you have suggested that the students saved the man. I assume that if you had not had a confession and an affidavit, if you only had the information from the trial, there is no telling what decision would have been made at that point.

GOV. RYAN: Well, there was a delay in the trial as a result of this poor fellow's low IQ. And as a result of that, the students that were studying the process had a little more time and came up with evidence that found him not guilty.

REP. SCOTT: Now do you have subpoena power to compel witnesses' testimony?

GOV. RYAN: No.

REP. SCOTT: Do you have other kinds of investigatory powers or the ability to watch witnesses being cross-examined to determine how truthful they may be from your own point?

GOV. RYAN: I could sit in on the hearings of the Pardon and Parole Board, I'm sure, and sit in on the trials that go on, if I chose to do so.

REP. SCOTT: Now during your deliberations, did advocates on both sides call you and encourage you to do one thing or the other?

GOV. RYAN: On the one case that I have had, I called them, frankly, to make sure that we had a guilty person or an innocent person. I wanted to be sure.

REP. SCOTT: Would the fact that someone would be in the middle of a campaign or other politically sensitive times complicate this decision?

GOV. RYAN: I guess we have all been in the political arena. We can all make our own decision about that.

REP. SCOTT: Thank you. Mr. Chairman, I would like to yield the balance of my time to the gentleman from Massachusetts.

REP. DELAHUNT: I have no questions, Governor, other than just simply to state what I said earlier, which is a collective thank you. You are a man of great common sense. And really, I think this is what it is about. And at the same time, of uncommon courage. Congratulations. I yield back.

REP. GEKAS: Thank you. Does anyone seek recognition? The gentleman from Florida, Mr. Canady.

REP. CHARLES T. CANADY (R-FL): Thank you, Mr. Chairman. Governor, I want to thank you for being with us here today. I appreciate your testimony. Let me ask you this. How many people are currently under a sentence of death in the State of Illinois, approximately?

GOV. RYAN: A 161.

REP. CANADY: And I understand that you have imposed an across- the-board moratorium on all executions. And what I'm curious about is whether it's your view that there are questions about the sentences of all those people who are under sentence of death. I understand there may be some cases where questions arise, and I understand the desire to take special care and special caution, and I understand that as a governor your responsibility for carrying out sentences of death is something that, quite properly, is a very weighty responsibility and something you take very seriously.

But I am puzzled that you would impose an across-the-board moratorium when, in fact, I suspect that there are at least some folks who are under sentence of death where there is no question that they are, in fact, guilty of the crime of which they have been convicted and are properly subjected to the death penalty.

GOV. RYAN: Well, you're probably right, Mr. Canady, but let me say that I've empaneled a group of people to look at a system that didn't work, a system that was broken, and I asked them to come back with some recommendations. And when they come back with their recommendations, and they can guarantee me that they don't have attorneys that are drunk, that they don't have jail-house informants, and they don't have bad information, and they have used all of the technology available to put somebody to death, then I'll rethink my position on whether we ought to do that or not in Illinois. But until that Commission comes back, and I don't know what the timeline is because I didn't give them one, I'd rather be safe than sorry, frankly.

REP. CANADY: Again, I understand your perspective, but it seems to me that in cases where there is no doubt, where the evidence is clear and overwhelming of the person's guilt, where, in fact, there may be DNA evidence that indicates -- that supports the conclusion of guilt as well as eyewitness testimony -- I don't know if there is a particular case that would have both of those -- it seems to me strange to say that we're not going to carry forward with a system of justice because we believe that there are systemic problems. You are the governor, and you have the power to make that decision, but I find that curious.

One point I would make, and that I think we all should bear in mind, is something that was pointed out in an article recently written by Paul Cassel. He pointed to a statistic which I think is interesting. The Bureau of Justice statistics have found that of the 52,000 inmates serving time for homicide -- now these aren't all people on death row but people who are serving time for homicide -- more than 800 had previously been convicted of murder, that is, they are repeat offenders. They are repeat murderers. And I find that to be a very troubling statistic as well, that there are at least 800 people who have died after someone was convicted of murder and then released to murder again.

So I think that as we look at these issues, quite properly, about protecting the innocent, I think we need to also be concerned about protecting the innocent from people who engage in this kind of conduct more than once.

GOV. RYAN: I certainly agree with that, Representative, and I want to say that the best case I can give you about presumed absolute guilty is the Anthony Porter case, a case that really caught my attention. Here is a fellow that was convicted. Eyewitnesses had -- I think everything was there.

They were ready to kill him. They even measured him for his suit. If it hadn't been for the fact that he got a permanent delay or a temporary delay in his hearing and an opportunity for some journalism students to look at it, he would be six feet deep right now.

And I think that when you talk about absolute certainty of people that should go to the death chamber, at least in Illinois, I want to make sure that it's certain, and if it means waiting a few months, I'm willing to do that. I'm not saying that we're not going back to the death penalty and execute those people that are guilty, but I want to make sure that the system is in place and it works and it works well. There is no place for error here.

Somebody pointed out, I think, earlier, not here, but at another hearing that I was at, where it's 99.5 percent effective a system. I don't want to be that five-tenths of a percent where it doesn't work, and I don't believe you do either.

REP. CANADY: Well, thank you, Governor. I appreciate your perspective on this, and we thank you for being with us here today.

GOV. RYAN: Thank you very much.

REP. GEKAS: The time for the gentleman has expired. We turn to the gentleman from New York, Mr. Weiner, for a period of five minutes.

REP. WEINER: Thank you, Mr. Chairman. Welcome, Governor. I appreciate your testimony. I'm a little bit puzzled, I must confess, from the gentleman from Florida's suggestion as if you can look at 147 cases and say, well, this one smells fishy, this one smells fishy, and go back and look at them. There is not a magic goof meter that they give you when you are elected governor that you can wave over a file to determine whether it was done right. Very often the cases that are the most vexing are the ones that go unnoticed. And I think that the governor is correct in saying that we should look at all of them.

I just have a brief question for you. Before I yield to Mr. Delahunt for a question. One of the arguments that prosecutors frequently make and the families of the victims frequently make Governor, is that there has to be a sense of finality to these cases, that it's an important concept that's in our justice system that at some point you close the books on these cases. And also there is a legal argument that's made that at a certain point the evidence that you start getting years and years out is less fresh, it's less able for both sides, the prosecution and the defense, to put on a case, and that's the argument for the statute of limitations, and it's the argument for why at some point you close the book on these things.

Are you concerned that as you go through this process of reviewing all of these cases, that they are essentially for the families of the victims and for the system that essentially we are opening up these in some cases wounds that had closed and starting to view these cases in toto? And I guess the shorter version is that how are you taking steps in your state to ensure that the review that goes on now, with some of the evidence trails being cold as ice, if that process is fair to the victims' families as well?

GOV. RYAN: Well, again, it's just a situation where you have to look at it, you have to use the things, the tools, that you have, and that's what's important about this proposal that's before you now is the fact that DNA evidence is available that probably wasn't available 10 years ago, and we ought to use all of those factors that are available. We need to make sure that we use every tool that's around.

Again, I don't know if there's any real sure way to do all of those things, but I do know that DNA is a positive method of testing and should be used in cases where it ought to be used. And it isn't like we're not going to give justice to people that committed capital crimes and need to be put to death. I'm in a moratorium. That means we're delaying what we're doing right now until we have a better system to make sure that it works, and that's all this is. And there will probably still be some folks who will go to death.

REP. WEINER: Governor, one of your fellow governors has argued that in his state there has never been a person put to death that didn't deserve that fate and that wasn't guilty of the crime he was accused of. You answered this question in a different form for Mr. Canady, I believe. Can you make that kind of a broad-stroke statement about the State of Illinois?

GOV. RYAN: Since I've been governor?

REP. WEINER: Well, okay, yeah.

GOV. RYAN: I've only executed one person, and I feel very secure about that.

REP. WEINER: Okay. But you certainly can't say that in the history of the State of Illinois or in recent memory with any certitude.

GOV. RYAN: I don't know. I don't know that I could. No, I don't know. I haven't looked at the cases I'm not familiar with. I think the case that you speak of, of course, is the individual has said that he reviewed the cases, he felt that the people have been through the system and that they were guilty. Now, that's, I think, what a governor should do, or at least that's the charge I have in Illinois. I don't know what the charge is in other states, and I'm not here to tell other governors how to do their system.

REP. WEINER: Thank you. I yield the balance of my time to the gentleman from Massachusetts.

REP. DELAHUNT: I thank the gentleman for yielding, and I just wanted to make an observation about the observation by my friend from Florida, Mr. Canady. I think we all are concerned about those 800 repeat offenders, but I think it's important to understand that this proposal, cosponsored by myself and Ray LaHood, is not just simply about protecting innocent people from being wrongfully convicted. As importantly, it is about public safety because I dare say, Governor, that in those cases I think you indicated that there are now some 13 individuals that were charged with capital crimes that were convicted and served on death row and have been exonerated.

What I would suggest is that there are 13, possibly more, individuals who committed those crimes that are now walking the streets. Hopefully, your experience and your efforts in that regard have restarted those investigations, and there have been, hopefully, some successful prosecutions that have resulted in convicting the truly guilty and punishing them accordingly. If you have any data, we would certainly welcome that.

GOV. RYAN: I think we have some. We'll submit it.

REP. GEKAS: The time of the gentleman has expired. We turn to the gentleman from Arkansas, Mr. Hutchinson, for a period of five minutes.

REP. HUTCHINSON: Thank you, Mr. Chairman, and I thank Governor Ryan for your testimony today and for the sponsors of this legislation, Mr. Delahunt and Mr. LaHood. I've had many discussions with them, and I think there's some very important aspects of this that we need to seriously look at.

In reference to your statements and others about the competency of counsel -- this is a real important aspect of any application of the death penalty -- does Illinois have a public-defender system?

GOV. RYAN: Yes.

REP. DELAHUNT: And it did during the time that the death penalty was imposed that's been of concern to you.

GOV. RYAN: Yes.

REP. DELAHUNT: And in that public-defender system is there a specialized panel of death-penalty-qualified attorneys that would be appointed in death-penalty cases?

GOV. RYAN: Just if they are the public defender. I think in the case of this Anthony Porter he was defended by a public defender.

REP. DELAHUNT: Has your commission determined yet or have you reached any conclusions as to whether a public-defender system provides the type of quality defense counsel versus appointed counsel from the regular bar?

GOV. RYAN: Well, we have 102 counties, so they all have their own public defenders and their own system, but my commission hasn't reported back to me. They haven't made any reports back to me on anything yet.

REP. DELAHUNT: I would be interested in learning the result of that because some states still do not use a public-defender system but use appointed counsel, and there is an argument as to where the best qualified comes from. I guess we go back to the old standard that if you are recognized as a qualified attorney, then certainly you should be appointed and take your appointments in those type of criminal cases.

GOV. RYAN: I think that's an option that's available to the judge in Illinois. He can either appoint the public defender or special counsel.

REP. DELAHUNT: Has there been any concern about racial disparity in the application of the system in Illinois?

GOV. RYAN: Yes. I said that there have been -- I forget the number now -- 35 or 36 African-Americans that were convicted by an all-white jury, and the numbers are disproportionate as to African- Americans and non-African-Americans.

REP. DELAHUNT: In terms of more African-Americans receive the death penalty than non-African-Americans?

GOV. RYAN: Right.

REP. DELAHUNT: And is that not counter to the statistic nationally? What I saw was that in 1998 that were 68 executions, and of those 68 executions 40 were white. So is Illinois an aberration to that, or do you dispute that statistic?

GOV. RYAN: Well, we have ended up with more African-Americans and Hispanics on death row than whites in other states, in comparison with other states.

REP. DELAHUNT: So it could be systematic with a problem for some reason with Illinois versus a nationwide problem.

GOV. RYAN: It could be.

REP. DELAHUNT: Now, finally, and I'm just making an observation here, Governor Ryan, because a number of the challenges to the death penalty and the DNA testing that's available today has called into question the reliability of eyewitness testimony. And I think always in our society we have to have some protections in regard to eyewitness testimony and their account. That's why we have the rules being able to challenge their motive, of what they have been promised, plea bargains, and things of that nature. But ultimately it's up to the jury to weigh the credibility of that eyewitness versus maybe the defendant who may or may not testify or other witnesses, and we have to accept their conclusion.

I guess, and I'm just asking your reaction, one of the concerns I have is that if we basically say an eyewitness testimony lacks veracity and reliability from the outset, then I wonder, particularly when prosecutors in assault cases, rape cases, where women are victimized, that whether the woman will be reluctant to come forward because she is the only witness, she is the only eyewitness, and if you start with the presumption that that is not sufficient, then I'm just concerned that the ultimate impact will be less reported assaults on women and the fact that prosecutors will be less reluctant to pursue these cases.

This is not a death-penalty issue. Mr. Conyers raised the question, how about noncapital cases? So I just wondered whether this debate, even though it's very important, might have unintended consequences on harming witnesses coming forward. Do you want to respond to that?

GOV. RYAN: Well, I would certainly hope it wouldn't. I think eyewitness testimonies are probably very important and certainly shouldn't be disregarded in any fashion. It should be used and let the jury decide.

REP. DELAHUNT: And I think that's an important observation, that that's been historically what we've done, that the defense attorney has got to get in there and competently challenge the testimony. The defense has to make a decision whether they are going to put the defendant on the stand or not and to challenge the witness's testimony. And finally, that jury has got to make the decision. They've got to look him in the eye and make that decision, and so I think we just need to keep that in mind as we go through this debate, and I thank you again, Governor Ryan, for your leadership on this.

GOV. RYAN: You bet.

REP. GEKAS: The time for the gentleman has expired. We now yield five minutes to the lady from Texas, Ms. Jackson-Lee.

REP. JACKSON-LEE: Governor, first of all, let me offer an apologize for the extensive questioning that you have received this afternoon. It is not in any way a reflection upon our lack of respect for your leadership and your position. I thank you for delaying your air travel so that all of us would have an opportunity.

And then I want to add an added appreciation for what you have actually done. I think it is more than you would imagine, and I would assume that the story will be fully told in history books that will recount this time and this era.

This is the dilemma that I have been quarreling with because I happen to be engaged now with the immediacy of the time of the pending execution of an individual that I have requested and joined with others, after much deliberation and certainly study, that he should receive a new trial. And so I know that I'm at this juncture in the emotional mix of what an execution of what I believe to be someone who has not gotten a fair trial can occur.

But what you have accomplished, and I want to pose some question along this line, you have created in your state, and, I believe, in the nation, a realistic debate on the death penalty and death sentence, and that's what we had not had.

I served as a local, municipal-court judge before I came here to this Congress and to sit in this Judiciary Committee room, and so I hold great respect for pharmacists because they make better jurors, but I hold great respect for this judicial system and this legal system. But as I have taken up this cause, along with many others, some on the death penalty -- in particular, my situation is with Gary Graham, a constituent -- I have been bombarded with the debating tactics and tools of what we have heard in this committee room, with no disrespect to those perspectives, the fact that convicted criminals will go free to kill and murder again, the fact of whether we are diminishing the victim's family and their loss. And I would imagine that you have spent much time before the press saying, no way, as I have said, can we take away from the tragedy of someone losing a loved one.

And then the other thing that we contend with is that these folks sometimes tend to be bad actors. They have had a bad record. But in doing that, I would like to ask you this question about how we have to make these decisions. Right now we're dealing with presidential politics. I've tried my best to keep a man's life or his survival or his death out of presidential politics.

How are you answering the question to those in Illinois who would raise the question, these are bad people anyhow, raise the question that you are letting or ultimately keeping alive someone who has done something anyhow, and raise the specter of debate to the level that we need it to be at?

I happen to support, and will be joining in legislation, for a national innocence commission modeled after yours. I think it's a brilliant idea, and the reason is because we can't tell what is happening in other states around the nation. That's not a blame emphasis; it is to find facts and also to provide some standards, which I will raise with you again.

But I would simply like to know how do you part the waters on those who would indicate that we are forgetting the victims or as well, that these individuals have been not the best citizens in the past.

GOV. RYAN: Well, there isn't any question that we're not dealing with angels when we talk about these folks that we're talking about.

They are probably guilty in some form of one crime or another or have probably pretty long rap sheets, at least the people I've seen. But in my state all I've done is put a hold on things until we can find out what we have to do to make sure that we're right in what we do. And so that's my answer, that there will be retribution for those that deserve it, and it's been done in a fair and equal manner, and that they are, in fact, guilty of the crime they have committed.

REP. JACKSON-LEE: I think if we can express that point nationally, we would get far in this debate. Let me also put into the record a note, because I know that a colleague raised the issue, of whether or not we know -- or the fact that the system works because we have discovered that people have been proven innocent through the habeas corpus and other appeals.

Might I note that the Chicago Tribune noted that of the 131 Texas inmates that were executed under our present governor, it involved 40 trials in which defense attorneys presented no evidence or only a single witness. Forty-three of those cases included defense attorneys who had been or were sanctioned for misconduct, and 23 of those were using the testimony of a convicted felon or somebody with a bad reputation, if you will.

That means that those who are dead at this point, frankly, dead, we don't really know what has happened to them, and so we have to fix the system for the living. What is your thought about the idea of the single witness being the only witness, protecting that witness to the extent that you want to encourage others to come forward -- I'm like you; all witnesses are welcome -- but yet understanding that in many instances, the single witness, if there are other legitimate witness who have not been heard, create an atmosphere of unfairness, and it really attacks the system, so that that is also a component of not having a fair trial?

I assume in your commission you are looking at cases where there is only a single witness, where there weren't DNA. Your commission is not just to look at whether DNA was used, but also other aspects of the trial. Is that my understanding? Is that how they are charged to investigate?

GOV. RYAN: Well, I didn't really charge them. I only charged to look at the system, and where that leads them at this point is up to them, and they have only had, I think, two or three meetings at this point. But, again, I'm not sure that I understand what your question is, but, look, we have to use everything available. If there is a witness that says that they witnessed, saw a crime committed, that should be noted and presented to the jury in some fashion. I don't think there is any question about it.

REP. JACKSON-LEE: And if there are witnesses that have not been heard who had a different perspective, I would imagine that they should have their day in court as well.

GOV. RYAN: Well, I'm not sure what all the legal ramifications of that would be, how that would work. If there are witnesses that haven't had an opportunity to testify, you're the folks that work in this system every day. How does that work? Does the defense bring it in? Does the prosecution bring it in? And if either one of them do, how do they get there?

REP. GEKAS: The time of the lady has expired.

REP. JACKSON-LEE: I thank the gentleman. I hope that any commission that we have on this issue will involve itself in all those questions. Thank you.

GOV. RYAN: Let me add that you really don't need to apologize for the questions I have received here today. I've been around this system a while, and I understand how it works.

REP. JACKSON-LEE: Excellent, Governor. Thank you very much.

GOV. RYAN: And I appreciate the opportunity to come before the Committee.

REP. JACKSON-LEE: Thank you for your presence.

REP. GEKAS: The chair now recognizes the gentleman from Georgia, Mr. Barr, for a period of five minutes.

REP. BARR: Thank you, Mr. Chairman. Governor, how many district attorneys are there in your state?

GOV. RYAN: Are you talking about the county states' attorneys?

REP. BARR: Yes, sir.

GOV. RYAN: A 102.

REP. BARR: How many of those endorse this legislation?

GOV. RYAN: How many of what?

REP. BARR: How many of those 102 prosecuting attorneys endorse this legislation?

GOV. RYAN: The congressional legislation?

REP. BARR: Yes, sir.

GOV. RYAN: I have no idea.

REP. BARR: Have you asked them?

GOV. RYAN: We have the provision in Illinois. The DNA-testing provision is available.

REP. BARR: Have you asked them their opinion on this legislation?

GOV. RYAN: I have not.

REP. BARR: Are you aware of the fact that National Association of Attorneys General is very strongly opposed to this legislation?

GOV. RYAN: No, I'm not.

REP. BARR: Have you read this legislation?

GOV. RYAN: I have been briefed on it.

REP. BARR: Have you read it?

GOV. RYAN: No.

REP. BARR: Do you support it?

GOV. RYAN: I do.

REP. BARR: And you haven't read it?

GOV. RYAN: No. I spent 20 years in the Illinois General Assembly and didn't read all of the bills that I supported. I would guess if we were all honest with each other, we would probably make that same statement.

REP. BARR: Well, and I'm sure that you have very fine journalism students also in your state, but you're the elected, chief executive officer of your state. You're testifying here before Congress today on very far-reaching and important legislation that would affect not only your state, but certainly every death-penalty case now or in the future in your statement, but other states as well, and you're saying you endorse legislation that you haven't even read.

GOV. RYAN: I've said that I've endorsed the DNA testing, and that's part of this legislation. Now, I don't know, maybe there's some other parts of this legislation that you think I shouldn't endorse.

REP. BARR: Yes. If you ask me, I think there are, and I think any governor ought to take a very, very close look at this for some of the same reasons that the Association of Attorneys General does not endorse it. There are very serious questions of federalism in this legislation.

Now, if you want the federal government and, in particular, the Department of Justice, to tie your hands as the governor with regard to how to conduct every single death-penalty case in your state, then you ought to endorse this legislation.

But if you have some concerns about that, your proper prerogative and role and responsibility as the chief executive officer, respecting principles of federalism, then I would suggest you take a close look at this.

If I could, one of the areas, for example, into which this goes, this would require a state to pay up to $100,000 a year to an inmate who is "unjustly imprisoned," whatever that means. It doesn't define that. That is, I presume, the same in Illinois as it is in my home state of Georgia, far in excess of the average annual income for even a family of four, to say nothing of a particular individual, yet this legislation will mandate that, that however one defines somebody being unjustly imprisoned, there would, therefore, be jurisdiction to go into federal court to receive compensation, including pain and suffering, up to $100,000 a year.

GOV. RYAN: If the gentleman would yield.

REP. BARR: No. That is just one particular provision of this legislation.

It would also require, for example, among its other terms, that your courts, the courts of the State of Illinois, maintain certain evidence virtually indefinitely. It would also provide that before an attorney who is already a member of the Illinois bar, which, I presume, is a very learned, professional, bar association with very high standards, before they would be able to perform defense work for a capital case and withstand the challenges that this particular law would thereafter impose on them, that they would have to be certified not by you, not by the State of Illinois, but by the U.S. Department of Justice. So they would now become involved by law in mandating the specific requirements for every single attorney to practice capital law in your state.

These are just some of the particular provisions in this legislation that I think, and a number of attorneys general believe, raise very serious questions about federalism. And I really would suggest that you take a much closer look at it.

I was also intrigued, Governor, by your written testimony as delivered here today, that you look for a guarantee, yet you also would be satisfied that there is a moral certainty that a person has been properly convicted. I don't know that a moral certainty is the same thing as an absolute guarantee, and I don't know how one ever reaches, other than to say we can never have an execution, that the system guarantees that nobody will ever be executed. That's somewhat different from a moral certainty.

So I think that I have some real problems with your position. I certainly respect it. I would like to ask one specific question, though, and that is, and maybe you can enlighten us, the specific authority as the chief executive officer under Illinois law, where you can override other than on an individual case and an individual finding of a capital sentence, a whole category of cases, and is this being challenged in the courts of Illinois?

GOV. RYAN: Well, I would guess the moratorium is done on an individual basis. There are no cases before me right now. There are some that are about to come, but I would imagine postpone them. So, you know, you can name it whatever you want to name it and how it works or called. It's a moratorium, but each case comes to me individually, and I just postpone it until I get a report back from my committee.

REP. GEKAS: The time for the gentleman has expired. All time has expired for --

GOV. RYAN: I would just like to add to the gentleman from Georgia that I stand reprimanded, Congressman, on the fact that I haven't read the bill, but I thought part of the process was here that we came and exchanged ideas, and these bills aren't just passed as they are introduced. At least that's always been my experience. There's opportunities to work with them, but I came only to share my ideas based on what I thought was important about DNA testing and what ought to be used there. But I thank you for your comments.

REP. GEKAS: And the Committee is very appreciative of your appearance, of your sacrifice in time, and we know that we'll be in touch as this debate continues. We thank the gentleman from the bottom of our hearts.

GOV. RYAN: Thank you very much.

REP. GEKAS: We are now prepared to empanel the second set of witnesses, or the third set.

(Pause.)

REP. GEKAS: We will begin the introductions while they are assembling at the desk.

Kirk Bloodsworth was convicted and sentenced to death in 1985 for the murder of a young girl in Maryland. After his convictions, and at the suggestion of his new lawyer, DNA testing on evidence from the crime showed that he could not have committed the crime. He was released from prison in 1993, nine years after his arrest, and was the first capital defendant freed as the result of DNA testing.

Steven B. Bright is the director of the Southern Center for Human Rights in Atlanta. He is in his eighteenth year as director of the center, a public-interest legal project whose mission is to protect the rights of people in the criminal-justice and correction system of the South. Mr. Bright also currently teaches at several universities, including Yale, Harvard, and Emory Law Schools, and was a recipient of the American Bar Association's Thurgood Marshall Award in 1998.

Ward A. Campbell is the deputy district attorney general for the State of California. Mr. Campbell appeared as a witness for the Senate Judiciary Committee in 1993 on innocence and the death penalty. He was the recipient of the 1999 Attorney General's Award for Excellence in Legal Services and Excellence in Team Litigation and is the chairperson of the Criminal Procedure Working Group of the National Association of Attorneys General. He received his undergraduate and law degrees from the University of California at Davis.

James E. Coleman, Jr. is a professor of the practice of law at Duke University's School of Law, where he teaches criminal law, legal ethics, and seminar on the death penalty. He currently is chair of the Section of Individual Rights and Responsibilities of the American Bar Association on whose behalf he testifies today. He received his bachelor's degree from Harvard College and his law degree from Columbia.

Can we have order in the Committee, please?

Gerald Cogan is cochair of the Constitution Project's National Committee to Prevent Wrongful Executions. Justice Cogan has also served as chief justice of the Florida Supreme Court as well as head of the Capital Crimes Prosecution Unit in Dade County, Florida. He has also served as a defense counsel and a special counsel to the Florida Legislature Select Committee on Organized Crime and Law Enforcement. He received his bachelor's and law degrees from the University of Miami.

Peter Newfeld is a cofounder and director of the Innocence Project, which represents more than 200 inmates seeking post- conviction release through DNA testing. Mr. Newfeld is cochair of the National Association of Criminal Defense Lawyers' DNA Task Force. In 1995, he was appointed by the governor to the New York State Commission on Forensic Science, which has responsibility for regulating all state and local crime laboratories. He recently authored the book, Actual Innocence, together with Barry Sheck. Mr. Newfeld is a graduate of the University of Wisconsin and received his law degree from the New York University School of Law.

We now yield to the gentleman from New York, Mr. Weiner, for the purpose of introducing the next named member of the panel.

REP. WEINER: Thank you, Mr. Chairman. I just president to join in welcoming Mr. Newfeld as well, who I believe is from Brooklyn, and also particularly welcome our attorney general, Mr. Spitzer, who has in his brief tenure thus far as the attorney general, redefined the office and has been aggressive environmental law and consumer protection and challenging negligent gun manufacturers, but is also known to many of us as a tough prosecutor. I think he served as the district attorney on some small island not far from Brooklyn and Queens, and I want to welcome him here as well.

REP. GEKAS: And we continue with introducing the last member of the panel.

Stewart McMeverin is the district attorney for the 8th Judicial District of Fort Collins, Colorado, a position he has held for 28 years. He also is president of the National District Attorneys' Association and testifies today on their behalf. He received his undergraduate and law degrees from the University of South Dakota.

We say to the members of the panel that, as is the custom, the written statements that have been produced by all of you will be automatically made a part of the record. We will try to proscribe your oral testimony to five minutes and ask that you try to review it within that time. We have an extensive number of panelists and a limited amount of time. We ask you to try to conform to that with due fairness on the part of the chair in applying the clock.

We begin, then, as you are facing me, with Mr. Bloodworth. We have in mind that Mr. Spitzer has a time problem, and as we get down the line and we see that we're running short, we will skip over the other panelists for that purpose. Mr. Bloodworth.

MR. BLOODWORTH: I would like to thank the Committee for having me here today. It's been a long battle for me, 17 years' worth, and what I'm going to read today is a statement that I read before that has a profound effect on exactly how I feel and what happened to me.

Seven years ago, I was in a prison cell. I could not imagine at that time that I would be invited before you to share my experiences with you. I was in prison for a total of eight years, 11 months, and 19 days for a crime I didn't commit. I was released from prison on June 28, 1993 and have been free for more than six years, after new technology, DNA, that was not available at the time of my trial, proved that I was innocent for a crime of which I had been convicted.

Seventeen years ago, in 1984, I was a 23-year-old, newly married, former Marine. I had never been arrested for anything in my life. I had served four years in the Marine Corps and was honorably discharged. I was working full time. Although I had problems like many young men and persons that have, I hadn't envisioned this nightmare that I was about to enter into.

On July 25, 1984, Dawn Hamilton, an innocent, nine-year-old, little girl, was brutally raped and murdered in the woods near her home. I had never met Dawn or her family and knew nothing about the crime. However, I looked like a composite of the last man seen with Dawn. The police received an anonymous tip that I looked like the composite.

When the police interviewed me I told them I did not commit the crime and voluntarily allowed them to take a picture of me and also hair samples and so forth. Later, my picture was selected by witnesses. I was identified in a lineup by several witnesses as the man who was last seen with Dawn Hamilton.

From the moment of my arrest and from the time of my release I told anyone and everyone that I did not commit this crime. In my first trial several people, all of them strangers to me, identified me as the last man seen with the little girl. I had a full jury trial, at which I testified, and my friends and family members testified, that I was with them during the time of the crime. The jury believed the eyewitnesses and did not believe us.

I was convicted, and after a sentencing hearing I was sentenced to death. One of the loneliest feelings I had ever had, when the judge sentenced me to death, is after he had pronounced the sentence the courtroom erupted in applause.

I was convicted and was sentenced to death. People in the courtroom erupted in applause and stared at me with feelings of glee. At that point, I started to realize that this was no longer a dream, that this was a reality, that it was a very real possibility I was going to die an innocent man.

At that point, at my second trial, the prosecution presented many of the same witnesses, and again I was convicted. I chose to be sentenced by a judge this time, and at the time I wrote this I had reviewed what he had said at the trial, and I would like to read it back to you. This is from my trial transcript.

And my attorney asked me, "Is there anything you would like to tell the judge before he passes sentence?" And I said, "Yes. I feel very sorry for what happened to the child and for the family and what they must be going through. There is no way in my conscience that I could kill a little girl or anybody, for that matter. I respect life and just couldn't do it, and I didn't. You've got the wrong man. And if you sentence me to death, Judge, there is no way down the road we can pull it back. I have no idea who killed the child. All I know is I didn't. When they close the doors on the gas chamber, that's it. You can't pull it back. And that's what's happened here. But you just can't bring me back, Judge. Once I am dead, that's it, like you can't bring back the little girl. I feel sorry for what happened to the child, but I'm not your killer, and if you kill me, we're never going to find out."

I do not know why the judge didn't sentence me to death in the second trial. Maybe my statement had some impact. I do not know. All I know, I was sentenced to two consecutive life sentences, and I would have died in prison saying I was innocent.

I remember when I first spoke to who is now the Honorable Judge Moring here in the District of Columbia, and he told me that since I was beyond my direct appeal, the chances of winning a new trial were extremely small because the courts were no longer concerned with whether I was innocent or guilty. They assumed I was guilty, and I remember this statement shocking me. There I was in prison for something I didn't do, and it was hitting me that the courts would not be interested in whether I was innocent or guilty.

During his investigation Judge Moring had all of the evidence reexamined by a laboratory in California, Forensic Science Laboratory, run by Dr. Edward Blake. In 1984, they had no DNA that could measure this type of thing. It wasn't available at the time, and I simply had to wait until technology caught up with my case. The FBI also tested the evidence. As a result, the prosecution and the court agreed to dismiss the case and simply set me free.

Since I have been released many people have asked me what does it all mean. Could I have been executed? Does the fact that I was not executed and finally released mean that the system worked? Can I put this behind me?

I do not know all of the answers. Does the system work? In my mind, it doesn't. I had a lawyer that worked for me at the time, a very compassionate man that believed in me and saved my life. I was released after eight years, 11 months, and 19 days in prison, all of that time not knowing whether I would be executed or whether I would spend the rest of my life in prison.

My life has been taken from me and been destroyed. I was separated from my family and branded the worst thing possible: a child killer and rapist. I cannot put into words what it is like to live under these circumstances, but I'll try.

Did the system work? My family lived through this nightmare with me. My father spent his entire life savings. As a result, he cannot retire, and at 72, he must still work. My mother, whom I love, stood with me and right beside me, died five months before I was released. She never heard the results of the DNA test, but she knew her son, and she knew her son couldn't commit such a crime.

I am not a lawyer. I do not pretend to know all of the technical niceties and arguments about appeals. I do have a personal reaction, however. When I hear some people say that the system is fine but we need to speed it up, they are all guilty anyway, and we should not be concerned with all the technicalities or with the convicted or executed, and even if that happens, that's the price we pay for democracy, bull, I say.

These statements and others like them stun me and sadden me. The people who make these statements were not with me during those nine years I was in prison. You see, when people say these things, they are not talking about a hypothetical person; they are talking about me. Despite all of the protections provided by the system, I would have been executed, saying that I was innocent and having nobody hear what I was saying.

I was going to spend the rest of my life in prison for something I did not do.

I was the person whose life was destroyed and who lost his family. I was not and am not a hypothetical person. I was just a regular person with hopes and dreams like everyone else, nothing special.

For seven years I have been free. It has been very confusing to me. Things have changed so much since I was last free. I'm still adjusting to this day to my freedom.

It is difficult not to become bitter about what I have missed. I'm having great difficulty putting my life back together, but I am trying with family and friends to make it happen.

However, I'm not the same person, and no one will be able to replace what I've lost. I am overwhelmed with words of support that I received from the people of Maryland and throughout the country, people who I don't even know come up to me and hug me and shake my head and tell me what happened to me made them think and change their minds.

I do not know why all these things happened to me. Maybe there is some reason for all of this. I believe maybe it's today.

This bill is very important. It addresses a lot of issues far and wide. The government and the systems of justice we have in this country are for the people. It's for the innocent man, not for the guilty man. We need competent attorneys. We can't have, you wouldn't drive a cab if you knew that the taxi driver was going to be asleep at the wheel.

Also, the people that have this happen to them need compensation. Meaningful compensation. To tell you the truth, $100,000 isn't enough. We need more, we need DNA testing, across the board look, and we need to stop executing people in this country now.

I do not know why all these things happened to me. There must be some reason these things happen to just ordinary people like us. If it happened to me, it can happen to you. It can happen to your child, your son, your daughter. It can happen to anybody.

Thank you.

REP. GEKAS: Thank you very much for your testimony.

Is there any other member besides Mr. Spitzer of this particular panel who has a pressing time problem? Do you want me to skip around?

VOICE: Chairman it's not precident at this point and time, but probably around 5 o'clock you wouldn't mine I need to catch an airplane.

REP. GEKAS: We hope we can complete everything by about 4:15. We'll try to do it by 4:15. At least that's a chart for my own behavior.

Mr. Neufeld?

MR. NEUFELD: Thank you very much, Mr. Chairman, and thank you very much members of the committee.

I am the co-founder and co-director of the Innocence Project of the Benjamin Cardoza School of Law in New York City. To date there have been 67 people who were convicted in courts of law in this country, had their convictions affirmed on appeal, only to be exonerated through the use of DNA evidence.

Our Innocence Project at Cardoza Law School either represented or assisted 39 of those 67 men. We have litigated the issues involving access to DNA testing in more than half the states in this union. And what I am here to tell you first and foremost, members of this committee, is that these are people who not only did the system fail in terms of their jury trials, but these are people for whom the appellate remedies in this country failed as well.

Unlike the *Liebman study that was referred to by some of you earlier in these proceedings, these are people who never had their convictions vacated during those direct appeals. But for the intervention of DNA testing, sometimes because there was consent from prosecutors, but more often than not because we had to litigate it in courts, litigate it in courts where there were procedural bars, where judges simply said I'm not going to allow an innocent person to die on my watch. But for those two situations, these people would still be in prison.

What's extraordinary about it, and it refers to some of the comments made by some of the congressmen earlier this afternoon, is that in every single one of these cases, in almost every single case, identification was an issue. Eye witnesses testified, but not once did the juries for these 67 people find that the eye witness testimony was unreliable. More importantly, in not one of these cases did an appellate court using the conventional Supreme Court tools for assessing the reliability of eye witness identification intervene and decide that no, this was unreliable and this conviction should be vacated.

But we know, because of the wonderful window that DNA testing affords us, that those eye witness identifications were in fact unreliable.

In a third of these 67 cases that we have reviewed, the individuals had grossly incompetent lawyers, and for those of you who are lawyers on this committee, and I know that many of you were in fact prosecutors, you're all familiar with the constitutional standard for ineffective assistance of counsel, the so-called Strickland Test. But I'm here to tell you that for a third of these people where there was no question that counsel was ineffective, indeed, they were factually innocent people, that in only one case did an appellate court vacate that conviction, finding that counsel provided incompetent and ineffective assistance. So clearly the Strickland Test didn't work for these people as well.

The traditional appellate remedies simply didn't work.

I'm here today on behalf of my constituents. My constituents are the 200 people who we currently represent who have been turned down by prosecutors in courts around this country simply seeking a DNA test to prove their innocence. Our constituents are a thousand other people who are backlogged, who have written to us and pleaded with us for our help. We have cases that have been pending for three and four years before we can even get to them ourselves. It sometimes takes another two years before we can collect the files so we can go into court and make a compelling case for innocence. Any statute of limitation would be a barrier for these individuals.

In fact in New York State where we had a statute enacted in 1994, a fellow just last year, Vincent Jenkins, came forward, five years after the statute was enacted, and got DNA testing which proved that he had spent 16 years in prison for a crime he didn't commit.

If there was a 30 month window for this statute, as has been proposed in some quarters, people like Vincent Jenkins would have the door slammed shut on them. We cannot accept the statute of limitations.

The other key issue for you to think about here today, besides the statute of limitations, is the necessity to preserve evidence. It is a waste of time to simply afford people DNA testing unless you also require the states to preserve the evidence for that testing.

Seventy-five percent of the cases that our Innocence Project has taken on to date have had to have been closed out. These are cases where people otherwise meet our criteria for acceptance, but we've had to close out those cases because the evidence has either been lost or destroyed.

Right now we have 67 exonerations. I can't tell you how many hundreds more we would have had the evidence only been available for testing.

And it's not enough to simply say that preservation will be triggered by a motion filed by an inmate. The preservation has to be generalized and be across the board. And it is not expensive and it is not an undue hardship.

In the State of Virginia, for instance, where it is not even required that they preserve the evidence, they simply do it as a matter of course. The evidence can be kept at room temperature, it can be kept in a plain storage room. And given the integrity of DNA evidence it can be tested with certainty 10, 15, and 20 years later.

If you don't have a general rule, you actually encourage people to go out there and start destroying evidence.

Such was the case for Kevin Bird after the Kevin Bird pardoning in Texas. When Mr. Bird was pardoned by the Governor in Texas, the clerk in Harris County, Texas ordered that 50 rape kits be destroyed -- entered into a contract with a waste management company to continue the destruction of those rape kits. Every day that those rape kits are destroyed, it makes it impossible for somebody who might be factually innocent to prove his innocence. That's why we need across the board preservation.

Finally, any requirements on inmates for getting this kind of testing must be kept flexible. The notion that the evidence was not available at the time of trial as a practical matter just doesn't make sense.

DNA technology, as you've already been told, is rapidly evolving. There are kinds of technology that we can use today that were unavailable just 16 months ago. We can now use the kind of testing that Governor Bush ordered in the McGinn case where you can look at a single hair which has no root. That kind of technology didn't exist two years ago in this country. And so it goes with DNA testing.

More importantly, there are so many cases we can tell you about where defense lawyers simply failed to ask for DNA testing at trial, or prosecutors simply failed to ask for it. Are we going to punish the defendant for that?

There's a case right now in New York State of a man named James O'Donnell. In 1998 he was convicted on attempted sodomy. There was no semen in the case so nobody bothered to ask for DNA testing. Neither the prosecutor nor the defense attorney. But indeed, the perpetrator had bitten the victim and left his saliva behind. The victim to defend himself, scratched at that perpetrator and collected tissue from that man under her fingernails, and a police officer appropriately, responsibly, collected those biological materials.

Two years later, DNA testing was done a month ago, and sure enough, the tissue underneath the fingernails, the saliva that was deposited in her body, did not come from the man who was convicted. It came from someone else.

Are we going to say to Mr. O'Donnell that he must remain in prison simply because his lawyer and the prosecutor failed to ask for DNA testing two and a half years ago? I submit to you we cannot do that.

When you're thinking finally about that ultimate bar, that ultimate bar, please be flexible. Because when you're talking about somebody who can show that they have a bonafide claim of actual innocence, if you scrutinize the cases too carefully you'll find people here like Curt Bloodsworth where a Judge might say well, there were five eye witnesses, not just one like we have in the grand case in Texas, but five eye witnesses. Surely he's not entitled to DNA testimony.

In 20 percent of these unjust conviction cases, confessions were introduced against the defendant. It turned out as a result of the DNA evidence that we now know that those confessions were simply false.

Please don't allow other evidence to interfere with the ability of new, highly involved technological scientific evidence which can first and foremost prove that a lot of guilty people are in fact guilty, and at the same time prove that a lot of innocent people were unjustly convicted. Every day that this legislation waits more evidence will be destroyed and more evidence will be lost and the 200 people that we represent and the 1,000 people who are backlogged will never have an opportunity to get their day in court and prove their innocence.

Thank you.

REP. GEKAS: The time for the gentleman has expired.

Mr. Bright?

MR. STEVEN B. BRIGHT: Mr. Chairman, thank you, and members of the committee thank you very much for the time.

I want to talk in my time, Mr. Chairman and members of the committee, about the second title of this act, because I think it's critically important. That's the part that goes to the right to counsel, because DNA evidence is only available in a very small number of cases. I attached to my statement an article that was in Sunday's New York Times by a woman who was the victim of a rape who talked about how during that assault she studied carefully the features of her assailant, identified a person, convicted him, later said it was not a second person who had bragged that he had done it, convicted him a second time, only to find DNA evidence to later show that that had been a mistake.

If that woman had witnessed a murder in which there was no biological evidence, in which there was no DNA evidence, she would be as certain today as she was until the DNA evidence proved her wrong. And so we have to depend upon the adversary system. And unfortunately, it is breaking down.

I might also say we can't depend on the appeals process. Look at the Porter case that Governor Ryan talked about. Anthony Porter had been through all of the state and federal review and he had been affirmed over and over again. The only reason he wasn't executed was because of a question about whether he was mentally competent to be executed, whether he understood why he was going to be executed. If his IQ had been ten points higher, he would have been put to death and everybody who said we've never executed an innocent person would go right ahead saying that we've never executed an innocent person.

Unfortunately, in many jurisdictions the adversary system exists only for the rich. And whether we're talking north or south, east or west, there are courts in this country where it is better to be rich and guilty than to be poor and innocent.

I have watched this process now for over 20 years. I have seen people in Georgia represented in four different cases that I've had by court appointed lawyers who referred to their own clients with a racial slur.

I represented a woman in Alabama who's case had to be stopped for a day mid-trial because her lawyer fell down objecting, and was so drunk he couldn't get up off the floor, and they sent the lawyer to the jail and the next day produced both lawyer and client from the county jail in Taladega, Alabama and sentenced her to death.

I've seen two cases in which mentally impaired inmates had sexual relations with the court-appointed lawyers that handled their cases. Cases where the lawyers were drunk, where the lawyers were asleep, where the lawyers were impaired by drugs. And just to tell you how bad it is, I was at the Court of Appeals for the 5th Circuit just two weeks ago watching an argument in which the Texas Solicitor General's Office asked that court to reverse a case in which the Judge Hidner in Houston had granted a new trial to Calvin Bernine because his lawyer slept through the trial. If I hadn't been there and seen it myself, I wouldn't have believed it.

The argument made by the Solicitor General for Texas was that a sleeping lawyer is no different than a drunk lawyer, a drug-impaired lawyer, a lawyer with alzheimer's disease, or a lawyer who's having a psychotic break. Apparently all of those types of lawyers are acceptable.

The court actually engaged counsel in that argument. One of the judges said, well counsel, isn't it different to have a lawyer who's drunk, who's impaired but still functioning as opposed to a sleeping lawyer who's completely unconscious?

And as a member of the legal profession I can just say I was glad there wasn't a fifth grade class watching those arguments because those arguments were a disgrace to our legal system and to our legal profession, that we would have somebody seriously talking about allowing a man to be executed when the person slept through the trial.

But of course one of the judges in the 5th Circuit, and this is published in the Reporter's and in my statement, it said the Constitution as interpreted by the courts does not require in a death penalty case that the accused be represented by able or effective counsel.

These are not isolated instances. In one city alone, Houston, Texas, there have been three cases in which the lawyer slept through the trial, all of those upheld on appeal by the Texas Court of Criminal Appeals. That's why we need this legislation.

Mr. Hyde asked earlier, how is it that a judge could preside, that's what my law students ask me, how could a judge preside at a trial which was described in the Houston Chronicle as follows, "His mouth kept falling open and his head lolled back on his shoulders, and he'd wake up just long enough to catch himself and it happened again and again and again.

" How could a judge preside over a case like that?

And Doug Schaefer, the judge in that particular case explained that the Constitution guarantees you the right to a lawyer, but it doesn't guarantee the lawyer has to be awake.

Now that's what passes for justice, Mr. Chairman, in many of our cases, and I would close with this note.

Many of these people who are found innocent have been found innocent by serendipity and luck because some group of students, some lawyer with resources took an interest in their case. There are many, many people for whom there is no journalism class, there was no lawyer, and they are now dead, and we will never know how many Anthony Porters there are.

Thank you.

REP. GEKAS: The time of the gentleman has expired.

Mr. VanMeveren.

MR. VAN MEVEREN: Thank you very much, Mr. Chairman, members of the committee. Thanks for inviting me, and I appreciate the opportunity to represent the National District Attorneys Association, an organization of more than 8,000 prosecutors, state and local prosecutors throughout the country.

I want to break this down into two areas. First, the DNA issue, and secondly, counsel competency which we also are very concerned about. These are issues of vital importance to our system of criminal justice, and let me assure you that state and local prosecutors support reasonable legislation that ensures the integrity of the criminal justice system. This is very critical to all of us as citizens of this country.

As you mentioned in your introduction, I've been the elected prosecutor for 28 years in my jurisdiction, a jurisdiction of only about a quarter of a million people. But I've been involved in the prosecution of thousands of felony cases.

I am not a DNA expert by any means, but we have used DNA extensively not only to exonerate but to convict individuals.

I've compared in my written text a statement about fingerprinting and comparing fingerprinting with the DNA evidence. When we watch TV programs, what have you, we think, juries think that fingerprints are available in most every case. In my 30 years of experience as a prosecutor, I've only seen fingerprints in five cases, fingerprints that have led to the determination of guilt or innocence.

I think the same may be true of DNA evidence, although DNA evidence is certainly expanding and improving, still it is involved in a very few cases at this point in time.

I'd like to say a few words about the real world of prosecution and to name a couple of cases that we have in our jurisdiction. One is a murder case that is pending, and my ethics do not allow me to say much about the facts other than what is public record, and I must state to begin with that this suspect who is charged with murder is presumed to be innocent at this point in time.

We had an incident where a complaint came into the police department involving what appeared to be a domestic disturbance. The police came out to the scene, settled the people down, everything was okay, there were no injuries, but they found out that the man was wanted on an arrest warrant and they succeeded to arrest him and place him in jail that evening. They left the woman housemate there.

He was released from jail the next afternoon about 4:00 o'clock, went home, and found his female housemate dead. He immediately called the police, the police came out and an investigation ensued.

Subsequently there was semen recovered and the semen matched the housemate under DNA testing. However the county coroner determined that the murder had occurred 10 to 12 hours prior to his release from jail. So immediately, without him being in jail we would have automatically assumed, well this must be the culprit, the person that committed the murder.

However, earlier that evening there had been another complaint about a peeping tom in the neighborhood. The police investigated that, and found a man hunched behind the steering wheel of his car in that particular neighborhood, and they quoted him as being drenched with sweat. But figuring he was the peeping tom, but having no other evidence, they released him and let him go, although they did find his pocket full of condoms and found some physical evidence that was later determined to be from the scene of the crime.

However, the DNA testing did not connect this suspect with the scene at all. And later this man ironically was arrested, he was found in Guatemala thanks to one of the TV programs, America's Most Wanted, that a lady recognized this man and the police put it together, so it was really an ironic thing.

But I mention that case because here DNA testing would have led us on a false trail but for the fact that the man was in jail at the time of the murder.

The other case I want to mention involves a sexual assault case in which a female was under the influence of not only alcohol but a rehabinol type of drug, ecstacy type of drug, and didn't remember much that evening, but she does remember vaguely a man on top of her. That was the extent of what she could remember.

There were three men there, and she could not of course help in the investigation. Although the sheets that were recovered, through DNA testing, one of the men matched and he was subsequently tried and prosecuted, but there was no DNA match on the other two individuals.

Our concern was, and we probably will never know, whether these other two individuals were involved in that crime. They may have participated, they may have had a condom, they may have held her down. That we don't know. So again, I bring these to your attention because DNA is not magic, it's not absolute, it is not absolute in the sense that it definitely proves someone innocent or guilty.

I've been sitting here quite awhile and I'm running out of time it looks like and I'm sorry to ramble on. I hear the words innocence and exoneration. And we're interchanging these words with not guilty. There is a distinct difference between those words, and I think we have to be careful.

Most of those reversals are because of technical error, not because someone is innocent or supposedly exonerated.

Regarding competency of counsel, we're very concerned about that. District Attorneys want competent counsels on the other side. We don't want to have to retry our cases again and again. That's not fair to the taxpayer, that's not fair to the system at all.

And I'm running out of time, I apologize for that. I'd like to go on for a couple more hours, but I understand my time is limited.

REP. GEKAS: We'd like to hear more, but we're forced to conform to a chart.

Mr. Coleman.

We thank you, Mr. VanMeveren.

MR. JAMES E. COLEMAN: Thank you, Mr. Chairman, and members of the subcommittee. I am here today testifying on behalf of the American Bar Association where I currently serve as chair of the ABA Section of Individual Rights and Responsibilities.

The ABA is pleased to speak in favor of Title 2 of H.R. 4167, the Innocent Protection Act of 2000 which would encourage and assist states to provide competent and qualified legal counsel at every stage of a capital prosecution.

The ABA currently does not have a policy on DNA testing, although the House of Delegates is expected it consider a recommendation that it adopt such a policy at the ABA's annual meeting next month in New York. As a result, however, the ABA is not able at this time to endorse Title 1 of the bill which would make DNA testing available to convicted offenders seeking to prove their innocence.

But DNA testing is only one means of reducing the intolerable risk that innocent Americans may be wrongfully convicted and executed. It is relevant only in cases where there is biological material to identify the guilty person. On the other hand, Title 2 of the bill, by helping to ensure that all capital defendants are represented by competent and qualified counsel, would help to reduce the risk of wrongful convictions and executions in all capital cases.

Before I went to Duke University to teach I was a partner in a law firm here in Washington, Wilmer, Cutler & Pickering. And it is a firm that some of you may know. It has a lot of competent lawyers. A lot of law firms in Washington have a lot of competent lawyers. But I think we've talked too narrowly about what we mean when we talk about competent lawyers in capital cases.

We're not talking -- when we say that lawyers are incompetent we're not talking saying that they're unfit or that in all cases they're unfit. In some cases they may be fit to do other things, they simply aren't qualified to handle capital cases. And I think that there are very few lawyers at the major law firms in this city who are very competent, but none of whom or few of whom would make the claim that they are qualified to represent a defendant in a capital case.

So I think it's important to talk in terms of qualification and not simply incompetence. We're not talking only about drunk lawyers and sleeping lawyers, we're talking about lawyers who are not qualified to handle the complex and difficult cases that capital trials are.

There's been discussion also about the report that Professor Jim Liebman did at Columbia which shows that on average, nationally, 68 percent of the cases resulted in serious error at trials, and the question is what does that mean? Does it mean that the system is working or that the system is not working?

I think it's clear that it means that the system is not working. No system that malfunctions so often can credibly be said to work. We are confusing the systems' ability to detect errors and its ability fairly and accurate to determine guilt.

The ABA believes that the focus of the death penalty litigation to returning to state courts where the trial once again should be what the Supreme Court calls the main event. That it's possible, however, only if the states begin to provide competent and qualified counsel at all stages of capital litigation.

The Innocence Protection Act recognizes that numerous critical improvements to the administration of the death penalty system are necessary to reduce the risk that innocent people will be executed. Not just DNA testing. Although that is important in appropriate cases.

H.R. 4167 recognizes that improving representation, legal representation at all stages is a critical step to reduce that risk in all cases.

We are pleased that elements of the system that this bill was set up for providing competent legal services tracked closely the American Bar Association guidelines for appointment and performance of counsel in death cases.

Although Section 201 of the bill leaves to the Director of the Administrative Office of the United States Courts to specify the elements of what's called an effective system, the bill would require such a system to include a centralized and independent authority for appointing attorneys, reasonable compensation of appointed counsel, payment of reasonable expenses of the attorney and payment of the reasonable cost of support services necessary in a capital case including investigators and experts.

The subject of today's hearing is critical to our criminal justice system and to America's lawyers. Rightly or wrongly, the public generally assesses our legal system and hence the legal profession by its perception of how well the criminal justice system is functioning. Capital cases are the most visible and charged of all cases, and frankly, our system is not doing a good job in handling them today.

The ABA believes that Title 2 of H.R. 4167 is critical to safeguard the two most important functions of the criminal justice system, to protect the innocent and punish the guilty.

Thank you, Mr. Chairman.

REP. GEKAS: We thank the gentleman and we turn to Mr. Kogan for a period of five minutes.

MR. KOGAN: Mr. Chairman, thank you. Members of the committee.

I am the co-chair of the Constitution Project's National Committee to Prevent Wrongful Executions. Since the committee has not yet come down with any recommendations, I am here representing myself, but a member of the committee who has had 40 years of experience in the criminal justice system.

I want to tell you where I started and where I came from in this business. I was the chief homicide prosecutor in Miami, Florida. I asked juries to return the death penalty in capital cases. I instructed prosecutors working under me in certain cases to ask juries to return death penalties, and those juries did.

I then went on and became a defense attorney defending individuals charged with capital offenses. I went on the trial court and on the trial court [sic]. I was in the criminal division, the administrative judge, and I heard capital cases and tried capital cases as a judge.

And from 1987 through 1998, I sat on the Florida Supreme Court, listening to every capital case in the State of Florida that came on appeal.

So the observations that I've made have been over a 40 year period. I estimate that as far as criminal cases are concerned I probably have been involved as an attorney or a judge in over 10,000 criminal cases in the past 40 years.

You know, there are times when you sit on that court and you're looking down and you're listening to a witness testify at trial, you keep saying in your mind, I wish I knew whether or not this particular witness were telling the truth, and I wish there was some magic machine that I could hook up to the witness that would tell me that. But of course there was no magic machine that could do that.

I've seen identifications in court that have been astounding and startling. One that I remember was a husband and wife were attacked by a group of black youths out by the Miami International Airport at like 2:00 o'clock in the morning. The husband was able to come to court despite all the violence going on and the darkness, and was able to identify all nine of the defendants sitting in the courtroom. I said to myself at that time, this is absolutely unbelievable, and I wish I had that machine at that time to hook him up to to see whether or not he was telling us the truth or whether he was just plain mistaken. It was obvious to me that he was just plain mistaken at that time. There is no way he could have identified all of those people, yet the jury came back and returned a guilty verdict as to all nine defendants.

Now DNA evidence has given us something like that machine that I wish we had. What DNA evidence has shown thus far, that not only have we had 67 exonerations in the United States and Canada during the approximate last ten years, but we've also had eight people released from death row when DNA evidence told us that they in fact were not guilty of the offense for which they were convicted and sentenced to death.

Right away this starts me thinking. If we have eight people that we know in the last ten years who have been exonerated because of DNA, how many people are still sitting on death row but are not having access to DNA evidence that could also truly be guilty? And what does that also tell us about what has happened in the years before DNA evidence came into vogue? What happened to all these defendants that sat on death row with no chance to prove innocence because they didn't have DNA?

I submit to members of the committee, it's obvious what happened. Those people wound up being executed. And this is something that we have to realize and say to ourselves, now we have an opportunity to at least in some measure try and correct that problem.

Briefly let me introduce the competency of counsel. Again, I have seen counsel over the years that should never have come into court, that judges should have stopped from handling particular cases.

I saw one case where I was prosecuting many years ago when rape was still a death penalty crime and had not yet been set aside by the U.S. Supreme Court, and my trial partner and I kept saying to each other, my God, that jury is going to return a death sentence in this particular case, and it was the era before bifurcated trials. That is you considered the guilt and the death penalty all at the same time. And we sat there and sure enough, we didn't even ask for the death penalty but the jury came back, because the judge instructed them, it was a death penalty case, with the death penalty. For the first time my colleague and I went, when the defendant filed a motion for new trial, went in there and agreed to the motion for a new trial provided the defendant would go ahead and enter a guilty plea to a non-capital rape offense because we knew he was so incompetent he shouldn't have been there. And this is just one example that I can pick out that I very, very clearly remember.

So I think that if we go ahead and if Congress sees fit to pass this particular law, we're not going to solve all the problems, but at least we're taking a giant step forward.

Thank you, sir.

REP. GEKAS: General Spitzer.

GENERAL SPITZER: Thank you, sir, members of the committee. I appreciate your having this hearing today, and members on this panel. I want to say it has been very powerful testimony to hear and certainly very instructive as well.

My written testimony, Mr. Chairman, does address the two critical issues that we're addressing today -- competence of counsel and the significance and the critical power of DNA testing and how we should use it on post-conviction appeals. And I would merely state with respect to each of those issues that New York State, I believe, is somewhat ahead of the curve.

New York State has adopted statutes that addresses each of these issues and I think they are instructive in each case, both with respect to our creating a panel of death penalty certified defense attorneys whom we turn to in cases where there is a death penalty possibility, and I think we can learn from that experience and extrapolate from it across the country and perhaps believe that there would be fewer miscarriages of justice if that model were followed elsewhere in this country, and I think that is something we should do and it is something this bill would begin to replicate.

Likewise, with respect to DNA, I believe the New York State statute creates a mechanism, a process whereby individuals who believe that DNA testimony, DNA evidence would be instructive, would be probative on a post conviction appeal can gain access to that testing and can use it to challenge a conviction. I think again there we have seen in the various bills that have been presented in Congress on both sides of the Congress, an effort to model some of the standards after what is in the New York bill. Those are both very useful analogs to use as we go forward.

However, what I'd like to do for the few minutes that I have here is address the word that you're cropping up over and over again. In the testimony of some, and certainly in Mr. Barr's questioning about this bill, and that is the word federalism. I think that it is an issue that is critical to this debate. I know when I was fortunate enough to win this office, when I became Attorney General for the State of New York, I had something of an epiphany about federalism. I suddenly thought that it was a wonderful thing to protect the sovereign rights of my state.

But let me tell you, sir, consistency is the hobgoblin of small minds, and I know Mr. Barr for one has been very supportive of bills that would strip my courts of the capacity to hear class actions. So Mr. Barr, I would say I challenge you. How is it that you can be so protective of states' rights -- and that's what we're talking about. Let's not dress it up in any other language. How can you be so protective of states' rights in some cases, and yet so quick to strip my courts of that power.

I think this is an issue we have to deal with because federalism is being used as a shield, but we have to use it as a sword as well.

And I would say to those of you who would say we have a letter from NAG and there are a few of my colleagues, AGs who have said no, you know what? We don't want the federal government telling us what standards to use in terms of competence of counsel. I would say that argument could have been used to avoid passing the civil rights laws. I would say that we have seen too often the invocation of states' rights to prevent the federal government from doing what is fundamental to our system of justice.

And I sit here as the Attorney General of a state and I say to you we need this federal law. I have seen miscarriages of justice across this country. I have seen states where there is not the requisite due process. And I say that those who would hide behind federalism, try to turn back the clock of this nation. We have seen this move towards federalism too often, and I think it's a shame, I think it is wrong, and I would say to those who would use it, to try to say we cannot impose upon the states these minimum thresholds of due process, I would say that is the wrong direction for us to go.

I think we've been here and we've heard case by case the statistics. We have a witness here who spent years in prison, and should we say because of federalism he should not have his day in court? Should we say that he cannot get fair counsel? I think that is absolutely dead wrong.

And when I see my colleagues who are AGs from other states raising the spectrum of federalism what they're really saying is we disagree substantively with these rights. So let's not hide behind federalism. If there are those who disagree substantively with the notion that we have to impose obligations of fair counsel, stand up and say that's what you object to. But I say to you, do not hide behind federalism. We have seen it too often.

Thank you.

REP. GEKAS: The time of the gentleman has almost expired. Is now expired.

We turn to Mr. Campbell as our last witness.

MR. WARD A. CAMPBELL: Good afternoon.

I think in answer to what the Attorney General of New York has just said, I think that the federalist process in fact is part of the constitutional process. We're not hiding behind a shield when we say we have questions and concerns about the bill that is before this subcommittee. In fact my state is already debating this type of bill, New York has this kind of bill, Illinois has this kind of bill, or has it as law already, Oklahoma does, Arizona does. The states are pretty much responding to this new era of DNA technology and in fact are doing it in a way that the federalist system, as the U.S. Supreme Court just confirmed just this term, as the way they're supposed to. As the laboratory of the country in finding the most innovative and credible ways of dealing with this challenge that DNA technology poses. That is the question and concern that the Attorney Generals raised who signed the letter expressing concerns about the counterpart to this bill that's pending in the U.S. Senate.

I've heard a lot of anecdotes, and I'll give one myself because it helps me discuss this Liebman study that we've been hearing about today. It's become another, I guess, it's going to quickly become part of the mythology that we have this incredible, serious error rate in death penalty cases.

Statistics can be very misleading. Avena, California, when you're dealing with reversals in death penalty cases, that's a highly personal matter. Twenty years ago when I started in this office, the Attorney General's Office, I was asked to help out with a death penalty brief in the California Supreme Court. This would have been in 1980.

I told my supervisor at that time, I just started working here, I'm not really that familiar with death penalty jurisprudence. He said don't worry about it, given the California Supreme Court, this case is going to get reversed, it really doesn't matter what we write in the brief.

And in fact that's what happened to 60 out of the 64 cases that we had during the late '70s and early '80s in California when a different court was in power. And in fact subsequently, although those are still reversals, many of those reversals have been shown in fact to have been improper. It wasn't the defense that committed the error, it was the California Supreme Court that committed the error, and yet those types of statistics are part of the Liebman study, for instance, in indicating a high reversal rate in California.

I think that therefore, it's interesting to me that one of the most important concepts of death penalty jurisprudence, under the 8th Amendment, is that every defendant should get an individualized look, or an individual to show how he is as an individual, a chance to bring forth all mitigating evidence that might justify a verdict less than death. And yet when we examine the death penalty and otherwise look at how it's worked in other aspects, we seem to be content to rely on statistics without looking at the individual cases and trying to analyze why those cases and statistics are the way they look, why there might be a high reversal rate in one state when it turns out that in fact the courts there early on were dealing with a new type of jurisprudence and got many unclear signals from the court, and I think that this committee and the members of this committee should be very, very cautious about taking that type of study at face value without understanding further the actual data that was relied upon. Data, by the way, which none of us have been provided yet. We don't even know what cases Mr. Liebman looked at in order, for instance, to determine what kind of reversal rate he had in California.

Another problem with the bill has to do with the national standards for counsel. I think it's ironic, there's been a lot of talk here about how much better it would be to have a national standard imposed by the federal government for appointment of counsel in capital cases. It's ironic, California just in the last couple of years in fact adopted a series of standards for appointment of counsel on both appeal and habeas corpus for conviction representation in California. We had to make a special provision for counsel who had been appointed in the federal court to represent these defendants in federal cases. They go to federal court, then frequently they come back to state court.

Because the standards are lower in the federal court for appointment of counsel under 21 USC 848, we have to make special allowance to allow us to reappoint those attorneys to represent our defendants when they come back to state court. So from a California standpoint the imposition of use of a national standard is not necessarily a satisfactory experience.

This bill as well, if you're a death penalty prosecutor, contains other things that are rather surprising given that it's called an Innocence Protection Act. We've talked a lot about the counsel standards, we've talked about the DNA. I don't know any prosecutor, frankly, who is opposed to DNA technology for post conviction testing in appropriate cases. I think my written testimony sums up our concerns about this particular bill.

But I think it's important to know when you pass this bill you also establish a regime, apparently, of instructional rules for state courts that are going to put many states courts, state judges and state defendants in a bind as to the appropriate instructions that should be given on sentencing options. For no reason at all you're going to take the state high courts out of the business of adjudicating U.S. constitutional questions after the State of Illinois went to a lot of trouble upholding that in the U.S. Supreme Court just in the last two years. And there seems to be no explanation for why this particular change has been made in the bill as well.

All of those are aspects of the bill that have influence the Attorney Generals, including my Attorney General Bill Lockear, who signed the letter expressing concern about the Senate bill and now it's version before this committee.

Thank you, Mr. Chairman.

REP. GEKAS: We thank the gentleman.

As the Chair predicted, we did finish by 4:15, with respect to the first offerings of the members of the panel. Now the Chair is going to make a decision.

Those members of the panel who believe that they cannot return, or cannot remain here to answer questions from the members are going to be excused with the thanks of the Chair, with the admonition that we will reserve the right to submit written questions to you after you return to your own desks. That's one.

Number two, I beg of you, those who can remain, to stay where you are until the members of the panel repair to the floor, vote the two votes that are now called, and then return for examination.

I'm going to poll the panel, poll the jury here. How many of you can stay? (Hands raised) That's excellent. Those who must leave, are excused.

This committee stands in recess pending the completion of the two votes now called in the chamber.

(Recess taken)

REP. GEKAS: The time of the recess having expired, the committee will come to order.

As the members begin to gather again for the remainder of this hearing, the Chair will indulge in a few preliminary questions.

When the Governor was testifying I asked whether he knew whether the people that he had gathered for the commission that he had authorized were going to determine standards for, at least I thought I was asking, or tried to ask him this, standards for what would be competent counsel. I think we've been struggling with that as lawyers and as lawmakers, and as people in law enforcement for a long time.

Mr. Coleman, did you not say in your testimony that in representing the Bar, that we were talking about qualified counsel? To me, it is possible that one who graduates from law school and is given a shingle and hangs that shingle, 24 hours later he's qualified. Maybe earlier than that. But competent counsel, which I thought was the real criterion for it, is totally different.

I remember I was a prosecutor and I handled half a dozen murder cases, homicide cases I think during my incumbency. When I became a defense attorney one of the first cases I had was a defense of a homicide. I was qualified, I was competent -- in my own mind I was competent and qualified. Nobody would ever question that. Why? Because I had tried criminal cases on the other side of the courtroom, as it were. Yet I think that that was my first defense case. Was I qualified? Was I competent? I'll never know. I won the case, by the way, so I guess I was competent. No, I didn't win the case. No. (Laughter) What happened was he was indicted for first degree murder and the jury found him guilty of voluntary manslaughter. So it was a big victory even though he was convicted.

Question. Was I qualified? Was I competent having never tried a defense case before?

Speak to the competency portion. What should we do about standards? Does the Bar Association that you represent, Mr. Coleman, have a prescribed set of standards for qualified counsel?

MR. COLEMAN: The American Bar Association has published a set of guidelines for the appointment and performance of counsel in death cases which establishes minimum qualifications for appointed counsel to handle capital cases.

And what the standards seek to do is to identify the minimum qualifications that a lawyer should have in order to assume responsibility --

REP. GEKAS: You mean like number of trials they've participated, how many years they've been at the Bar, their age, what school they came from, et cetera?

MR. COLEMAN: No. What we're talking about is qualification to do, to handle a capital case. Familiarity with the law, substantive law; familiarity with the procedural rules; experience in actually trying capital cases; experience dealing with juries --

REP. GEKAS: How do you get that first capital case defense, how do you get that tried if you never had it before?

MR. COLEMAN: By being co-counsel, second seat.

REP. GEKAS: Second chair.

MR. COLEMAN: That's correct.

The standards, the guidelines that the ABA has published would require the appointment of two counsels. One lawyer the lead counsel who would be required to have the type of experience that I talked about in the handling of capital cases. The second lawyer would not need as extensive experience handling capital cases, and in that manner would develop the experience and competence.

REP. GEKAS: Do you think these should be set in the law that we're about to consider here, in the statute, in the bill, that we ought to have standards of competency when we're concerned about competency? Isn't this back to the federalism question? Isn't that best left to the states to determine the competency of counsel for defense of any kind of case even capital cases?

MR. COLEMAN: The bill doesn't do that. All the bill does is to require the Director of the Administrative Office of the United States to establish minimum criteria for the appointment of counsel.

But the important aspect of the bill, in my view, is that it requires an independent body to do that, to monitor the performance of counsel in these cases, to recruit qualified lawyers to be certified to handle these cases, and to provide for the compensation of the counsel.

REP. GEKAS: where do we come in, does anybody have any comment on this question with respect to states doing it and the federal government imposing the preliminary conditions?

MR. BRIGHT: If I could, Mr. Gekas, add one thing to what I think the formula is. You've got to have structure, just like you had when you became a young district attorney, a young prosecutor. You were brought into the office, you were trained, you were given some of the less important cases, you were supervised, and as you gained seniority you then were assigned the more serious cases, the homicides and so forth.

In most, in very many states we don't have public defender offices. There are no offices to train lawyers, to put them in misdemeanors, bring them up to felony cases, train them, supervise them, and make sure that the people who finally end up trying capital cases have had that wealth of experience.

You were qualified because you had had it on the prosecution side. But a lot of people don't. And unfortunately, the second thing is resources. If you're not paying but $20 an hour which is what a lot of jurisdictions are paying, you just don't get very good legal help. You call a firm in Houston and ask them to do a will for $20 an hour and see what they say. I mean you just don't get a very good lawyer for $20 an hour.

So you end up with a lot of people practicing out of their homes, people that don't have investigators, people that don't have the capability to handle cases of this magnitude -- that's Mr. Graham's case that was alluded to here earlier. He was represented by a lawyer who literally practiced out of a bar and who, by his own admission, has more people sentenced to death than any other lawyer in the country. That kind of lawyer shouldn't be assigned to cases.

The third thing, as Mr. Coleman said, is independence. A survey recently in Texas showed that half the judges in Texas in responding to a survey said they appointed lawyers based on how quickly they moved the cases through the system. That's not the criteria for appointing a lawyer. You're supposed to appoint a lawyer to give a zealous defense to the defendant.

The other thing that happens, we have elected judges in almost all the states that have the death penalty. And elected judges often appoint lawyers who contribute to their campaigns.

Again, that's not the criteria for appointing a lawyer to handle a case, the fact that the lawyer gave to the judge's campaign. But again, the survey in Texas shows that that's a major consideration with whether or not, all over the state. And that's true in other states as well.

REP. GEKAS: I think that's a rather heavy indictment to place at the hands of the judges who are elected --

MR. BRIGHT: The judges indicted themselves. They signed, they gave the survey.

REP. GEKAS: I wish you could temper that. It's kind of a wide- ranging accusation.

But in any event, the time of the Chair has expired.

The gentleman from Virginia is recognized for five minutes.

REP. SCOTT: Thank you, Mr. Chairman.

Mr. Neufeld, of those who came to you proclaiming innocence for which DNA evidence turned out to be available, what portion of those were in fact innocent?

MR. NEUFELD: To date, Congressman Scott, we've had approximately 62 people where we've actually gotten the cases to the laboratory and done DNA testing. Of those cases, approximately 40 were cleared by the DNA testing, and to date I think 22, maybe 23, the DNA testing confirmed guilt. So we're running at about two-thirds of those people who we've done DNA testing on post conviction proved that they were innocent.

REP. SCOTT: And of those who got to the same point and you found out there was no material to test, how many people are in that category?

MR. NEUFELD: To date, Congressman Scott, approximately 75 percent of all of our cases where people are otherwise eligible for DNA testing because they met our rigorous criteria, we could not go forward with it because the evidence had been lost or destroyed.

REP. SCOTT: And what happened to them? You assumed that --

MR. NEUFELD: Those people are either executed or those people are continuing to languish in prison.

REP. SCOTT: Is there any reason to believe that two-thirds of them too would not be?

MR. NEUFELD: There's no reason to believe that there's any difference in the frequency of exoneration of people where the evidence was found versus people where the evidence was not found.

REP. SCOTT: Thank you.

Mr. Chairman, I'll yield the balance of my time to the gentleman from Massachusetts.

REP. GEKAS: The gentleman from Massachusetts is recognized.

REP. DELAHUNT: Thank you, Mr. Chairman.

Mr. Neufeld, you've read the bill.

MR. NEUFELD: I read the bill.

REP. DELAHUNT: And you earlier heard the observation or a comment by my friend from Georgia, Mr. Barr, regarding the compensation issue of those who are wrongly convicted?

MR. NEUFELD: Yes.

REP. DELAHUNT: Would you agree with me that Mr. Barr might be somewhat confused given the fact that he, to my memory, and I think that the transcript of the hearing would corroborate this, that he made the statement that there was a burden imposed upon the states that if an individual who is unjustly convicted in a capital case would be entitled to $100,000 per year.

Now does your reading of the statute agree with that statement or

MR. NEUFELD: I guess it depends on what you mean by the word "reading".

But clearly, I think in all fairness to Mr. Barr, I think he's simply confused and perhaps misread the bill. There is no requirement that the state provide compensation --

REP. DELAHUNT: Let me be very clear, and I don't mean to play with it, but I think that statement has to be responded to because that $100,000 per year compensation to an individual who has spent time on death row involves the federal system. There is nothing in this bill whatsoever that would impose that burden on the states.

MR. NEUFELD: I might also add, Congressman Delahunt, that he also said that the burden of proof was simply whatever you mean by unjustly convicted, whereas in fact the statute is quite clear on what that burden is.

The burden is on the person whose conviction was vacated to prove that he is in fact innocent of all the charges that got him there. It's a very, very specific burden.

REP. DELAHUNT: Thank you for picking up on that.

In terms of,I think it's also been raised, or a concern has been expressed about the DNA testing leading to interminable delay.

Again, a simple perusal of the legislation as paroled indicates that that can be dealt with by notice by the government to counsel for the defendant or the defendant, if he or she happens to be pro se, and if there is no application after 90 days that evidence can be destroyed. Is that a fair statement of the reading of the bill?

MR. NEUFELD: Yes. In each and every instance the state can trigger the requirement of a motion being filed by giving the 90 day notice.

REP. DELAHUNT: So it's really in the control of the state in the real world, would you agree with that?

MR. NEUFELD: It's certainly within the control of the state within the real world and certainly the bill does nothing more than give the state an opportunity to bring the issue forward.

REP. DELAHUNT: Right, because I presume that if there were any questions or in fact it might become a pro forma motion by the state to simply notice the defendant or the counsel that he or she has 90 days, and how that leads to interminable delay, I just simply can't understand.

One final question to Mr. Bright.

I think you've answered this, but I think it was raised by Mr. Campbell where he indicated that in California the standards set for competency of counsel or competent legal services, is higher than what is in the bill. But I think in my conversations with what I hear from you is that the statute, the bill as put forth now, would present minimal standards that not every state in the union ascribes to. Is that correct?

MR. BRIGHT: Absolutely. And I think the history on this is quite clear, and I want to say one thing about the federalism concern with this. The history is quite clear that many states have never set up indigent defense programs. Gideon vs. Wainright was decided almost 40 years ago, and we still have states that have no public defenders, that pay token amounts of money.

And one thing that I would point out is, one of the problems that we have in this area is the federal government gives a huge amount of money to the states for crime control, a huge amount of money goes for law enforcement, a huge amount of money goes to the prosecution, and the states have not spent that money responsibly. They have not maintained an adversary system. They have put all the money into police and prosecution, and you've got a system that was totally overwhelmed, a non-existent indigent defense system, that was totally overwhelmed ten years ago, and now there are far more cases being put in that same system.

That's why it seems to me that if the federal government is going to make money available to the states, at the very least it can say well part of the condition of that is that you actually have a functioning adversary system so that you're convicting the right people in your court. That doesn't seem to be asking too much. And part of having a functioning a adversary system is having the defense function. That's the function that's missing in a lot of states. Missing completely.

REP. GEKAS: The time of the gentleman has expired.

The Chair turns its attention to the gentleman from Florida, Mr. Canady, for five minutes.

REP. CANADY: Thank you, Mr. Chairman. I want to thank all the members of this panel for their testimony. It has been very instructive. All of you bring an important perspective to this. But I have to especially thank Mr. Bloodsworth for his very compelling testimony.

I don't think there's anyone who has the least bit of humanity who could listen to the story that Mr. Bloodsworth has told without feeling moved and very concerned. So I want to thank you for taking the time to be here.

The problem with unreliable eye witness identification is a serious issue. Justice Kogan also touched on that and related one of his experiences related to that. Sometimes that's an issue that can be addressed with DNA testing. In Mr. Bloodsworth's case, thankfully, that was the solution. There are other cases, however, where DNA testing just is not applicable. That's not a route to solve the issue.

What do we do about unreliable eye witness identification? Not just in the capital context where admittedly it is a more serious matter if someone's life is going to be taken, but in any context. How can we do a better job of addressing that? What safeguards can we put into it? Do juries need to be instructed differently concerning eye witness identification? I'm interested in suggestions or thoughts of any members of the panel, starting with Justice Kogan.

MR. KOGAN: If I can say this, Mr. Canady, I think first of all that when we have eye witness identification that is shaky or not reliable, the competency of counsel of course plays a great deal in how that case is going to be tried.

REP. CANADY: But if I can -- I want to give you time to finish this, but I don't know about Mr. Bloodsworth's case, but assume there had been no DNA available there, it very well could have been that he had competent counsel, or certainly one could imagine a case like that where counsel was very competent, but you have multiple eye witnesses who identify someone, and then it's still a problem. But please proceed.

MR. KOGAN: I've often thought about that particular problem because I'm well aware of the fact that you can have the best attorney in the world and still get convicted on eye witness testimony that is wrong -- whether it's deliberately wrong or whether it's mistakenly wrong, it's still wrong.

I have long believed, and this issue has come up in the Florida Supreme Court.

We've never really sat down on it and decided on what a policy ought to be. But I think when you've got eye witness testimony, that the courts ought to allow one side or the other, in this case the defense, to call experts in eye witness identification. There are people out there who can explain the dynamics of what takes place when somebody identifies someone that they have never seen before, which is generally what happens in most of these cases.

Then for the judge to have a jury instruction which goes to that when the judge is instructing the jury at the close of the case as to what you need to look for in eye witness identification.

Now that may very well help, I think it would.

But you know, we're talking now about an imperfect system run by human beings that are attempting to come out with a perfect result. We're never going to be able to do that, and that's where the problem lies.

MR. NEUFELD: Mr. Canady, if I can answer that, because actually we deal with that issue prospectively on a system-wide basis. And it's simply this.

What we're talking about, we're talking about these problems such as eye witness identification or false confessions or bad lawyers. The beauty of these DNA cases is we know these people were in fact innocent so we can go back and see how the procedures were conducted in those cases and then make structural reform. The same way we do when an airplane falls from the sky, the National Transportation Safety Board intervenes. The same way I do it at the hospital when there's an unexpected death and we have a peer review committee look at what happened.

We did it with these cases, these people who were exonerated. And what we found is that you can actually make some major reforms, very simple reforms, that Republicans and Democrats, prosecutors and defense attorneys could all see as appropriate.

For instance, with eye witnesses. Don't have the police officer who is actually conducting the investigation conduct the eye witness procedure. He may have the best of intentions, but he or she may inadvertently say something to influence the witness. We've seen it happen too many times.

Don't have a police officer show a photo spread at one time. Instead, have the police officer show one photograph at a time. There's a wealth of social science data which we can look at and we can start approaching this whole issue of criminal justice scientifically, which is what we're trying to do with DNA in the first place. And the social scientific data says that when you show somebody a spread of six or seven people at one time if the true perpetrator isn't there, there's an inclination on the part of the witness to think to himself or herself, who most looks like the real perpetrator that I saw amongst this group?

But if you don't do that and instead you say I'm going to show you one photograph at a time and if you see the person who did this, I will stop. If you don't, I will keep going. All the studies indicate there's much less likelihood that a person will pick the wrong person, yet all the studies indicate that when you do it that way you don't reduce the likelihood that if the real perpetrator is present, that he will be picked.

So if we start bringing about these kinds of scientific reforms and start talking scientifically about criminal justice, we'll make the major reforms that you're talking about.

REP. CANADY: Thank you -- Sure, Mr. Campbell, please do.

MR. CAMPBELL: I think part of the problem is that frequently, no matter what protocols you may have set up, given what is going on in an investigation, what the time sequence is, what's going on, it's not always possible to observe real nice protocol about getting identifications done, especially if you have a suspect on the loose or you're trying to make an arrest.

But I will say in California, following up your suggestion. We have in fact got into the experience of having eye witness experts testify. We have had courts give instructions at times on the possible vagaries of eye witness identifications, and so far that's a system that's worked well in the states.

REP. CANADY: Thank you.

Let me focus on a point that Mr. Coleman made in his testimony on behalf of the ABA. In your testimony, Mr. Coleman, you said that the Association believes that the focus of death penalty litigation should return to the state courts where the trial, once again, should be the main event.

I think that's probably a statement that just about everybody involved in this whole discussion would agree with. I don't think you'll find many people who will dissent from that. Now exactly how you implement that and what the implications of that are is a different story.

Let me ask you this, Mr. Coleman and others, if you wish to join in. What states do you, based on recent experience, do you believe are doing the best job of ensuring that capital cases are tried in a way that is fair to the defendant?

MR. BRIGHT: The answer to that I think pretty clearly would be New York, Colorado, New Jersey. Those are states that have state-wide public defender offices. They're states that have units that specialize in capital cases. Capital cases are a subspecialty of criminal law. And the idea that just some local lawyer in town that does wills, divorces, and title searches can do a capital case is preposterous, but that's the system we have in a number of states.

But I think if you look at those states and look at what they've done, they've got a structure in place, they've got the resources there, they've got the training, they've got independence.

For example in New York with the capital defender office there, the minute a case might be even considered a capital case, people who specialize in capital representation would become involved in that case as long as that's the case.

The difference between that and these states where anybody with a bar card and is breathing can be appointed, is the difference between night and day.

So the models are there, but they cost some money. The problem is there have been a lot of jurisdictions that just have not been willing to pay the price of having either an indigent defense system generally, or those particular offices in particular.

REP. CANADY: I see that my time has expired. I appreciate the Chairman's indulgence. I want to thank all the members of the panel.

REP. GEKAS: We thank the gentleman. We turn to the lady from Texas for a period of five minutes.

REP. JACKSON-LEE: I thank the Chairman and I, too, am going to add my appreciation to the Chairman for his indulgence because this is important testimony as well as I hope our questions are important, and I hope that I'll have the same opportunity in case some of my questions are in the midst of being answered.

Let me thank you gentlemen for staying as well, on this panel. I certainly want to again acknowledge the value of this legislative initiative.

But I want to again acknowledge the comment both by the ranking member of this committee, though I did not hear him, I guess I'm going to read his mind, but the ranking member of the full committee and the subcommittee. I hope that we will have an opportunity to have more expanded hearings on this issue of the death penalty.

I say that because the elements of the legislation that we are reviewing today or having a hearing on has several elements that I think are very valid. That is pre and post conviction DNA, the issue of dealing with compensation for a gentleman like Mr. Bloodsworth, and as well the issue of effective counsel.

However, I believe there are much larger and more global issues that we have to confront.

And to the federal nexus question, since I am a beneficiary of the utilization of the 14th Amendment and due process in many instances as an African American, and if utilization has been used on global needs of this nation when something is globally broken such as the treatment of African Americans over the last century and others, and the passage of the Voter Rights Act of '65 and the '64 Civil Rights Act, I am troubled by a letter from the Attorney Generals predicting that we're going down the right path before allowing us -- I appreciate their input on this legislative initiative, but I am somewhat disturbed that they would post a negative perspective including my Attorney General, when it is well known that the federal government intrudes or steps in when something is broken.

I frankly think this is broken. I think Governor Ryan has made a very valuable point about rewriting his penal code.

So I'd like to raise some questions Mr. Neufeld with you, if I've pronounced your name correctly, on this whole concept of a national innocence commission. You're doing it in New York, but I don't know what's going on in Texas, and when I say I don't know what's going on documented, preciseness on Texas, though I know we've had studies by the Chicago Tribune. Or maybe Georgia, or maybe my neighbors further to the north, Maine. I don't want to call out any states for fear that I have some inside knowledge.

But how would we value a national innocence commission to sort of look at this as either a spreading national problem or an existing national problem?

MR. NEUFELD: There are two kinds of national innocence -- there's a national innocence network that's currently being formed right now. In fact Mr. Coleman, who is here, is part of that. There are students at Duke University, North Carolina, Northwestern University of Washington, Nova University in Florida. There are about 15 different law schools and some journalism schools that are not part of this national innocence network to reinvestigate claims of actual innocence.

In addition to that, though, you're raising the more important issue which is a national commission on innocence. Of course Governor Ryan -- REP. JACKSON-LEE: We're not talking about the private sector format as much as I'm talking about federally supported.

MR. NEUFELD: Governor Ryan, obviously, is doing just that. What he's saying is look, there were these innocent people who were convicted and sentenced to death and had those sentences and those convictions affirmed on appeal. What went wrong?

Governor Petacci recently introduced legislation in New York that would do exactly the same thing, would call on our friends the Science Commission that I sit on by appointment by Governor Petacci, to investigate the DNA exonerations and find out what went wrong in the criminal justice system and make suggestions for reform.

There's no question that as a nation we need to do exactly that.

I mentioned a moment ago that we do that when there is a catastrophe such as a plane crashing from the sky or a train derailing. We do that in medical centers with unexpected fatalities. We do that in every single institution in this country where life and liberty are at stake except one -- the criminal justice system. It makes no sense.

The beauty of DNA is it's given us the first opportunity to use it as a window to find out what went wrong and then fix it. We're not talking about overwhelming problems that are irreparable. We're talking about simple problems such as eye witness identification which can be fixed.

REP. JACKSON-LEE: So you would support or you would see the value or the importance of a commission appointed by the Department of Justice and/or the Chief Executive Officer as augmented by legislation, a commission that was federally augmented or supported to look at it on a national level and advise those who deal with the federal laws as they impact our states.

MR. NEUFELD: Certainly. In fact there's a national commission like that in Great Britain that looks at old convictions to see whether they were unjust and then tries to make a systemic change.

There was one that was used in Ontario after a very high profile case. The provincial commission in Ontario met for two years and formulated very serious recommendations which have been implemented, thus reducing the likelihood of miscarriages of justice happening in the future.

We do it in every other institution. We should do it in criminal justice.

REP. JACKSON-LEE: I thank you very much.

Let me go to Mr. Coleman to raise a question that I raised with Governor Ryan, and I appreciate his asking if he understood the question because really I was pointedly directing him to some local facts with Mr. Graham, and that is, of course, that there was a single witness of which we certainly welcome witnesses coming forward, but at the trial level, noted witnesses that were in the police report were not admitted.

My question, and let me ask the Chairman if I might submit for the record an article by Edward Lazarus, "The Limits of DNA Justice," Washington Post, June 16, 2000, "Testing is no substitute for a fair trial." I'd just ask if I could submit that in the record and I'll finish up with my questions.

REP. GEKAS: Without objection.

REP. JACKSON-LEE: The question of Mr. Coleman is, with this either national innocence commission or the erratic or distinctive ways the death penalty is handled in the 50 states, such as an administrative board that has sole power versus another structure, do you believe that at the federal level with either an innocence commission or designing standards by which on those level cases all 50 states would adhere to, is a valid response to what we're seeing now such that cases that wind up like Mr. Graham's case that had a lot of elements, ineffective counsel, et cetera, can be brought to a singular pool and be responded to?

MR. COLEMAN: I'll respond on behalf of myself because, as I said, the American Bar Association does not yet have policy on these issues.

REP. JACKSON-LEE: I appreciate that, thank you.

MR. COLEMAN: But I agree with what Mr. Neufeld said. That it would be helpful -- I think anything we can do at an level of government that helps to identify what causes cases to go wrong and to fix it is a good thing, and I find it difficult to think that anybody would disagree with that.

I think, though, that nothing substitutes for states also actively pursuing this issue. I don't think there ought to be a competition between the federal government and state governments. I think state governments ought to do this too. This is true also for ensuring competent counsel. They haven't. I think that's why it's important that Title 2 be enacted because someone has to do something about this. I think there's a crisis.

REP. GEKAS: The time of the lady has expired.

The Chair now allots five minutes to the gentleman from Georgia, Mr. Barr.

REP. BARR: Thank you, Mr. Chairman.

Mr. Coleman, one of the terms that you used during your testimony was an intolerable risk. Would you define a tolerable risk for me please?

MR. COLEMAN: I think any risk in a capital case that an innocent person is executed is intolerable. I think that --

REP. BARR: Can you ever reach that state? That's really my concern. What you're saying is not just that any risk is intolerable. Particularly given the direction in which this legislation would take, and granted I understand you haven't taken a position on the Title 1 provisions of the bill which are those that have their own problems. Basically saying, and we've already heard testimony even from the proponents of this legislation, that the state of the art is such that technology is advancing so rapidly that if we assume today is day one, we have a certain level of DNA testing that will tell us a certain thing, either a false negative or a positive. Six months from now it may be entirely different. We may have moved that much just in six months.

Under this legislation, it would be a forever elusive goal. You would never ever get to the point, most likely -- most likely -- that you would have a test for which somebody could not come in and claim well, the technology has advanced since the time of the last test so I think there's some reasonable grounds that this test could be even marginally different, yield different results.

Given that, and given what you said about risk, basically is not what you're saying that we can never have a death penalty if there is ever a question about physical evidence that could be subject to some sort of testing.

MR. COLEMAN: I recognize that we cannot in every case eliminate a risk that something terribly wrong happens, but I think that what we can do is to correct obvious errors that are obvious to us, that we see repeated in case after case. That's where we are now. We're not at the point now where --

REP. BARR: But certainly the criteria is that somebody would use under this statute is not well, if it's not a repetitive problem it's okay, we can go ahead and execute him.

MR. COLEMAN: I'm not talking about -- the problem doesn't have to be repetitive. The question is did something go wrong that we could have prevented by having a better system. I think we're at a point now where we can create a system that is better than what we have, and the system that we have, as a lot of people have said, is broken. It results in too many errors. And some of those errors have resulted in --

REP. BARR: How many errors is too many errors?

MR. COLEMAN: Well, when you have 13 people --

REP. BARR: Would one error be too many?

MR. COLEMAN: When you have 13 people in Illinois who are released from death row because they were innocent, that's too many.

REP. BARR: So 13 would be. Would 12?

MR. COLEMAN: Twelve might be, yes.

REP. BARR: Eleven?

MR. COLEMAN: Depending, yes.

REP. BARR: I mean, what I'm saying is if you get down to it, is one too many? And if that's the criteria then I go back to my original question. What you're really saying is we should not have a death penalty.

MR. COLEMAN: No. I think one is too many if the person is convicted and sentenced to death row because he had an incompetent lawyer and because there was something available, some scientific method available that could have exonerated him that was not used. I think one would be too many in that circumstance.

REP. BARR: But you will look at this bill, because I think the earlier provisions in this bill, those that come up before the Title 2 have some problems that you might want to look at.

MR. COLEMAN: When the ABA adopts policy on DNA then we'll look more carefully at Title 1.

REP. BARR: Mr. Campbell, the fellow who was sitting next to you and has now left, very sarcastically sort of swept aside issues of federalism. I don't think you're quite so cavalier about that.

Are there any particular problems with federalism that you see with this particular legislation that has been introduced in both the House and the Senate, and if you could also, let me know if you have read the National Association of Attorneys Generals letter of June 8th, 2000 which is signed, I believe, by about 30 Attorneys General, both Republican and Democrat, which do raise specific problems of federalism.

MR. CAMPBELL: I have read the letter. We think probably there's a specific issue about federalism involved in that part of the statute which is going to actually require the states pursuant to the 14th Amendment, to have a DNA procedure. There simply is no -- There will be some questions raised about whether or not that is a proper exercise in Congress' power and under the 14th Amendment.

But beyond that, the parts of the bill that for instance will suspend procedural default rules and the exhaustion doctrine if we don't adopt the counsel standards go directly to the heart of doctrines that the courts have long observed, that have preserved the relationship between the federal courts and the state courts. Primarily the role of the state courts and the states as the primary adjudicators of guilt or innocence as affecting the form for the main event of a criminal trial, which is still the trial in front of the jury that goes on in the state courts.

There will no doubt be serious questions I think raised as well about the fact that this bill simply is going to remove the states' highest courts apparently from their role as co-equal partners in interpreting the federal constitution, because inmates are not going to be required to seek discretion and review from those courts before they go to federal courts for purposes of habeas corpus petitions in that court.

So those are examples of the ways I think the bill disrupts what have been the federal/states relationship.

I think also this idea of a national innocence commission which has been raised, just kind of thinking about it, in fact we've had this going on for a number of years. We've already revised the death penalty statutes, the courts have already during the period of 1972 and 1976 because the concern was that the old death penalty was too arbitrary and irrational. We were told how to reconstruct our statutes. We did so. Now we're being told once again that the system is not working sufficiently. We've had problems with eye witness testimony. The courts using the 6th Amendment power have changed the rules for purposes of counsel being present for lineups, for how eye witness or lineup testimony is used.

We've had an evolving doctrine involving work between the federal and the states of problems with trials as they've occurred and as they've developed over the years. And that's what we're doing once again at the state level with DNA technology, which is once again something that the states I think can handle adequately without being given a one size fits all approach, which is exactly what this bill is

REP. BARR: With unanimous consent, Mr. Chairman, I just want to yield just for a moment to Mr. Delahunt and then to give Mr. Neufeld a chance to respond.

REP. GEKAS: Without objection.

REP. DELAHUNT: I thank my friend from Georgia from yielding.

I just wanted to point out pursuant to the authorization by Congresswoman Jackson-Lee that the bill itself in Section 404 requires a report which I think embraces her concerns and a suggestion that a thorough examination of the implementation in the administration of capital punishment be conducted. In fact it reads, no later than two years after the date of enactment of this act, and annually thereafter, the Attorney General shall prepare and transmit to Congress a report concerning the administration of capital punishment laws by the federal government and the states. I think that's a provision that I would hope would win unanimous support by this committee if we should ever get to that point.

REP. BARR: Thank you.

And if Mr. Neufeld could respond, he'd had a comment on my question to Mr. Coleman.

Would that be okay, Mr. Chairman?

MR. NEUFELD: Thank you.

Congressman Barr, when you were questioning Mr. Coleman, you were asking a question which is couched in the assumption that somehow this bill allows people to keep coming back to court and asking for new DNA testing as the technology evolves no matter what the result was the previous time. I think there's some confusion because the bill does not allow that at all.

REP. BARR: I read it that way.

MR. NEUFELD: Let me just read to you why that's not what it says, okay?

That's because if you look at the section for instance which says, let me give you an example. The best example is that a person was convicted in 1994 and the prosecution relied on a first generation RFLP test and it found that the semen recovered in a rape murder matched the defendant, and the possibility that it came from some other defendant is one in five million or one in 20 million or one in 20 billion.

Now there's a new kind of technology called PCR technology, so a defendant wants to come back into court and ask for that new kind of technology. This statute will not allow him to do that, will definitely not allow him to do that once the DNA testing has already determined that there's a match and there's an inclusion.

Specifically, if you look at the language on page seven, which is subsection three of, and I apologize, of Chapter 156.

REP. BARR: That's one of the provisions that I read the way --

MR. NEUFELD: Let me read it to you, if I may.

Subsection three says that the evidence was not previously subjected to DNA testing, or can be subjected to retesting with new techniques that provide a reasonable likelihood of more accurate or probative results.

I submit to you there's not a judge in America who would find that if a person was convicted on the basis of RFLP testing which determined that there was a match, and then went back into court and asked for new testing in 1999 or the year 2000 with another technology, no judge would find that there was a reasonable likelihood of more accurate or probative results.

REP. BARR: And I would submit you can never say never about judges.

MR. NEUFELD: Moreover -- What?

REP. BARR: I would submit that you can never say never about judges. These are very amorphous terms.

MR. NEUFELD: I don't think they are, and I can only tell you that the judges that we deal with in Illinois and New York where these statutes exist have never had a problem seeing any ambiguity in those kinds of terms.

Also if you look at the next section where it says the order. A judge will grant the order upon a determination that testing may produce non-cumulative exculpatory evidence.

What I'm telling you is that once there's been a DNA match with one in ten million in 1993, no judge is going to find that a new test may produce exculpatory evidence.

REP. BARR: The certainty of --

MR. NEUFELD: I've never seen it happen anywhere in America.

REP. BARR: The certainty of the judicial system that you indicate is not something in my experience that's been there.

REP. GEKAS: I agree with the gentleman from Georgia as I shut him down. But I do agree, Mr. Barr, that Mr. Neufeld speaks with such positiveness in that a judge could not change his/her mind based on the new DNA evidence produced, I think is extreme on the part of Mr. Neufeld. But that's my opinion.

MR. KOGAN: Mr. Chairman?

REP. BARR: Mr. Chairman, could I ask unanimous consent, because I know that Judge Kogan wishes to make a comment and an observation. Just for another additional minute.

REP. GEKAS: Yeah, without objection.

MR. KOGAN: Mr. Chairman, this is in Ms. Lee in regards to her national commission that she's been speaking about.

We do have a national committee to prevent wrongful executions which is sponsored by the Constitution Project of Georgetown University Law Center. On that particular committee, of which I am the co-chair, we have Democrats and Republicans, we have pro death penalty and anti death penalty, prosecutors and defense attorneys, trial judges and appellate judges, victims advocate groups that are represented. We are working on that now on a national level. We're available for any consultation that you would like to have with us, and give you whatever input that we possibly can.

REP. JACKSON-LEE: Since you've directed that to me let me applaud the work of that commission. It is not federally initiated or sponsored. It is an initiative that is in the private sector which I appreciate, though. You have a very vast and representative membership and I look forward to working with you on that.

I do believe there is a distinction with a federal commission somewhat similar to responding to the concerns that were answered by the ultimate vote on civil rights legislation, that we have a promise broken, the due process issue, and it should be done at the federal level.

I thank the gentleman for his --

REP. GEKAS: The time of the gentleman has expired. All the time has expired.

The Chair and the committee thank the members of the panel for an extraordinary hearing, one which will serve us well as we produce more hearings and other debates that touch upon this subject.

We wish you well, and we ask you to keep in touch one way or another.

Before we adjourn, we want to ask unanimous consent that the written testimony of George W. Clark, Deputy District Attorney for the County of San Diego, and that of Kent Scheidegger, Legal Director of Criminal Justice Legal Foundation, that the testimony that would have been presented by them had they been able to appear, be made a part of the record.

We thank the panel. We thank the members.

END

LOAD-DATE: June 23, 2000