[Senate Report 107-315]
[From the U.S. Government Publishing Office]
Calendar No. 731
107th Congress Report
SENATE
2d Session 107-315
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THE INNOCENCE PROTECTION ACT OF 2002
_______
October 16, 2002.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 486]
The Committee on the Judiciary, to which was referred the
bill (S. 486) to reduce the risk that innocent persons may be
executed, and for other purposes, having considered the same,
reports favorably thereon, with an amendment in the nature of a
substitute, and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and summary..............................................1
II. Legislative history..............................................2
III. Votes of the Committee...........................................6
IV. Discussion.......................................................7
V. Section-by-section analysis.....................................42
VI. Cost estimate...................................................46
VII. Regulatory impact statement.....................................46
VIII.Minority views of Senator Hatch.................................47
IX. Changes in existing law........................................216
I. Purpose and Summary
The purpose of the Innocence Protection Act, S. 486, is to
help reduce the risk both that innocent persons will be put to
death and that those guilty of violent crimes will remain at
large. The bill, as amended and reported by the Senate
Judiciary Committee, would improve the administration of
justice by (1) providing eligible inmates access to DNA testing
to establish innocence; (2) authorizing grants to assist States
in improving systems for the appointment of capital defense
attorneys; (3) authorizing grants to train State and local
prosecutors, defense counsel, and judges in handling capital
cases; (4) increasing compensation of individuals wrongfully
convicted in Federal court; (5) staying the execution of
inmates whose cases are pending in the U.S. Supreme Court; and
(6) establishing a student loan forgiveness program for
prosecutors and public defenders.
II. Legislative History
A. 106TH CONGRESS
The Innocence Protection Act was first introduced as S.
2073 on February 10, 2000, by Senators Leahy, Levin, Feingold,
Moynihan and Akaka. A revised version of the bill was
introduced as S. 2690 on June 7, 2000, by Senators Leahy, Smith
of Oregon, Collins, Levin, Jeffords, Feingold, Moynihan, Akaka,
Kerrey, and Wellstone. Representatives William Delahunt, Ray
LaHood, and nine cosponsors introduced the measure in the House
of Representatives as H.R. 4167 on April 4, 2000.
On June 13, 2000, the Judiciary Committee held a hearing
entitled ``Post-Conviction DNA Testing: When is Justice
Served?'', chaired by Senator Hatch. The witnesses included two
State Attorneys General--Drew Edmonson of Oklahoma and Elliott
Spitzer of New York--and three members of the Department of
Justice's National Commission on the Future of DNA Evidence--
George Clarke, Deputy District Attorney in San Diego, CA; James
Wooley, a partner in the law firm of Baker & Hostetler and a
former Federal prosecutor; and Barry Scheck, cofounder of the
Innocence Project at the Benjamin N. Cardozo School of Law in
New York City. The other witnesses were Enid Camps, Deputy
Attorney General for the State of California; Charles Baird, a
former judge on the Texas Court of Criminal Appeals and cochair
of the Constitution Project's National Committee to Prevent
Wrongful Executions; Joshua Marquis, District Attorney of
Clatsop County, OR; and Dennis Fritz, a man wrongfully
convicted of rape and murder who was exonerated through DNA
testing after serving 12 years in Oklahoma prisons.
Incident to the June 13 hearing, the Committee received
letters in support of S. 2690 from former Associate Deputy
Attorney General Bruce Fein and Prof. Larry Yackle of Boston
University Law School. Other items submitted for the hearing
record included the following: a memorandum entitled ``The
Effect of the Innocence Protection Act on State Sovereignty'';
a letter from former F.B.I. Director William S. Sessions to
Senator Hatch dated June 12, 2000; Chapters I-III of the
National Institute of Justice report entitled ``Convicted by
Juries, Exonerated by Science: Case Studies in the Use of DNA
Evidence to Establish Innocence After Trial,'' published in
June 1996; Chapters I-III of the National Institute of Justice
report entitled ``Postconviction DNA Testing: Recommendations
for Handling Requests,'' published in September 1999; and the
executive summary of ``A Broken System: Error Rates in Capital
Cases, 1973-1995,'' published in June 2000 by professors at
Columbia University.
One week after the Senate hearing, the House Subcommittee
on Crime held a hearing on H.R. 4167. Testifying in support of
the legislation were Illinois Governor George Ryan; New York
Attorney General Elliot Spitzer; Stephen Bright, Director of
the Southern Center for Human Rights; Gerald Kogan, former
Chief Justice of the Florida Supreme Court and cochair of the
National Committee to Prevent Wrongful Executions; Prof. James
Coleman, Jr., of the Duke University School of Law, on behalf
of the American Bar Association (ABA); Peter Neufeld, cofounder
of the Innocence Project; and Kirk Bloodsworth of Cambridge,
MD, who was the first capital defendant freed as a result of
DNA testing. Testifying against the legislation were two State
prosecutors, Stuart VanMeveren, District Attorney in Fort
Collins, CO, on behalf of the National District Attorneys
Association, and California Deputy Attorney General Ward
Campbell.
B. 107TH CONGRESS
Senators Leahy, Smith of Oregon, Collins and 13 additional
cosponsors introduced S. 486 on March 7, 2001. The same day,
Representatives Delahunt, LaHood and 116 cosponsors introduced
an identical version of the bill, H.R. 912, in the House of
Representatives.
1. Hearings
On June 27, 2001, the Judiciary Committee held a hearing on
the bill entitled ``Protecting the Innocent: Ensuring Competent
Counsel in Death Penalty Cases,'' chaired by Senator Leahy.
Witnesses testifying in support of the bill were: Texas State
Senator Rodney Ellis; Stephen Bright, Director of the Southern
Center for Human Rights; Beth Wilkinson, a former Federal
prosecutor and cochair of the Constitution Project's Death
Penalty Initiative (formerly the National Committee to Prevent
Wrongful Executions); and Michael Graham, a former death row
inmate who was exonerated in December 2000. Testifying against
the bill were Alabama Attorney General William Pryor; Ronald
Eisenberg, Deputy District Attorney in Philadelphia; and Kevin
Brackett, Deputy Solicitor, 16th Circuit, South Carolina.
The Committee received written statements and letters
regarding various State capital defense systems from Steven
Benjamin (Virginia); David Bruck (South Carolina); Bryan
Stevenson (Alabama); Clive Stafford Smith (Louisiana); Charles
Press (Mississippi); Michael Pescetta (Nevada); Maureen Kearney
Rowley (Pennsylvania); Maurie Levin (Texas); and Denise Young
(Arizona). Other items submitted at the hearing included the
executive summary of a report entitled ``The Crisis in Post-
Conviction Representation in Capital Cases since the
Elimination by Congress of Funding for the Post-Conviction
Defender Organizations,'' published by the Administrative
Office of the U.S. Courts in 1999 and updated in 2001; a
statement by Norman Lefstein, Dean of the Indiana University
School of Law, on behalf of the ABA; a summary of the
recommendations of the Constitution Project's Death Penalty
Initiative; an open letter from a number of current and former
prosecutors, law enforcement officers, and Justice Department
officials, endorsing S. 486; and a letter from Charles Lloyd,
an attorney who represented Michael Graham's codefendant,
Albert Burrell, describing the ``shocking incompetence'' of
Burrell's trial lawyers.
The Judiciary Committee continued its examination of the
Nation's capital punishment systems on June 18, 2002, with a
hearing chaired by Senator Leahy entitled, ``Protecting the
Innocent: Proposals to Reform the Death Penalty.'' This hearing
addressed S. 486 and a number of other bills introduced in the
107th Congress designed to reform systems of capital
punishment: S. 233, the National Death Penalty Moratorium Act
of 2001; S. 800, the Criminal Justice Integrity and Innocence
Protection Act of 2001; and S. 2446, the Confidence in Criminal
Justice Act of 2002. The witnesses were Representatives
Delahunt and LaHood; Barry Scheck; Prof. Larry Yackle of the
Boston University School of Law; Prof. James Liebman of the
Columbia Law School; Paul A. Logli, State's Attorney for
Winnebago County, IL, on behalf of the National District
Attorney's Association; and William G. Otis, a former
prosecutor and adjunct professor of law at the George Mason
University Law School. Submissions for the hearing record
included a letter from former prosecutors and a letter from
victims' organizations, both endorsing S. 486.
Also on June 18, 2002, the House Subcommittee on Crime,
Terrorism, and Homeland Security held a hearing on the House
version of the Innocence Protection Act, H.R. 912. Peter
Neufeld and Beth Wilkinson testified in support of the bill;
Paul Logli and Robert Graci, Assistant Executive Deputy
Attorney General of Pennsylvania, testified in opposition.
2. Markup
The Senate Judiciary Committee met in executive session on
two occasions, with a quorum present, to consider S. 486. The
first of these meetings occurred on July 11, 2002. An amendment
in the nature of a substitute was offered by Senator Leahy,
together with Senators Specter, Feinstein, Biden, Durbin, and
Edwards, and adopted by unanimous consent. In general, the
substitute amendment tightened the original bill's requirements
for obtaining postconviction DNA testing, overhauled the
counsel provisions to reduce Federal mandates, struck or
modified various miscellaneous provisions, and added new
provisions respecting stays of execution and student loan
forgiveness.
The Committee next considered another amendment in the
nature of a substitute, which was offered by the Ranking
Member, Senator Hatch. Titled the ``Death Penalty Integrity Act
of 2002'' and later introduced as S. 2739, this substitute
amendment proposed more limited DNA testing than the Innocence
Protection Act. For example, a Federal inmate could obtain
testing only if favorable results would prove that he was
``actually innocent'' of the crime, and even an inmate with a
highly persuasive claim of actual innocence would be denied
relief if he applied more than 60 months after enactment. With
respect to counsel, the Hatch substitute amendment proposed a
series of grant programs to train prosecutors, judges, and
defense lawyers in handling capital cases. The substitute also
contained miscellaneous provisions which, among other things,
imposed eligibility restrictions on the assignment of indigent
defense counsel in Federal capital and noncapital cases.
Following discussion, the Committee rejected the Hatch
substitute amendment by a recorded vote of 8 to 11.
The Committee turned next to an amendment, offered by
Senator Kyl, to restrict which qualified capital defender
organizations may receive grants under section 203 of the bill.
Under the amendment, no grant could be awarded to ``an
organization that the State determines, with the concurrence of
the United States Attorney General, has repeatedly filed large
numbers of meritless claims that challenge State death
sentences with the purpose or effect of substantially delaying
or otherwise interfering with the State's administration of its
capital sentencing scheme.'' Senator Feinstein proposed
changing ``State'' to ``State Attorney General,'' without
objection. Senator Feinstein also proposed changing
``meritless'' to ``frivolous,'' reasoning that ``meritless''
means that you have gone to court and just lost and you
shouldn't be condemned for doing that.'' Senator Kyl responded
that he chose the term ``meritless'' because it was an
``objective way of measuring whether these groups win or
lose,'' whereas the term ``frivolous'' was ``a subjective
judgment about whether they really intended to just delay.''
While noting that he preferred ``meritless,'' he agreed to
substitute ``frivolous'' to dispose of the amendment.
During this discussion, Senator Leahy offered a second-
degree amendment to the Kyl amendment, to limit its application
and scope. Under the second-degree amendment, the Attorney
General would, when selecting which capital defender
organizations to award grants, ``consider whether an
organization has repeatedly filed large numbers of claims that
a court has found to be frivolous that challenge State death
sentences with the purpose of substantially delaying or
otherwise interfering with the State's administration of its
capital sentencing scheme.'' The Committee adjourned before
disposing of the Kyl or Leahy amendment.
The Committee met again on July 18, 2002, to continue its
markup of S. 486. At this time, Senator Leahy offered an
amendment that contained compromise language he had negotiated
with Senators Kyl and Sessions on the pending Kyl amendment,
and also addressed other issues of concern to Senator Sessions
and other Members.
First, with respect to the pending amendment, the Leahy
amendment set out several factors for the Attorney General to
consider when deciding which capital defender organizations to
fund under section 203 of the bill, including ``whether an
organization has been found to have filed large numbers of
frivolous claims in State capital cases, with the effect of
unreasonably delaying or otherwise interfering with the State's
administration of its capital sentencing scheme.'' To
facilitate Committee oversight, the Attorney General must
notify Congress before denying a grant based in whole or in
part on a listed consideration.
Second, the Leahy amendment clarified language in section
201 of the bill, prohibiting capital defender organizations
that receive Federal grants from using the money for political
activities, with specified exceptions.
Third, the Leahy amendment authorized new grant programs to
train State and local prosecutors, judges, and defense lawyers
to better handle capital cases. This new provision supplements
the program already in the bill to assist States in
strengthening their indigent defense systems in capital cases.
Fourth, the Leahy amendment required that the results of
any DNA testing ordered under the act be disclosed
simultaneously to the defense, prosecution, and court of
jurisdiction.
Finally, the Leahy amendment encouraged State prosecutors
to initiate programs to review their capital cases in order to
identify those in which biological evidence is readily
accessible and conduct DNA testing where appropriate. The
amendment also authorized the Attorney General to conduct
postconviction DNA testing as appropriate in Federal capital
cases.
The Committee adopted the Leahy amendment by unanimous
consent. There being no other amendments proposed, the
Committee proceeded to a roll-call vote on S. 486 as amended.
The bill was reported favorably to the Senate by a vote of 12
to 7.
III. Votes of the Committee
The following votes occurred on the bill and amendments
proposed thereto:
(1) Senators Leahy, Specter, Feinstein, Biden, Durbin, and
Edwards offered an amendment in the nature of a substitute, to
be considered as original text for the purposes of debate and
amendments. The amendment was adopted by unanimous consent.
(2) Senator Hatch offered an amendment in the nature of a
substitute, to establish procedures for postconviction DNA
testing, authorize grant programs for training prosecutors,
judges, and defense lawyers in capital litigation, and impose
restrictions on who may be assigned as counsel for indigent
defendants in Federal cases. The amendment was defeated by a
rollcall vote of 8 yeas to 11 nays.
YEAS NAYS
Hatch Leahy
Thurmond (proxy) Kennedy (proxy)
Grassley (proxy) Biden (proxy)
Kyl Kohl
DeWine Feinstein
Sessions Feingold
Brownback Schumer
McConnell (proxy) Durbin
Cantwell (proxy)
Edwards (proxy)
Specter (proxy)
(3) Senator Leahy offered an amendment to establish factors
for the Attorney General to consider when selecting grantees
among capital defender organizations; clarify language
prohibiting organizations that receive grants from using the
money for political activities; authorize grants to train
criminal justice personnel in handling capital cases; require
simultaneous reporting of DNA test results to the defense,
prosecution, and court; and encourage prosecutors to initiate
DNA testing of death row inmates as appropriate. The amendment
was adopted by unanimous consent.
(4) The Committee then voted to favorably report S. 486,
with an amendment in the nature of a substitute, by a rollcall
vote of 12 yeas to 7 nays.
YEAS NAYS
Leahy Hatch (proxy) \1\
Kennedy Thurmond (proxy)
Biden Grassley (proxy)
Kohl Kyl (proxy)
Feinstein DeWine (proxy)
Feingold Sessions
Schumer McConnell (proxy)
Durbin (proxy)
Cantwell
Edwards (proxy)
Specter (proxy)
Brownback
IV. Discussion
A. OVERVIEW
Recent exonerations of inmates awaiting capital punishment
or serving lengthy prison sentences have cast doubt on the
reliability of the criminal justice system. Erroneous
convictions are extremely costly: they cause incalculable harm
to the wrongfully incarcerated defendants, undermine public
safety by permitting violent felons to remain at large, and
generally erode public confidence in American justice. The
prospect that an innocent man may be sentenced to death or even
executed is especially harrowing.
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\1\ In addition to a lengthy set of Minority Views, Senator Hatch
has submitted hundreds of pages of ``attachments,'' as if this
Committee Report were instead an open record of a legislative hearing.
While the printing of this material will cost the taxpayers a great
deal of money, the material itself--such as a case-by-case analysis of
the voting record of the ninth circuit--has little or no relevance to
the pending legislation and, therefore, will not be addressed at length
in this Report.
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Last year, two members of the U.S. Supreme Court questioned
whether the death penalty is being fairly administered in this
country. In a widely reported speech to the Minnesota Women
Lawyers Association, Justice Sandra Day O'Connor warned that
``the system may well be allowing some innocent defendants to
be executed.'' She added, ``Perhaps it's time to look at
minimum standards for appointed counsel in death cases and
adequate compensation for appointed counsel when they are
used.'' Editorial, ``Justice O'Connor on Executions,'' The New
York Times, July 5, 2001. Justice Ruth Bader Ginsburg has also
criticized the often ``meager'' amount of money spent to defend
poor people and has supported a proposed State moratorium on
the death penalty. Anne Gearan, ``Ginsburg Backs Ending Death
Penalty,'' AP Online, April 9, 2001. More recently, another
respected jurist--Senior Judge Gilbert Merritt of the Sixth
Circuit Court of Appeals--asserted that the capital punishment
system ``is still broken'' and emphasized the need for States
to do better on a key problem: providing good legal
representation in capital cases. Gilbert Merritt, Speech to a
Federal-State Judicial Conference sponsored by the Tennessee
Bar Association, September 26, 2002, available at
www.tennessean.com/local/archives/02/09/
22866454.shtml?Element__ID=22866454.
Professor James Liebman and his colleagues at Columbia
University recently released a comprehensive empirical study of
modern American capital appeals. The study--which was
undertaken at the Committee's request and based exclusively on
public records and court decisions--found that serious error
permeates the administration of the death penalty system in the
United States, compelling courts to reverse more than two-
thirds of all death verdicts. The single most common error, the
study revealed, was egregiously incompetent defense lawyering.
See ``A Broken System,'' available at www.law.columbia.edu/
instructionalservices/liebman/ (Part I) and
www.law.columbia.edu/brokensystem2/ (Part II).\2\
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\2\ The Minority Views' discussion of the Columbia death penalty
study is inaccurate. It begins, for example, with the statement that,
in the Columbia study, ``the error rates included any reversal of a
capital sentence at any stage by any court, even if the courts
ultimately upheld the sentence.'' It also states that the prominent
Columbia researchers--in some manner that is not described--used an
overbroad measure of error of their own choosing. Both charges are
false. The Columbia study considers only the final outcomes of State
and Federal court decisions after all appeals have been exhausted and
the highest court of the State or the United States Supreme Court has
definitively determined the legality and reliability of the capital
verdict under review. Moreover, the study counts only errors that State
and Federal courts themselves identified as so substantial and
egregious that the capital verdict had to be overturned and sent back
to be done over or scrapped entirely. Even using this extremely
conservative method of analysis, fully 68 percent of all capital
verdicts that were finally reviewed by State and Federal courts were
found to be too flawed to be carried out and had to be overturned. On
retrial, where information is available, 82 percent of those retrials
ended in a sentence less than death, including 9 percent that ended in
acquittals. Each of these cases cost many years of precious court time,
hundreds of thousands of dollars above what a life-without-parole
sentence would have cost, and untold anguish by crime victims who
relied on the accuracy and finality of the verdicts only to find out
that the verdicts were seriously flawed.
Other criticisms of the Columbia study in the Minority Views are
similarly inaccurate. They come almost verbatim from a Web site that
identifies itself only as www.prodeathpenalty.com. Further, the
Minority Views entirely ignore: (1) the very positive academic
reception of the Columbia study by such noted scholars as Stanford Law
School's Deborah L. Rhode writing in the Harvard Law Review, C. Ronald
Huff, President of the American Society of Criminology writing in his
2001 Presidential Address, Yale Law School Prof. and former Assistant
Secretary of State Harold Hongju Koh in the University of California
Davis Law Review, and Elliott S. Milstein, President of the American
Association of Law Schools, in his August 2000 President's message; (2)
a point-by-point refutation of each one of the ``pro-deathpenalty.com''
claims that was made in an amicus brief filed in a Federal death
penalty case (United States v. Quinones, No. S3-00-Cr.-761 (JSR)) in
New York City this past summer by 42 of the top American academic
experts in criminology, sociology and law (concluding the Columbia
research was ``a well-regarded, carefully conducted, award-winning
study''); (3) an attachment to that brief by the Columbia authors
themselves; (4) several scholarly exchanges between the Columbia
authors and other academics (see Judicature, Sept.-Oct. 2000;
Judicature, Nov.-Dec. 2000; Indiana Law Journal, vol. 76, p. 951
(2001); Washington University Law Quarterly, Vol. 80, No. 1 (2002)),
which cover all of the issues raised in the Minority Views, and many
other important issues; and (5) the authors' responses to most of these
baseless assertions at the time they were made (see, e.g., The Knight
Ridder newspapers (Mar. 18, 2002); The National Law Journal, (Sept. 4,
2000); The New York Times (July 12, 2000); The Wall Street Journal
(June 23, 2000); San Francisco Daily Journal, July 21, 2000). These
various analyses by respected scholars clearly demonstrate the
soundness and reliability of the Columbia study, and are far more
reliable than are discredited and outdated attacks posted on an
anonymous Web site.
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The ABA has endorsed a moratorium on executions until steps
are taken to bolster the reliability of the capital punishment
system, especially by improving the quality of indigent defense
in capital cases. Heeding this call was Governor George Ryan of
Illinois, who halted executions in his State in January 2000,
after 13 individuals were found to be innocent and released
from death row in a period of just 10 years. In some cases,
exonerations were based on the results of investigations by
journalism students rather than defense attorneys. A blue-
ribbon commission appointed by Governor Ryan to undertake a
comprehensive review of flaws in the system released its report
on April 15, 2002, making 85 recommendations for improvements
in Illinois' implementation of capital punishment. Several of
these recommendations highlight the need to improve the quality
of indigent defense. See ``Report of the Governors Commission
on Capital Punishment,'' available at www.idoc.state.il.us/ccp.
Meanwhile, Governor Parris Glendening of Maryland announced a
moratorium in May 2002 to examine racial and geographic
disparities in that State's capital punishment system.
Proponents and opponents of a moratorium--indeed,
proponents and opponents of capital punishment itself \3\ can
agree on the need to improve the reliability and fairness of
the system by which the death penalty is imposed in the United
States. The Innocence Protection Act seeks to enact such
reforms.
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\3\ A significant portion of the Minority Views is dedicated to
defending capital punishment as an institution, arguing that it deters
crime and ``saves lives.'' But there is no need to engage in the
broader societal debate over capital punishment, since the fundamental
goal of the Innocence Protection Act is to foster consensus between
proponents and opponents of the death penalty on basic, commonsense
reforms to the system.
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Some have argued that Federal action in this area is
inappropriate. But where, as here, fundamental constitutional
rights are at issue, unjust punishments have been imposed, and
sufficient time has passed without comprehensive State action,
it is necessary and appropriate for the Congress to intervene
and establish minimum protections.
It has also been suggested that our society cannot afford
to pay for the reforms proposed by this bill, such as increased
access to postconviction DNA testing and qualified counsel in
every capital case. The truth, however, is that we cannot
afford to do otherwise if our system of justice is to have the
confidence of the American people.
Perhaps the most disturbing argument against the bill--or,
indeed, against any attempt to upset the status quo with
respect to the death penalty--is that the system needs no
improvement. This argument is reflected in claims that ``the
system is working'' when an erroneous conviction is overturned
years after the defendant was put on death row, even when the
proof of innocence was uncovered not by any legal process but
rather by a class of journalism students. This argument is
reflected in efforts to discredit every death row
exoneration,\4\ even when local prosecutors admitted fault or
apologized, and in vitriolic attacks on the scores of
independent studies which show that the current system is
gravely flawed. And this argument is reflected in the often-
repeated insistence that, however many death row inmates have
been exonerated, no one can prove that an innocent person has
actually been executed, even when a conservative jurist like
Justice O'Connor, who has reviewed virtually every death
penalty conviction in the country during her more than 20 years
on the Court, acknowledges that ``the system may well be
allowing some innocent defendants to be executed.''
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\4\ Appended to the Minority Views is a detailed critique of the
Death Penalty Information Center's Innocence List (the ``DPIC List''),
available at www.deathpenaltyinfo.org/innoccases.html. The critique,
prepared by California prosecutor Ward Campbell, argues that 68 of the
102 former death row inmates on the DPIC List have been ``falsely
exonerated.'' The gravamen of the critique is that people are not
necessarily innocent simply because they were acquitted at retrial or
because the prosecution dropped all charges against them. This is of
course true, just as people are not necessarily guilty simply because
they were convicted and sentenced to death. But our only objective
forum for determining guilt or innocence is the criminal justice
system, and in that system, if a jury acquits or a prosecutor
determines that a case is too weak to go to a jury, the defendant is
entitled to a presumption of innocence. Mr. Campbell also counts as
``falsely exonerated'' at least 16 individuals whose innocence is not
contested, but who, according to Mr. Campbell, might not have been
sentenced to death under currently prevailing law. Because these
individuals suffered years and sometimes decades on death row for
crimes they did not commit, their inclusion on the Innocence List seems
entirely appropriate.
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The ``innocence deniers'' will never concede that there is
a problem. But given the appalling number of known cases of the
system failing, it would be surprising if there were not more
unknown cases of innocent people sentenced to death. As
conservative columnist George Will has observed, the cumulative
weight of these miscarriages of justice, some of them nearly
lethal, ``compels the conclusion that many innocent people are
in prison, and some innocent people have been executed.''
George Will, ``Innocent on Death Row,'' Washington Post, April
6, 2000. Congress needs to act before, not after, the execution
of an innocent person is confirmed.
B. NEED TO ENHANCE ACCESS TO POSTCONVICTION DNA TESTING
Over the past decade, DNA testing has emerged as the most
reliable forensic technique for identifying criminals when
biological material is left at a crime scene. Because of its
scientific precision, DNA testing can, in some cases,
conclusively establish a suspect's guilt or innocence. In other
cases, DNA testing may not conclusively establish guilt or
innocence, but may have significant probative value for
investigators. For these reasons, Attorney General Ashcroft has
described DNA testing as ``the truth machine of law
enforcement.'' Attorney General transcript, news conference--
``DNA Initiative'', March 4, 2002, available at www.usdoj.gov/
ag/speeches/2002/030402newsconferncednainitiative.htm.
While DNA's power to root out the truth has been a boon to
law enforcement, it has also been the salvation of those who,
for one reason or another, were convicted of crimes that they
did not commit. In little over a decade, some 110 people in the
United States have been exonerated through postconviction DNA
testing. This number includes at least 12 individuals sentenced
to death, some of whom came within days of being executed. See
generally Innocence Project, ``Case Profiles,''
www.innocenceproject.org/case/index.php (up-to-date summary of
every postconviction DNA exoneration occurring in the United
States); National Institute of Justice, ``Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA Evidence
to Establish Innocence After Trial,'' June 1996 (describing 28
cases in which DNA tests exonerated a convicted offender),
available at www.ojp.usdoj.gov/nij/pubs-sum/161258.htm.
The National Commission on the Future of DNA Evidence, a
Federal panel established by the Justice Department and
comprised of law enforcement, judicial, and scientific experts,
issued a report in 1999 urging prosecutors to consent to
postconviction DNA testing, and more sophisticated retesting,
in appropriate cases. Appropriate cases may include those in
which exclusionary test results would support the inmate's
claim of innocence, although reasonable persons might disagree
as to whether the results were exonerative. See National
Institute of Justice, ``Postconviction DNA Testing:
Recommendations for Handling Requests,'' September 1999, at 5,
available at www.ojp.usdoj.gov/nij/pubs-sum/177626.htm.
Postconviction DNA testing does not merely exonerate the
innocent--it can also solve crimes and lead to the
incarceration of very dangerous criminals. When a DNA profile
from the crime scene does not match the inmate who had been
convicted of the crime, it has become standard police practice
to enter the crime scene profile into the Combined DNA Index
System (CODIS), a national database containing DNA profiles
from both unsolved crimes and convicted offenders. In case
after case, postconviction DNA testing that exonerated an
inmate has led to the identification of a violent criminal who
had long evaded apprehension. For example, the 2001 exoneration
of Jerry Frank Townsend in Florida led to the apprehension of
Eddie Lee Mosely, a man who had committed at least 62 rapes and
several homicides. Mosely might have been identified much
earlier if prosecutors had acceded to a request for testing by
another wrongfully convicted Florida inmate, Frank Lee Smith,
who died on death row before testing was ordered. See ``Requiem
for Frank Lee Smith, PBS Frontline, March 11, 2002, transcript
available at www.pbs.org/wgbh/pages/frontline/shows/smith/etc/
script.html; ``DNA Evidence Clearing Convicts of Crimes,'' NBC
Nightly News, June 18, 2001; ``DNA Test Clears `Killer' after
His Death,'' Miami Herald, December 15, 2000.\5\
---------------------------------------------------------------------------
\5\ The Minority Views assert that Florida prosecutors agreed to
DNA testing for Smith, but the testing was delayed by the demand of
Smith's lawyers that the result be given only to them and not to the
State. In fact, the testing was delayed by the prosecutors, who
initially agreed to testing only if it was done in their own lab (the
defense proposed that the testing be carried out at the FBI lab), and
subsequently opposed testing altogether on the ground that it was
procedurally barred. See ``Requiem for Frank Lee Smith,'' supra.
---------------------------------------------------------------------------
Other reported cases in which DNA testing has led to the
identification of the actual criminal include: Clark McMillan
(Tennessee); Ray Krone (Arizona); Robert Miller (Oklahoma); and
Kevin Green (California). In each of these cases the real
assailant was a serial rapist and/or murderer.
There are still numerous prisoners throughout the country
whose trials preceded modern DNA testing, or who did not
receive pretrial testing for other reasons. If history is any
guide, some of these individuals are innocent of any crime.
1. Standard for obtaining testing
The Committee recognized the need to establish a meaningful
statutory threshold before an inmate is eligible for
postconviction DNA testing in order to discourage frivolous
applications and permit their summary dismissal. At the same
time the Committee rejected suggestions that the standard be so
strict that only defendants who could prove that testing would
necessarily exonerate them would qualify for relief. In
balancing competing concerns, the Committee was guided by the
principle that the justice system should err on the side of
permitting testing in nonfrivolous cases, in light of the low
cost of testing and the high cost of wrongful convictions.
As reported, section 101 of S. 486 contains an eligibility
standard similar to the standards in a number of State DNA
laws, including those in New York, Illinois and California. In
relevant part, section 101 requires an inmate to assert under
oath that he ``did not commit'' the crime of which he was
convicted,\6\ and authorizes testing only upon a determination
that testing ``has the scientific potential to produce new,
non-cumulative evidence which is material to the claim that the
applicant did not commit, and which raises a reasonable
probability that the applicant would not have been convicted
of'' the crime. Even if a defendant meets that threshold, a
court may still deny testing if the Government shows that the
application was made to interfere with the administration of
justice rather than to support a claim of innocence. In
addition, the bill provides meaningful disincentives to filing
false claims or trying to ``game the system'': test results
must be disclosed simultaneously to both parties and, if
inculpatory, the court must assess the applicant for the cost
of the testing, submit the results to the Department of Justice
for inclusion in the national DNA database, and make such
further orders as may be appropriate, including an order of
contempt. Further, because an applicant's assertion that he did
not commit the crime must be made ``under oath,'' an applicant
may be subject to prosecution for perjury, as well as for
making a false statement, if his assertion is later
disproved.\7\
---------------------------------------------------------------------------
\6\ The Minority Views criticize S. 486 because it does not require
an applicant for DNA testing to assert his ``actual innocence'' of the
crime. But the word ``actual'' is a rhetorical flourish that has no
legal meaning and therefore no place in Federal law. The reported bill
requires an applicant to assert that he ``did not commit'' the crime.
Those words have the same meaning as the colloquial phrase ``actual
innocence.''
\7\ The Minority Views cite the case of Danny Joe Bradley to
illustrate ``the potential for abuses'' in providing inmates a right to
DNA testing. For its account of the Bradley case, the Minority Views
rely on a June 2002 letter sent by Alabama Attorney General Bill Pryor
to Senator Jeff Sessions, which blames his State's ``very restrictive''
DNA policy on alleged misconduct by Bradley's postconviction counsel,
the Innocence Project at the Benjamin N. Cardozo School of Law. The
Minority Views note that General Pryor's allegations ``have never been
refuted by the Innocence Project''--which is not surprising given that
General Pryor's letter was not provided to Chairman Leahy or to the
Innocence Project until October 11, 2002. The Innocence Project has now
replied, in a letter to the Committee dated October 15, 2002 (on file
with the Committee on the Judiciary). That letter provides a detailed
refutation of the allegations in General Pryor's letter, and further
notes that the Eleventh Circuit has reversed the district court's
denial of Mr. Bradley's Sec. 1983 claim. Bradley v. Pryor, 2002 WL
31103573 (11th Cir. Sept. 23, 2002).
---------------------------------------------------------------------------
Experience shows that this formulation strikes an
appropriate balance. For example, only a handful of tests have
been ordered under the ``reasonable probability'' standard in
New York's now 8-year old DNA law. N.Y. Crim Proc. Law
Sec. 440.30(1-a) (DNA test shall be granted upon court's
determination that, if test result had been admitted at trial,
``there exists a reasonable probability that the verdict would
have been more favorable to the defendant''). New York Attorney
General Elliot Spitzer testified before the Committee in June
2000:
[New York's] experience demonstrates that
postconviction DNA testing can bolster the integrity of
our judicial system without unduly burdening our
criminal justice resources. * * * [T]he existence of a
statutory right to postconviction DNA testing does not
mean that there will be an avalanche of testing at
great cost to a state.
Illinois has had a similar experience with its now 5-year
old DNA law, which employs a standard of ``material
relevance.'' 725 Ill. Comp. Stat. 5/116-3(c) (DNA test shall be
granted upon court's determination that test result ``has the
scientific potential to produce new, non-cumulative evidence
materially relevant to the defendant's assertion of actual
innocence''). In Cook County--the largest county in Illinois
and the second largest in the Nation--fewer than 12 requests
for postconviction DNA tests were filed between January 1,
1998, and late March 2002. Of those tests, seven led to the
exoneration of the defendant. See ``Memorandum on
Postconviction DNA Testing,'' from Brenda Whalen Munro,
legislative fiscal analyst, to Senator Joseph A. Montalbano,
chair, Senate Judiciary Committee, State of Rhode Island, April
25, 2002 (on file with the Committee on the Judiciary, U.S.
Senate) (concluding, after State-by-State survey: ``Based on
experiences of other states, it appears that very few
individuals will seek postconviction DNA testing'').\8\
---------------------------------------------------------------------------
\8\ The Minority Views advance contradictory arguments that (1)
``[t]he small number of defendants seeking DNA tests and actually
claiming innocence suggests that for the most part that our criminal
justice system works well to convict the guilty and free the innocent''
and (2) ``convicted offenders serving lengthy sentences will exploit
the provisions of S. 486 to file frivolous motions that could squander
the resources of courts, prosecutors and law enforcement.'' Since the
provisions of S. 486 are drawn from existing State statutes, it can be
reliably predicted that there will be relatively few applications for
postconviction DNA testing under Federal law. But if even a small
fraction of those applications result in an innocent person's release
from prison or death row, the bill will have achieved its purpose. It
is utterly unsatisfactory to say, as the Minority Views do, that our
criminal justice system protects the innocent ``for the most part.''
---------------------------------------------------------------------------
Some prosecutors who testified before the Committee urged
that in order to obtain a DNA test, an inmate should be
required to show that the test results would prove ``actual
innocence.'' The Committee rejected this formulation because it
could preclude testing in any case in which the prosecutor can
put forward a new theory of the defendant's guilt that is
consistent with an exculpatory DNA test. To illustrate, an
``actual innocence'' standard might have been a bar to testing
in the following cases, in which factually innocent individuals
were eventually exonerated through DNA testing:
Roy Criner, convicted 1990, released 2000 (Texas).
Criner was convicted of aggravated assault. When DNA tests
excluded Criner, the trial judge rejected the results on the
theory--unsubstantiated by any evidence--that the victim might
have had consensual sex with someone else before being raped by
Criner, or that Criner might have participated in the rape and
used a condom. Criner was eventually pardoned by then-Governor
George W. Bush.
Ray Krone, convicted 1992, released 2002
(Arizona). Krone was convicted of murder based on ``junk
science''--bite marks on the victim that allegedly matched his
dental records. The prosecutor opposed DNA testing of blood and
saliva stains on the victim's clothing on the ground that the
stains might have come from someone other than the murderer.
The prosecutor argued that even an exclusion would not prove
actual innocence. Once testing was ordered, not only was Krone
excluded but the DNA profile matched that of a convicted
rapist, already in jail, who had bitten his other victims.
Earl Washington, convicted 1984, released 2000
(Virginia). Washington, who has an IQ of 69, confessed to a
rape murder he did not commit after being interrogated by the
police. The principal evidence presented at trial was the
victim's dying declaration that she had been attacked by a lone
black man with a beard. Washington was eventually cleared by
DNA testing, but the district attorney asserted that the test
had not established actual innocence on the theory--never
advanced by the prosecution at trial and contradicted by the
victim's declaration--that the DNA could have belonged to a
second assailant.
To ensure that DNA testing is available to inmates like
Criner, Krone, and Washington, the Committee rejected an
``actual innocence'' standard and instead utilized the standard
that appears in section 101 of the bill as reported.
A related issue is whether testing may be ordered if an
inmate failed to contest the issue of identity at an earlier
stage of the case. Some prosecutors urged the Committee to bar
testing unless identity was an issue at the inmate's trial. In
response, the Committee adopted a provision from California law
requiring an inmate to show that ``the identity of the
perpetrator was or should have been a significant issue in the
case.'' But the Committee declined to adopt the stricter
``identity was an issue at trial'' approach because it would
automatically disqualify inmates who confessed and/or pled
guilty despite documented cases in which defendants confessed
and/or pled guilty to crimes they did not commit. For example:
Bruce Godschalk, convicted 1987, released 2002
(Pennsylvania). Godschalk confessed to two rapes and was
convicted by a jury. The State courts denied him DNA testing on
the ground that he had confessed. Eventually, a Federal court
ordered the prosecutor to release the DNA for testing. The
tests proved that both rapes had been committed by the same
man, and that man was not Godschalk.
Chris Ochoa, convicted 1988, released 2001
(Texas). Ochoa confessed to a murder that he did not commit and
implicated his friend Richard Danziger in the crime. Under
threat of receiving the death penalty, Ochoa agreed to plead
guilty and testify against Danziger at trial. Both men received
life sentences. Years later, a man named Achim Mario confessed
his responsibility for the murder. Eventually, DNA testing
proved that Mario was telling the truth, and exonerated both
Ochoa and Danziger. Released from prison in 2001, after 13
years in prison, Ochoa explained that his confession and
implication of Danziger were the results of police pressure and
his fear of the death penalty.
Jerry Frank Townsend, convicted 1980, released
2001 (Florida). Mentally retarded with the capacity of an 8-
year-old, Townsend confessed to multiple murders in Florida. He
pled guilty to two murders and no contest to two others, thus
avoiding a possible death sentence. In 1998, the mother of one
of the victims asked prosecutors to review Townsend's
convictions. He was cleared by DNA evidence of that murder and
eventually exonerated of all charges. He spent a total of 22
years in jail.
David Vasquez, convicted 1985, released 1989
(Virginia). Vasquez, who is borderline mentally impaired,
confessed and later pled guilty to a murder he did not commit.
He was eventually exonerated by DNA testing, and the
prosecution joined with defense attorneys to secure him a full
pardon.
In light of this experience and the growing awareness of
the danger of coerced confessions, the Committee concluded that
an inmate who pled guilty or otherwise confessed to the crime
should not automatically be disqualified from obtaining DNA
testing, if he can meet the other threshold requirements.
Under S. 486 as reported, an inmate who satisfies the
eligibility standards for obtaining DNA testing may obtain a
test not only with respect to the crime of conviction, but also
with respect to ``any other offense that the sentencing
authority relied upon to sentence the defendant either to death
or to an enhanced term of imprisonment as a career offender or
armed career criminal.'' In such cases, the fact of the
ancillary offense led to imposition of either a death sentence
(as is the case with the rape in a rape-murder case) or a
lengthy mandatory sentence of incarceration. The Committee
believes that justice warrants DNA testing in such
circumstances.
2. Inappropriateness of time limits for DNA testing
The Committee considered and rejected the suggestion that
the bill include a deadline by which inmates must have filed
their claims in order to obtain postconviction DNA testing. For
example, during the Committee markup of S. 486, Senator Hatch
offered a substitute amendment that created a 60-month period
from the date of enactment during which inmates could seek DNA
testing, but which barred such testing after 60 months.
Such proposals mistakenly assume that the need for a DNA
testing law is temporary. While the need for postconviction DNA
testing will diminish over time as pretrial DNA testing becomes
more prevalent, there will always be cases that fall through
the cracks due to a defense lawyer's incompetence, a
defendant's mental illness or mental retardation, or other
reasons that the Committee cannot anticipate.
Time limits also raise significant practical problems.
Barry Scheck testified that it takes his organization, the
Innocence Project at the Benjamin N. Cardozo School of Law, an
average of between 3 to 5 years to evaluate and perfect an
application for postconviction DNA testing:
The difficulties are legion: The inmates are
indigent. They have no lawyers and their lawyers from
trial or appeal have often been disbarred, died, or
disappeared. They do not have complete copies of their
transcripts and neither does anyone else. Important
police and laboratory results relating to key items of
biological evidence cannot be found. And most
importantly, no one can find the evidence. It might be
in the court house as an exhibit, at the crime
laboratory, in the prosecutor's safe, with the court
reporter, at a hospital or medical examiner's office,
or different items could be at a variety of these
locations. Since the cases are very old, inventory
records are lost, and long-term storage facilities for
each institution change.
Many of the individuals who have been exonerated by
postconviction DNA testing did not win freedom until many years
after they were convicted. Kirk Bloodsworth was in prison for 9
years. Ray Krone was in prison for 10 years. Eddie Joe Lloyd, a
very recent exoneree, spent 17 years in Michigan prisons for a
rape he did not commit. These men and others could still be in
prison (or executed) if a rigid limitations period had been
applied to their petitions for DNA testing.
The injustice of time limits is highlighted by the case of
Frank Lee Smith, who died of cancer on Florida's death row
after he was denied a DNA test due to that State's 2-year
limitations period for filing a motion for postconviction
relief based on newly discovered evidence. Hearing of June 18,
2002 (statement of Barry Scheck). Cf. Zeigler v. State, 654
So.2d 1162 (Fl. 1995) (inmate motion for DNA testing must be
filed within 2 years of when testing method became available).
Eleven months after his death, and 14 years after his 1986
conviction, DNA testing exonerated Smith and also identified
the real perpetrator. Notwithstanding this experience, Florida
passed a postconviction DNA statute in 2001 that provides only
2 years for inmates to make applications. Fla. Stat. Ch. 925.11
Deadlines make sense when society has an interest in the
finality of a judgment, but there is no interest in the
finality of an incorrect judgment, especially one that would
result in the execution of an innocent person. A serious claim
of innocence should never be barred by arbitrary time limits.
3. Federalism concerns
In light of the extraordinary probative power of DNA
science, it might be expected that every State would by now
have established a right to postconviction DNA testing.
Unfortunately that is not the case. As of October 2002, only 31
of the 50 States have provided for postconviction DNA testing
by legislation, and the scope of these laws vary considerably.
Some States erect unjustifiably high procedural hurdles to
testing. Others make testing available in capital cases but not
in noncapital cases in which innocent people may have been
sentenced to decades of imprisonment. Still others rely on
arbitrary and unnecessary time limits. Many States'
legislatures have failed to act altogether.
Even where there is no postconviction DNA testing law, some
prosecutors consent to defense motions for testing and some
have commendably initiated programs for systematic testing of
inmates who might benefit from testing. But in the absence of a
clear, comprehensive statutory right to DNA testing, too many
prosecutors reflexively oppose requests for DNA testing and
cite time limits and procedural default rules to deny prisoners
the opportunity to present DNA test results in court. Indeed,
during its consideration of S. 486, the Committee learned of
many cases in which inmates were forced to litigate for years
to obtain access to biological evidence for the purpose of DNA
testing.
A.B. Butler, convicted 1983, released 2000
(Texas). Butler spent 10 years struggling for the DNA testing
that eventually exculpated him. He was pardoned by then-
Governor George W. Bush in May 2000, having served 17 years of
a 99-year sentence.
Clyde Charles, convicted 1982, released 1999
(Louisiana). Charles spent 9 years seeking the DNA tests that
ultimately proved his innocence. He was freed in August 1999,
after 19 years in the Angola penitentiary.
Dennis Fritz, convicted 1988, released 1999
(Oklahoma). Fritz testified that he spent 4 years while he was
in prison petitioning the courts to allow him to obtain DNA
testing on the crime scene evidence, but his pleas were
repeatedly denied. Eventually, lawyers for Fritz's codefendant,
Ron Williamson, succeeded in gaining access to the evidence for
DNA testing. The tests exonerated both men, and they were freed
in April 1999. Williamson had come within 5 days of being
executed.
Bruce Godschalk, convicted 1987, released 2002
(Pennsylvania). Godschalk first sought DNA testing in 1995, but
it took 7 years of litigation before he obtained the tests that
cleared him of his rape conviction.
Larry Johnson, convicted 1984, released 2002
(Missouri). Convicted of rape, robbery, and kidnapping in 1984
and given a life sentence, Johnson asked for DNA testing in
1995. Seven years later--after serving 18 years in prison--
Johnson was exonerated by biological evidence that excluded him
as the perpetrator.
Institutional resistance to inmate requests for DNA testing
has continued even in States that have passed postconviction
testing laws. Since Texas passed its law in 2001, for example,
several inmates have been executed without a ruling from the
State's highest criminal court on a pending issue involving
DNA. Dianne Jennings, ``Clarity Urged on DNA Law: Right to
Testing Debated as Fourth Inmate Nears Execution Without
Ruling,'' The Dallas Morning News, September 4, 2002.\9\
---------------------------------------------------------------------------
\9\ The Minority Views' claim that only 18 death row inmates have
been denied DNA testing is based on staff's confidential conversations
with State and Federal prosecutors and, thus, cannot readily be
verified. But even assuming that death row inmates are seldom denied
DNA testing, the Minority Views miss the point. DNA testing should be
available to all inmates who can meet the bill's threshold
requirements, not just those facing execution. There is, however a need
to prioritize DNA testing in capital cases. During the Committee
markup, Senator Leahy offered and the Committee unanimously accepted an
amendment that, among other things, encourages State prosecutors to
review all their capital convictions, identify those in which
biological evidence is readily accessible, and conduct DNA testing
where appropriate. The amendment also directs the U.S. Attorney General
to conduct postconviction DNA testing as appropriate in Federal capital
cases.
---------------------------------------------------------------------------
In our Federal system, States generally operate their
criminal justice systems without Federal interference. But over
the course of 3 years the Committee has compiled a substantial
record demonstrating that many States have failed to protect
the liberty interests of numerous Americans wrongfully
convicted of crimes. Moreover, the Federal Government provides
billions of dollars each year to State and local criminal
justice systems and has a right to condition such grants on
fundamental fairness. Under these circumstances, Congress has a
duty to establish Federal protections. While the Committee
appreciates and respects the concerns that have been raised by
some State officials,\10\ it agrees with Attorney General
Spitzer that ``DNA testing is too important to allow some
States to offer no remedy to those incarcerated who may be
innocent of the crimes for which they were convicted.'' Hearing
of June 13, 2000 (statement of Eliot Spitzer).
---------------------------------------------------------------------------
\10\ The Minority Views quote a June 2000 letter signed by 30 State
attorneys general that expresses concerns about a much earlier version
of the Innocence Protection Act. Many of the specific concerns raised
in the letter have been addressed in the reported version of the bill,
which tightens the requirements for DNA testing to screen out frivolous
applications, and reduces Federal mandates with respect to competent
counsel.
---------------------------------------------------------------------------
The Innocence Protection Act imposes conditions on Federal
grants that are used by States to develop or improve a DNA
analysis capability in a forensic laboratory, or to collect,
analyze, or index DNA samples for law enforcement
identification purposes. In establishing these conditions, the
Committee does not underestimate the importance of improving
DNA analysis capabilities and reducing the backlogs in our
Nation's crime labs. State crime labs are overburdened, and
every day that DNA evidence goes untested, solvable crimes
remain unsolved.
But just as it is an appropriate use of Federal funds to
assist the States in processing DNA evidence for law
enforcement purposes, it is also appropriate to require that
this truth-seeking technology be made available to both sides.
Indeed, Congress said as much 2 years ago in the legislation
that established the backlog and forensic sciences improvement
programs. See DNA Analysis Backlog Elimination Act of 2000,
Public Law 106-546, Sec. 11 (``It is the sense of the Congress
that Congress should condition forensic science-related grants
to a State or State forensic facility on the State's agreement
to ensure postconviction DNA testing in appropriate cases.'');
Paul Coverdell National Forensic Sciences Improvement Grants,
Public Law 106-561, Sec. 4 (same).
As reported, S. 486 affords the States some flexibility in
crafting their DNA laws. State procedures for postconviction
DNA testing need only be ``consistent with''--not identical
to--the Federal procedures. Consistency means that the
procedures adopted by a State must, at a minimum, incorporate
the core elements of the Federal procedures. For example, a
State postconviction statute that applied only to death row
inmates and not to inmates serving long terms of incarceration
would not be ``consistent with'' the Federal procedures.
Similarly, a State statute that included a time limit or any
other provision that would systemically deny testing to whole
categories of prisoners who would receive testing under the
Federal procedures would not be ``consistent with'' those
procedures and so would not satisfy the act.
While it is unknown how many individuals will apply for DNA
testing under S. 486, the cost to the States will be limited by
a number of factors. First, as discussed above, the bill sets
strict eligibility standards to discourage frivolous
applications. Second, DNA evidence exists only in a finite
number of cases, and that number will continue to shrink as
pretrial DNA testing becomes more common and accessible. Third,
the bill gives discretion to courts to order that the cost of
testing be borne by applicants who have the means to pay.
Fourth, the cost of DNA testing has decreased in recent years:
New York Attorney General Elliott Spitzer told the Committee
that a typical postconviction set of DNA tests for a defendant
costs between $2,500 and $5,000 at a private laboratory, and
much less--between $100 and $300--at the New York City medical
examiner's office. Beyond all this, DNA testing will provide
offsetting cost savings by securing the release of innocent
persons from costly confinement and ensuring that those who
pose a threat to society are not left walking the streets.
4. Invocation of section 5 of the 14th amendment
The Committee expects that States will continue to accept
Federal funds and abide by the new conditions regarding DNA
evidence. But if States do not accept Federal funds, there are
certain circumstances in which it is appropriate for Congress
to mandate the availability of postconviction testing.
As introduced, S. 486 invoked section 5 of the 14th
amendment to require that States make DNA testing available to
death row inmates with a plausible claim of innocence. The
substitute amendment adopted by the Committee includes a
provision advanced by Senator Specter to expand the invocation
of the 14th amendment to nondeath cases. Thus, section 103 of
the bill as reported recognizes a constitutional right of all
State prisoners to access biological evidence in the State's
control for the purpose of DNA testing, if they meet the
threshold requirements.
Two Federal judges and several State courts have recognized
this constitutional right. In a carefully reasoned opinion
respecting the fourth circuit's denial of rehearing en banc in
Harvey v. Horan, Judge Michael Luttig concluded that ``A right
of access to evidence for tests which * * * could prove beyond
any doubt that the individual in fact did not commit the crime,
is constitutionally required * * * as a matter of basic
fairness.'' 285 F.3d 298, 314 (4th Cir. 2002).\11\ An inmate's
interest in pursing his freedom--and possibly saving his life--
is sufficient to outweigh the Government's comparatively
insubstantial interest in withholding access to DNA evidence.
Id. at 320. See also Godschalk v. Montgomery County District
Attorney's Office, 177 F. Supp.2d 366 (E.D. Pa. 2001) (finding
that plaintiff had a due process right of access to genetic
materials held by the prosecution for the limited purpose of
DNA testing); National Institute of Justice, Postconviction DNA
Testing: Recommendations for Handling Requests, September 1999,
at 11-12 (discussing State court cases finding constitutional
right to DNA testing).
---------------------------------------------------------------------------
\11\ The Minority Views note that Chief Judge Wilkinson, writing
separately in Harvey, did not find a constitutional right to DNA
testing. Notably, however, Judge Wilkinson's view was premised on the
belief that Congress would pass the Innocence Protection Act:
I repeat my hope that inmates such as Harvey will receive
DNA testing. And I repeat my faith that the American system
will provide it to them. This is not an area in which
legislative bodies have gone into permanent recess. On the
contrary, the panel majority opinion detailed the fact that
Congress is actively considering legislative initiatives in
this area. The Innocence Protection Act, which has been
introduced in both houses of Congress, would increase the
availability of postconviction DNA testing for an
individual convicted of a Federal crime. Further, the Act
would condition the grant of Federal funds for State DNA--
related programs on an assurance that the State would make
postconviction DNA testing available in certain types of
---------------------------------------------------------------------------
cases.
285 F.3d at 301-302 (Wilkinson, C.J., concurring in the denial of
rehearing and rehearing en banc) (citations omitted).
The constitutional right at issue is a limited one. It is
simply a postconviction right of access to evidence that is in
the State's possession--evidence that could be an inmate's only
means of proving his innocence. This provision does not
necessarily entitle an inmate to further judicial review of his
case. Rather, if further access to the judicial process is
unavailable--either because of a procedural bar or because the
courts refuse to entertain the assertion of a freestanding
constitutional right not to be punished if actually innocent--
an inmate's only recourse may be to present the results of a
DNA test to the executive in a petition for clemency.
5. Need to preserve biological evidence
Another important reason for a Federal law in this area is
to ensure appropriate preservation of biological evidence
throughout the country. As reported by the Committee, S. 486
requires States to adopt reasonable preservation procedures
consistent with the new Federal law as a condition of receiving
certain Federal grant money. Not only will such procedures
safeguard the rights of inmates to produce proof of their
innocence through DNA testing, they will also help law
enforcement retest old cases to catch the actual perpetrators.
Rules and procedures for the preservation of biological
evidence vary widely among the State. Even in States that have
enacted postconviction DNA testing laws in recent years, there
is rarely a requirement that biological evidence be preserved.
In too many jurisdictions, the biological evidence that could
set innocent people free is being lost, destroyed, or degraded
by bacterial contamination. Indeed, the Innocence Project in
New York City must close nearly 75 percent of the cases it
accepts--cases in which DNA testing on some piece of biological
evidence might be determinative of guilt or innocence--because
the relevant biological evidence is no longer available.
Hearing of June 18, 2002 (statement of Barry Scheck).
The case of Marvin Anderson of Virginia demonstrates the
compelling need for preservation of evidence. In 1983, Anderson
was sentenced to 210 years for a rape he did not commit. After
the advent of DNA technology in the early 1990's, Anderson
sought testing of the semen samples recovered from the victim's
body but was told that the rape kit and its contents had been
destroyed in accordance with an explicit State policy under
which every rape kit was deliberately destroyed following trial
and direct appeal. In 2001, the biological evidence was
discovered by happenstance: years earlier, a State employee had
violated lab rules by taping the vaginal swabs to file notes
rather than returning them to the rape kit, where they would
have been destroyed. But for this fortuity, Anderson would
still be in prison and the real assailant, who was identified
by the DNA testing, would be on the streets. Id.
The cases of Calvin Johnson of Georgia and Kevin Byrd of
Texas are similarly illustrative. The DNA tests that exonerated
Johnson after 17 years in prison were possible only because, by
sheer chance, an assistant district attorney had retrieved the
rape kit from a garbage can, where it had been discarded by a
judge's clerk who was cleaning out his office. Similarly, Byrd
was exonerated in 1997 only because, by pure luck, the 12-year
old DNA evidence that cleared him had not been destroyed
pursuant to bureaucratic routine. The very week that Byrd was
freed, however, the office that prosecuted him systematically
destroyed the rape kits from 50 other old cases, citing an
overcrowded storage space. Sharon Cohen, ``Sheer Luck Saves DNA
Evidence,'' AP Online, October 7, 2000. This is all too common
across the country.
Compliance with the preservation requirements of S. 486
will not be unduly expensive. As a general matter, the bill
requires the preservation of all biological evidence that was
secured in relation to a criminal case for as long as any
person remains incarcerated in connection with that case. But
biological evidence may be destroyed (assuming that no other
law requires its preservation) if inmates are notified at least
6 months in advance and afforded an opportunity to apply for
DNA testing. Moreover, in cases where the evidence is of such a
size, bulk, or physical character as to render retention
impracticable, the prosecution need only take ``reasonable''
measures to remove and preserve portions of the material
evidence sufficient to permit future DNA testing.\12\ Finally,
while it has been suggested that preserving biological evidence
requires costly freezer space, experience demonstrates that as
long as such evidence is stored in a dark dry room, air
conditioned in the summer, it will remain robust for years.
---------------------------------------------------------------------------
\12\ Thus, contrary to the suggestion in the Minority Views, the
bill would not require authorities to preserve a seized automobile
because there might be DNA on the steering wheel. At most, if the
steering wheel did have material DNA evidence on it, authorities would
be required to preserve part of that evidence.
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C. NEED FOR IMPROVED CAPITAL INDIGENT DEFENSE SYSTEMS
Postconviction DNA testing is an essential safeguard that
can save innocent lives when the trial process has failed to
uncover the truth. But it would be neither just nor sensible to
enact a law that merely expanded access to DNA testing. It
would not be just because innocent people should not have to
wait for years after trial to be exonerated and freed. It would
not be sensible because society should not have to wait for
years to know the truth. When innocent people are sentenced to
death, and the guilty are permitted to walk free, any
meaningful reform effort must consider the root causes of these
wrongful convictions and take steps to address them.
The root causes of wrongful convictions are varied. They
include flaws in eyewitness identification procedures, undue
reliance on jailhouse informants, police misconduct and
prosecutorial misconduct. These problems exist both in cases
where biological evidence is available for DNA testing and in
cases where it is not. DNA testing may expose problems in
individual cases, but it is not a comprehensive solution
because biological evidence is often unavailable. Instead, the
causes of wrongful convictions must be addressed directly.
Most criminal cases, and most capital cases, are prosecuted
at the State and local level. The reliability of State criminal
convictions depends on the practices of local police and
prosecutors, and efforts to improve such practices are not
readily susceptible to Federal intervention. The Department of
Justice funds research on police and prosecutorial techniques
and disseminates best practices, but rarely requires that local
agencies adopt any particular reform. One way in which the
Federal Government can play an important role, however, is in
helping States improve the systems by which defense lawyers are
appointed for indigent defendants in capital cases.
The appointment of competent, adequately compensated
lawyers in capital cases will not preclude the possibility of a
wrongful conviction but can enhance the system's reliability. A
competent defense lawyer knows how to probe weaknesses in
eyewitness testimony and challenge suggestive identification
procedures, and is more apt to recognize police or
prosecutorial misconduct than an incompetent lawyer. The
adversarial system of justice depends on competent defense
lawyers to hold the Government to its proof and uncover flaws
in the Government's case.
It is no accident that in the wrongful conviction cases
examined by the Committee, one recurring theme is incompetent
and grossly underfunded defense counsel. For example:
Albert Burrell, convicted 1987, released 2001
(Louisiana). Burrell was convicted of murdering an elderly
couple and sentenced to death. An attorney who later
represented Burrell on a pro bono basis wrote to the Committee
about the ``shocking incompetence'' of Burrell's trial lawyers,
who had only recently graduated from law school. They undertook
little investigation before the trial, were ineffective during
the trial, and did nothing to prepare for the penalty phase.
Both lawyers were later indicted and convicted--one on a drug
charge, the other for stealing client money--and disbarred.
Dismissing the charges against Burrell and codefendant Michael
Graham, the Louisiana Attorney General's office cited a ``total
lack of credible evidence.'' The prosecutor who tried the case
has also acknowledged that the case was weak and should not
have been indicted.\13\
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\13\ The Minority Views' one-sided recitation of the facts in the
Burrell case, and its irresponsible suggestion that Burrell was
actually guilty, demonstrate ``innocence denial'' at its most
pernicious. The Minority Views selectively quote from a series of
articles about the case in The Baton Rouge Advocate, but a full reading
of those articles and other materials makes clear that Burrell was
wrongfully convicted.
Burrell's conviction rested on the testimony of two people--a
mentally ill jailhouse snitch who was widely known as ``Lying Wayne
Brantley,'' and Burrell's ex-wife, who had been battling with Burrell
over the custody of their child, and whose story to the police was
materially at odds with the crime scene evidence. Postconviction DNA
tests proved that blood found at the victims' home did not belong to
either Burrell or Graham.
The Minority Views quote the original prosecutor, a man named Dan
Grady, as saying that he would retry the case if the judge ordered a
new trial. Unmentioned is the fact that Grady had recommended against
presenting the case to a grand jury because, in his view, the evidence
against Burrell and Graham was ``too weak and too dependent upon
witnesses of questionable credibility.'' Affidavit of Dan J. Grady, III
(on file with the Committee on the Judiciary). Notwithstanding this
advice, the district attorney directed Grady to proceed to the grand
jury, and then to trial, in order to avoid embarrassment to the local
sheriff. Id.
The Minority Views suggest that the current prosecutor declined to
retry the case because the evidence against the defendants had been
lost, destroyed, or otherwise compromised over the course of time. But
when the Louisiana Attorney General dismissed the charges against
Burrell and Graham, he acknowledged that there had never been any
credible evidence against them in the first place: ``These men were
convicted solely upon testimonial evidence, virtually all of which had
been discredited either of [sic] virtue of subsequent disclosures,
recantation of witnesses and withholding of exculpatory evidence
bearing directly upon the witnesses credibility at the original
trial.'' Written Reasons for Dismissal, submitted by the Louisiana
Attorney General in State v. Graham and Burrell (on file with the
Committee on the Judiciary).
Albert Burrell is a mentally retarded man who, before his
conviction, took care of his young son and repaired cars and trucks to
make ends meet. He spent 13 years on death row for a crime that he did
not commit. He deserves better than to be maligned in these pages. The
Minority Views' stubborn refusal to accept Burrell's innocence in the
face of contrary facts and official findings bespeaks its blind faith
in the status quo and casts doubt on the accuracy of its description of
other cases.
The Minority Views' unreliable account of the Burrell case mirrors
the account provided in prosecutor Ward Campbell's critique of the DPIC
List, which is attached to the Minority Views. Mr. Campbell's critique
is likewise impeached by his failure to accept the fact that Burrell
and Graham were innocent.
---------------------------------------------------------------------------
Dennis Fritz, convicted 1982, released 1999
(Oklahoma). The Committee heard testimony from Dennis Fritz, a
science teacher and football coach, the father of a young
daughter, who spent 12 years in prison for a crime he did not
commit. Fritz was represented at his capital murder trial by a
civil lawyer who had never handled any type of criminal case,
much less a capital murder case, and who had no resources to
mount a proper defense because he was paid only $500. Fritz and
his codefendant were ultimately cleared through DNA
testing.\14\
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\14\ The Minority Views point out that Fritz was sentenced to life
imprisonment and not to death, as if that somehow excuses the
incompetent representation he received at his capital murder trial.
Fritz's codefendant, Ronald Williamson, was less fortunate: he was
sentenced to death, and once came within five days of being executed.
In 1997, a Federal appeals court overturned Williamson's conviction on
the basis of ineffectiveness of counsel. Williamson v. Ward, 110 F.3d
1508 (10th Cir. 1997). The Court noted that the lawyer, who had been
paid a total of $3,200 for the defense, had failed to investigate and
present to the jury the fact that another man had confessed to the
crime. Subsequent DNA tests of crime scene evidence excluded Fritz and
Williamson and implicated Glen Gore, a former suspect in the case.
---------------------------------------------------------------------------
Federico Martinez-Macias, convicted 1984, released
1993 (Texas). Martinez-Macias spent 9 years on death row and
came within 2 days of execution because his trial lawyer, who
was paid less than $12 an hour, did almost nothing to prepare
for trial. This lawyer failed to call available witnesses who
could have refuted the State's case, and based his trial
decisions on a fundamental misunderstanding of Texas law. The
lawyer also admitted he conducted no investigation in
anticipation of the penalty phase of the trial. Martinez-Macias
was eventually cleared of all charges and released from prison,
thanks to volunteer work by a Washington lawyer who intervened
just before the scheduled execution. In its decision
overturning Martinez-Macias's conviction, the Federal appeals
court stated: ``We are left with the firm conviction that
Martinez-Macias was denied his constitutional right to adequate
counsel in a capital case in which actual innocence was a close
question. The State paid defense counsel $11.84 per hour.
Unfortunately, the justice system got only what it paid for.''
Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992)
(emphasis added).\15\
---------------------------------------------------------------------------
\15\ Notably, Mr. Campbell's critique of the DPIC List omits
mention of the Martinez-Macias case, implicitly conceding the fact of
Martinez-Macias's innocence.
---------------------------------------------------------------------------
Gary Nelson, convicted 1980, released 1991
(Georgia). Nelson was represented at his capital trial by a
solo practitioner who had never tried a capital case. This
court-appointed lawyer, who was struggling with financial
problems and a divorce, was paid at a rate of only $15 to $20
per hour. His request for cocounsel was denied, and he was not
provided funds for an investigator or expert. His closing
argument was only 255 words long. He was later disbarred for
other reasons. Nelson was eventually exonerated and released
after 11 years on death row.\16\
---------------------------------------------------------------------------
\16\ As with Martinez-Macias, the Minority Views refuse to accept
that Nelson was innocent, even though the critique attached to the
Minority Views implicitly concedes the point. And once again, the
Minority Views selectively quote from press accounts to suggest that
prosecutors declined to retry Nelson only because the evidence against
him had become stale. Left unmentioned is the fact that the county
district attorney, after a close review of the evidence, acknowledged
that ``There is no material element of the State's case in the original
trial which has not subsequently been determined to be impeached or
contradicted.'' Jingle Davis & Mark Curriden ``Man condemned for murder
of girl is freed,''The Atlanta Journal and Constitution, November 7,
1991.
---------------------------------------------------------------------------
Dennis Williams, convicted 1979, released 1996
(Illinois). Williams was defended at trial by a lawyer who was
simultaneously defending himself in disbarment proceedings.
After nearly 2 decades on death row, Williams was exonerated
with the help of three journalism students from Northwestern
University.\17\
---------------------------------------------------------------------------
\17\ While conceding that Williams was wrongfully convicted, the
Minority Views argue that this was caused by police and prosecutorial
misconduct, not bad lawyering. But as noted above, by ensuring that
capital defense lawyers are competent and that they have adequate
resources to investigate the case and test the State's evidence, the
Innocence Protection Act will make miscarriages of justice such as
occurred in the Williams' case less likely.
---------------------------------------------------------------------------
These cases are not unique. On the contrary, the prevalence
of incompetent counsel in State death penalty proceedings,
particularly at the trial level, has been well documented. A
2001 report by a bipartisan committee of experts identified the
lack of adequate counsel as ``the gravest of the problems that
render the death penalty, as currently administered, arbitrary,
unfair, and fraught with serious error--including the real
possibility of executing an innocent person.'' The Constitution
Project, ``Mandatory Justice: Eighteen Reforms to the Death
Penalty,'' available at www.constitutionproject.org/dpi/
MandatoryJustice.pdf. The recent empirical study by professors
at Columbia University confirmed that in many death penalty
jurisdictions, the crucial adversarial check provided by
competent and adequately funded defense lawyers has broken
down, resulting in inaccurate and unreliable capital
convictions. ``A Broken System,'' part II, at 413-18. See also
``The Crisis in Capital Representation,'' 51 The Record of the
Association of the Bar of the City of New York 169 (March 4,
1996) (on file with the Committee on the Judiciary); Stephen
Bright, ``Neither Equal nor Just: The Rationing and Denial of
Legal Services to the Poor When Life and Liberty Are at
Stake,'' 1997 NYU Annual Survey of American Law 783 (1997);
Stephen Bright, ``Counsel for the Poor: The Death Sentence Not
for the Worst Crime But for the Worst Lawyer,'' 103 Yale L.J.
1835 (1994).
In at least three States--Illinois, Washington, and Texas--
recent investigations revealed that large numbers of death row
inmates were represented at trial by court-appointed lawyers
who had been, or were later, disbarred or suspended for
incompetent, unethical, or even criminal conduct. See Ken
Armstrong & Steve Mills, ``The Failure of the Death Penalty in
Illinois,'' Chicago Tribune, November 15, 1999 (part II of a 5-
part series); Lise Olson, ``Uncertain Justice,'' Seattle Post-
Intelligencer, August 6, 2001 (part I of a 3-part series);
Texas Civil Rights Project, ``The Death Penalty in Texas: Due
Process and Equal Justice or Rush to Execution?,'' The Seventh
Annual Report on the State of Human Rights in Texas, September
2000.
Even more disturbing, there is now a whole category of
capital cases in Texas known as ``sleeping lawyer'' cases, to
which the State courts have responded with apathy. This
attitude was chillingly conveyed by one Texas judge who
reasoned that, while the Constitution requires a defendant to
be represented by a lawyer, it ``doesn't say the lawyer has to
be awake.'' John Makeig, ``Asleep on the Job? Slaying Trial
Boring, Lawyer Says,'' Houston Chronicle, August 14, 1992, at
A35. The Fifth Circuit Court of Appeals, sitting en banc in
another sleeping lawyer case, was recently compelled to state
the obvious: ``Unconscious counsel equates to no counsel at
all.'' Burdine v. Johnson, 262 F.3d 336, 348 (5th Cir. 2001),
cert. denied, 122 S. Ct. 2347 (2002).
The lack of adequate counsel is also a continuing problem
in other death penalty States, including Alabama, Arizona,
Georgia, Louisiana, Mississippi, Nevada, and Pennsylvania. See,
e.g., hearing of June 27, 2001 (statements of Bryan Stevenson,
Denise Young, Stephen Bright, Clive Stafford Smith, Charles
Press, Michael Pescetta, and Maureen Kearney Rowley); Bill
Rankin, ``Justice Delayed: A Report on Indigent Defense in
Georgia,'' Atlanta Journal-Constitution, April 21-23, 2002 (3-
part series). In general, capital defense services in these
States are administered at the county level: there is no
unified system of indigent capital defense. The public
defenders and contract attorneys who handle capital cases in
these States are often grossly underfunded, overworked, and
inexperienced.
The crisis in postconviction proceedings is particularly
grave. The failure of many States to provide adequate
compensation and reimbursement of costs in capital
postconviction cases has resulted in a chronic shortage of
qualified counsel. Two States--Alabama and Georgia--do not
guarantee counsel to death row inmates after a direct appeal to
the State's highest court. In Alabama, dozens of death row
inmates are unrepresented and have been unable to raise their
constitutional claims in State postconviction or Federal habeas
corpus petitions. See Janice Bergmann, ``The Crisis in Post-
Conviction Representation in Capital Cases since the
Elimination by Congress of Funding for the Post-Conviction
Defender Organizations'' (Admin. Office of the U.S. Courts,
rev. ed. 2001); hearing of June 27, 2001 (statement of Bryan
Stevenson).
This is not how the American adversarial system of criminal
justice is meant to work. Americans on trial for their lives
should not be condemned to rely on sleeping lawyers, disbarred
lawyers, lawyers with only a few years or months at the bar,
lawyers with no capital or even criminal law experience,
lawyers who fail to conduct even a rudimentary investigation,
or lawyers who do not have the resources to carry out their
constitutionally mandated function.
The Committee recognizes that a few States have established
effective systems for providing indigents with qualified
lawyers, such as the North Carolina system described below. But
the unfortunate fact is that many jurisdictions--including many
that sentence large numbers of people to death still do not
have a working adversary system, even in cases in which a
person's life is at stake.
No set of reforms can guarantee that the innocent will not
be convicted, but Congress has a responsibility to, at a
minimum, ensure that when people in this country are on trial
for their lives, they will be defended by lawyers who meet
reasonable minimum standards of competence and who have
sufficient funds to investigate the facts and prepare
thoroughly for trial. That goal can be achieved by cooperation
between the States and the Federal Government whereby Congress
provides funding to State criminal justice systems conditioned
on minimum standards of fairness. Of course, States may improve
on those minimum standards if they are so inclined.
1. Meaning of ``effective system''
Section 201 of the bill authorizes a program under which
the Federal Government will make available to the States
``Capital Representation System Improvement Grants.'' States
that choose to participate in the program will agree to use
these Federal funds to establish, implement, or improve an
``effective system'' for providing competent legal
representation to defendants in capital cases.
The Committee defined the term ``effective system'' with
great care. Under section 201(d), such a system must include an
entity to identify and appoint capital defense lawyers, and
that entity must carry out its core functions independently of
the three branches of State government. The entity will also
establish qualifications for capital defense counsel, maintain
a roster of qualified lawyers from which it will make
appointments, conduct training of capital lawyers and monitor
their performance. In an effective system, defense attorneys
will be compensated at a reasonable rate comparable to the
Federal rate for compensating capital defense lawyers, and will
receive reasonable reimbursement for litigation expenses.
The Chairman's substitute amendment generally enhances
State flexibility by moving away from the model of national
counsel standards included in S. 486 as introduced. For
example, the bill, as reported, does not prescribe the
qualifications of lawyers appointed to represent capital
defendants, leaving that task to State authorities. But the
amendment still reflects the Committee's strongly held view
that meaningful reform of capital indigent defense systems must
include functional independence from the elected branches of
government for the entity that appoints capital defense lawyers
and reasonable compensation for the lawyers so appointed.\18\
---------------------------------------------------------------------------
\18\ The Minority Views suggest that this requirement of functional
independence will destroy the States' ability to ensure the
accountability and ethical behavior of defense attorneys. But nothing
in the bill would affect the ability of courts and State bar
associations to enforce ethical standards and take disciplinary action
where necessary.
---------------------------------------------------------------------------
ABA standards
These concepts are grounded in the work of various expert
professional bodies that have studied the crisis in capital
representation for decades. In a statement submitted to the
Committee for its hearing on June 18, 2002, Indiana Law School
Dean Norman Lefstein, testifying on behalf of the ABA, traced
the notion of an independent appointing authority back to the
1973 National Advisory Commission that promulgated criminal
justice recommendations to the Nixon Administration. The ABA
adopted this model as its official policy in the 1979 edition
of its Standards for Providing Defense Services, and the 1989
edition of its Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases (available at www.abanet.org/
legalservices/publications/home.html). The ABA is in the
process of preparing the second edition of the latter set of
standards and Guideline 3.1 of that document provides that an
agency ``independent of the judiciary'' should be designated to
``recruit,'' ``certify'' and maintain a roster of qualified
capital lawyers and ``assign the attorneys who will represent
the defendant at each stage of every case, except to the extent
that the defendant has private attorneys.'' See also ``ABA
Standards for Criminal Justice, Providing Defense Services,''
Standard 5-1.3 (3d ed. 1990) (discussing need to secure
professional independence for defender organizations and
assigned counsel).
In his statement to the Committee, Dean Lefstein
persuasively explained the importance of vesting responsibility
for appointing defense lawyers in an independent body:
There are a variety of reasons why judges should not
appoint lawyers in indigent cases, or otherwise be
involved in the overall supervision of indigent
defense, and these arguments are even more compelling
when capital cases are involved because the stakes are
so much greater. The paramount reason for not having
judges appoint defense lawyers is to assure that
counsel always feels completely free to act in the
client's best interest. While there are obviously many
fine judges who preside over criminal cases, there are
occasions when judges are angered by motions filed by
defense attorneys, resent arguments advanced by
counsel, and rule against lawyers insistent upon
continuances. Judges, for example, are understandably
concerned with moving their dockets, but this is not
defense counsel's concern and should never be the
reason that a lawyer fails to make arguments or take
actions on the client's behalf.
A lawyer should not have to fear reprisals of any
kind from either the judge before whom he or she is
appearing or some other judge before whom the lawyer
might later appear. The power of judges to appoint
lawyers and approve claims for compensation necessarily
includes the power to withhold appointments and to
reduce payments for the time lawyers devote to indigent
cases.
A lawyer's advocacy on behalf of an indigent
defendant in an appointed criminal case, especially a
capital case, should be no more inhibited than the
lawyer's advocacy in representing a client in a
retained private case. Judges do not select privately
retained lawyers or prosecutors. Judges should not be
involved in the selection and operation of indigent
defense programs either. The appointment of counsel and
the oversight of indigent defense by an independent
authority should also alleviate the fear of defendants
that the judge or some other court official in charge
of assignments controls the defense lawyer.
Hearing of June 18, 2002 (statement of Dean Norman Lefstein).
This rationale also underlies standards published by the
National Legal Aid and Defender Association (NLADA). Standards
for the Appointment of Counsel in Death Penalty Cases,
available at www.nlada.org/Defender/Defender__Standards/
Standards For Death Penalty. The NLADA standards call for
designation of a body within each death penalty jurisdiction
``for performing all duties in connection with the appointment
of counsel'' in capital cases and notes that this body may be
the defender office or assigned counsel program of the
jurisdiction or a ``special appointments committee.'' Id.,
Standard 3.1.
The Constitution Project's Death Penalty Initiative, whose
30 members include former judges, prosecutors, and other public
officials, issued a report last year recommending 18 reforms
for the Nation's flawed death penalty system. The crucial and
central recommendation:
Each state should create or maintain a central,
independent appointing authority whose role is to
``recruit, select, train, monitor, support, and
assist'' attorneys who represent capital clients. The
authority should be composed of attorneys knowledgeable
about criminal defense in capital cases, and who will
operate independent of conflicts of interest with
judges, prosecutors, or any other parties. This
authority should adopt and enforce a set of minimum
standards for appointed counsel at all stages of
capital cases, including state or federal
postconviction and certiorari. An existing statewide
public defender office or other assigned counsel
program should meet the definition of a central
appointing authority, providing it implements the
proper standards and procedures.
``Mandatory Justice,'' at 2 (quoting ABA, ``Criminal Justice
Section Report,'' reprinted in 40 Am. U. L. Rev. 1, 9 (1990)).
The report emphasizes that ``the independence of the authority
and its freedom from judicial or prosecutorial conflicts are
crucial to ensure that its members can act without partisanship
and in a manner consistent with the highest professional
standards.'' Id. at 3.
Even the National Center for State Courts (NCSC), an
organization reflecting the views of State judges, recognized
in 1996 that ``[m]uch more systematic and sophisticated methods
are required to provide a higher level of representation'' in
capital cases because ``the most common basis for
postconviction relief in capital cases has been incompetence of
counsel, quite legitimately so in a number of cases.'' NSCS,
``Discussion Paper on Competence of Counsel in Capital Cases,''
at 2 (on file with the Committee on the Judiciary). The NCSC
Paper noted ``almost unanimous agreement'' that ``a program to
provide competent counsel in death penalty cases must be
administered at the state level,'' through the designation or
creation of a State-wide administrative entity. Id. at 3. While
NCSC stopped short of recommending that State judges be
relieved of responsibility for appointing capital defense
attorneys, it took account of the argument that appointments
should be ``carried out by an administrative entity, because
the appearance of judicial detachment is undermined by
involvement of judges in certification, appointment and
monitoring'' and observed that where judges retain the duty to
appoint lawyers ``they may have to operate within defined
parameters, using lists provided to them.'' Id. at 13.
Each of these expert bodies also identified reasonable
compensation of defense attorneys as a fundamental element of
an effective capital counsel system. The ABA and NLADA insist
on compensation ``for actual time and service performed * * *
[at] a reasonable rate of hourly compensation which is
commensurate with the provision of effective assistance of
counsel and which reflects the extraordinary responsibilities
inherent in death penalty litigation.'' ABA Guideline 10.1(A);
NLADA Standard 10.1(A). The Constitution Project urges States
to avoid arbitrary ceilings or flat payment rates and instead
take into consideration the number of hours expended plus the
effort, efficiency, and skill of capital counsel. ``Mandatory
Justice,'' at 5. And the NCSC Discussion Paper observes that:
Low fees discourage competent attorneys from seeking
assignments in capital cases and expending the time and
effort to provide an adequate defense. The low fees may
result from policies that impose a cap on attorney
compensation, set a flat rate per case, or simply set a
very low hourly rate.
NCSC Discussion Paper at 8. See also Conference of Chief
Justices, Resolution XVII: Competence of Counsel in Capital
Cases, August 3, 1995 (calling for ``timely appointment of
competent counsel, with adequate resources, to represent
defendants in capital cases at each stage of such
proceedings'').
The views of these expert professional bodies has been
validated by empirical evidence. Dean Lefstein has published a
study of Indiana's capital counsel standards and concluded that
since their adoption in 1994, ``no person has been released
from the State's death row because of innocence. Nor has there
been a case in which lawyers were appointed pursuant to the
Supreme Court's rule, complied with its requirements, and were
held to be ineffective.'' Hearing of June 18, 2002 (statement
of Dean Norman Lefstein).\19\ And Columbia Law School Prof.
James Liebman and his colleagues concluded that the startlingly
high incidence of error in capital cases could be reduced if
death penalty jurisdictions were to (1) establish standards
assuring that only well-qualified lawyers represent capital
defendants; (2) adopt methods of appointing capital lawyers
that avoid patronage considerations and rewards to financial
contributors to judicial campaigns; and (3) ensure sufficient
compensation and reimbursement for experts, investigators and
other litigation necessities to trigger the formation of a
stable and qualified capital defense bar. ``A Broken System,''
part II, at 418.
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\19\ The Minority Views correctly point out that Indiana court
rules permit trial judges to appoint counsel in capital cases. Dean
Lefstein's praise of the Indiana system is based on the fact that
Indiana has stringent standards governing who may be appointed in
capital cases, so while judges make the appointments their choices are
constrained by the standards. Indeed, the Committee understands that
Indiana judges largely rely on the recommendations of the Indiana
Public Defense Commission in making capital appointments. Also, Indiana
reimburses capital lawyers at the relatively high rate of $90 per hour,
a rate that will increase to $93 per hour effective January 1, 2003,
and does not place a cap on total reimbursements.
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Thus, the definition of ``effective system'' in the
Innocence Protection Act is consistent with proposals put
forward by practitioners and scholars who have examined the
issue in depth over the course of many years. The time has come
for Congress to recognize the capital representation crisis
that experts long ago identified and to accept the
recommendations of the legal profession for responding to this
emergency.
Example of an ``effective system''
A good example of a State that has already established an
effective system is North Carolina, where 2 years ago the
legislature adopted sweeping reforms to the process by which
lawyers are appointed for indigent defendants in death penalty
cases. The centerpiece of these reforms was the creation of a
centralized, independent appointing authority. See generally
Indigent Defense Services Act of 2000, codified at N.C. Gen.
Stat. Sec. 7A-498 et seq.; Rules of the Commission on Indigent
Defense Services (2001), available at www.aoc.state.nc.us/www/
ids/.
The legislation created the 13 member Commission on
Indigent Defense Services and its full-time staff, the Office
of Indigent Defense Services. Five members of the Commission
are appointed by the North Carolina bar and other members are
appointed by the Governor, the Chief Justice, and the State
legislature. Ten members of the Commission themselves appoint
an additional three at-large members. Commission members serve
four-year terms and are functionally independent of the entity
that appointed them.
The Commission appoints a statewide Capital Defender who is
accountable to the Commission but not subservient to the
judiciary or to the political branches of government. The
Capital Defender supervises a staff (currently four lawyers) of
death penalty specialists and also compiles and maintains a
roster of private lawyers and public defenders who are
qualified to try capital cases. Lawyers even those who work for
one of the State's county-wide public defender offices--must
apply to be included on the roster. Applications are assessed
based on both objective and subjective criteria such as
seniority, trial experience and confidential assessments from
judges and other lawyers. These criteria are set forth in
regulations promulgated by the Commission.
Each morning a computerized system alerts the Capital
Defender to every case in the State in which a defendant has
been charged with general or first-degree murder (i.e., a death
eligible case). There are approximately 600 such cases each
year in North Carolina. In these cases the trial judge has no
role in the appointment of counsel; instead, the Capital
Defender appoints one or two defense lawyers for each
defendant, depending on the likelihood that the case will
actually be tried capitally. (If the case is tried capitally,
the defendant is entitled to two lawyers by statute). The
Capital Defender may appoint himself and his staff, or he may
appoint lawyers from the roster.
The Commission handles all compensation in capital cases
and has authorized a rate of $85 per hour for in-court and out-
of-court work. This compares with a $65 per hour rate in
noncapital cases and contrasts favorably with the hourly rate
for capital representation in other States in the region. Both
defense and prosecution expenses are paid from State funds, not
county funds. A parallel independent appointment system exists
for appeals from capital convictions and State postconviction
proceedings.
The appointment system adopted by North Carolina is not the
only model that would qualify as an ``effective system'' under
the bill. Other States have already adopted reforms that would
satisfy the statutory criteria or that move in the right
direction. The Committee does not intend to establish a one-
size-fits-all definition of an effective system. Rather, the
Committee has set forth the key parameters of such a system,
including an independent appointing authority and reasonable
compensation for attorneys and expenses.
It is expected that the independent appointing authority in
each State will utilize a roster system of the kind used in
North Carolina and other States. As a result of amendments
adopted during markup, the reported bill provides some specific
direction regarding the qualifications of attorneys on the
roster. Among the many factors an appointing authority is to
consider in determining if an attorney is qualified to
represent indigents in capital cases is whether, during the
past 5 years, the attorney (1) has been sanctioned for ethical
misconduct; (2) has been found to have rendered
constitutionally ineffective assistance of counsel; or (3) has
asserted his own constitutional ineffectiveness in relation to
three or more felony cases.
None of these factors is an automatic basis for permanent
disqualification. Attorneys are sanctioned for all kinds of
conduct, some very serious, some relatively minor. Similarly,
the fact that an attorney has been found to have rendered
ineffective assistance in a case may mean that he should not be
appointed in subsequent cases, but it may not, just as a doctor
who has lost a malpractice suit may still be competent to
practice medicine. Indeed, it is often the most experienced
professionals who have made a mistake at some point over a long
career. For example, an attorney's failure to assert a
seemingly meritless claim that later prevailed in another case
due to the reversal of existing law is not disqualifying
conduct.
2. Need for enforcement suits
Section 202 of the bill authorizes litigation by private
parties to ensure that a State which accepts Federal funding to
improve its capital indigent defense system complies with the
statutory conditions on that funding.
Oversight by the agency administering the grant program is
the ordinary means for ensuring compliance with statutory
conditions, but in this instance agency oversight is
insufficient. The Justice Department is itself a prosecutorial
agency with close ties to prosecutorial agencies in the States,
and it is unrealistic to expect the Department to be the sole
oversight mechanism for a program designed to strengthen the
defense function. Section 202 thus authorizes enforcement
lawsuits that will enable the Federal courts to make an
impartial assessment of State indigent defense programs and to
order any changes needed to bring failing programs into
compliance.
The Committee has deliberately authorized any ``person'' to
bring an enforcement suit. The Supreme Court has held that
Congress may eliminate any nonconstitutional barriers to a
private person's standing that might otherwise apply, as long
as Congress makes that intention clear by authorizing
``everyman'' to sue in Federal court to enforce Federal law.
Bennett v. Spear, 520 U.S. 154, 166 (1997). A person whose
interests are widely shared with others may serve as a
plaintiff. Federal Election Commission v. Akins, 524 U.S. 11,
24-25 (1998). Section 202 clearly states the Committee's
intention to exercise all the power at Congress' disposal to
authorize ``citizen suits'' in this context.
A person who initiates an enforcement suit under this
section acts not only for himself, but also for the United
States. The Supreme Court has held that Congress can assign its
capacity to sue to a private party. Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765, 773-
74 (2000). Such an assignment permits a private person to
proceed even though the person would not satisfy the
constitutional prerequisites for standing in his own right. The
United States itself has standing to sue a State for failing to
comply with the terms of a Federal grant and may assign that
capacity to a private relator. The United States has a
sovereign interest in enforcing Federal law, a quasi-sovereign
interest in protecting the beneficiaries of Federal law, and a
proprietary interest in ensuring that Federal funds are used
according to conditions fixed by Federal law. Section 202
tracks the provision of the False Claims Act that was before
the Court in Stevens. The provision in section 202 authorizing
the Attorney General to intervene in an enforcement suit, like
the similar provision in the False Claims Act, ensures that the
executive branch will have political responsibility for
enforcement lawsuits.
An enforcement lawsuit under this section will name a State
executive officer as the defendant; if a court concludes that
relief is appropriate, it will issue declaratory or injunctive
relief running to that officer, plus costs and fees. The relief
available in an enforcement suit, accordingly, will redress an
ongoing violation of Federal law. The Supreme Court has held
that a State officer cannot invoke the State's sovereign
immunity as a defense to such an action. Verizon Maryland Inc.
v. Public Service Comm'n, 122 S. Ct. 1753, 1760-61 (2002)
(explaining Ex parte Young, 209 U.S. 123 (1908)). The Court has
also held that State sovereign immunity does not prevent the
award of attorney's fees against a State or State officer.
Hutto v. Finney, 437 U.S. 678, 691-92 (1978).
The Supreme Court has also recognized that Congress can
create private rights of action to enforce the provisions of
Federal statues enacted under the Spending Power, so long as
Congress is clear. Alexander v. Sandoval, 532 U.S. 275 (2001);
Barnes v. Gorman, 122 S. Ct. 2097 (2002). Section 202 clearly
states Congress' intention to do just that. Congress has
frequently authorized citizens to bring lawsuits in Federal
court against States to enforce statutory rights. Examples
include the Safe Drinking Water Act, 42 U.S.C. 300j-8(a); the
Endangered Species Act, 16 U.S.C. 1540(g); and the
Comprehensive Environmental Response, Compensation & Liability
Act (CERCLA), 42 U.S.C. 9659(a). In addition, the Supreme Court
has recognized implied private rights of action against States
under several statutes, including Title VI of the Civil Rights
Act of 1964, 42 U.S.C. 2000d et seq., and the Voting Rights Act
of 1965, 42 U.S.C. 1973 et seq. See Barnes v. Gorman, 122 S.
Ct. 2097, 2100 (2002); Allen v. State Bd. of Elections, 393
U.S. 544, 557 (1969).
Title VI of the Civil Rights Act is an especially important
precedent. In that law, Congress established nondiscrimination
as a condition of Federal funding to States. Federal agencies
enforce this condition through administrative actions and
litigation, but private rights of action are recognized as a
necessary adjunct to agency enforcement.
The Supreme Court has applied a contract-law analogy in
cases defining the scope of conduct for which funding
recipients may be held liable in private suits under spending
clause legislation. A withdrawal of funds is not the only
acceptable means of enforcing conditional grants; rather, a
funding recipient may be enjoined to comply with the clear
terms of the relevant statute. See Barnes, 122 S. Ct. at 2101.
3. Appropriateness of special funding mechanism
Title II of the bill as reported includes two unusual
funding mechanisms that the Committee determined were necessary
to achieve the goals of improving capital indigent defense
systems in the States.
Under the first special funding mechanism, if Congress
fails to fully fund the new grant program, up to 10 percent of
the Byrne block grant will be used for this purpose. This
provision is justified for several reasons. First, it is only a
contingency: if Congress appropriates sufficient money for this
program, then the Byrne programs are unaffected. Second, the
Committee recognizes that there is an unfortunate bias against
funding for criminal defense programs at both the State and
Federal levels. The incentive in this section is necessary to
overcome this traditional reluctance to fund defense lawyers.
Third, even if this provision is triggered, the amount of Byrne
money each State receives remains the same, but money is
targeted to this activity. (Of course, Byrne grants to States
without capital punishment are unaffected). Finally, this
provision is part of a compromise bill that otherwise reduces
Federal mandates on States that authorize capital punishment.
The second special funding mechanism provides that if a
State fails to apply or qualify for funding under section 201
of the bill, grants are to be made available under section 203
to qualified capital defender organizations that provide
services in the State. This provision provides an incentive for
States to accept funding to improve their own systems, and
provides a means for improving capital indigent defense
services in States that chooses not to participate in the
Federal program itself.\20\
---------------------------------------------------------------------------
\20\ The Minority Views oppose section 203, arguing that it would,
in effect, refund the Death Penalty Resource Centers (also known as
Post-Conviction Defender Organizations, or ``PCDOs'') which, according
to the Minority Views, routinely engaged in ``unethical behavior,
misconduct, and abuse of the legal process.'' The Committee accepts
neither the conclusion nor its underlying premise.
First, it bears repeating that section 203 is a provisional
measure: no grants will be made under section 203 in States that have
received funds under section 201. Second, the program established by
section 203 differs from the PCDO program in several important
respects, including the fact that it would be administered by the
Department of Justice and not by the U.S. Judicial Conference, the
judicial branch agency responsible for administering the PCDO program.
Third, the PCDO program was, in fact, highly successful. A Judicial
Conference report dated March 1993 concluded that PCDOs ``provided
invaluable services in an appropriate and cost efficient manner.''
Specifically, the report stated, PCDOs ``facilitated the appointment of
competent attorneys in capital cases,'' ``brought a higher quality of
representation to those cases,'' and ``streamlined the capital
litigation process by expediting cases and avoiding costly repetitive
legal proceedings.'' ``Report of the Judicial Conference of the United
States on the Federal Defender Program,'' March 1993, at 26 (on file
with the Committee on the Judiciary). A second report, which was
approved by the Judicial Conference in September 1995, also gave the
PCDOs high marks. Prepared by a special subcommittee chaired by
Eleventh Circuit Judge Emmett Ripley Cox, and based on a careful review
of a wide variety of views and data, the report found that PCDOs
``facilitated the provision of counsel to death-sentenced inmates,''
``enhanced the quality of representation,'' and ``help[ed] control the
cost of providing that representation.'' The report concluded by
recommending that ``PCDO funding should be continued so that PCDOs may
continue to play a vital role in providing representation in capital
habeas corpus cases.'' Finally, a 2001 publication by the
Administrative Office of the U.S. Courts, which describes each State's
capital representation system after Congress stopped funding PCDOs,
provides ample evidence that the defunding of the PCDOs made an already
bad situation incomparably worse. See ``The Crisis in Post-Conviction
Representation in Capital Cases since the Elimination by Congress of
Funding for the Post-Conviction Defender Organizations,'' supra.
---------------------------------------------------------------------------
Subsection 203(f), added during the Committee markup, sets
out several factors for the Attorney General to consider when
deciding which capital defender organizations to award grants,
including whether an organization has been found to have filed
large numbers of ``frivolous'' claims in State capital cases,
with the effect of unreasonably delaying or otherwise
interfering with the State's administration of its capital
sentencing scheme. The Committee approved the term
``frivolous,'' which implies some measure of bad faith, rather
than ``meritless,'' which may be used to describe any claim
that ultimately failed. As Senator Kyl observed during the
first day of the Committee markup of S. 486, the term
``frivolous'' requires ``a subjective judgment about whether
they [i.e., the capital defender organizations] really intended
to just delay.''
Like all lawyers, defense attorneys are ethically bound to
represent their clients zealously. On the other hand, a lawyer
has a duty not to assert a claim unless there is a basis for
doing so that is not frivolous, which includes a good-faith
argument for an extension, modification, or reversal of
existing law. ABA Model Rules of Professional Conduct, rule
3.1. In determining the proper scope of advocacy, account must
be taken of the law's ambiguities and potential for change.
Id., comment [1]. The Committee recognizes that a defense
lawyer may legitimately assert a large number of claims in
order to avoid procedural default of such claims as may become
viable at a later stage in the litigation. Cf. Smith v. Murray,
477 U.S. 527 (1986) (holding that petitioner's meritorious
constitutional claim was procedurally barred, and that
petitioner must therefore be executed, because counsel elected
not to press the claim before the State supreme court on direct
appeal in light of governing precedent, which was then entirely
valid and only 2 years old, that decisively barred the claim).
The Committee emphasizes that, if no grant is made under
section 201 to a State, then the Attorney General shall make
grants under section 203 to one or more qualified capital
defender organizations in the State. Nothing in subsection
203(f) authorizes the Attorney General to deny grants to all
such organizations. To facilitate Committee oversight of this
provision, the Attorney General must notify Congress before
denying a grant based in whole or in part on a listed
consideration.
D. NEED FOR OTHER REFORMS
The Committee's hearings shed light on a number of other
problems in the Nation's criminal courts, especially applicable
to cases involving the death penalty. The bill as reported
addresses three of these ancillary matters.
1. Supreme Court procedure
Senator Specter focused the Committee's attention on an
anomaly in the appeals process that allows a prisoner to be
executed even after the Supreme Court has agreed to hear the
case.
In 1990, for example, four members of the Court voted to
grant certiorari to death row inmate James Edward Smith, but
for some unknown reason the Court did not formally act on the
petition. The Court also did not vote to grant a stay of
execution. Smith was subsequently executed. The Court then
denied the petition, noting that the case was now ``moot.''
Hamilton v. Texas, 498 U.S. 908, 911 (1990) (Stevens, J.,
concurring).
In the 1992 case of Herrera v. Collins, 502 U.S. 1085, the
Court actually granted certiorari, but then failed to grant a
stay of execution. Herrera's claim was that he was factually
innocent of the crime for which he had been sentenced to death.
Ultimately, the Texas Court of Criminal Appeals granted a stay
while the case was pending before the Supreme Court, allowing
the Court to consider the case on the merits.
These anomalies result from idiosyncrasies in Supreme Court
procedure. Although certiorari is recognized by statute as the
procedure by which the Court hears a case, the statute does not
state how many votes are needed. By Court practice, only four
votes are required to grant certiorari. To grant a stay,
however, there must be a majority--five votes--and the standard
the Court applies is different from that for granting
certiorari. There may be good reasons why the standard is
different, and in almost all other cases, the failure to grant
a stay when certiorari has been granted does not have the
dispositive effect that it does in a capital punishment case.
But in a capital case, the denial of a stay means that the
petitioner is executed, and the case mooted, even though four
Justices considered his constitutional claim important enough
to be heard.
For many years, the Supreme Court had an informal practice
whereby a fifth Justice would vote to grant a stay when four
Justices had voted to grant certiorari. The late Justice
Brennan articulated the rationale for this rule:
A minority of the Justices has the power to grant a
petition for certiorari over the objection of five
Justices. The reason for this ``anti-majoritarianism''
is evident: in the context of a preliminary 5-4 vote to
deny, 5 give the 4 an opportunity to change at least
one mind. Accordingly, when four vote to grant
certiorari in a capital case, but there is not a fifth
vote to stay the scheduled execution, one of the five
Justices who does not believe the case worthy of
granting certiorari will nonetheless vote to stay; this
is so that the ``Rule of Four'' will not be rendered
meaningless by an execution that occurs before the
Court considers the case on the merits.
Straight v. Wainwright, 476 U.S. 1132, 1134-35 (1986) (Brennan,
J., dissenting).
No defendant has a right to have his or her case heard by
the Supreme Court. See Supreme Court Rule 10 (``Review on a
writ of certiorari is not a matter of right, but of judicial
discretion.''). But once a defendant has had his certiorari
petition granted, he expects to have his case heard. This is
the expectation of all those seeking Supreme Court review--an
expectation resulting from the longstanding practices of the
Court. The Court already has great discretion not to hear
virtually any case it does not wish to consider. Congress has
given the Court this discretion by eliminating almost all
avenues of appeal by right to the Court and instead giving the
Court the power to pick the cases it wants to hear through the
certiorari process. Since Congress has created this 2-step
procedural mechanism, Congress has the authority to ensure that
it is effective. The Court does not have to grant a petition,
but once it has done so, it must not allow the case to become
moot by failing to take steps to preserve its jurisdiction.
The strength of our justice system is predicated upon the
notion that Americans see the system as being fair to all. To
the average American, when the Supreme Court has decided to
consider a case by granting certiorari, but then fails to act
to ensure that it can in actuality hear the case, fundamental
questions about fairness are raised, regardless of the
procedural nuances that permit such a result. It defies logic
and makes a mockery of the phrase ``equal justice'' when four
votes results in Supreme Court review of a case in virtually
all circumstances, but not when a person's life hangs in the
balance.
2. Compensation of wrongfully convicted prisoners
Society bears a debt to individuals who have been convicted
and incarcerated for crimes they did not commit. How are they
compensated for all the years they spent behind bars, sometimes
on death row, for all the lost wages, for all the pain and
suffering?
In most cases, there is no compensation, or at least not
much. Under current Federal law, as enacted more than 60 years
ago, the Federal Government pays a miserly $5,000 in cases of
unjust imprisonment, regardless of the length of time served.
See act of May 24, 1938, ch. 266, 1-4, 52 Stat. 438. This cap
is substantially lower than comparable limits established by
States that have adopted statutes to compensate the wrongfully
imprisoned. For example, Iowa and Ohio award up to $25,000 per
year of imprisonment, plus lost wages, attorney's fees, fines
and court costs. Iowa St. 663A.1(6); Ohio Rev. Code Ann.
Sec. 2743.48(E)(2). California sets damages at $100 per day
($36,500 per year). Cal. Penal Code Sec. 4904. Maine allows
damage awards of up to $300,000. 14 Me. Rev. Stat. Ann.
Sec. 8242(1). Texas's cap is $500,000. Tex. Civ. Prac. & Rem.
Sec. 103.105(c). And at least three jurisdictions--New York,
West Virginia, and the District of Columbia--do not limit
damages at all. N.Y. Ct. Claims Act Sec. 8-b (6); W. Va. Code
Sec. 14-2-13(g); DC St. Sec. 2-423. On the other hand, most
States have no statute to compensate the wrongfully imprisoned,
with the result that innocent inmates are barred from
recovering any damages at all. See generally Richard Willing,
``Exonerated prisoners are rarely paid for lost time,'' USA
Today, June 18, 2002; Adele Bernhard, ``When Justice Fails:
Indemnification for Unjust Conviction,'' 6 U. Chic. L. Sch.
Roundtable 73 (1999); Michael Higgins, ``Tough Luck for the
Innocent Man,'' ABA Journal 46 (March 1999).
The Committee heard testimony on this issue from Michael
Graham. Graham was 22 years old and working as a roofer when he
was arrested in Louisiana for a brutal double murder. After a
short trial, he was convicted and sentenced to death. For the
next 13 years, he spent 23 hours a day in his 5-by-10 foot
cell, alone. He was finally released from prison in December
2000, when the State Attorney General admitted that there was a
``total lack of credible evidence'' linking Graham to the
crime. As Graham told the Committee in June 2001:
Half of my adult life had been taken from me. I had
been falsely branded as a murderer in connection with
horrible crimes. * * * In compensation, the State gave
me a $10 check and a coat that was five sizes too big,
not even the price of a bus ticket back to Virginia. My
lawyers had to buy that for me.
Graham's codefendant, Albert Burrell, was released from prison
a few days after Graham. He, too, received no compensation for
his years on death row.
Walter McMillian was convicted of a capital offense and
imprisoned for 6 years, including being sent to Alabama's death
row for 13 months before his capital trial. His case went
through four rounds of appeals, all of which were denied. New
attorneys, not paid by the State of Alabama, voluntarily took
over the case and eventually found that prosecutors had
illegally withheld exculpatory evidence. Finally, the State
agreed to investigate its earlier handling of the case and
admitted that a grave mistake had been made. See Bryan Fair,
``Using Parrots to Kill Mockingbirds: Yet Another Racial
Prosecution and Wrongful Conviction in Maycomb,'' 45 Alabama L.
Rev. 403 (1994); ``Innocence and the Death Penalty,'' hearing
before the Senate Committee on the Judiciary, 103rd Cong. 16-21
(1993) (statement of Walter McMillian).
Despite many years of litigation, McMillian has never been
given any recompense for the years he was unjustly held on
death row. His attorney took the issue of just compensation all
the way to the U.S. Supreme Court, but to no avail. McMillian
v. Monroe County, 520 U.S. 781 (1997) (affirming dismissal of
McMillian's civil rights action against Alabama county
sheriff).
Another wrongly convicted man, Calvin Johnson, wrote to the
Committee about his efforts to obtain compensation from the
State of Georgia for the years of suffering that he and his
family endured before he was exonerated by DNA testing in 1999:
Those 16 years [in prison] were the hardest years of
my life, and the only consolation I felt came from the
love of my family and my faith in a higher power that
one day the truth would prevail.
Everyday that I woke up behind bars, everytime the
door locked on my cell, everytime I cut a bush or swept
a floor, everyday that I put in eight hours work for
the State of Georgia for 16 years not receiving a penny
for one single day, everytime I received a visit and
watched as my family walked out the door, and as my
fiancee left to pursue her own life, a life without me,
a life to start her family, a family that I now
couldn't give her, everytime I saw a happy couple or a
small child, I felt a deep cut inside of me. It was the
thought of what could be. Instead each day as I looked
into the mirror and saw the events of life going on
without me, I felt a deep, deep waste.
When my mother suffered a stroke shortly after my
conviction I knew her heart had been broken. When I
couldn't be there for her, when I couldn't help in
anyway, when she suffered heart attack after heart
attack as the years went by, my own heart nearly broke.
As I watched her health deteriorate, and watched as my
family suffered both financially and emotionally my
heart fell to my knees.
How can one describe the pain you feel when your
behind bars for a crime you know you didn't do. When
the prison counselor tells you, you may never receive
parole if you don't sign an admission of guilt and
complete a sexual offenders program, when the parole
board denies you parole over and over again because
they say you won't accept responsibility for the crime,
when staff, guards, and fellow inmates all looked down
upon you because your labeled as a sex offender.
Nothing can possibly express what I or my family
endured for those 16 years. * * *
Where would I have been if those 16 years had not
been stolen from me? Would I have a family of my own,
would I own my own home, would I have money saved for
my children's future, could I go to a bank and obtain a
loan? My answer is yes, and now after 16 years with no
family of my own, no home of my own, no real credit
established, all I want is the opportunity to fulfill
my dreams, to help my parents in the later years of
their life, to live the American dream, and to be a
productive and active citizen in our society.
Putting one's life back together after such an experience
is difficult enough, even with financial support. Without such
support, a wrongly convicted person might never be able to
establish roots that would allow him to contribute to society.
To help repair the lives that are shattered by wrongful
convictions, the bill raises the Federal cap on compensation,
and urges States to follow suit--at least in cases where the
wrongly convicted person was sentenced to death. The new
Federal cap proposed by the bill as reported is significantly
lower than the cap proposed by the bill as introduced, and
significantly lower than many Members of the Committee think
appropriate. It is very least that the Congress should do.
3. Loan forgiveness
Today's law students graduate with staggering amounts of
student loan debt. A recent analysis using data collected by
the U.S. Department of Education estimates that the average
cumulative indebtedness for the law school class of 2000
(encompassing both undergraduate and law school loan debt) was
$77,300. ``Update on Annual and Cumulative Borrowing Trends
Among Law and Other First-Professional Students, 1992-93, 1995-
96, and 1999-2000,'' prepared by Kipp Research and Consulting
for Access Group, Inc., June 11, 2002 (on file with the
Committee on the Judiciary). A study of the student loan
indebtedness of assistant district attorneys in New York found
that nearly 20 percent of them owe in excess of $100,000 on
student loans, while a survey of public defenders in
Massachusetts found total student loan burdens of up to
$140,000. See hearing of June 18, 2002 (statement of Hon. Paul
Logli); Letter to Senator Kennedy from William J. Leahy, Chief
Counsel, Massachusetts Committee for Public Counsel Services,
September 25, 2002 (on file with the Committee on the
Judiciary). By contrast, the average entry-level public
interest legal salary is only about $34,000. See ABA Commission
on Loan Repayment and Forgiveness, ``Commission Information and
Loan Repayment/Forgiveness News,'' www.abanet.org/
legalservices/lrap/home.html (last updated March 25, 2002).
These enormous loan burdens are a relatively recent
phenomenon. The ABA reports that average law school tuition has
more than doubled since 1990, and has increased more than ten-
fold since 1975. ABA Section of Legal Education and Admissions
to the Bar, ``Median Tuition at ABA Approved Law Schools,''
2000 (on file with the Committee on the Judiciary). This is
approximately three times the rate of inflation over the same
period. See American Institute for Economic Research, ``Cost of
Living Calculator,'' www.aier.org/cgi-bin/colcalculator.cgi.
Student loans which were unnecessary in 1975 (when private law
school tuition was $2,525 and public law school tuition for in-
State residents was $700) and at least manageable in 1990 (when
tuition was $11,680 and $3,012, respectively), now constitute a
major barrier to the recruitment and retention of competent and
skilled young lawyers to public-service careers as prosecutors
or public defenders. The barrier is greatest for low-income
students with the highest loans, consisting disproportionately
of minorities.
According to the Department of Justice, nearly one-third of
prosecutors' offices across the country reported problems
recruiting or retaining staff attorneys in 2001. Low salaries
were cited as the primary reason for the problems. Bureau of
Justice Statistics, ``Prosecutors in State Courts, 2001,'' NCJ
193441, May 2002, at 3, available at www.ojp.usdoj.gov/bjs/pub/
pdf/psc01.pdf.
Similar surveys of public defender offices report
significant difficulty in recruitment and retention of
attorneys due mainly to low salaries and high student loan
debt. A 2002 survey by Equal Justice Works (formerly the
National Association for Public Interest Law) and the National
Legal Aid and Defender Association found that educational debt
is cited by 88 percent of public interest legal employers as a
major problem in recruitment, and by 82 percent in retention.
See www.equaljusticeworks.org/news/index.php-
view=detail&id=1166. At the Legal Aid Society in New York City,
public defenders take second jobs to make ends meet, and exit
interviews have shown that the No. 1 reason for abandoning a
career as a public defender is student loan debt. Letter to
Senator Patrick Leahy from Susan Hendricks, Deputy Attorney-in-
Charge, The Legal Aid Society, September 25, 2002 (on file with
the Committee on the Judiciary).
Nowhere in public service is it more important to encourage
the recruitment of competent lawyers and the retention of
experienced ones than in the disciplines of prosecution and
public defense, where people's lives and liberty hang in the
balance. Lawyers on both sides of a capital case shoulder the
weightiest burden our civilization imposes on the legal
profession: sorting out people who deserve to be put to death
from those who do not. The cost of the unskilled or
inappropriate discharge of one's professional responsibilities,
including overzealousness on the part of a prosecutor or laxity
on the part of a public defender, can be the execution of an
innocent person--the most unthinkable corruption of a justice
system that is held out as a model to the world.
The Illinois Governor's Commission on Capital Punishment
recently included among its recommendations for avoiding the
execution of the innocent a recommendation that efforts be
undertaken to reduce the burden of student loans for those
entering careers in criminal justice. ``Report of the
Governor's Commission on Capital Punishment,'' April 2002
(recommendation 81), available at www.idoc.state.il.us/ccp/ccp/
reports/commission__reports.html. Legislation extending varying
degrees of student loan repayment assistance to prosecutors and
public defenders has been passed in four States (California,
Georgia, Maryland, and Texas), and considered in six others
(Connecticut, Florida, Illinois, Michigan, New York and
Washington). See ABA Commission on Loan Repayment and
Forgiveness, ``State Loan Forgiveness/Repayment Legislation,''
www.abanet.org/legalservices/lrap/statelegislation.html (last
updated August 6, 2002).
The Federal Government has a legitimate interest in helping
the Nation's prosecutor and public defender offices recruit and
retain highly skilled young lawyers. A report issued in 2000 by
the Justice Department's Office of Justice Programs concludes
that both prosecutors and public defenders should have access
to student loan forgiveness as ``an important means of reducing
staff turnover and avoiding related recruitment/training costs
and disruptions to the office and case processing.''
``Improving Criminal Justice Systems through Expanded
Strategies and Innovative Collaborations: Report of the
National Symposium on Indigent Defense,'' NCJ 181344, February
1999, at x, available at www.ojp.usdoj.gov/indigentdefense/
icjs.pdf. While the Federal Government cannot and is not
expected to pay the salaries of local prosecutors and public
defenders, providing student loan repayment assistance can
provide a powerful incentive for many to make their careers in
State and local criminal justice systems.
There are two principal Federal student loan programs: the
Stafford Loan Program (20 U.S.C. 1071 et seq.) and the Perkins
Loan Program (20 U.S.C. 1087aa-1087ii). Both provide long-term,
low-interest loans to students for post-secondary education.
In recent years, Congress has enacted several student loan
repayment programs to help recruit and retain individuals with
Stafford and Perkins loan debt in occupations that can offer
only modest salaries, including teachers, child care providers,
law enforcement and corrections officers, and nurses and
medical technicians. See, e.g., 20 U.S.C. 1078-10, 1078-11;
1087j, 1087ee. The ratio of debt to salary for individuals in
these occupations is usually far less than for new lawyers
considering a career in prosecution or public defense, due to
the combined burden of undergraduate and law school loans.
As reported by the Committee, S. 486 establishes a program
under which full-time prosecutors and public defenders who
agree to remain employed for the required period of service may
apply for repayment assistance of their Federal Stafford loans.
This program is modeled after the Stafford loan repayment
program in current law for Federal employees. See 5 U.S.C.
5379.
The reported bill also extends the existing Perkins loan
forgiveness program (20 U.S.C. 1087ee) to public defenders.
Prosecuting attorneys are already eligible for loan forgiveness
under this program in their capacity as law enforcement
personnel. Establishing equivalent eligibility for full-time
public defenders recognizes that the public defense function is
equally essential--indeed, it is constitutionally required--to
the process of enforcing the Nation's criminal laws. For the
adversarial system of criminal justice to operate effectively,
efficiently and reliably, there must be balanced resources
between prosecution and indigent defense.
E. SUPPORT FOR LEGISLATION
The Innocence Protection Act has been endorsed by a broad
range of national civic, religious, and professional
organizations, including the American Association of University
Women; the American Baptist Churches USA; the ABA; the American
Civil Liberties Union; the American Federation of Teachers;
Amnesty International USA; the Arab American Institute; the
Central Conference of American Rabbis; the Church of the
Brethren; Church Women United; Common Cause; Disability Rights
Education and Defense Fund; the Episcopal Church; Equal Justice
USA/Quixote Center; the Evangelical Lutheran Church in America;
the Fair Trial Initiative; the Family Violence Prevention Fund;
the Federal Bar Association; the Friends Committee on National
Legislation; the General Board of Church and Society of the
United Methodist Church; the International Human Rights Law
Group; Journey of Hope * * * From Violence to Healing; the
Justice Project; the Lawyers' Committee for Civil Rights Under
Law; the Lawyers Committee for Human Rights; the Leadership
Conference on Civil Rights; the MacArthur Justice Center; the
Maryknoll Office for Global Concern; the Mexican American Legal
Defense and Educational Fund; Murder Victims' Families for
Reconciliation; the NAACP and the NAACP Legal Defense and
Educational Fund; the National Association of Criminal Defense
Lawyers; the National Coalition Against Domestic Violence; the
National Council of Churches of Christ in the USA; the National
Legal Aid & Defender Association; the National Urban League;
People for the American Way; Physicians for Human Rights; the
Presbyterian Church (USA), Washington Office; the Purple Berets
Advocacy & Education Project; Rainbow Sisters Project; the
Religious Action Center for Reform Judaism; the Rutherford
Institute; the United Church of Christ; the Union of American
Hebrew Congregations; the Union of Orthodox Jewish
Congregations; the Unitarian Universalist Association of
Congregations; and the United States Catholic Conference.
The bill has also been endorsed by numerous editorial
boards across the country, including The New York Times
(``Death Penalty Reform in the Spotlight,'' 6/18/02);
Washington Post (``Pass This Bill,'' 7/15/02); Arizona Daily
Star (``Fatal Mistakes,'' 6/7/02); Arizona Republic (``DNA
Serves Justice Life, Death at Stake,'' 6/14/02); Bangor Daily
News (``Protecting the Accused,'' 7/10/02); The Charlotte
Observer (``Punish the Guilty,'' 6/5/02); Chicago Daily Herald
(``Essential Death Penalty Reforms,'' 7/31/02); Christian
Science Monitor (``Death Penalty Fixes,'' 7/24/02); Columbus
Dispatch (``Protecting the Innocent,'' 8/3/02); Cumberland
Times-News (``Congress Moves to Protect Innocent,'' 6/5/02);
The Desert Sun (``Death Penalty Act Merits Support,'' 6/5/02);
Erie Times-News (``How We Answer Death Row Doubts,'' 6/9/02);
Greensboro News & Record (``When the Innocent Spend Years in
Prison,'' 6/7/02); The Indianapolis Star (``Congress Should
Enact the Innocence Protection Act,'' 7/2/02); Lakeland Ledger
(``Rum Justice,'' 7/28/02); Los Angeles Times (``In Defense of
the Innocent,'' 9/21/02); Long Beach Press-Telegram
(``Protecting the Innocent,'' 5/23/02); The Miami Herald
(``Help for Poor Defendants,'' 7/24/02); The Morning Call
(``Politics As Usual,'' 5/26/02); The Orlando Sentinel (``Back
DNA Tests; Our Position: Congress Should Pass A Law Preventing
Execution of Innocent People,'' 9/7/02); Pasadena Star News
(``Spare Innocents Death Penalty,'' 8/2/02); Peoria Journal
Star (``Put Additional Safeguards in the Death Penalty,'' 6/26/
02); Philadelphia Inquirer (``Protecting The Innocent; Federal
Action Is Needed On Executions,'' 9/4/02); The Roanoke Times
(``Death Penalty Reform is Overdue,'' 6/17/02); San Antonio
Express-News (``Giving Inmates Access to DNA Tests Only Just,''
08/19/02); Star Tribune (``Protect the Innocent: Another Death
Penalty Fix,'' 7/27/02); St. Louis Post Dispatch (``An Apology
Isn't Enough,'' 8/6/02); The Tennessean (``A Fairer System of
Justice,'' 6/19/02); The Topeka Capital Journal (``Death
Penalty Rulings--Sane Safeguards,'' 6/30/02); Tulsa World
(``New Rules for Death Row,'' 6/28/02); University of Florida/
University Wire (``Innocence Protection Act Victory for
America, Congress,'' 7/23/02); and The Virginian-Pilot
(``Congress Takes Small Step to Avert Wrongful Verdicts,'' 6/
24/02).
The Committee also received a letter endorsing S. 486
signed by more than 50 current and former prosecutors, law
enforcement officers, and Justice Department officials who have
served at the State and Federal levels, some of whom support
capital punishment and some of whom do not.\21\ The letter
states:
\21\ Signatories to the letter include the following former Federal
prosecutors: Former Director of the FBI William S. Sessions; Former
Deputy Attorneys General Arnold I. Burns, Phillip Heymann, and Harold
R. Tyler, Jr.; Former Associate Attorney General John Schmidt; Former
Assistant Attorney General Laurie Robinson; Former Associate Deputy
Attorneys General Robert S. Litt and Irvin Nathan; and Former Special
Attorney for the Attorney General Beth Wilkinson; Former U.S. Attorneys
Robert C. Bundy, Zachary W. Carter, W. Thomas Dillard, Gaynelle Griffin
Jones, Thomas K. McQueen, and Katrina Pflaumer; and Former Assistant
U.S. Attorneys Matthew Bettenhausen, David B. Bukey, Howard W.
Goldstein, Jeremy Margolis, Charles B. Sklarsky, Neal R. Sonnett, and
Ketih Uhl. Sitting district attorneys who signed the letter include
William M. Bennett (Hampden County, MA); Charles Hynes (Kings County,
NY); E. Michael McCann (Milwaukee County, WI); Robert M. Morgenthau
(New York County, NY); William L. Murphy (Richmond County, NY); Thomas
J. Spota (Suffolk County, NY). Former State attorneys general who
signed the letter include Francis X. Bellotti (MA); William G. Broaddus
(VA); W.J. Michael Cody (TN); Tyrone C. Fahner (IL); Lee Fisher (OH);
Scott Harshbarger (MA); Jim Mattox (TX); Charles M. Oberly, III (DE);
and Ernie Preate (PA). Other former State prosecutors who signed the
letter include William Aronwald (NY); J. William Codinha (MA); Timothy
M. Gunning (MD); Terence Hallinan (CA); Thomas R. Kane (MD); William J.
Kunkle, Jr. (IL); Jim E. Lavine (TX); Ralph C. Martin, II (MA); Randi
McGinn (NM); Phyllis J. Perko (IL); Alan Silber (NJ); and Harry S.
Tervalon, Jr. (LA). The letter is also signed by two former State court
judges, retired Florida State Supreme Court Justice Gerald Kogan and
retired Ilinois Appellate Court Justice Dom Rizzi.
---------------------------------------------------------------------------
Capital cases present unique challenges to our
judicial system. The stakes are higher than in other
criminal trials and the legal issues are often more
complex. When the government seeks a death sentence, it
must afford the defendant every procedural safeguard to
assure the reliability of the fact-finding process. As
prosecutors, we feel a special obligation to ensure
that the capital punishment system is fair and
accurate.
The Innocence Protection Act seeks to improve the
administration of justice by ensuring the availability
of postconviction DNA testing in appropriate cases, and
would establish standards for the appointment of
capital defense attorneys. The interests of prosecutors
are served if defendants have access to evidence that
may establish innocence, even after conviction, and if
they are represented by competent lawyers.
V. Section-by-Section Analysis
Section 1. Short title; table of contents
Section 2. Severability clause
This standard severability clause states that if any
provision of the act is held to be unconstitutional, the
remainder of the act is not affected.
TITLE I--EXONERATING THE INNOCENT THROUGH DNA TESTING
Section 101. DNA testing in Federal criminal justice system
This section establishes rules and procedures governing
applications for DNA testing by inmates in the Federal system.
It authorizes DNA testing where the testing has the scientific
potential to produce new, non-cumulative evidence that is
material to the applicant's claim of innocence, and that raises
a reasonable probability that he or she would not have been
convicted. Testing is barred if the court finds that the
application was made to interfere with the administration of
justice rather than to support a valid claim. Where test
results are exculpatory, the court shall order a hearing and
make such further orders as may be appropriate under existing
law. Where test results are inculpatory, the court shall assess
the applicant for the cost of the testing and submit his or her
DNA to the CODIS database.
In addition to establishing procedures for postconviction
DNA testing, this section prohibits the destruction of
biological evidence in a criminal case while a defendant
remains incarcerated, absent prior notification to the
defendant of the Government's intent to destroy the evidence.
Violations of this preservation provision are punishable by
fine or, in the case of willful and malicious violations,
criminal liability.
Section 102. DNA testing in State criminal justice system
This section conditions the receipt of certain Federal
grants on a State's adopting adequate procedures for preserving
DNA evidence and making DNA testing available to inmates.
States must also agree that, in cases where DNA testing
exonerates an inmate, they will investigate the causes of such
convictions and take steps to prevent such errors in future
cases. Finally, if a State authorizes capital punishment, it
must agree to establish a program of prosecutor-initiated DNA
testing in appropriate capital cases. These conditions apply
only to grants made for activities involving DNA analysis, and
then only to States that apply for such grants. The effective
date is 1 year after the date of enactment of this act.
Section 103. Prohibition pursuant to section 5 of the 14th amendment
Section 103 recognizes a constitutional right of all State
prisoners to access biological evidence for the purpose of DNA
testing, if they meet the threshold requirements. This
provision rests on Congress' power under the 14th amendment to
enforce the due process clause, and is severable from the
provision that conditions Federal DNA grants on States'
adopting postconviction DNA procedures.
Section 104. Grants to prosecutors for DNA testing programs
This section permits States to use grants under the Edward
Byrne Memorial State and Local Law Enforcement Assistance
Programs to fund the growing number of prosecutor-initiated
programs that review convictions to identify cases in which DNA
testing is appropriate and that offer DNA testing to inmates in
such cases.
TITLE II--IMPROVING STATE SYSTEMS FOR PROVIDING COMPETENT LEGAL
SERVICES IN CAPITAL CASES
Section 201. Capital Representation System Improvement Grants
This section establishes a grant program administered by
the Department of Justice to improve the quality of legal
representation provided to indigent defendants in State capital
cases. States that choose to accept Federal funds agree to
create or improve an ``effective system'' for providing
competent legal representation in capital cases. An effective
system is defined as one in which an independent authority
establishes qualifications for attorneys who may be appointed
to represent indigents, identifies and appoints attorneys who
meet these qualifications, and trains and monitors the
performance of such attorneys. Attorneys are to be paid
reasonable compensation at a rate comparable to the typical
Federal rate and receive reasonable reimbursement for expenses.
The following funds are authorized to carry out the grant
programs: fiscal year 2003: $50 million; fiscal year 2004: $75
million; fiscal year 2005 and fiscal year 2006: $100 million
per year; fiscal year 2007: $75 million; fiscal year 2008: $50
million. In the first year, the Federal Government may pay up
to 100 percent of the cost of the new program; in subsequent
years, the State's share increases.
If Congress fails to fully fund this new grant program, up
to 10 percent of the Byrne block grant will be used for this
purpose.
Each State receiving funds must submit an annual report to
the Justice Department. Both the Department and the General
Accounting Office are to submit periodic reports to Congress
evaluating State activities under the program. The Attorney
General monitors whether a State has established and maintained
an effective system and may direct the State to take steps to
achieve compliance.
Section 202. Enforcement suits
States that accept grants assume the duty and
responsibility to use the funds they receive to establish and
maintain legal services programs that satisfy the standards and
conditions specified in section 201. Section 202 authorizes
enforcement lawsuits that will enable the Federal courts to
determine whether State programs comply with Federal
requirements and to order any changes needed to bring failing
programs into compliance.
Under this section, any person may initiate an enforcement
suit, acting on his own behalf and on behalf of the Federal
Government. Such a suit may not be brought until one year after
the State first receives Federal assistance, and if more than
one suit is filed they are to be consolidated. The Attorney
General may intervene in such a suit, and where he does so, he
assumes responsibility for conducting the action. A Federal
court has jurisdiction to entertain such a suit pursuant either
to 28 U.S.C. 1331 or 28 U.S.C. 1345. If the court finds that
the State has not complied with the conditions it agreed to
when it accepted Federal funds, the court may order injunctive
or declaratory relief, but not money damages. The pendency of
such a suit will not result in suspension of a grant to a
State, except as ordered by the court.
Section 203. Grants to qualified capital defender organizations
If a State does not qualify or does not apply for a grant
under section 201, a qualified capital defender organization in
that State may apply for grant funds. Such defender
organizations must be comprised of attorneys who have
experience in capital cases. Organizations have broad
discretion on how such grants may be used, whether to
strengthen systems, recruit and train attorneys, or otherwise
augment the organization's resources for providing competent
representation in capital cases. Thus, unlike grants made under
section 201, grants under this section may be used to fund
direct representation in particular cases. The only specific
prohibition on the use of funds is that they not be used to
sponsor political activities. The Committee clarified this
prohibition during the markup to ensure its consistency with
Federal law. See 48 CFR Sec. 31.205-22 (lobbying and political
activities costs unallowable except as specified).
The reported bill includes a formula for determining the
amount of money available to qualified capital defender
organizations in a State.\22\ Under this formula, the
population of the State in question is divided by the aggregate
population of all States which authorize the death penalty. The
resulting figure is multiplied by the sum appropriated by
Congress for capital representation improvement grants in the
relevant fiscal year. Grants made to capital defender
organizations in the State may not be greater than the result
of this equation and may not be less than half of the same
amount.
---------------------------------------------------------------------------
\22\ The reported version of S. 486 erroneously reverses the
numerator and denominator in the formula for calculating the amount
available to qualified capital defender organizations. This error will
be corrected by a technical amendment at the next opportunity for
legislative action on the bill. The description of the formula above
reflects the corrected language.
---------------------------------------------------------------------------
For example, according to the 2000 census, the population
of North Carolina was 8,186,268 and the aggregate population of
all death penalty States was 247,303,231. Dividing the North
Carolina population by the aggregate State population results
in the decimal figure 0.03. (8,168,268 247,303,231 =
0.03.) This number is multiplied by the sum appropriated to
carry out capital representation improvement grants under
section 201. Assuming that the appropriated amount in a fiscal
year was $50,000,000 (the amount authorized by section 201 for
fiscal year 2003), then the maximum amount available to capital
defender organizations in North Carolina in that fiscal year
would be $1,500,000 (0.03 $50,000,000 = $1,500,000)
and the minimum would be half that amount, or $750,000.
TITLE III--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF
CERTIORARI
Section 301. Protecting the rights of death row inmates to review of
cases granted certiorari
This section is designed to ensure that a defendant who is
granted certiorari by the Supreme Court (an action requiring
four affirmative votes by qualified Justices), but who is not
granted a stay of execution by the Court (an action requiring
five affirmative votes), is not executed while awaiting review
of his case. With respect to Federal cases, the bill prohibits
the Bureau of Prisons and the military from executing a death
row inmate when the Supreme Court has granted certiorari. With
respect to all cases, the bill requires the Court to treat a
motion for a stay of execution as a petition for certiorari,
and provides for an automatic stay of execution if the
requisite number of Justices vote to hear the case.
TITLE IV--COMPENSATION FOR THE WRONGFULLY CONVICTED
Section 401. Increased compensation in Federal cases
This section increases the maximum amount of damages that
the U.S. Court of Federal Claims may award against the United
States in cases of unjust imprisonment from $5,000 per case to
$10,000 per year in prison. A person suing for unjust
imprisonment must prove that he was factually innocent of the
offense of which he was convicted. See 28 U.S.C. 2513.
Section 402. Sense of Congress regarding compensation in State death
penalty cases
This section expresses the sense of Congress that States
should provide reasonable compensation to any person found to
have been unjustly convicted of an offense against the State
and sentenced to death. Currently, fewer than 20 States have
statutes to compensate the wrongfully imprisoned, and caps in
most statutes result in unreasonably low compensation.
TITLE V--STUDENT LOAN REPAYMENT FOR PUBLIC ATTORNEYS
Section 501. Student loan repayment for public attorneys
This section establishes a Federal Stafford Loan repayment
option for full-time prosecutors and public defenders who agree
to serve as public interest attorneys for a minimum of 3 years.
Repayment benefits may not exceed $6,000 in a single calendar
year, or a total of $40,000 for any individual. This section
also extends the existing Perkins Loan forgiveness program, 20
U.S.C. 1087ee, to public defenders.
For both the Stafford and Perkins Programs, the term
``public defender'' is defined to include full-time attorneys
providing publicly funded indigent criminal defense services,
either in a Government agency or in a non-profit organization
operating under a contract with a State or local government.
This definition recognizes that such non-profit agencies,
utilized in many jurisdictions across the United States, are
functionally indistinguishable from governmental public defense
agencies.
Because the purpose of these provisions is both recruitment
and retention, eligibility is intended to extend not only to
persons who have not yet completed their legal education, but
also to persons who have already entered service as a
prosecutor or public defender but still have Federally financed
student loans outstanding.
VI. Cost Estimate
The cost estimate from the Congressional Budget Office
requested on S. 486 has not yet been received. Due to time
constraints, the CBO letter will be printed in the
Congressional Record.
VII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 486 will not have significant
regulatory impact.
VIII. MINORITY VIEWS
I. Introduction and Summary
The stated purpose of S. 486, ``The Innocence Protection
Act,'' is to ``reduce the risk that innocent persons may be
executed.'' No one on the minority objects to such a purpose.
There is no question that every member of the Judiciary
Committee agrees that the death penalty in our country must be
imposed fairly and accurately. To ensure such fairness, we
agree on the need to provide post-conviction DNA testing for
certain defendants. And we agree on the need to ensure that
every defendant is represented by competent counsel as required
by the Sixth Amendment of our Constitution and numerous Supreme
Court decisions enforcing this requirement. But, as detailed
herein, we disagree with the means contained in S. 486 to
accomplish these important goals and some of the underlying
premises on which the bill is based.
S. 486 is presented by the Majority as a bill to ensure
access to DNA testing and competent counsel in capital
proceedings. While such goals are laudable, the Majority Report
raises broader issues relating to the overall fairness of the
death penalty system in this country, the need for a national
moratorium, and the need to address other ``defects of capital
punishment systems nationwide.'' Majority Report at 7-8, 19.
Some who have injected these larger concerns into the debate
over S. 486 are simply attempting to frustrate the
administration of the death penalty in our country by alleging,
without any credible evidence, that there is a significant risk
that innocent persons have been or will be executed. By
attaching itself to this claim, the Majority has lent credence
to a minority of activist groups that has little concern for
the overall safety of the public and the significant benefits
to our society of a swift, accurate and fair death penalty
system.
Contrary to the Majority's view, we submit that the death
penalty system in our country is accurate. Suggestions to the
contrary are contradicted by the fact that no credible evidence
has been provided to suggest that a single innocent person has
been executed since the Supreme Court imposed the heightened
protections in 1976. The death penalty system now includes
numerous layers of court review, which ensure that errors are
identified and corrected. In fact, the death penalty system
saves lives by incapacitating dangerous offenders who, if
freed, would pose a significant risk that they will kill again.
Moreover, there is substantial evidence that the death penalty
is a significant deterrent; states that impose the death
penalty have reduced murder rates, while states that do not
impose the death penalty have experienced increases in murder
rates. For convicted murderers who are already serving life
without parole sentences, the death penalty is a critical
deterrent to the murder of prison guards, nurses, and other
inmates. Moreover, the possibility of the death penalty has
served a vital national security interest by encouraging those
guilty of espionage against the United States, like Aldrich
Ames and Robert Hanssen, to cooperate and provide full
disclosure of the damage they caused.
We remain vigilant in ensuring that capital punishment is
meted out fairly against those truly guilty criminals. We
cannot and should not tolerate defects in the capital
punishment system. No one can disagree with this ultimate and
solemn responsibility. No one wants to see an innocent person
punished. Responsible reforms should be enacted when needed.
With respect to post-conviction DNA testing, we recognize
that, in the last decade, DNA testing has become the most
reliable forensic technique for identifying criminals when
biological evidence is recovered. Since the early 1990s, DNA
testing is now standard in pre-trial investigations. We
recognize that the need to ensure that the convicted have
access to DNA testing where such testing was not previously
available and where such testing holds a real possibility of
establishing the defendant's actual innocence. No one disagrees
with the fact that post-conviction DNA testing should be made
available to defendants when it serves the ends of justice. The
integrity of our criminal justice system and, in particular,
our death penalty system, can be enhanced with the appropriate
use of DNA testing.
Unfortunately, S. 486 establishes post-conviction DNA
testing procedures which are too broad and unfairly skewed in
favor of convicted defendants who have no reasonable chance to
establish their innocence. S. 486 does not adequately protect
against convicted criminals filing frivolous post-conviction
applications in order to ``game'' the system. In addition, S.
486 unconstitutionally relies on Section 5 of the 14th
Amendment to impose these same specific DNA testing
requirements on the States, even though many States already
have adopted, or are in the process of adopting, DNA testing
procedures for convicted defendants.
With respect to measures designed to improve the competency
of defense counsel handling of state capital cases, the
Majority has built into S. 486 a host of improper provisions
aimed at restricting state sovereignty, and burdening States
with a new set of unfunded federal mandates. Specifically, S.
486: (1) strips the States and state courts of their
traditional role in the administration of state court systems
by requiring States to establish ``independent'' agencies
responsible for representation of indigent defendants in
capital cases; (2) mandates competency standards which must be
imposed on defense counsel in each State; or alternatively (3)
funds private defense organizations to administer systems for
appointment of defense counsel to represent indigent defendants
in state capital trials. S. 486 also threatens to reduce vital
Byrne Grant funding to the States in order to fund private
defense organizations. Finally, S. 486 will unleash a torrent
of enforcement suits by prisoners, private interest groups and
others by authorizing private enforcement suits against the
States to ensure that the separate agency is, in fact,
``independent,'' and that federally-mandated competency
standards are being met.
Considered in this context, S. 486 is not limited to the
creation of a reasonable post-conviction DNA testing system for
certain defendants. If that were the case, legislation on the
post-conviction DNA testing issue could have been worked out in
short order and passed by a unanimous Judiciary Committee.
Rather, S. 486 will remove the States and state courts from
their traditional responsibility for appointing counsel to
represent indigent capital defendants in state criminal cases.
In its place, S. 486 seeks to resuscitate private
organizations, e.g. capital resource litigation centers, which
Congress defunded in the mid-1990s because of serious ethical,
political and financial abuses.
It is unfortunate that an opportunity to build a broad
consensus around the important issues of DNA testing and
competency of defense counsel has been missed. When the
Judiciary Committee first began to examine these issues, we all
shared the hope that meaningful and appropriate legislation
could be developed by a unanimous Judiciary Committee.
Unfortunately, S. 486, as passed by the Judiciary Committee,
has been used as a vehicle for a broader and more dangerous
agenda which relies on unconstitutional assertions of power,
threatens traditional notions of federalism, and will frustrate
the effective and fair imposition of the death penalty.
We share the desire to afford post-conviction DNA testing
where such tests will establish the defendant's actual
innocence. We also agree that funding should be provided to
prosecutors, defense counsel and state courts to conduct
meaningful training programs which will improve performance,
and reduce errors in state capital trials.
We remain hopeful that further consideration of S. 486 will
result in modifications to reflect the true consensus on these
important issues. We continue to support the more reasoned
approach to the issues of access to DNA testing and competence
of counsel made in S. 2739, which was introduced by Senator
Hatch. That proposal will further our nation's commitment to
justice, ensure that our country has a fair death penalty
system, and protect the sovereignty of states from burdensome
and unnecessary federal assertions of power.
II. Capital Punishment in America
We disagree with the underlying premise for much of S.
486--that the death penalty system in our country is ``broken''
and needs to be fixed. In our view, the death penalty system in
our country continues to play a vital role in protecting the
public from vicious criminals by deterring and punishing
murderers. Moreover, aside from the protection of the public
and the just punishment of the guilty, our death penalty system
vindicates the right of victims and their families to see that
justice is done. All too often, the value of a swift, certain
and reliable death penalty is challenged by a vocal minority of
special interest groups seeking to advance their own anti-death
penalty agenda by proffering unreliable studies and
generalizations based on isolated incidents. Death penalty
opponents pursue their cause without even considering the
public benefits of the death penalty. S. 486, and the debate
surrounding the bill, demonstrate once again the dangers of
making public policy based on such a narrow viewpoint.
The death penalty system in our country has been built on
``super due process,'' a term used by former Supreme Court
Justice Lewis Powell to describe the procedural system for
imposing and reviewing death penalty cases. We have an
elaborate system of appeals in capital cases, which typically
involves multiple levels of state and federal review,
ultimately landing at the United States Supreme Court. Over the
past 25 years, procedural protections have been adopted to
reduce as much as possible the likelihood that error will be
committed or, if committed, that it will go undetected. Neither
the Majority nor any death penalty opponents has cited any
credible evidence that any innocent person has been executed
since the Supreme Court reinstated the death penalty in 1976.
``There is, in short, no persuasive evidence that any innocent
person has been put to death in more than twenty-five years.''
See Markman and Cassell, Protecting the Innocent: A Response to
the Bedau-Radelet Study, 41 Stanford L. Rev. 121 (1988).
The likely explanation for the absence of errors in
capital cases during the past quarter century is the
greater care taken by the courts to assure the correct
resolution of such cases and, particularly, the pains-
taking reviews that occur in cases in which the death
sentence is actually imposed.
Id. at 151.
More significantly, death penalty opponents undervalue the
important benefit of the death penalty--it saves lives. Through
a combination of deterrence, incapacitation and the imposition
of just punishment, a swift, certain and accurate death penalty
system protects a significant number of innocent lives.\1\ Even
sentences of life without parole do not eliminate the potential
risk that a murderer will kill in prison. Murderers who
premeditate before they kill are shrewd enough to recognize the
potential punishment for their actions. Recent statistical
studies, see Section A below, confirm that capital sentences
have a deterrent effect. Recognizing these significant benefits
to society, the death penalty furthers important societal goals
and saves innocent lives. With these benefits in mind,
proponents of abolition or even a moratorium bear the burden of
supplying some credible justification for such measures.
Instead, they offer certain isolated examples that cannot be
fairly extrapolated to indict the capital punishment system as
a whole or support the speculative claim that the risk of error
must be eliminated entirely for such a system to continue. That
claim ignores the real benefits to the public. That is not to
say that we oppose any modifications to the current death
penalty system; indeed, we support efforts to try and make a
good system near perfect.
---------------------------------------------------------------------------
\1\ Among inmates under a death sentence on December 31, 2000, 64
percent had prior felony convictions, including 8 percent with at least
one previous homicide conviction. See Tracy L. Snell, Bureau of Justice
Statistics, Capital Punishment 2000 (December 2001).
---------------------------------------------------------------------------
Recent data concerning capital punishment during the period
of 1973 to 2000 support the assertion that our death penalty
system is accurate. A Department of Justice study, Capital
Punishment 2000, sets out specific data which support our
contention that the death penalty system, far from broken, is
indeed working well. See Tracy L. Snell, Bureau of Justice
Statistics, Capital Punishment 2000 (December 2001). Appendix 1
is a detailed table for the years 1973 to 2000 for prisoners
sentenced to death and the outcome sentence. Between the years
1973 and 2000, a total of 6,930 prisoners were sentenced to
death; of these, 1,970, or 28 percent, were removed from death
row upon appellate reversal of a defendant's conviction (681),
or sentence (1,102), commutation or other reason (187).\2\
Thus, less than 10 percent of all defendants sentenced to death
during the period of 1973 to 2000 had their underlying
conviction reversed (681 of 6,930 or 9.82 percent). This data
suggests that the amount of error in our capital punishment
justice system is far less than death penalty opponents claim.
In fact, such data suggests that our appellate and habeas
system for review has been effective in identifying and
ultimately rectifying errors at the trial and appellate levels.
---------------------------------------------------------------------------
\2\ Appendix Table 1 lists 461 prisoners removed from sentence of
death because an appellate or higher court overturned the state's death
penalty statute. These reversals are not included in the 1 percent
calculation since they do not involve review of issues which could
possibly implicate the factual innocence of the defendant. Id. at
Appendix Table 1.
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A. THE DEATH PENALTY: AN EFFECTIVE DETERRENT
Death penalty opponents attack capital punishment by
focusing on the alleged risk that we will execute an innocent
person or that we already have executed an innocent person.
While there is no credible evidence to support these claims,
there is overwhelming evidence that capital punishment saves a
substantial number of innocent lives, deterring probably
thousands of murders in the United States every year. The
recent and most comprehensive academic studies, our nation's
historical experience, and criminals' own account of their
motives and behavior all point in the same direction: that the
death penalty is a substantial deterrent to homicide.
All of the scientifically valid statistical studies--those
that examine a period of years, and control for national
trends--consistently show that capital punishment is a
substantial deterrent. The most up-to-date and exhaustive
study, produced by researchers at Emory University in 2002,
concludes that each execution prevents, on average, about 18
murders. The academic studies' findings are confirmed by the
recent experience of those states that actively enforce the
death penalty and those states that do not allow capital
punishment. As one journalist reviewing the data has pointed
out, ``[a]lmost the entire drop in murder rates over the past
decade has occurred in states with capital punishment, with the
biggest decrease seen in states that are executing people.''
\3\ Felons themselves have repeatedly explained why this is so:
a robber, rapist, or surprised burglar already knows that he is
risking a long prison term before he decides to commit his
crime. If there is no death penalty, killing the victim simply
means more jail time--and eliminates a witness, reducing the
risk that he will ever be caught. It is only the additional
risk of execution that provides an effective deterrent to
murder.
---------------------------------------------------------------------------
\3\ See William Tucker, Capital Punishment Works, The Weekly
Standard, August 13, 2001; see also, Protecting the Innocent: Ensuring
Competent Counsel in Death Penalty Cases: Hearing Before the United
States Senate Committee on the Judiciary, 107th Cong. (June 27, 2001)
(statement of Alabama Attorney General William Pryor); Jeff Jacoby, The
Myth of Executing Children, Boston Globe, June 2, 2002; Jeff Jacoby,
Capital Punishment Saves Lives, Boston Globe, June 6, 2002.
---------------------------------------------------------------------------
Those who would prevent the states from enforcing the death
penalty must also account for why society should forego the
incapacitation effect of the death penalty. An executed
murderer will never kill a prison guard, will never escape, and
will never be paroled into society, no matter who is elected
governor. In 1984, this nation's prisons held 810 inmates
serving sentences for murder who, once before in their lives,
had been convicted of murder. Markman and Cassell, Protecting
the Innocent: A Response to the Bedau-Radelet Study, 41
Stanford L. Rev. 121, 153 (1988). Had these killers been
executed for their first murder conviction, 821 innocent men,
women and children would have lived.
(i) The deterrence studies
The first sophisticated econometric study of the deterrent
effect of the death penalty was published by Isaac Ehrlich in
1975. Ehrlich, The Deterrent Effect of Capital Punishment: A
Question of Life and Death, 65 Am. Econ. Rev. 397 (1975);
Ehrlich, Capital Punishment and Deterrence: Some Further
Thoughts and Additional Evidence, 85 J. Pol. Econ. 741 (1977).
He found that capital punishment significantly deterred
homicides in the United States. Ehrlich's findings were noted
by the Solicitor General of the United States, who introduced
them to the Supreme Court in support of the States' post-Furman
death-penalty laws. See Fowler v. North Carolina, 428 U.S. 904
(1976). In 1984, Professor Stephen Layson of the University of
North Carolina expanded on Erhlich's work, extending the data
under consideration to 1977. Layson, Homicide and Deterrence: A
Reexamination of the United States Time-Series Evidence, 52 S.
Econ. J. 68, 75, 80 (1984); Layson, United States Time-Series
Homicide Regressions with Adaptive Expectations, 62 Bull. N.Y.
Acad. Med. 589 (1986). Layson found that on average, each
execution in the United States deterred approximately 18
murders.
To be sure, some studies--usually conducted by avowed
death-penalty opponents--have concluded that the death penalty
has no deterrent effect. The U.S. Department of Justice,
however, has reviewed these no-deterrence findings and
concluded that ``few, if any, of these studies relied on
rigorous methodologies or adequately controlled for variables
that affect the homicide rate.'' Markman, supra, at 154 (citing
W. Weld & P. Cassell, Report to the Deputy Attorney General on
Capital Punishment and the Sentencing Commission 15-19 (Feb.
13, 1987)).
The most recent and comprehensive studies of the death
penalty have confirmed Ehrlich and Lawson's findings. A May
2002 study by the University of Colorado at Denver used ``a
data set that consists of the entire history of 6,143 death
sentences between 1977 and 1997 in the United States to
investigate the impact of capital punishment on homicide.'' H.
Naci Mocan, R. Kaj Gittings, Removals from Death Row,
Executions, and Homicide, University of Colorado at Denver,
Dep't of Economics, at 21 (available on the internet at: http:/
/econ.cudenver.edu/gittings/KajPaperJune.pdf). Comparing
changes in states' murder rates to the probability of being
executed for murder, the authors found not only that each
execution has a significant deterrent effect, but that each
commutation of a death sentence increases homicides by between
four and five.\4\
---------------------------------------------------------------------------
\4\ Id. at 21-22. These findings might be kept in mind by Governor
George Ryan of Illinois, who has hinted that he might issue a blanket
commutation to the 160 convicted murderers on that State's death row.
See Steve Mills, Clemency Clock Ticking--160 on Death Row Face Deadline
in Pleas to Ryan, Chicago Tribune, August 25, 2002, at 1. See also
Blanket Reprieves Would Be Wrong, Chicago Daily Herald, August 29,
2002, at 12. If the University of Colorado study's findings are
correct, such an action by Governor Ryan would discredit the state's
death-penalty regime and undermine its deterrent effect, potentially
leading to many additional homicides in Illinois.
---------------------------------------------------------------------------
The most comprehensive death-penalty study ever conducted
has also been released this year. Researchers at Emory
University used ``a panel data set covering 3,054 counties [in
the United States] over the period 1977 through 1996 to examine
the deterrent effect of capital punishment.'' \5\ Hashem
Dezhbaksh, Paul H. Rubin, Joanna Mehlhop Shepherd, Does Capital
Punishment Have A Deterrent Effect? New Evidence from Post-
moratorium Panel Data, Emory University (January 2002), at 27
(study available on the internet at: http://
userwww.service.emory.edu/cozden/
Dezhbakhsh__01__01__paper.pdf). While past studies examined
only national or statewide data, the Emory group tracked
changes in murder rates and other data down to the county
level. According to the study's authors, ``[t]his is the most
disaggregate and detailed data used in [the death-penalty
deterrence] literature.'' The Emory study also controlled for
the effect of other factors on murder rates, including age,
race, unemployment, population density, other crime rates, and
police- and prison-related variables. The results are
impressive. Comparing changes in murder rates to the
probability of execution, the Emory group's findings ``suggest
that the legal change allowing executions beginning in 1977 has
been associated with significant reductions in homicide.''
Specifically, the study's ``most conservative estimate is that
the execution of each offender seems to save, on average, the
lives of 18 potential victims.''
---------------------------------------------------------------------------
\5\ See also Rubin, Study: Death Penalty Deters Scores of Killings,
Atlanta Journal-Constitution, March 14, 2002, at A22.
---------------------------------------------------------------------------
Finally, another recent study raises disturbing questions
about the impact of the various ``execution moratoria'' that
have been imposed or are being contemplated by several states'
governors. Professors Dale Cloninger and Roberto Marchesini of
the University of Houston have examined the effects of a de
facto moratorium recently applied by the Texas Court of
Criminal Appeals. Cloninger & Marchesini, Execution and
Deterrence: A Quasi-Controlled Group Experiment, 33 Applied
Economics 569 (2001).\6\ That court delayed virtually all
executions in Texas for over a year while it reviewed a legal
question that affected all cases. Ex parte Davis, 947 S.W.2d
216 (Tex. Crim. App. 1996). Cloninger and Marchesini developed
a statistical model that linked changes in the Texas homicide
rate with corresponding changes in the national murder rate
over the five years preceding the moratorium. They then used
that model to predict Texas homicide rates for each month of
the effective moratorium--from early 1996 to early 1997.
---------------------------------------------------------------------------
\6\ See also, Protecting the Innocent: Ensuring Competent Counsel
in Death Penalty Cases: Hearing Before the United States Senate
Committee on the Judiciary, 107th Cong. (June 27, 2001) (statement of
Alabama Attorney General William Pryor).
---------------------------------------------------------------------------
Cloninger and Marchesini concluded that ``[s]ignificant
changes in the number of homicides appear associated with
sudden changes in the number of executions in a manner
consistent with the deterrence hypothesis.'' Specifically, they
found that ``the number of additional (unexpected) homicides
that occurred over the approximate 12-month de facto moratorium
in Texas ranged from 150 to 250.'' As Cloninger has since
noted,
[t]he unexpected homicides occurred despite the fact
that arrests continued to be made for homicide,
scheduled trials for both capital and non-capital
offenses went on, sentencing for capital and non-
capital verdicts went uninterrupted, and there were no
known, dramatic changes in the state's demographics.
The only change relevant to the crime of homicide was
the suspension of executions.
Dale Cloninger, Scientific Data Support Executions' Effect,
Wall Street Journal, June 27, 2002, at A21.
Reflecting on their findings, Cloninger and Marchesini have
suggested that ``politicians may wish to consider the
possibility that a seemingly innocuous moratorium on executions
could very well come at a heavy cost.'' Cloninger and
Marchesini conclude their Texas study with some noteworthy
remarks about the body of death-penalty deterrence studies:
Any single empirical study, including the present
one, is subject to honest criticism. * * * [Moreover,]
a morally contested issue like the deterrence effect of
capital punishment attracts criticism that other less
contested issues elude.
* * * * *
If this were the only study to find evidence of
deterrence, then the scrutiny that it will undoubtedly
attract could cast some doubt upon its conclusions.
However, this study is but another on a growing list of
empirical works that finds evidence consistent with the
deterrence hypothesis. These studies as a whole provide
robust evidence--evidence obtained from a variety of
different models, data sets and methodologies that
yield the same conclusion. It is the cumulative effect
of these studies that causes any neutral observer
pause.
(ii) The verdict of recent history
Those who are not persuaded by statistical evidence and
regression analysis may yet find evidence of the death
penalty's deterrent effect in another area: the recent
experience of individual States. To the citizens of those
States that have been able to implement an effective death
penalty since Furman, the results have been unmistakable.
A favorite tactic of death-penalty opponents is to argue
that the death penalty must not deter criminals because the 38
States that allow capital punishment still have higher murder
rates than most non-death penalty States. What this simply
reflects, of course, is that death-penalty laws largely have
been enacted in those States where they are most needed. Non-
death penalty North Dakota, for example, had only one murder in
all of 1969, and one again in 1994, for a murder rate of 0.2
per 100,000 in those years. That State may be less concerned
about deterring homicide than would be California, which saw
3,411 murders in 1980--a State record rate of 14.5 victims per
100,000 people.\7\
---------------------------------------------------------------------------
\7\ The data cited in this section were obtained from the FBI
website. See www.fbi.gov/ucr/ucr.htm.
---------------------------------------------------------------------------
A better measure of the death penalty's deterrent effect
can be found in the experience over time of those States that
have enacted death-penalty statutes. Thus, to take the simplest
example: the five States showing the greatest relative
improvements in murder rates for the years 1995-2000 compared
to 1968-1976--the years of no executions in the United States--
are, in order, Georgia, South Carolina, Florida, Delaware, and
Texas. Each of these States has aggressively enforced the death
penalty since Furman.
Texas, for example, carried out its first post-Furman
execution in 1982. Its murder rate that year was 16.1 per
100,000, for a total of 2,466 murders in that State. Since
then, Texas has led the nation in executions. By 1999, its
murder rate had fallen to 6.1 per 100,000--a total of 1,217
murders, less than half the 1982 figure, despite Texas's strong
population growth in the intervening years. Harris County,
which contains Houston, has led Texas in executions. It has had
65 executions carried out since Furman, more than any State
except Virginia. Since 1982, Houston's murder rate has fallen
by 71%.
Still, death-penalty opponents might argue that Texas has
simply been swept along in a national trend. Throughout the
United States, the murder rate today is almost 40% lower than
it was in 1991. According to the journalist William Tucker,
however, Texas has not been carried along in a trend--rather,
Texas and other death penalty States have generated that trend.
Tucker examined the 1990s decline in murder rates for three
groups of States: the 31 States that allow the death penalty
and have carried out executions since Furman; the 7 States that
allow the death penalty but have had no executions; and the 12
States that do not permit the imposition of the death penalty.
Tucker's findings are remarkable:
Homicide rates have since [1990] fallen steadily in
States that have performed executions, with the
downward arc beginning in 1994. States with capital
punishment but no executions have lowered their
homicide rate but in a more uneven pattern. States with
no capital punishment saw a slight decline that was
almost completely wiped out by an upswing in 1999.
Almost the entire drop in murder rates over the past
decade has occurred in States with capital punishment,
with the biggest decrease seen in States that are
executing people.
Tucker, supra at 28-29 (emphasis added in block quote).
Another way to isolate the death penalty's deterrent
effect, while controlling for national trends, is simply to
compare States' 1999 murder rates to those of 1966, the most
recent year that the national rate was as low as that of 1999.
In 1966, the national homicide rate was 5.6 per 100,000. In the
years since that year, the death penalty was judicially
abolished in 1972; 38 States reenacted death-penalty laws, the
national murder rate peaked in 1980 at 10.2 per 100,000; and,
in the 1990s, some States again began to carry out a
substantial number of executions. By 1999, the national murder
rate had fallen to a 32-year low of 5.7 per 100,000--the lowest
rate since 1966. If death-penalty States have simply benefited
from a national trend in recent years, one would expect that in
1999, they and the non-death penalty States would all have
returned to the lower murder rates that each had experienced in
1966. But this is not what has occurred.
Focusing on those States with effective death penalty laws,
the top six States in terms of total executions are, in order:
Texas, Virginia, Missouri, Florida, Oklahoma, and Georgia. Of
course, the criterion of total executions is biased against the
smaller States. Another way to gauge how actively a State
enforces the death penalty is to examine the rate of executions
per murders in each State. By this measure--executions per
total murders since 1976--by far the most aggressive death-
penalty State in the nation is Delaware. In that State, 1.7% of
all murders have resulted in an execution since 1976--more than
twice the rate of second-ranked Oklahoma. Texas is only fourth
by this measure. Also in the top six are Missouri, Virginia,
and Arkansas.
Among non-death penalty jurisdictions, nine are large
enough to have at least two congressmen, and no wild swings in
murder rates from year to year. These States are Wisconsin,
Minnesota, Massachusetts, Iowa, Michigan, West Virginia, Rhode
Island, and Hawaii.\8\
---------------------------------------------------------------------------
\8\ The two-congressmen standard excludes North Dakota, where, for
example, the murder rate fell by 93% between 1966 and 1967, but then
went up 700% the next year--for less than 10 murders across all three
years. Also excluded are: the District of Columbia, whose average
murder rate since 1980 has been 52.5 per 100,000; Alaska, which
experienced a massive population influx during the 1970s oil boom and
has had a persistently high murder rate; and tiny Vermont.
Incidentally, Vermont's murder rate has almost doubled since 1966.
Indeed, Vermont's still-relatively-low 1999 rate is nevertheless about
six times its 1962-65 average.
---------------------------------------------------------------------------
Here is what has happened in each of these States in 1999,
when national murder rates returned to their 1966 level:
Of the 8 top death-penalty States, 6 have seen their murder
rates go down since 1966. Arkansas's murder rate is down by 1.5
percentage points, Virginia's rate is down 2.4 points, Texas is
down 3.0 points, Georgia is down 3.8 points, Florida is down
4.6 points, and Delaware is down 5.8 points. The only States
whose murder rates went up--Oklahoma and Missouri--went up by
only 1.4 and 1.2 points, respectively. Of the 6 of these States
with declining murder rates (Arkansas, Virginia, Texas,
Georgia, Florida, and Delaware), the period between 1997 and
1999 saw all 6 reach their lowest murder rate since 1960, the
first year for which FBI data are available. Indeed, 4 of these
States--Virginia, Florida, Delaware, and Arkansas--went from
having murder rates that were well above the national average
in 1966, to murder rates below the national average in 1999.
On the other hand, of the 9 biggest non-death penalty
States, 6 have seen their murder rates go up since 1966
(Wisconsin, Minnesota, Michigan, West Virginia, Rhode Island,
and Hawaii), one has stayed the same (Maine), and two have gone
down slightly (Massachusetts by 0.4 of a percentage point, Iowa
by 0.1 point).
Non-death penalty Michigan's murder rate is now 7.0 per
100,000--well above the national average. Of the top 8 death-
penalty States, all 8 had a higher murder rate than Michigan in
1966. But by 1999, Michigan had a higher murder rate than 7 of
these States--higher than Texas, Virginia, Florida, Delaware,
Oklahoma, Missouri, or Arkansas.
To compare two otherwise-similar States over this time
period, in 1966, non-death penalty Rhode Island had a murder
rate of 1.4 per 100,000. Delaware's murder rate in that year
was 9.0 and peaked at 10.3 in 1974. Yet by 1999, Rhode Island's
murder rate had more than doubled, to 3.6. Meanwhile,
Delaware's murder rate has fallen below Rhode Island's, to a
1999 rate of 3.2 per 100,000.
For the people of these States, these numbers are more than
just statistics. These figures represent a substantial
difference in human lives saved and lost. For example, had
Texas simply followed national trends, and returned to its 1966
murder rate when the nation did so in 1999, in that year an
additional 607 people would have been murdered in that State.
In Georgia, doing no better than the national trend would have
meant an additional 297 murders in 1999. Conversely, Minnesota
would have seen 29 fewer murders in 1999 had it been able to
return to its 1966 homicide rate, and Wisconsin would have seen
79 fewer people killed in that year. When opponents of capital
punishment dismiss deterrence as a justification for the death
penalty, they dismiss the serious consequences that the absence
of an effective capital-sentencing system carries for large
numbers of potential crime victims and their families.
(iii) In their own words
Perhaps the most probative evidence that capital punishment
is a substantial deterrent of homicide--that is influences
whether criminals will kill their victims, or even bring a
loaded gun to a crime--comes from the statements of those in
the best position to know.
John Coughlin, a retired New York City policeman, has
recounted that when he ``patrolled Flatbush Avenue in the
1950s''--a time New York regularly carried out executions--``at
least half the time when we stopped an armed robbery, the gun
turned out to be unloaded.'' Coughlin explains: ``The criminals
wanted the fear of the gun, but they didn't want even the
slightest possibility that the gun might accidentally go off.
That meant `going to the chair.' '' The Capital Question,
National Review, July 17, 2000, at 4245.
The phenomenon described by Coughlin has been noted by
several members of this Committee who have served as
prosecutors in highly-populated jurisdictions. Senator Specter,
who formerly served as District Attorney of Philadelphia, and
has tried capital murder cases, has stated that ``[b]ased on
this experience, I am personally convinced that many
professional robbers and burglars are deterred from taking
weapons in the course of robberies and burglaries because of
the fear that a killing will result, and that would be murder
in the first degree.'' 141 Cong. Rec. S7893 (June 7, 1995).
Senator Specter has described a case in which three criminals
decided to rob a grocery store in North Philadelphia.
They talked it over, and the oldest of the group,
Williams, had a revolver which he brandished in front
of his two younger coconspirators. When Carter, age 18,
and Rivers, 17, saw the gun they said to Williams that
they would not go along on the robbery if he took the
gun because of their fear that a death might result and
they might face capital punishment--the electric chair.
Senator Feinstein has described the same deterrent effect
at work in San Francisco. She has stated:
There has been a lot of discussion as to whether the
death penalty is or is not a deterrent. But I remember
well in the 1960s, when I was sentencing a woman
convicted of robbery in the first degree, and I
remember looking at her commitment sheet and I saw that
she carried a weapon that was unloaded into a grocery
store robbery. I asked her the question: ``Why was the
gun unloaded?'' She said to me: ``So I would not panic,
kill somebody, and get the death penalty.'' That was
firsthand testimony directly to me that the death
penalty in place in California in the sixties was in
fact a deterrent.
141 Cong. Rec. S7662 (June 5, 1995).
Another account of the death penalty's direct inhibiting
effect on criminal behavior is available from the State of
Kansas. United States District Judge Paul Cassell quotes the
following history, in a 1988 law-review article that he co-
wrote while serving as a federal prosecutor:
According to the Attorney General of Kansas, one of
the contributing factors leading to the 1935
reenactment of the death penalty in Kansas for first-
degree murder was the spate of deliberate killings
committed in Kansas by criminals who had previously
committed such crimes in surrounding states where their
punishment, if captured, could have been the death
penalty. These criminals admitted having chosen Kansas
as the site of their crimes solely for the purpose of
avoiding a death sentence in the event that they were
captured.
Markman and Cassell, Protecting the Innocent: A Response to the
Bedau-Radelet Study, 41 Stanford L. Rev. 121, 154 n.205 (1988)
(citing Report of the Royal Commission on Capital Punishment
1949-53, at 275 in 7 Reports of Commissioners, Inspectors, and
Others 677 (1952-1953)).\9\
---------------------------------------------------------------------------
\9\ The highest rates of on-the-job murder are experienced by
taxicab drivers, gas-station attendants, and convenience-store clerks.
Murder rates for these workers are so high that the FBI separately
tracks work-related homicide rates for these job categories. All of
these workers serve the general public in commercial settings with
little or no protection, and often work alone or at night. All are
frequent targets of robberies. It is these providers of basic public
accommodations who most depend on society to enforce capital punishment
for felony murder. Criminals know that they already face substantial
prison time for robbing a cab driver or a cashier. If the only possible
penalty for killing the victim--and thereby eliminating the only likely
witness to the crime--is additional prison time, the restraints on the
armed robber amount to little more than his own scruples. In too many
cases, this is not enough. For too many criminals, the prospect of
increasing one's odds of never being caught by killing the witness will
outweigh the threat of a longer prison term. For these felons, only the
death penalty is an effective deterrent to committing felony murder.
---------------------------------------------------------------------------
(iv) The innocence tactic: Unreliable studies and disinformation
Tellingly, death penalty opponents no longer focus on the
deterrence argument. Instead, they focus on the alleged risk
that we will execute an innocent person or that we already have
executed an innocent person. Such a minimal risk, even assuming
it exists, must be balanced against the real benefits of the
death penalty to society resulting from its deterrent effect
and the incapacitation of murderers. See Markman and Cassell,
Protecting the Innocent: A Response to the Bedau-Radelet Study,
41 Stanford L. Rev. 121, 153 (1988). Simply put, in our view,
the overwhelming benefits of the capital-punishment system
outweigh its risks--so long as we take care to keep those risks
small.
Opponents of the death penalty are no doubt aware of the
public's calculus. They perceive that while a small risk will
be tolerated, a more substantial risk--one rising to a level at
which mistaken executions are inevitable--would weigh on the
public's conscience and eventually undermine popular support
for the death penalty. If such a risk were shown to exist, a
majority could be persuaded to reject the death penalty, even
at the cost of a higher national murder rate.
Death penalty opponents have decided that, if a large
enough risk of mistaken executions does not exist, they will
invent it. The Majority has fully embraced this position. In
particular, the Majority cites several cases from the Death
Penalty Information Center's Innocence List to suggest that
``innocent'' individuals were convicted of crimes that they did
not commit.\10\ Majority Report at 9, 11-12, 15, 19-20. The
Majority relies on the Liebman study of the capital punishment
system to suggest that there is significant ``error'' and risk
of executing the innocent in our capital punishment system
(Majority Report at 8, 20). Of the several cases discussed in
the Majority Report, most do not even clearly involve
defendants who are factually innocent. As for the Death Penalty
Information Center (``DPIC''), recent news stories and analyses
of its list of 102 claimed ``innocent'' people who have been
sentenced to death reveal that this list is far from
trustworthy. The Minority's own examination of cases on DPIC's
list, as well as recent admissions by DPIC's director in
response to press scrutiny, indicate that DPIC has been
misleading the public with its claims about the number of
innocent people on death row. The Liebman study has suffered a
similar fate. When subjected to close scrutiny, the Liebman
study's flawed assumptions, unreliable data and unsupported
conclusions are revealed. We submit that the DPIC's list and
the Liebman study should no longer be cited or relied on as a
source of probative factual information about the death
penalty.
---------------------------------------------------------------------------
\10\ During hearings on S. 486, members referred to the Death
Penalty Information Center Innocence List.
---------------------------------------------------------------------------
(a) The DPIC list: False claims of innocence
DPIC's widely touted ``innocence list'' has been aptly
characterized in a recent article concluding that DPIC's claim
that 102 innocent people have been released from death row
should be rejected because:
It's not true. DPIC counts people as ``innocent''
when they were released from death row for reasons
wholly unrelated to any belief that they did not commit
the crime charged. A man could be convicted of murder
and sentenced to death, have his conviction overturned
because of a technicality and when walk free because
witness had died in the interim. According to DPIC, he
would be an ``innocent'' who was ``exonerated.'' Only a
minority of the people on DPIC's list are innocent in
any normal sense of the word.
Ramesh Ponnuru, Not So Innocent, National Review Online,
October 1, 2002 (available at www.nationalreview.com). see also
Ponnuru, Bad List, National Review, September 16, 2002, at 27.
These conclusions have been confirmed by an independent
review of the DPIC list undertaken by Ward Campbell, a senior
supervising attorney at the Office of the California Attorney
General. Campbell's 41-page critique, which we have included as
an attachment to this report in order to make it publicly
available, analyzes the DPIC list case-by-case, and in
considerably more detail than DPIC provides. For many of the
cases on the list, particularly the older ones, very little
public information is available. Nevertheless, from the
information that Campbell has been able to retrieve, he has
concluded that ``it is arguable that at least 68 of the 102
defendants on the [DPIC] List should not be on the list at
all.'' See Ward A. Campbell, Supervising Deputy Attorney
General, California Department of Justice, The Truth About
Innocence, pp. 8-24 (June 19, 2002) (Attachment A).
Several of the DPIC-list so-called exonerations clearly
involve defendants who appear to be guilty of murder. These
include:
[Jonathan] Treadaway, [who] was convicted in 1975 for
sodomizing and murdering a six-year-old boy. His palm
prints were found outside the victim's bedroom window,
and he said that he would not explain their presence.
Pubic hairs on the victim's body were similar to his.
But the Arizona supreme court reversed his
conviction. The trial court had admitted evidence that
Treadaway had committed sexual acts with a 13-year-old
boy three years before the murder. The court held that
to be irrelevant without ``expert medical testimony''
that this act demonstrated a continuing propensity to
commit such acts. The court also ordered that a
Treadaway's retrial, his statements about the palm
prints not be admitted. Treadaway had made those
statements voluntarily, but without being advised of
his Miranda rights or waiving those rights. Finally,
the court excluded some evidence that three months
before the murder, Treadaway had been found naked in a
young boy's bedroom trying to strangle the boy.
Treadaway didn't get off Death Row because it was
proven that the cops had the wrong man. Technicalities
spared him.
Ponnuru, Bad List, supra.
Jeremy Sheets, another of DPIC's ``innocents,'' got
off Death Row because the key witness against him
couldn't testify. That was his best friend, Adam
Barnett, who told the police that the two of them--both
white men--had been angry about all the white women
they knew who were dating black men. To get even, they
kidnapped and raped a black highschool student. Barnett
said that Sheets had then stabbed her to death. Barnett
committed suicide in jail. Sheets was sentenced to
death on the basis of Barnett's taped confession (and
Sheets's own testimony, which the jury found
unbelievable). The Nebraska supreme court reversed this
conviction because Sheet's lawyer had not been able to
cross-examine the dead Barnett. Sheets walked.
The lead police investigator in the case called the
result a ``travesty,'' but it was probably the right
legal call. What it wasn't was an ``exoneration'' of
Sheets.
Id.
[Jay] Smith, [who] was convicted and sentenced to
death for killing a woman and her two children for
money. Because the prosecution failed to disclose the
existence of two grains of sand that might have lent
credence to a farfetched defense theory, the
Pennsylvania Supreme Court overturned the sentence--and
found that no retrial was permissible under state law.
Smith then sued the state for wrongful imprisonment.
The appeals court ruled against him: ``Our confidence
in Smith's convictions for the murder of Susan Reinert
and her two children is not the least bit diminished *
* *.''
Ponnuru, Not So Innocent, supra.
John Henry Knapp confessed to the arson-murder of his
children and then recanted the confession, He was tried
three times. Twice juries hung 7-5 for conviction; in
between, he was found guilty and sentenced to death.
Eventually the case was settled with a plea bargain.
He's on the ``Innocence List,'' too.
Ponnuru, Bad List, supra.\11\
---------------------------------------------------------------------------
\11\ In an effort to confirm Campbell and Ponnuru's findings, the
Minority staff has reviewed several cases on DPIC's innocence list. For
many of the older cases on the list, very little information is
publicly available. Nevertheless, we have been able to confirm
Ponnuru's account of the 1974 Treadaway case. DPIC makes the somewhat
implausible claim that the six-year-old victim involved in that case
had actually died of natural causes. Minority staff, through contacts
in Arizona, have been able to locate John Todd, the lead prosecutor at
Treadaway's second trial. Todd affirmed to the Minority staff that the
theory that the victim died of pneumonia was totally inconsistent with
the damage to private areas of the victim's body. Nor had the victim
shown any symptoms of pneumonia prior to this death. Todd also affirmed
that the identity of the killer was the principal issue at trial--and
that Treadaway won an acquittal by successfully moving to suppress
evidence linking him both to the crime scene and to a near-identical
crime that had occurred nearby several months earlier. In sum, the full
available evidence strongly indicates that Treadaway broke into the
Jordan family's home, sodomized their six-year-old boy, and strangled
him to death. Yet, but for the fortuity that the Minority staff was
able to locate John Todd, it would be impossible today to rebut DPIC's
assertions that Treadaway is innocent. In this case, however, although
Treadaway may have gotten away, DPIC has not. DPIC's misrepresentations
regarding Treadaway also raise doubts what really happened in other
old, unverifiable cases on the DPIC list.
---------------------------------------------------------------------------
The newest cases on the innocence list also raise serious
doubts about DPIC's credibility. The last two ``innocent''
defendants on the list are Thomas H. Kimbell and Larry Osborne.
Kimbell's initial conviction for killing a woman and three
children was reversed because he was not allowed to cross-
examine a key witness. See Commonwealth v. Kimbell, 759 A.2d
1273 (Pa. 2000). Kimbell knew unique facts about the case: that
the mother was killed first, that the children's bodies had
been stacked in the bathroom, and that the backdoor of the
house where the killings occurred was inoperable. See Todd
Spangler, ``In New Trial, Pennsylvania Man Acquitted of
Murdering Four'', Associated Press Newswires, May 4, 2002.
Kimbell had a history of violence, and had been seen near the
scene of the murders. Spangler, ``Family Slayings'', Associated
Press Newswires, July 7, 2002. Finally, Kimbell's first trial
included testimony from a former friend and houseguest that he
had heard Kimbell admit to the killing. This witness died prior
to Kimbell's second trial. Cindi Lash, ``From Death Row to
Acquittal--Retrial Frees Suspect Convicted in '94 Murders'',
Pittsburgh Post Gazette, May 4, 2002, at A1.
Larry Osborne was convicted of robbing and murdering an
elderly couple in their home and setting their house on fire.
The principal evidence against him was taped statements from a
companion who was with him at the scene of the crime. Osborne
v. Commonwealth, 43 S.W.3d 234 (Ky. 2001). This witness,
however, died before the trial. The Kentucky Supreme Court
reversed Osborne's conviction on the ground that admission of
the witness's pretrial taped statements violated Osborne's
Sixth Amendment Confrontation Clause rights. Osborne was
subsequently acquitted in a retrial at which the taped
statements were excluded. The title of one local news story
effectively summarizes the case: Gerth Joseph, ``Some in
Whitley County Convinced Man Got Away With Murder,'' The
Courier-Journal Louisville, Ky., August 3, 2002, at 1A.
The Campbell analysis of the DPIC list indicates that many
other cases on that list are of the same nature as the
Treadaway, Kimbell, and Osborne cases. The frequency with which
such cases appear on the list is too great to allow the
possibility that their inclusion was an accident or an honest
mistake. Instead, it appears that DPIC simply includes on its
list any capital case that was reversed and in which either the
defendant was acquitted at retrial or prosecutors declined to
bring new charges--regardless of the reason for these results.
DPIC apparently makes no inquiry into whether the people
included on its list are, in fact, innocent.\12\
---------------------------------------------------------------------------
\12\ These conclusions about DPIC's list have been confirmed by
DPIC itself. After the first Ponnuru critique of DPIC was published in
National Review, DPIC's executive director wrote a letter to the editor
of that magazine. He protested that ``[p]eople accused of a crime have
every right to claim innocence if they have been acquitted at trial or
if the prosecution has decided to drop charges.'' National Review,
September 30, 2002, at 2. Of course, this defense of DPIC's actions
simply confirms that DPIC is using a standard of legal innocence, not
actual innocence. As was noted in reply to DPIC's letter, O.J. Simpson
qualifies as legally innocent, but few would mistake him for actually
innocent. See id. Moreover, it is highly disingenuous for DPIC to now
claim that it meant all along only to highlight cases of legal
innocence. As Ponnuru notes, DPIC ``has done everything in its power to
lead people to believe that the modern death penalty has put over 100
people on Death Row who did not commit the crimes with which they were
charged.'' Id. Ponnuru also elsewhere properly points out that ``DPIC's
critique would have no political force if it were not misleading. The
over-100 claim shocks people's consciences because they think that it
represents death-row inmates who were innocent or may well have been.''
See Not So Innocent, supra.
---------------------------------------------------------------------------
More generally, the DPIC list inaccurately includes so-
called exonerees who were not sentenced to death, did not
establish their factual innocence, or resolved their cases by
pleading guilty to lesser charges. See Ward A. Campbell,
Supervising Deputy Attorney General, California Department of
Justice, The Truth About Innocence, pp. 8-24.\13\ For example,
the DPIC list claimed that Florida has released 23 inmates from
death row because of evidence of innocence. In fact, the
Florida Commission on Capital Cases disputed that finding and
specifically determined that only 4 out of the 23 inmates may
actually be innocent. Florida Commission on Capital Cases, Case
Histories: Review of Individuals Released from Death Row, (June
20, 2002) (available at www.floridacapitalcases.
state.fl.us/OPPAGA/Deathrow.pdf.
---------------------------------------------------------------------------
\13\ See e.g., James Cremer, Cremer v. State, 205 S.E.2d 240, 241
(Ga. 1974) (included in DPIC list but was convicted of murder and not
sentenced to death); Jay C. Smith, Commonwealth v. Smith, 615 A.2d 321
(Pa. 1992) (reversal based on prosecutor's withholding of exculpatory
evidence and retrial barred by Pennsylvania double jeopardy clause);
Thomas H. Kimbell, Jr., Commonwealth v. Kimbell, 759 A.2d 1273 (Pa.
2000) (no showing of ``actual innocence'' but included on list since he
was aquitted on retrial; Muneer Deeb, Deeb v. Texas, 815 S.W.2d 692
(1991) (no showing of ``actual innocence'' but included on list since
he was acquitted on retrial); Delbert Tibbs, State v. Tibbs, 337 S.2d
788, 790 (1976)(no showing of ``actual innocence''); Richard Neal
Jones, Jones v. State, 738 P.2d 525 (Okla.Crim. 1987) (Jones death
sentence and conviction reversed where trial court erred in admitting
statements made by defendant to co-conspirators); Jerry Bigelow.
Bigelow v. Superior Court (People), 204 Cal.App.3d 1127 (1988) (death
sentence reversed where jury returned inconsistent verdicts which
suggested that Bigelow was accomplice to (and fully liable for)
murder); see also, William Jent and Ernest Miller, Jent v. State, 408
So.2d 1024 (Fl.1981) (both plead guilty to lesser offenses after
convictions were vacated for prosecutor's failure to disclose
exculpatory evidence); John Henry Knapp, Knapp v. Cardwell, 513 F.Supp
4 (1980) (plead no contest to second degree murder after reversal of
conviction and death sentence after second trial). See Campbell, The
Truth About Innocence, supra, 8-24.
---------------------------------------------------------------------------
Some of the defendants included in the DPIC list were
sentenced to death in the early 1970s prior to the current
capital punishment system. See e.g., Wilbur Lee and Freddie
Pitts (convicted and sentenced prior to 1972); see Florida
Commission on Capital Cases, Case Histories, supra, pp. 74-83
(2002) (noting that Pitts confessed and pointed out the remote
area where the victims' bodies were found, both Lee and Pitts
pleaded guilty to the 1963 murder of two gas station
attendants, were found guilty in a 1972 retrial, and were
pardoned by a 4-3 vote of the pardon board in 1975); David
Keaton (convicted and sentenced prior to 1972 (pre-modern death
penalty statute era); Samuel H. Poole (convicted and sentenced
based on invalid North Carolina mandatory death sentence law);
Peter Limone and Lawyer Johnson (convicted and sentenced based
on pre-1972 death penalty law in Massachusetts). See Campbell,
The Truth About Innocence, supra, at 8-24.
The list also includes defendants who were convicted of
murder but who had their sentences reversed when the state
capital sentencing statutes were later struck down. E.g.,
Thomas Gladish, Richard Greer, Ronald Keine, and Clarence Smith
(sentenced to death under a New Mexico statute later ruled
invalid), see State v. Beaty, 553 P.2d 688 (Nev. 1976); Gary
Beeman (Supreme Court reversed capital sentence in 1976 holding
that Ohio's death penalty statute was unconstitutional because
of limitations on presentation of mitigation evidence); James
Richardson (convicted and sentenced under invalid Louisiana
pre-1972 mandatory statute). See Campbell, The Truth About
Innocence, supra, at 8-24.
The conclusion is inescapable that DPIC--an avowedly anti-
death penalty activist organization--has been misrepresenting
the nature of capital cases that have been reversed on appeal.
DPIC exaggerates the number of death-penalty actual-innocence
cases in order to undermine public support for the death
penalty. As noted in the recent press critiques, see Bad List,
supra, DPIC's data have been cited by Justices of the U.S.
Supreme Court and members of this Committee as raising doubts
about the death penalty. Because DPIC itself has admitted that
its innocence list is not limited to defendants who are, in
fact, innocent, that list should not be used to make arguments
about actual innocence. And in light of DPIC's history
mischaracterizing the nature of its data about the death
penalty, that organization should not be relied on at all as a
source of factual information about capital punishment.
(b) The Liebman Study
According to the Liebman study, during the period of 1976
to 1995, there is a 68 percent rate of reversal for
``prejudicial error'' in state capital cases. The Liebman study
specifically identifies the three leading causes of appellate
reversals as: (1) ineffective assistance of counsel; (2) trial
judge error (e.g., exclusion of testimony, error in instructing
jury), and (3) prosecutorial misconduct (e.g., withholding of
exculpatory evidence, improper closing argument to jury). The
Majority fails to acknowledge--let alone address--the
methodological flaws, and the serious errors and inaccuracies
in the Liebman study.
First, the 68 percent ``error rate'' cited in the Liebman
study is misleading. The 68 percent ``error rate'' does not
represent errors in findings of guilt--that is convictions of
individuals who did not commit the specific crime. Under the
score keeping system applied in the Liebman study, the error
rates included any reversal of a capital sentence at any stage
by any court, even if the courts ultimately upheld the
sentence.\14\
---------------------------------------------------------------------------
\14\ As an example, the Liebman study counted as ``error'' cases in
which an appellate court reversed a capital sentence, remanded the case
to a trial judge for additional findings on an issue, the trial court
complied, and the appellate court affirmed the capital sentence. This
example does not show that the defendant was innocent of the crime;
rather, this example only reveals that there was a potential error
committed by the trial court which was clarified (e.g. through further
findings or explication of the trial record) which did not undermine
the guilt of the defendant nor his responsibility for committing the
charged crime.
---------------------------------------------------------------------------
For example, the Liebman report identified 64 cases in
Florida which were reversed, even though over one-third of
those cases ultimately resulted in a reimposed death sentence,
and not one of the cases resulted in the dismissal of the
murder charges. See Paul G. Cassell, We're Not Executing the
Innocent, Wall Street Journal (June 16, 2000). By broadly
defining ``error rates'' and failing to tailor the
identification of cases to a more accurate measure of death
penalty review, it appears that the study was designed not in
the interest of true fact-finding but to support a disingenuous
suggestion--that the death penalty system is so flawed as to
call into question the reliability of the ultimate finding of
guilt and sentence of death. Even assuming that the 68 percent
rate of error in capital convictions and sentences for the
period of 1973 to 1995 is correct, which we do not concede, the
Liebman data shows that the judicial system vigorously corrects
any error in capital cases, and does not establish that any
defendants were wrongly executed, or even actually innocent of
the charged crime. The study and the obvious desire to trumpet
claims of high error rates suggests that the agenda is one more
of politics rather than accurate investigation of an important
public policy issue.\15\
---------------------------------------------------------------------------
\15\ We would note that Liebman is a ``long-time opponent of
capital punishment.'' See Death Penalty Study Called Biased, Dishonest,
Criminal Justice Legal Foundation, February 8, 2002; Bennett A.
Barylyn, Deputy Attorney General, New Jersey, A Response to Professor
Liebman's ``A Broken System,'' Division of the Criminal Justice
Appellate Bureau, Nov. 2000, available at www.prodeathpenalty.com/
Liebman/LIEBMAN2.htm.
---------------------------------------------------------------------------
Second, and more significantly, the Liebman study is
methodologically flawed. Liebman did not obtain his data from
official sources. Instead, he relied on secondary sources, such
as other criminal defense attorneys, the NAACP Capital
Punishment Project, and newspapers and other secondary sources.
Several states, including Montana, Alabama, Nevada and Florida,
demonstrated that the ``error'' rates for their respective
states cited by Liebman were wrong. See Press Release, State of
Nevada Office of the Attorney General, Nevada's Death Penalty
System is Working, September 19, 2000, available at http://
ag.state.nv.us/agpress/2000/00__0919a.pdf (Liebman study found
38 percent error rate in Nevada while Attorney General
corrected figure to 19 percent); Letter form Frankie Sue Del
Pap, Attorney General of Nevada, June 25, 2002 (noting that
``the Liebman study picked and chose their cases as a
convenience, tailoring the study to get certain results,'' and
``[i]ncredibly, the Study did not count eight men executed in
Nevada since 1977''); Memorandum from Reg Brown to Frank R.
Jiminez, Florida Governor's Office, Columbia Law School Death
Penalty Study, June 13, 2000; Governor Jeb Bush, Death Penalty
Concerns: Study Overstated Mistakes in Florida, The Tallahassee
Democrat, June 20, 2000; Press Release, Attorney General Joe
Mazurek, Guest Editorial on National Death Penalty Study,
Montana Department of Justice, Office of the Attorney General,
August 14, 2000, available at http://www.doj.state.mt.us/ago/
newsrel/00release/deathpen.htm (Liebman study found error rate
of 87 percent in Montana where actual reversal rate was 36
percent, none of which involved a defendant who was actually
innocent of the crime); Protecting the Innocent: Ensuring
Competent Counsel in Death Penalty Cases: Hearing Before the
United States Senate Committee on the Judiciary, 107th Cong.,
(June 27, 2001) (statement of Alabama Attorney General William
Pryor) (applying conservative estimate, error rate could be as
high as 22 percent but is more likely to approximate 4 percent,
rather than the near 80 percent rate cited in Liebman study for
Alabama). To cite a specific example, the study claims that
William Thomson's death sentence was set aside and a sentence
less than death was imposed. That is not true. See Paul
Cassell, We're Not Executing the Innocent, supra.
Third, despite assertions to the contrary, the Liebman
Study counted as serious error trial cases that were conducted
in accordance with the procedures existing at the time of
trial, but were later reversed on appeal when new procedural
rules were announced and applied retroactively. For example,
the Liebman Study cites Ex parte Floyd, 571 So. 2d 1234 (Ala.
1990), as a reversal based on serious trial error. See Liebman
Study, Appendix C, pp. C-5 to -6. An actual reading of that
case, however, demonstrates that the trial was completed
without error in 1983, but was later reversed after the 1986
Supreme Court decision in Batson v. Kentucky, 476 U.S. 79
(1986), imposed a new procedural rule for trials that was
applied retroactively to all trials still on appeal. See also
Barylyn, supra, (stating that the Liebman Study included
reversals of death sentences based on retroactive application
of new court-imposed procedural rules and noting that 27
percent of New Jersey's reversals were caused by retroactive
application of a singled decision).\16\ It is simply misleading
to assert that trial courts committed serious errors based on
subsequently announced procedural rules that did not exist when
the trial court tried the case. Indeed, the Liebman Study
tracks the most volatile period in the history of capital
criminal procedure. Once the Supreme Court rules became more
settled, States adjusted their procedural rules, and trial
courts knew what rules to use in conducting capital trials,
these types of procedural errors should substantially decline
in the post-1995 time period.
---------------------------------------------------------------------------
\16\ See Criminal Justice Legal Foundation, Death Penalty ``Error''
Study Has Errors of its Own, June 19, 2000, available at
www.prodeathpenalty.com/Liebman/LiebmanCJLF.htm). At the June 18, 2002
hearing, Professor Liebman himself suggested that none of the broadly-
applied Supreme Court cases (e.g. Batson v. Kentucky, 476 U.S. 79
(1986)) or others were included in his calculation of the error rate.
See Protecting the Innocent: Proposals to Reform the Death Penalty:
Hearing Before the United States Senate Committee on the Judiciary,
107th Cong. (June 18, 2002) (testimony of Professor Liebman in response
to questions of Senator Sessions).
---------------------------------------------------------------------------
Other basic flaws in the Liebman study were identified in
an article authored by Barry Latzer and James Cauthen. See
Barry Latzer & James Cauthen, Another Recount: Appeals in
Capital Cases, The Prosecutor, January/February 2001, at 25.
First, even assuming that the error rate is a relevant measure
of the accuracy of the death penalty system, Latzer and Cauthen
showed that the Liebman study 68 percent rate of ``prejudicial
error'' in state capital cases was calculated incorrectly.
Specifically, they point out that Liebman defined this 68
percent ``overall-error rate'' as the proportion of fully
reviewed capital judgments that were overturned at one of three
stages (state direct review, state habeas review and federal
habeas review) due to serious error. In calculating this
``prejudicial error rate,'' however, Liebman looked at the
subset of cases in which federal habeas petitions were actually
filed, following state convictions, rather than the total
number of cases where federal habeas review was available but
not sought. When the second, more accurate figure is used,
Liebman's prejudicial error figure is reduced from 68 percent
to 52 percent. Id. at 25-27.
Further, Latzer and Cauthen point out that the Liebman
study made no attempt to distinguish between reversed
convictions and reversed sentences. This distinction reveals
that only 20 percent of the ``prejudicial errors'' noted in the
Liebman study were reversed guilty convictions. Id. Further,
after retrials or resentences are considered, in only 4 percent
of the cases contained in the Liebman study were defendants
ultimately found not guilty of murder after a previous
conviction for capital murder. Id. Significantly, there is no
analysis at all in the Liebman study of whether the defendants
in capital cases were ``actually innocent'' of the charged
crimes, even in the instances where the defendants were
ultimately found not guilty. As Latzer & Cauthen conclude,
``the [Liebman study] appellate reversal rate tells us nothing
about the likelihood of an erroneous execution.'' Id. at 27.
Commentators have pointed out other flaws in the Liebman
study. Half of the Liebman study's data on California's error
rate, for example, is based on cases decided during the tenure
of former Chief Judge Rose Bird, during which the California
Supreme Court reversed nearly every death penalty case to come
before it, including 18 cases in which it found improper jury
instructions that were subsequently approved by the same court
after Chief Judge Bird's departure.\17\ Cassell, We're Not
Executing the Innocent, supra; see Edward J. Erler and Brian P.
Janiskee, Study Fails to Prove that Death Penalty is Unfair,
July 19, 2000, www.claremont.org/writings/
000719erler__janiskee.html.
---------------------------------------------------------------------------
\17\ During Rose Bird's tenure as Chief Justice, the California
Supreme Court voted to reverse 64 of the 68 death-sentences that it
reviewed--with Bird voting to reverse in every single case. See Philip
Hager, ``Justice Prevails--Cruz Reynoso Was Swept Off the State Supreme
Court With Rose Bird, but Now He's Found New Causes and a New Career'',
Los Angeles Times Magazine, August 13, 1989, at 18; Cynthia Gorney,
``Rose Bird and the Court of Conflict'', Washington Post, April 8,
1986, at C1. All of these reversals are included in Liebman's study.
Chief Justice Bird and Justices Reynoso and Grodin--all of whom had
similar voting records in death-penalty cases--were removed from the
California Supreme Court by an overwhelming majority of California
voters in a 1986 retention election. Following this change in its
membership, the California Supreme Court ended its roadblock of capital
punishment in that State. See Jess Bravin, ``Death Rare for Killers,
Study Says'', The Wall Street Journal, November 11, 1998, at CA1.
---------------------------------------------------------------------------
To the extent that the Liebman study counts appellate
reversals in cases decided in the Ninth Circuit, the reversal
rate that he found may say less about the death penalty than
the fact that the Ninth Circuit may be unique among the
circuits in how it decides death penalty cases. The attached
tables and graph compare the U.S. Court of Appeals for the
Ninth Circuit's rate of reversing death sentences with reversal
rates on other circuits.\18\ See Attachment D. Data for the
last ten years show that outside of the Ninth Circuit, usually
70 to 80 percent of death sentences are affirmed by a Court of
Appeals on collateral review. In almost every year, however,
the Ninth Circuit has reversed the majority of death sentences
that it reviews.\19\ Moreover, this percentage has climbed
sharply in recent years, as a number of Clinton appointees were
confirmed to that court. In the last three years, the Ninth
Circuit has reversed 88 percent, 80 percent, and 86 percent of
the death sentences that it has reviewed.
---------------------------------------------------------------------------
\18\ As one scholar has noted, ``the Ninth Circuit's reputation as
a liberal court began during the presidential term of Jimmy Carter. The
court expanded from thirteen to twenty-three judges, allowing Carter
ten additional appointments plus five more due to normal vacancies.''
Marybeth Herald, ``Reversed, Vacated, and Split: The Supreme Court, the
Ninth Circuit, and Congress'', 77 Or. L. Rev. 405, 457 (1998). (By
contrast, President Reagan, despite serving two terms, was only able to
appoint ten judges to the Ninth Circuit.) As early as 1983, the Supreme
Court felt compelled to review 27 Ninth Circuit decisions in one year,
and reverse 24. See Robert Marquand, ``Reinhardt Versus Rehnquist: A
War Between Two Courts'', Christian Science Monitor, March 6, 1997, at
1. But the Ninth Circuit's most dramatic and embarrassing year before
the Supreme Court came just recently, during the 1996-97 term.
Professor Herald has summarized the results of that year:
---------------------------------------------------------------------------
In the 1996-97 Term, the Supreme Court issued opinions in
almost ninety cases. During this time, the Supreme Court
took twenty-eight cases from the Ninth Circuit Court of
Appeals, and reversed twenty-seven. In seventeen of those
twenty-seven cases, the reversal was unanimous. In seven of
the reversals, the Court did not even require briefing and
oral argument. One of these summary reversals occurred in a
decision of the Ninth Circuit en banc.
Herald, supra, at 407.
\19\ Unfortunately, there is no source that collects all capital
cases decided in the federal courts. Capital cases reviewed here were
collected by searching on a computer-based legal research site for all
cases that include the headnote ``350HVIII''--the headnote for all
capital sentencing issues--or that include the word ``death'' preceded
within at least three words by the word ``sentence'' with a root
expander. Although this proved to be the most reliable of several
methods tested for finding capital cases in the courts of appeals,
there can be no guarantee that this or any other search term will
retrieve every relevant case. There is no reason to believe, however,
that this search method would bias relative results for different court
of appeals or judges.
---------------------------------------------------------------------------
A breakdown of this data by judge reveals that death-
sentence reversals on the Ninth Circuit have been driven by
Democratic appointees. Republican appointees to that Court have
cast a majority of their votes to affirm death sentences--140
votes in individual cases to affirm capital sentences or deny
evidentiary hearings, and 61 votes to reverse death sentences
or grant evidentiary hearings. No Republican appointee has
voted to reverse more sentences than he has votes to affirm.
Among Democratic appointees, several have moderate records--
they affirm almost as many death sentences as they reverse, and
in a few rare cases, more. Overall, however, Democratic
appointees to the Ninth Circuit overwhelmingly vote to reverse
death sentences.\20\
---------------------------------------------------------------------------
\20\ Total votes since 1992 among Democratic appointees in death-
penalty cases include 194 votes to reverse or remand for evidentiary
hearings, and just 64 votes to affirm. See tables in Attachment D. This
pattern is particularly marked in several judges. Based on cases that
were retrieved, for example, Judge Ferguson apparently has sat on 17
death penalty cases and only voted to affirm one. Judge Betty Fletcher
has decided 22 cases, affirming 2. Judge Pregerson has voted in 28
cases, and also affirmed only 2. And Judge Reinhardt apparently has
voted to reverse every single one of the 31 death sentences that he has
reviewed. Interestingly, one scholar who reviewed all of Judge
Reinhardt's judicial decisions during a four-year period has discovered
that when the losing party has requested Supreme Court review of a
Reinhardt opinion, certiorari has been granted in over 30% of the
cases. Marybeth Herald, supra, at 469 n.339. And for Judge Reinhardt,
certiorari invariably means reversal. See id.
---------------------------------------------------------------------------
These numbers suggest a complete breakdown of objective
decision-making in death-penalty cases on the Ninth Circuit. A
judge who votes to reverse nearly every death sentence that he
reviews is not applying the law to facts, but would instead
appear to be legislating his anti-death penalty views from the
bench.\21\
---------------------------------------------------------------------------
\21\ Unfortunately, although Carter appointees have amassed the
most extreme anti-death penalty records on the Ninth Circuit, it
appears that the Clinton appointees--who now hold 14 of the 28 seats on
that court--will soon catch up. Although all of the Clinton appointees
have now sat on death-penalty panels, half have never voted to affirm a
death sentence. Judge Tashima, a 1996 Clinton appointee, has voted to
reverse 9 death sentences in a row. Judge William Fletcher, a 1998
Clinton appointee, has voted to reverse 6 capital sentences, remand 2
for evidentiary hearings, and affirm zero. Judge Berzon, though only a
member of that court since 2000, has already vored to reverse 4 death
sentences, remand 2 for evidentiary hearings, and affirm zero. Another
Clinton appointee who joined the court that year, Richard Paez, has
voted to reverse 2 death sentences, remand 2 for evidentiary hearings,
and affirm zero. Judge Paez also recently wrote an opinion for a 6-5 en
banc panel majority striking down California's 1978 death-penalty
statute as unconstitutional as applied to post-crime mitigation
evidence--a decision with the potential to invalidate the capital
sentences of almost all of the 609 convicted murderers on California's
death row. See Payton v. Woodford, 299 F.3d 815 (9th Cir. 1992). And
even among the Clinton appointees who have on occasion voted to affirm
capital sentences, individual records are not encouraging. Juge Thomas,
for example, has voted to reverse 8 death sentences, remand 3 for
evidentiary hearings, and affirm 2. Only one Clinton appointee has
voted to affirm even half of the capital sentences that he has
reviewed.
---------------------------------------------------------------------------
Given the current composition of the Ninth Circuit--17
Democratic appointees, 7 Republican appointees--it is likely
that at least for the next decade, the seven death-penalty
States under the Ninth Circuit's jurisdiction will be unable to
enforce their capital-sentencing laws. For the people of these
States, the deterrence and incapacitation effects of capital
punishment--and even the right to decide for themselves whether
or not to allow the death penalty--is being denied by a court
that in practice appears to be imposing a de facto moratorium
on the death penalty.
III. Access to DNA Testing
We agree with the Majority that there is a need to provide
access to DNA testing for certain federal and states convicted
defendants. In particular, we recognize that, in the last
decade, DNA testing has evolved as the most reliable forensic
technique for identifying criminals when biological evidence is
recovered. DNA testing is now standard in pre-trial
investigations. For convicted federal and state defendants, we
contend that there is a need to ensure access to DNA testing
where such testing was not previously available to the
defendant and where such testing will establish the defendant's
actual innocence. No one disagrees with the fact that post-
conviction DNA testing should be made available to defendants
when it serves the ends of justice. The integrity of our
criminal justice system and in particular, our death penalty
system, can be enhanced with the appropriate use of DNA
testing.
Our differences with the Majority centers on several
issues: when and how DNA testing should be made available; and
the use of such testing information for inculpatory purposes.
Unlike the majority, we believe that DNA testing should be
limited only to those situations where the test results will
conclusively determine guilt or innocence, and should not be
permitted where such testing will be used by a convict to muddy
the waters and seek additional rounds of litigation in order to
frustrate the administration of justice. In contrast to the
majority, we also believe that those convicts who falsely
assert their innocence in support of DNA testing requests
should suffer substantial adverse consequences for perpetrating
a fraud against the court, for requiring prosecutors and law
enforcement to devote resources to litigating the testing and
the results, and for subjecting the victims families to greater
delay and suffering. Further, we submit that there should be no
restrictions on law enforcement use of DNA test results to
solve crimes that a convict may have committed in the past, and
that as a condition of such a testing request, a convict must
agree to waive any statute of limitations defense that would
otherwise bar a subsequent prosecution based on comparison of
the DNA test results to any unsolved crime.
In affording access to DNA testing for convicted federal
defendants, we believe that federal defendants should have
access to DNA testing where such testing will demonstrate their
actual innocence. For this reason, we supported S. 2739, The
Death Penalty Integrity Act of 2002, which: provides access to
DNA testing for federal defendants where such a test would
support a legitimate claim of actual innocence; authorizes the
prosecution of defendants for perjury, contempt and/or false
statements when they make false claims of innocence in support
of a DNA testing request; allows subsequent prosecution of a
defendant for any crime matched through the comparison with the
CODIS database and compared against unsolved crimes; and
encourages states to create similar DNA testing procedures by
providing funding assistance to those states that implement DNA
testing programs.
With respect to the states, we believe that the Majority
has failed to establish that there is a significant need for
legislation to ensure that states provide access to DNA testing
for state convicts. More importantly, to the extent that S. 486
relies on the 14th Amendment to impose DNA testing requirements
on the states, it is unconstitutional. Aside from these
significant infirmities, S. 486 inexplicably conditions
existing DNA testing funds on states enacting statutes in
compliance with federal mandates contained in S. 486, and fails
to provide additional funding required for compliance with
those costly mandates.
A. NEED FOR LEGISLATION TO ENSURE ACCESS TO DNA TESTING IN THE STATES
While recognizing the scientific value of DNA testing to
exonerate defendants, the Majority paints a picture in which
states are allegedly denying or frustrating access to DNA
testing for convicted state convicts, and suggests that there
are numerous ``innocent'' defendants either on death row or
serving lengthy sentences without access to DNA testing. The
Majority's picture, while compelling at first glance, is
contradicted by the evidence. In fact, a close examination of
the facts show that the majority has little beyond anecdotal
descriptions of instances where DNA was, in fact, instrumental
in demonstrating a defendant's innocence.\22\ We do not mean to
diminish the importance of the few cases where DNA testing has
established the factual innocence of a convicted defendant. Our
system should not tolerate any injustice, be it a small number
or even one case, where someone innocent is unjustly convicted.
However, we contend that the Majority's attempt to take these
isolated instances of error to condemn the entire criminal
justice system and impose an ill-designed legislative response
on the states is unwarranted.
---------------------------------------------------------------------------
\22\ In order to bolster its argument, the Majority contends that
some of the 12 death row inmates who were exonerated by DNA testing
``came within days of being executed.'' Majority Report at 9. The
suggestion that a death row inmate was in grave danger of execution and
saved at the last second is misleading. It is common in capital cases
for an execution date to be set in order to complete further appeals.
Stays of the execution date are routinely granted to ensure
consideration of all appeals. Defense counsel are well aware that the
execution date is routinely stayed pending any further appeals. See,
e.g., 28 U.S.C. Section 2262. None of the 28 cases cited by the
Majority (report at 9) involved a defendant who was in imminent danger
of execution.
---------------------------------------------------------------------------
First, contrary to the Majority's unsupported assertions
(Majority Rep. at 14-16), almost every state is providing
access to DNA testing for post-conviction defendants, pursuant
to state statutes, legal decisions or existing administrative
procedures. A state-by-state analysis of such procedures
reveals that there is no significant bar to access to DNA
testing. To the contrary, the facts show that states are
providing such access and adopting even broader measures to
ensure that a defendant who has a legitimate claim of innocence
will have access to such a test.
We have attached to this report a chart and detailed
summary of state statutes relating to DNA testing and post-
conviction procedures. See Attachment C. As the detailed
analysis shows, of the 38 states which have the death penalty,
26 states have specific statutes which provide for post-
conviction DNA testing; 8 states have general post-conviction
statutes and/or caselaw which allow the defendant to seek post-
conviction relief based on DNA testing; and 2 states, Alabama
and Ohio, have administrative policies or programs to provide
such testing on a case-by-case basis. The latter 2 states,
Alabama and Ohio, have pending legislative proposals to create
a specific right to post-conviction DNA testing.
Of the 12 states which do not have the death penalty, 5
states have specific statutes which provide for post-conviction
statutes and/or caselaw which allows the defendant to make a
claim in support of a request for DNA testing. Legislative
proposals to create a specific DNA testing procedure are
pending in 2 of the 12 states.
In the face of this specific analysis, the Majority's
contention that the states are denying access to DNA testing
for state convicts is simply unfounded. More specifically, the
Majority's claim that ``only about half of the states have
provided for post-conviction DNA testing'' (Majority Report at
14) is contradicted by the fact that, as shown above, 31 of the
50 states have specific DNA testing laws. Equally unpersuasive
is the Majority's claim that ``[m]any states legislatures have
failed to act altogether.'' Majority Report at 14. The facts
show otherwise and the Majority's broad and unsupported
assertions have a hollow ring.
Second, the Majority's description of DNA access in the
states suggests that there are a number of innocent defendants
on death row awaiting execution, who desperately need access to
DNA testing to demonstrate their factual innocence. That broad
generalization is simply not true. Attached to our report is a
detailed chart which lists the number of defendants in each
state currently on death row and the number of those defendants
who have requested DNA testing and been denied. See Attachment
D. The chart shows that of the 3554 defendants on death row in
the states, a total of only 18 have requested and been denied
DNA testing, or .51 percent of all death row state
convicts.\23\ Even in these 18 cases, the denials were
generally based on strong substantive reasons.
---------------------------------------------------------------------------
\23\ There are also 23 federal defendants currently on death row.
None of those defendants has sought a DNA testing claiming that such a
test will exonerate them.
---------------------------------------------------------------------------
For example, Edward Moore was convicted in Illinois of
raping, robbing, and burning to death a female victim. Evidence
recovered at the crime scene included a semen sample from the
victim and hair found in a bed. In 1991 results from a DNA test
on the semen sample were found to be consistent with DNA from
the defendant. During the appellate process, Moore asked for
subsequent DNA testing on the semen sample and on the hair
found in the bed at the crime scene. The semen sample was
tested again in 2001 and was found to match Moore's DNA to a
probability of one in nine quadrillion. Upon hearing this fact,
the judge denied Moore's request for DNA testing on the hairs
found in the bed because the test would not show Moore's
innocence. Committee Telephone Interview with William Browers,
Assistant Attorney General in the Illinois Attorney General's
Office (Oct. 7, 2002). The semen sample DNA match was
overwhelming evidence of Moore's guilt.
In South Dakota, Donald Moeller was convicted of the rape
and murder of a nine-year-old girl who lived in his
neighborhood. At his trial, Moeller was given the opportunity
to have DNA tests preformed on the evidence taken from the
victim, but declined to have the tests done. After Moeller was
convicted and sentenced to death because of the heinousness of
the crime, he then asked for DNA testing as part of a federal
habeaus corpus writ. DNA tests were performed on evidence
including semen samples found in the victim, fluid found on the
victim's thigh, and on fluid found on some fingernail
clippings. The fluid on the victims thigh and on the fingernail
clippings was determined to be from a female donor. The semen,
however, matched a DNA sample taken from Moeller to a
probability of 1 in 14.8 billion. Moeller then requested
additional DNA testing on the fluid from the victim's thigh and
the fingernail clippings to determine if they came from the
same female donor. Committee Telephone Interview with Robert
Mayer, Deputy Attorney General in the South Dakota Attorney
General's Office (Oct. 8, 2002); id. with Scott Abdallah,
Johnson Law firm in Sioux Falls, South Dakota (Oct. 8, 2002)
(former Deputy Attorney General). Upon presentment of the match
between the defendant's DNA and the DNA in the semen sample
found on the victim, the judge denied Moeller further DNA
testing on the thigh fluid and fingernail clippings because the
tests already performed clearly established Moeller's guilt of
the capital crime.
Richard Kutzner was convicted of the capital murder of the
owner of a real estate business in Texas. The victim was found
with her ankles locked by a cable tie and her wrists bound by
red plastic coated wire. Kutzner was found to be in possession
of wire and cable tie whose serial numbers matched the wire and
cable tie found on the victim. He was also found to be in
possession of items stolen from the victim's place of business.
Kutzner was denied DNA testing of some hair and fingernail
clippings found at the crime scene because he did not meet the
threshold requirement for DNA testing. Under this threshold, a
DNA test will be ordered if the convicted person establishes by
a preponderance of the evidence that a reasonable probability
exists that the convicted person would not have been prosecuted
or convicted if exculpatory results had been obtained through
DNA testing. Because the hair and fingernail samples were found
at the crime scene which was a public place of business, and
could belong to any customer, the Texas Court of Criminal
Appeals reasoned that Kutzner could not meet the requirement.
Kutzner v. State, 75 S.W.3d 427 (Tex. Ct. Crim. App. 2002);
Committee Telephone Interview with Ed Marshall, Assistant
Attorney General in the Texas Attorney General's Office (Oct.
8, 2002). The evidence directly connected Kutzner to the
instruments used to kill the victim, and the DNA of a public
businesses customers would not change that.
And finally in Idaho, George Porter was convicted of the
first-degree, brutal beating murder of his ex-girlfriend. The
manner of the beating, in which Porter pulled clumps of his
girlfriend's hair out of her head was strikingly similar to
previous beatings he had inflicted on his prior girlfriends in
which he pulled clumps of hair out of their heads. In a post-
conviction petition, Porter asked for DNA testing on some of
the evidence introduced at his trial, including fingernail
scrapings taken from the victim. The judge denied the petition
using the post-conviction testing statute which was then in
existence. Committee Telephone Interview with Lamont Anderson,
Assistant Attorney General in the Idaho Attorney General's
Office (Oct. 8, 2002). The Idaho legislature, like the
legislatures of most capital punishment States, subsequently
enacted a more lenient post-conviction testing statute, and the
state court is now reconsidering Porter's request under the
more lenient standard. See Idaho Stat. 1949.02 & 1927.19
(2002). Accordingly, one of the key premises of S. 486--that
hundreds of death row inmates are being denied DNA testing,
thus risking the execution of innocents--is simply unfounded in
fact.
In San Diego, California, for example, prosecutors reviewed
561 cases where convictions were obtained before DNA testing
technology was fully developed, and found only three cases in
which DNA testing might exonerate the defendant. In two of
those cases, a murder and sexual assault, the convict turned
down the free test without explanation. In New Jersey, a free
DNA testing offer to convicted felons was suspended after fewer
than a dozen applied and not one defendant was ``exonerated''
by the DNA test. Similarly, in Broward County, Florida, only 3
of the 29 death row inmates accepted offers to be tested. One
test was completed and it was inconclusive. See Richard
Willing, Few Inmates Seek Exonerations with Free DNA Tests, USA
Today, July 30, 2002; Richard Willing, Program for DNA Testing
of Inmates is Scrapped, USA Today, December 25, 2001. The small
number of defendants seeking DNA tests to prove their actual
innocence suggests that for the most part that our criminal
justice system works well to convict the guilty and free the
innocent.
B. TRAMPLING FEDERALISM
In Section 103, S. 486 relies on Congress' power under
Section 5 of the 14th Amendment to require states to implement
post-conviction DNA testing procedures under the standards set
forth in Section 2291.\24\ In support of this constitutional
assertion of power under Section 5 of the 14th Amendment,
Section 103 contains a number of ``findings,'' many of which
are incorrect or without evidentiary foundation. By stretching
Section 5 of the 14th Amendment to encompass DNA testing for
state inmates, and by failing to cite any reliable factual
basis for such a measure, Section 103 is unconstitutional.
---------------------------------------------------------------------------
\24\ Section 103(c) gives state prisoners the right to enforce this
requirement in a civil action for declaratory or injunctive relief
against the states.
---------------------------------------------------------------------------
The Fourteenth Amendment provides, in relevant part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; not shall any State deprive any person
of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws. * * * Section 5. The
Congress shall have the power to enforce, by
appropriate legislation, the provisions of this
article.
As the Supreme Court has recognized, see City of Boerne v.
Flores, 521 U.S. 507, 517, 117 S.Ct. 2157 (1997), Section 5 is
an affirmative grant of power to Congress. See Board of
Trustees of the University of Alabama, et al. v. Patricia
Garrett, et al., 531 U.S. 356, 265, 121 S.Ct. 955 (2001).
Congress' power under Section 5 extends only to ``enforcing''
the provisions of the Fourteenth Amendment, and does not
include the power to determine what constitutes a violation of
the 14th Amendment. The Court has described Congress' Section 5
power as ``remedial.'' See City of Boerne, 521 U.S. at 519-24;
Board of Trustees, 531 U.S. at 365. In distinguishing between
the exercise of authorized ``remedial'' powers and prohibited
enactments defining Fourteenth Amendment violations, the
Supreme Court has looked to whether there is a ``congruence and
proportionality between the injury to be prevented or remedied
and the means adopted to that end.'' City of Boerne, 521 U.S.
at 526; see Kimel v. Florida Board of Regents, 528 U.S. 62, 120
S.Ct. 631 (2000); Florida Prepaid Postsecondary Education
Expense Board v. College Savings Bank, 527 U.S. 627, 639, 119
S.Ct. 2199 (1999). The appropriateness of remedial measures
must be considered in light of the evil presented. See United
States v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803 (1966)
(``the constitutional propriety of [legislation adopted under
the Enforcement Clause] must be judged with reference to the
historical experience * * * it reflects'').\25\
---------------------------------------------------------------------------
\25\ Strong measures appropriate to address one harm may be an
unwarranted response to another, lesser one. See City of Boerne, 521
U.S. at 530; South Carolina v. Katzenbach, 383 U.S. at 308.
---------------------------------------------------------------------------
Recent cases have focused on Congress' attempts to exercise
its Section 5 remedial powers under the 14th Amendment. See
Board of Trustees, 531 U.S. at 365; Kimel, 528 U.S. at 82-83,
89-90; Florida Prepaid, 527 U.S. at 639p; City of Boerne, 521
U.S. at 525. In a number of cases, the Supreme Court has struck
down attempts by Congress to exercise its Section 5 enforcement
authority where there was an inadequate legislative record to
justify such an exercise of its power. See Board of Trustees,
531 U.S. at 368-69 (Title I of America with Disabilities Act
authorizing individual suits against states in federal court
exceeded Congress' power under Section 5 of the Fourteenth
Amendment where legislative record ``fails to show that
Congress did in fact identify a pattern of irrational state
discrimination in employment against the disabled''); Kimel,
528 U.S. at 82-83, 89-90 (Age Discrimination in Employment Act
struck down where Congress never identified any pattern of age
discrimination by the States, much less any discrimination
rising to the level of a constitutional violation, noting that
there was insufficient evidence that ``[unconstitutional age
discrimination] had become a problem of national import'');
Florida Prepaid, 527 U.S. at 640, 647 (Patent Remedy Act struck
down where Congress identified no pattern of constitutional
violations, and in any event, many of the acts of patent
infringement by states were unlikely to be unconstitutional);
City of Boerne, 521 U.S. at 530 (Religious Freedom Restoration
Act struck down where legislative record contained no examples
within past 40 years of instances of state laws passed because
of religious bigotry which could constitute a widespread
pattern of religious discrimination in this country; rather,
legislative record showed that Congress identified numerous
instances where state laws of general applicability placed
incidental burdens on religion); Cf. South Carolina v.
Katzenbach, 383 U.S. at 308 (legislative record contained
evidence of pervasive discriminatory use of literacy tests to
disenfranchise voters on account of their race).
Applying these principles here, Section 103's reliance on
Section 5 of the Fourteenth Amendment to require states to
implement post-conviction DNA testing for state inmates cannot
pass constitutional muster. Significantly, the majority does
not--and indeed could not--cite any credible record material to
demonstrate the existence of a pervasive or widespread denial
of access to DNA testing to state inmates. To the contrary, as
detailed above, the record evidence shows that many states
already have enacted post-conviction DNA testing programs--in
fact, of the 38 states which have the death penalty, 26 have
specific post-conviction DNA testing statutes; 8 states have
general post-conviction statutes and/or caselaw which would
permit the defendant to seek post-conviction relief based on
DNA testing; and 2 states have administrative policies which
permit such testing where appropriate, and legislative
proposals to enact DNA testing are pending in these 2 states.
Several states already provide DNA testing on an informal
basis, and even where there is a statutory requirement, testing
may be conducted on an informal basis, short of any litigation
requirement. In the absence of a true factual basis and need
for remedial measures, relying on Section 5 of the 14th
Amendment to impose such a requirement on the states is plainly
unconstitutional. See Board of Trustees, 531 U.S. at 368-69;
Kimel, 528 U.S. at 82-83, 89-90; Florida Prepaid, 527 U.S. at
640, 647; City of Boerne, 521 U.S. at 530; Cf. South Carolina
v. Katzenbach, 383 U.S. at 308.
In an attempt to create a constitutional basis for Congress
to impose such DNA testing requirements on the states, Section
103 includes several ``findings,'' which fail to justify use of
the 14th Amendment to impose DNA testing requirements on the
states. Section 103(a)(1)(J) attempts to identify a
constitutional right under the Fourteenth Amendment based on
the fact that five members of the Supreme Court ``suggested''
in Herrera v. Collins, 506 U.S. 390 (1993), that ``a persuasive
showing of innocence made after trial would render the
execution of an inmate unconstitutional.'' While the language
of the Court's opinion in Herrera is subject to differing
interpretations, Chief Justice Rehnquist's plurality opinion
stated that, even ``assum[ing] for the sake of argument'' that
a ``truly persuasive demonstration of ``actual innocence''
would render the execution of a defendant unconstitutional, the
petitioner in that case had failed to make the ``threshold
showing for such an assumed right.'' Herrera, 506 U.S. at 417
(emphasis added); see id. at 427 (O'Connor, J., concurring). A
more persuasive interpretation of Chief Justice Rehnquist's
plurality opinion (along with Justice O'Connor's concurring
opinion) is that, in reviewing the evidentiary record, the
Court assumed the existence of such a constitutional right
``for the sake of the argument,'' and disposed of the case
based on the failure to meet the required threshold showing
without specifically finding that such a constitutional right
existed. Under these circumstances, Section 103(a)(1)(J)s
``finding'' of a constitutional injury--which embraces both
capital and noncapital defendants--is simply unsupported by the
Herrera decision.\26\
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\26\ Section 103(a)(1)(E) provides that DNA evidence has led to the
``exoneration'' of ``innocent'' defendants in over 100 cases. This
finding inaccurately characterizes these cases as determinations of
``actual innocence'' (factual innocence), as opposed to ``legal
innocence'' (insufficient evidence to meet government's burden of proof
beyond a reasonable doubt).
---------------------------------------------------------------------------
Section 103(a)(1)(H) and (I) assert generally without
specific support that ``it is difficult'' to obtain DNA testing
in ``many'' states, and that ``a number of states have adopted
post-conviction DNA testing procedures, but some of the
procedures are unduly restrictive, and many states have not
adopted such procedures.'' These general characterizations,
which are contrary to the record evidence, cannot supply the
constitutional basis for Congress to assert its Section 5
power. Moreover, such a general and conclusory showing, without
more, cannot satisfy the requirement of a showing of a
``pattern of unconstitutional'' actions by States to justify
``remedial'' legislation requiring every state to implement DNA
testing requirements, particularly where many states already
provide for such testing and where others are currently
considering proposals to do so. See Board of Trustees, 531 U.S.
at 368-69; Kimel, 528 U.S. at 82-83, 89-90; Florida Prepaid,
527 U.S. at 640, 647; City of Boerne, 521 U.S. at 530; Cf.
South Carolina v. Florida Prepaid, 527 U.S. at 640, 647; City
of Boerne, 521 U.S. at 530; Cf. South Carolina v. Florida
Prepaid, 527 U.S. at 640, 647; City of Boerne, 521 U.S. at 530;
South Carolina v. Katzenbach, 383 U.S. at 308. In the absence
of a showing of a patter of state transgressions with respect
to denial of access to DNA testing, which has lead to execution
(or incarceration) of actually innocent defendants, and
assuming that such a pattern would constitute a constitutional
injury protected by the Fourteenth Amendment, Congress'
exercise of legislative authority in this area lacks a
sufficient legislative record to justify imposition of detailed
DNA testing requirement on each state. See Board of Trustees,
531 U.S. at 365; Florida Prepaid, 527 U.S. at 640; Kimel, 528
U.S. at 89.
The majority cites Judge Luttig's opinion in Harvey v.
Horan, 285 F.3d 298 (4th Cir. 2002) as support for the claim
that the 14th Amendment includes a right to post-conviction
access to DNA testing of evidence. While Judge Luttig's
concurring opinion argues that such a constitutional right may
exist, Chief Judge Wilkinson's concurring opinion rejected such
a view, and pointed out many of the difficult questions that
the court would have to resolve if such a right was found to
exist in the constitution. See Harvey, 285 F.3d at 300-02.
Moreover, Chief Judge Wilkinson specifically noted that many
state legislatures were adopting DNA testing statutes, and
warned that ``[t]o constitutionalize this area, as [Judge
Luttig's] opinion would, in the face of all of this legislative
activity and variation is to evince nothing less than a loss of
faith in democracy.'' Id. at 302.
The implications of S. 486's unconstitutional reliance on
the 14th Amendment is significant for future Supreme Court
review of Congress' legislative authority. By stretching the
14th Amendment to address yet another perceived constitutional
injury covered by the 14th Amendment, and by doing so with no
legislative record to justify such an action, S. 486 provides
the Supreme Court with one more instance to justify a future
denial of Congress' entitlement to a presumption of
constitutionality when enacting legislation. As Justice Antonin
Scalia pointed out:
My Court is fond of saying that acts of Congress come
to the Court with the presumption of constitutionality.
That presumption reflects Congress's status as a
coequal branch of government with its own
responsibilities to the Constitution. But if Congress
is going to take the attitude that it will do anything
it can get away with and let the Supreme Court worry
about the Constitution * * * then perhaps that
presumption is unwarranted.
See Remarks of Justice Antonin Scalia, United States
Supreme Court, speaking at the Telecommunications Law and
Policy Symposium (April 18, 2002); A Shot from Justice Scalia,
Washington Post, May 2, 2000, at A-22.
S. 2739 offers a constitutional alternative to that set
forth in Section 103 of S. 486. Congress has the ability to
encourage states to establish DNA testing procedures for post-
conviction defendants, and a responsibility to provide
increased funds to support timely DNA testing for certain
defendants. S. 2739 adopts such an approach. By contrast, S.
486 conditions receipt of federal grants for DNA-related
programs (DNA Analysis Backlog Elimination Grants, Paul
Coverdell National Forensic Sciences Improvement Grants, DNA
Identification Grants, Drug Control and System Improvement
Grants, and Public Safety And Community Policing Grants) on
state adoption and implementation of procedures for preserving
DNA evidence and making DNA testing available to state
inmates.\27\ These grant programs are critical to ongoing state
efforts to implement DNA testing programs at the investigative
and pretrial stages, as well as providing post-conviction
testing. Strengthening the DNA testing system at every stage is
critical for the effective protection of the innocent and the
prosecution of the guilty. The funding eligibility conditions
contained in S. 486 would deny states the very federal funding
which is provided for that purpose, unless and until they were
willing to adopt specific federally-mandated standards for
post-conviction DNA testing. Such an approach could perversely
create serious risks to the innocent as well as shielding the
guilty in cases where DNA testing is used in the investigative
or pretrial stage. This amounts to nothing more than an
unfunded federal mandate on the states, because states will be
compelled to conform to the new federal requirements in order
to maintain their current eligibility for DNA grant funding,
with no additional federal funds to help defray costs from the
expanded post-conviction DNA testing requirements.
---------------------------------------------------------------------------
\27\ The Majority's attempt to minimize S. 486's direction to the
states to provide access to DNA testing or lose important federal
funding is unpersuasive. Majority Report at 16. The Majority suggests
that the states have ``some flexibility'' to design and implement such
programs, but provides only specific examples where state DNA testing
programs would not comply with the federal mandates set forth in S.
486.
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Moreover, this heavy-handed approach does nothing to
further the dual and equally important--purposes of DNA
testing: exonerating those defendants who are actually innocent
of a crime and inculpating those defendants who may have
committed previously unsolved crimes. States are not seeking to
avoid their responsibilities in this area; they recognize the
value and importance of providing DNA testing where
appropriate. Rather than threatening states to implement a
federally-mandated DNA testing program or face significant DNA
funding reductions, states should be provided with additional
funding grants needed to implement DNA testing programs.
A letter signed by 30 state attorneys general, dated June
8, 2000, which was sent to the Judiciary Committee, addresses
these specific concerns relating to DNA testing and the role of
the states to enact such measures without federal mandates:
As attorneys general of our respective states, we
urge you to be cautious in enacting federal legislation
to address the use of DNA identification technology in
state proceedings. In our role as prosecutors and
appellate advocates, we believe in our ethical
obligation to ensure that no person is ever unjustly
charged, convicted or condemned. DNA identification
technology is an invaluable tool for fulfilling this
obligation and we support a thoughtful effort in the
states of refine actions already taken or to take
action to sensibly and fairly utilize the opportunity
for justice presented in those cases where DNA evidence
is available, and relevant to guilt or innocence.
We ask that Congress not preemptively short-circuit
this process with legislation that imposes mandatory
obligations on the states.
We have serious concerns about federalism, and about
Congress prematurely intruding into and trying to
displace an ongoing process in our states through
enactment of the ``Innocence Protection Act of 2000''.
While we have reservations about certain specific
features of the bill, our overarching concern is the
extent to which this bill intrudes on the
responsibility of the states to define crimes, their
punishment and the procedures to be followed in their
courts. At the same time, the proposed legislation
fails to provide what the states need to ensure the
protection of innocent people--support for laboratory
and prosecutorial resources dedicated to DNA testing.
C. FRUSTRATING JUSTICE BY PROMOTING GAMESMANSHIP
While we generally support the goal of providing DNA
testing of defendants where such testing will establish the
defendant's factual innocence, we are concerned that S. 486, as
currently drafted, is unfairly skewed to afford DNA testing to
convicted defendants who have no reasonable chance of
establishing their innocence through DNA testing, and who may
be motivated by a desire to frustrate justice and game the
system through frivolous litigation. In our view, S. 486 does
not adequately protect against convicted criminals filing
frivolous post-conviction applications in order to ``game'' the
system, delay their sentence, or even seek a new trial where
DNA testing has no remote possibility of establishing the
defendant's factual innocence.
We submit that convicted offenders serving lengthy
sentences will exploit the provisions of S. 486 to file
frivolous motions that would squander the resources of courts,
prosecutors and law enforcement. Each of these entities has
limited resources and those valuable resources will be
committed to resolving motions from defendants who have no
reasonable chance of demonstrating their factual innocence
through DNA testing. We are also concerned that the post-
conviction remedy provided by this bill could be used by
convicted criminal defendants not merely as a means to correct
a false conviction, but as a way to establish another layer of
criminal litigation beyond trial and appeal that simply gives
them a third ``bite at the apple.''
Most significantly, S. 486 will undermine any notion of
finality of criminal convictions. Finality is important not
only to the police and prosecutors who should not be required
to reassemble criminal cases years after trial and conviction.
It is also vitally important to crime victims, and the families
of crime victims, who often do not start down the path to
emotional healing until after the perpetrator is adjudged
guilty and his conviction is affirmed. A crime victim's
emotional healing, or ``closure'' would be delayed or denied
altogether if the perpetrator has the unlimited right to
challenge that conviction in perpetuity.
(i) Section 2291
Section 2291 authorizes DNA testing requests for convicted
federal defendants under certain circumstances. As drafted,
Section 2291 will encourage frivolous litigation by convicted
defendants seeking DNA testing who are not actually innocent of
a crime but who are only seeking to ``game'' the system. It is
important to remember that a convicted offender seeking DNA
testing, by definition, has lost his or her right to the
presumption of innocence. Simply requesting a DNA test does not
entitle such a defendant to a ``renewed'' presumption of
innocence. A defendant seeking to challenge his or her
conviction must carry a heavy burden, or else defendants will
simply use frivolous and unnecessary litigation to their
tactical advantage.
Section 2291 skews this balance between finality and post-
conviction motions for DNA testing by ignoring the fundamental
distinction between a charged defendant who is entitled to a
presumption of innocence and a convicted defendant who is not
entitled to such protections. As an example, we submit that a
defendant should not be able to obtain DNA testing where such a
test was available at the time of the trail, but the defense
declined to seek it. S. 486 authorizes defendants in this
situation to obtain such testing notwithstanding an earlier
decision not to seek such evidence.\28\
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\28\ See Section 2291(d)(1)(B). We note that many states require a
petitioner to show that the technology for the DNA testing was not
available at the time of trial. See Ark. Code Sec. 16-112-125(a)(1)(B);
Conn. Gen. Stat. Sec. 52-582; Del. Code tit. 11 Sec. 4504(a)(2); Idaho
Code Sec. 19-4902(b); Ill. Stat. ch. 725 Sec. 5/116-3(a); Md. Sec. 8-
201(C), added by Senate Bill No. 694 (enacted May 15, 2001); Minn.
Stat. Sec. 590.01(1a)(a)(2); Mo. R. Crim. P. 29.17(b)(3); Neb. Senate
Bill No. 659 Sec. 5(5) (enacted May 25, 2001); N.M. Senate Bill No. 337
(enacted March 14, 2001); N.Y. Crim. Proc. Law Sec. 440.30(1-a); Tenn.
Code Sec. 49-26-106(a); Utah Code Sec. 78-35aa-301(4); Wash. Rev. Code
Sec. 10.73.170(1).
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Moreover, Section 2291 places onerous burdens on the
government when opposing a defendant's post-conviction motion
for DNA testing, while broadly affording convicted defendants
access to DNA testing with little justification, and without
any meaningful disincentives to filing frivolous or false
claims. This is simply contrary to any notion of finality and
fundamentally unfair to law enforcement, prosecutors, and most
importantly, victims and their families.
For example, Section 2291(a) does not require a convicted
defendant seeking DNA testing: to specifically assert under
oath that he or she is ``actually innocent'' of the crime, to
identify the specific evidence which he or she is requesting to
be tested; to identify a theory of defense, which is not
inconsistent with previously asserted theories, that the
testing will support; and to specify how the DNA test would
substantiate the defendant's claim of innocence. Instead,
Section 2291 stands the presumption of innocence on its head by
placing various burdens on the government to establish why the
defendant is not entitled to DNA testing, and specifically
limits the court's authority to deny an offender's request for
DNA testing only where the government shows by a preponderance
of the evidence that the defendant's application was made to
interfere with the administration of justice.\29\
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\29\ See Section 2291(d)(2).
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In meeting its burden, the government--not the defendant--
required to supply evidence that the defendant has failed to
explain any delay in seeking such a test (although there is no
requirement that the defendant make such an explanation in his
application), and that the defendant's attorney or the
defendant presented a theory of defense or testimony
inconsistent with the current application (although there is no
requirement that the defendant explain what his or her theory
of defense was at the original trial and how the current claim
is consistent with any prior defense asserted at trial).
Consistent with the principles explained above, we believe
that the defendant should have to assert under oath his
``actual innocence'' of the crime for which he was convicted,
and that the burden should rest squarely on the convicted
offender to show how the DNA testing will prove his or her
innocence. Rather than placing the burden on the government to
disprove the value of a DNA test, we submit that a convicted
defendant should simply be ineligible for DNA testing unless
the defendant: (1) asserts in a sworn affidavit under penalty
of perjury that he or she is actually innocent of the
crime,\30\ (2) identifies the exact piece of evidence that he
is requesting to be tested and how such testing will
demonstrate his actual innocence; \31\ and (3) establishes that
he or she did not rely at trail on a defense (through testimony
or defense counsel) such as consent, insanity, intoxication,
self-defense or some other defense that conceded the issue of
identity. By placing the burden on the government, Section 2291
will have the unintended consequence of permitting a defendant
to raise one defense at trial and then assert an inconsistent
theory of defense in post-conviction litigation in the hope
that the government will not successfully meet its burden for
opposing a defendant's DNA testing request.\32\ Defendants will
have every incentive to game the system through the filing of
frivolous post-conviction motions where the government cannot
meet its burden and where defendants are hopeful that they can
succeed in winning at a new trial.
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\30\ Various existing state provisions explicitly require that a
post-conviction DNA testing application include a claim of actual
innocence. See Ark. Code Sec. 16-112-125 (motion to demonstrate actual
innocence); Del. Code tit. 11 Sec. 4504 (same); Ill. Stat. ch. 725
Sec. 5/116-3(c)(1) (assertion of actual innocence); La. Code Crim.
Proc. art. 9261.(B)(4) (affidavit of factual innocence); Minn. Stat.
Sec. 590.01(1a)(c)(2) (assertion of actual innocence); Mo. R. Crim. P.
29.17 (motion to demonstrate innocence); New Mexico Senate Bill No. 337
(enacted March 14, 2001) (claim that DNA evidence will establish
innocence); Okla. Stat. tit. 22 Sec. 1371.1 (presentation of claims to
prosecutorial agency that DNA evidence will demonstrate factual
innocence); Tenn. Code Sec. 40-26-106(c)(1) (assertion of actual
innocence); Utah Code Sec. 75-35a-301 (assertion of actual innocence
under oath).
\31\ See, e.g., La. Code Crim. Proc. art. 926.1(B)(3) (``particular
evidence''); Or. Senate Bill No. 667 (enacted July 2, 2001) (``specific
evidence''); Utah Code Sec. 78-35a-301(2)(c) (``specific evidence'').
\32\ Several states require a petitioner to demonstrate that
identity was at issue at trial. See Ark. Code Sec. 16-112-125(b)(1);
Idaho Code Sec. 19-4902(c)(1); Ill. Stat. ch. 725 Sec. 5/166-3(b)(1);
Me. Rev. Stat. tit. 15 Sec. 2138(4)(E); Md. Sec. 8-201(C)(4), added by
Senate Bill No. 694 (enacted May 15, 2001); Minn. Stat.
Sec. 590.01(1a)(b)(1); Mo. R. Crim. P. 29.17(b)(4); N.M. Senate Bill
No. 337 (enacted March 14, 2001); Tenn. Code Sec. 40-26-106(b)(1); see
also Utah Code Sec. 78-35a-301(2)(c), (4) (prohibiting defense
switching).
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For example, in a hypothetical situation involving a gang
rape where semen was recovered from the victim, it is
conceivable that post-conviction DNA testing would reveal that
the defendant was not the source of the semen. This, however,
does not mean that the defendant did not commit the crime. He
could have participated in the assault without having sex with
the victim or he could have had sex with her without
ejaculating--neither of which would exonerate him from criminal
responsibility. Without more, DNA testing in these
circumstances would not provide sufficient evidence of the
defendant's actual innocence, but would be permitted under the
standard set forth in Section 2291(d)(1)(D). On the other hand,
in the case of a defendant convicted of raping a small child,
for example, the defendant should be afforded DNA testing where
there is a single perpetrator, semen was recovered from the
child and the only possible source of the semen was the rapist.
In this circumstance, we believe that DNA testing should be
allowed under an actual innocence standard.
Section 2291 also encourages delay and gamesmanship by
failing to set time limits for the filing of DNA testing
applications. Given the widespread availability of pre-trial
DNA testing in the last few years, the number of convicted
offenders who did not receive DNA testing will diminish over
time. In recognition of the limited number of defendants who
did not have access to DNA testing when it was available,
Section 2291 should include a time limit on the filing of
requests for DNA testing. While it is not unreasonable to
permit a limited amount of time for actually innocent persons
to file for relief, we suggest that five years should be the
outside limit. An actually innocent person will not delay;
while actually guilty defendants will wait to delay a scheduled
execution or hope that the government will be unable to retry
their cases. Section 2291 only promotes more delay and
gamesmanship, and does so at the expense of public safety and
the rights of victims.\33\
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\33\ A number of existing state provisions impose time limits on
the duration and availability of their post-conviction DNA testing
remedies. See Del. Code tit. 11 Sec. 4504(a) and Del. Senate Bill No.
329 Sec. 4 (enacted June 20, 2000) (until September 1, 2002, or within
three years of final judgment); Idaho Code Sec. 19-4902(b) (by July 1,
2002, or within one year of conviction); La. Code Crim. Proc. art.
926.1(A)(1) (until August 31, 2005, and thereafter subject to normal
limits on post-conviction relief applications); N.M. Senate Bill No.
337 (enacted March 14, 2001) (DNA testing application must be filed
before July 1, 2002); Okla. Stat. tit. 22 Sec. Sec. 1371, 1371.1
(provision until July 1, 2005, for investigation and presentation to
prosecutorial agencies of DNA claims); Or. Senate Bill No. 667
Sec. 1(2) (enacted July 2, 2001) (motion for DNA testing must be filed
within 48 months of effective date of act); Wash. Rev. Code
Sec. 10.73.170 (DNA testing requests may be presented to prosecutors
until December 31, 2002).
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The capital murder case of Loyd Winford Lafevers in
Oklahoma illustrates the dangers of gamesmanship and delay
using DNA testing. Lafevers and co-defendant Cannon
burglarized, beat, kidnaped and doused with gasoline and set on
fire, an 84-year-old woman in Oklahoma City. They were tried
together, convicted and sentenced to death. The appeals court
reversed and ordered they be tried separately, which was done
in 1993. At the 1993 retrial, the defense chose not to conduct
DNA tests of blood on two pairs of pants with type A blood
(matching Canon and the victim) seized from the Canon's house.
Each was convicted and sentenced to death again. Once his state
and federal appeals were exhausted, Lafevers sought DNA testing
of the blood on the pants, despite the fact that, if excluded,
the results would not establish his innocence, and that he
specifically declined to request such testing at his 1993
retrial. Given the strength of the evidence in the case against
Lafevers, the minuscule probative value of DNA testing results,
and the suffering to the victim's family, authorizing DNA
testing, as would be required under S. 486, would frustrate,
not further justice. See Post-Conviction Testing: When is
Justice Served?: Hearing Before United States Senate Committee
on the Judiciary, June 13, 2000 (W.A. Drew Edmondson).\34\
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\34\ The Majority cites three specific cases where DNA exonerations
occurred years after the defendants were convicted as support for its
contention that no time limits should be imposed. Majority Report at
14. In fact, the three cases underscore the need for encouraging prompt
testing and time limits to encourage such requests. By citing these
older cases, the Majority ignores the fact that DNA technology was not
available at the time the defendants were convicted; indeed, the
Majority does not specifically identify when the defendants first made
their requests for DNA testing.
---------------------------------------------------------------------------
The Majority pays lip service to the fact that DNA testing
can help solve crimes and lead to the incarceration of
dangerous defendants. Majority Report at 1, 9-10. Its pro-law
enforcement statements are contradicted by the details of S.
486.\35\ Specifically, Section 2291(d) unreasonably restricts
the government's use of DNA test results. First, if the test
results are exculpatory to the defendant, Section 2291 does not
authorize the government to use the results of the DNA test for
any other investigative purposes, including connecting the
defendant to other crimes for which he could be prosecuted
through the national CODIS system.\36\ Further, if a defendant
successfully moves for DNA testing and is identified as the
source of biological evidence in any other case, Section 2291
includes no provision waiving the statute of limitations for
subsequent prosecution of the defendant.\37\ If Rule 33's
normal time limit for filing of new trial motions is waived in
light of the exculpatory results of a DNA test, the same
principle should apply to the inculpatory use of DNA evidence,
notwithstanding the normal time limit for prosecution.\38\
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\35\ The Majority incorrectly describes the facts involved in the
case of Jerry Frank Townsend and Eddie Lee Mosley by suggesting that
prosecutors would not accede to a request for DNA testing to confirm
Townsend's guilt. Majority Report at 9. In fact, the Florida
prosecutors agreed to such testing but the testing was delayed by
Smith's defense counsels' demand that the result only be given to them
and concealed from the state. See Jackie Halifax, Evidence Comes Too
Late, Associated Press, December 14, 2000, http://abcnews.go.com/
sections/us/DailyNews/dna001214.html.
\36\ Cf. La. Code Crim. Proc. art. 926.1(I) (DNA profile of
petitioner to be sent to state police for inclusion in DNA database);
New Mexico Senate Bill No. 337 (enacted March 14, 2001) (district
attorney may use result of DNA testing of petitioner to investigate or
prosecute any case); Tex. Gov't Code Sec. 411.142(g)(4) (results of
post-conviction DNA testing may be included in DNA database); Utah Code
Sec. 78-35a-302(2) (data from DNA samples or test results may be
entered into law enforcement DNA databases).
\37\ Cf. Utah Code Sec. Sec. 78-35a-301(2)(f), 78-35a-302(3)
(similar waiver provisions for statute of limitations).
\38\ Some states have extended or eliminated the limitation periods
for the prosecution of certain offenses, such as rapes, which are
likely to be solved through DNA matching. See, e.g., Ga. Code Sec. 17-
3-1(b); Idaho Code Sec. 19-401; La. Code Crim. Proc. art. 571. A number
of states have adopted provisions which toll, extend or eliminate
limitation periods for prosecution in cases involving identification
through DNA evidence. See Ark. Code Sec. 5-1-109(b)(1); Conn. House
Bill No. 5903 Sec. 1 (enacted May 16, 2000); Del. Code tit. 11
Sec. 205(i); Ind. Code Sec. 35-41-4-2(b); Kan. Stat. Sec. 21-3106(7);
Mich. Comp. Laws Sec. 767.24(2)(b); Minn. Stat. Sec. 628.26(m); Or.
Rev. Stat. Sec. 131.125(8); Tex. Crim. Proc. Code art. 12.01(1)(B).
Some states have no limitation period for the prosecution of certain
felonies. See, e.g., Ala. Code Sec. 15-3-5 (no limitation period for
prosecution of felonies involving violence, drug trafficking, or other
specified conduct); Ariz. Rev. Stat. Sec. 13-107(E) (limitation period
for prosecution of a serious offense tolled during any time when
identity of perpetrator is unknown); Ky. Rev. Stat. Sec. 500.050
(generally no limitation period for prosecution of felonies); Md. Cts.
& Jud. Proc. Code Sec. 5-106 (same); N.C. Gen. Stat. Sec. 15-1 (same);
Va. Code Sec. 19.2-8 (same).
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Section 2291(a)(2) authorizes a defendant to request DNA
testing for ``any other offense'' which was relied upon by the
sentencing court to make a defendant eligible for the federal
death penalty or sentencing as a career offender or armed
career criminal.\39\ This provision will allow federal
defendants to obtain DNA testing in federal court relating to
prior state convictions used to enhance their federal sentence,
even though the federal judge knows nothing about the state
case, has no access to the state trial record or the evidence
maintained by the state.\40\ Federal courts are not the proper
forum to resolve claims of innocence relating to prior state
convictions no matter how old the state conviction. In these
circumstances, defendants should first seek redress in the
state of conviction (used to enhance the federal sentence), and
if successful, they should then seek federal habeas review of
their sentence.\41\
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\39\ See 18 U.S.C. Sec. Sec. 924(e)(1), 3592(c)(2)(3)(4)(10)(12),
and (15); 21 U.S.C. Sec. Sec. 848(n)(2)(3)(4), and (10); United States
Sentencing Commission, Guidelines Manual, Sec. 4B1.1 (Nov., 2001).
\40\ Recognizing the practical difficulties in requiring federal
judges to order post-conviction DNA testing of evidence in prior state
cases, the Judicial Conference of the United States specifically
opposes this provision for non-capital cases. See Letter from
Secretary, Judicial Conference of the United States, Leonian Ralph
Mecham to Chairman Patrick J. Leahy, June 20, 2002.
\41\ See 28 U.S.C. Sec. 2255.
---------------------------------------------------------------------------
While much of the hearing record focused on the need for
DNA testing in death penalty cases, Section 2291 inexplicably
does not prioritize DNA testing in capital cases. It is obvious
that defendants sentence to death who claim actual innocence,
when justified, should have their cases prioritized for DNA
tests. Section 2291 omits nay distinction between federal
capital and noncapital cases, and fails to place these
important cases on a testing fast track (such as 120 days) to
ensure that these tests are conducted quickly.
Finally, in order to discourage a flood of baseless claims,
Section 2291 does not clearly set out the requirements that a
defendant assert under penalty of perjury that they are
actually innocent of the federal crime (or any other offense
used to enhance their federal sentence), and does not
specifically provide for full prosecution of defendants who
make false claims of innocence in support of a DNA testing
request. Section 2291(g)(2)(D) allows a court to hold a
defendant in contempt (18 U.S.C. Sec. 401) but does not
authorize federal prosecution of other applicable crimes such
as perjury or false statements.\42\
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\42\ See 18 U.S.C. Sec. Sec. 1001, 1621, and 1623.
---------------------------------------------------------------------------
In Michigan, for example, the first DNA test conducted
pursuant to a then new Michigan law, confirmed that a
defendant, Michael Hicks, raped and kidnaped a woman in Calhoun
County, notwithstanding his contention that semen found on a
pillowcase could not be his. The Innocence Project, founded by
Barry Scheck, pursued Hick's request for a DNA test. After the
test confirmed Hicks' guilt, Calhoun County Prosecutor John
Hallacy responded by stating that Hicks ``perpetrated a fraud
on the court * * * and there's no penalty for it.'' \43\ To be
fair, our justice system must ensure that those who would abuse
it suffer a consequence. The Majority ignores this concern in
the drafting of S. 486.
---------------------------------------------------------------------------
\43\ Dawson Bell, New DNA Law Gets its First Test, Detroit Free
Press, July 17, 2001.
---------------------------------------------------------------------------
The potential for gamesmanship and unnecessary delay was
highlighted by the actions of the Innocence Project who
represented death row inmate Danny Joe Bradley in Alabama
courts. In a letter to the Judiciary Committee dated June 11,
2002, Alabama Attorney General Bill Pryor documented abuses by
the Innocence Project, and its conduct in Alabama court
proceedings.
Bradley was convicted of the 1983 rape and murder of his
twelve-year-old stepdaughter and sentenced to death. Nuclear
DNA testing was not available when he was convicted. During the
following 15 years, Bradley appealed his conviction and death
sentence in state and federal courts. Starting in 1995, the
Innocence Project and the Attorney General's Office
communicated concerning the evidence in the case. During this
time period, Bradley had a pending federal habeas petition
pending before a federal district court, but Bradley never
asked for a DNA test or claimed that he was actually innocent
of the crime.
After the habeas proceeding was concluded in the district
court, on November 14, 2000, the Alabama Attorney General
offered to conduct nuclear DNA testing on any of the available
items in the Bradley case. Bradley waited until February 2001,
when the State moved for an execution date, to respond to the
state's offer. Bradley's attorneys objected to the testing of
bed sheets stained with fecal matter and semen from the bed
where the victim was raped, sodomized and strangled.
Bradley filed a law suit in federal court after the state
set an execution date. The lawsuit successfully delayed his
execution so that DNA testing could be completed, even though
he waited six years to request such testing. Mr. Scheck
represented to the court that the testing was not being sought
to delay Bradley's execution. Bradley's expert conducted DNA
tests of the bed sheets but Bradley would not disclose the
results until forced by a court order. The test revealed that
the fecal stains were from the victim and that semen was from
Bradley.
Despite these findings, Bradley continued to seek
additional DNA testing using a less useful and less
discriminating DNA testing technique. Bradley's lawyers and the
Innocence Project misled the Alabama Supreme Court for six
months by representing that such testing was being conducted.
In January 2002, the Attorney General found out that the
testing had never been started, and Barry's attorneys claimed
that they were not required to correct the past
misrepresentations to the court. Subsequently, the Alabama
Attorney General learned that the DNA testing was actually
completed in late March, and neither the Innocence Project or
Bradley's attorneys contacted the Attorney General to inform
them of the results.
One month before his scheduled execution Bradley filed suit
in federal court. His federal habeas suit was dismissed as
untimely, and the magistrate specifically noted that Bradley
waited five years to seek DNA testing. While we do not suggest
that the Innocence Project regularly engages in such
misconduct, we only note the specific concerns documented in
Alabama Attorney General Pryor's letter, which have never been
refuted by the Innocence Project, to support our concerns about
the potential for abuses in affording convicted defendants a
right to DNA testing.
(ii) Section 2292
Section 2292 imposes burdensome evidence retention
requirements on law enforcement requiring the government to
``preserve all evidence that was secured in relation to an
investigation or prosecution of a Federal crime'' that ``could
be subjected to DNA testing'' for the period of time that any
person ``remains subject to incarceration.'' The provision
includes a civil penalty for failures to comply, requires the
Attorney General to implement regulations governing retention
of evidence, and creates a new criminal penalty for destruction
or altering of DNA evidence.
While there are certain exceptions to the evidence
retention requirements, this provision is unnecessarily broad
and will burden the government with preserving mountains of
evidence with little to no relevance to the defendant's actual
innocence. for example, this section could be construed to
require the preservation of items that are largely irrelevant
but fall within the ambit of the statute applicable to all
evidence obtained in connection with a federal investigation.
For example, an automobile that was seized and searched might
have to be preserved because DNA might be found on the steering
wheel, the upholstery or the windows. Blood, saliva, hair
roots, semen, fingernail scrapings--biological materials that
are shed or left during the commission of the crime--are the
most obvious sources of DNA and the most likely to be probative
of the perpetrator. Incidental DNA on a steering wheel or
upholstery that could have been left at any time and has no
obvious connection to the crime is not likely to be probative
of the identity of the perpetrator. The presence of another
person's DNA inside an apartment or automobile or the absence
of the defendant's DNA would not shed light on whether he had
committed the crime.\44\
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\44\ The Majority's citation of older individual cases to justify
imposing burdensome evidence retention requirements is misguided.
Majority Report at 18. These cases, while dramatic, have little
relevance to determining what evidence should be preserved
prospectively when DNA testing is now routinely made available prior to
trial. The older cases occurred during a time when DNA testing was not
routinely conducted. That situation has changed. States now conduct
such testing and there is no reason to impose costly requirements in
this situation, particularly when doing so without providing adequate
funding to comply with these requests requirements.
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IV. Defense Counsel in State Capital Cases
We strongly disagree with the Majority on the need for, and
the means chosen in, S. 486 to ensure that indigent defendants
are afforded competent counsel. If such a need exists, then we
would agree that additional funding to the states and state
courts for such purposes would be appropriate. However, the
Majority has not demonstrated that there is a significant,
systemic problem in the quality of representation in state
capital cases which would justify the provisions in Title II of
S. 486. Indeed, the Majority ignores the significant
protections which already exist in the Sixth Amendment
guarantee of competent counsel. See, e.g., Strickland v.
Washington, 466 U.S. 668 (1984). Moreover, as discussed herein,
even assuming that such a problem exists with the competence of
counsel in state capital proceedings, we oppose the means by
which S. 486 seeks to ``improve'' the quality of
representation.
A. THE CLAIMED NEED FOR FEDERAL INTERVENTION
The Majority asserts--with little factual support--that
``the prevalence of incompetent counsel in state death penalty
proceedings, particularly at the trial level, has been well
documented. Majority Report at 20. The Majority provides no
credible evidence to support this claim. The Majority relies on
the Liebman study, recommendations of organizations whose
members are generally opposed to the death penalty, newspaper
reports, as well as anecdotal or erroneous claims of individual
instances of ineffective assistance of counsel, to justify the
claimed need for improvements in the quality of representation
of indigent defendants in capital cases. As we have explained
above, the Liebman study has been so thoroughly discredited
that it cannot justify the federal intrusion and burdens
imposed by S. 486 on the state judicial and criminal justice
systems. Second, the recommendations of the Constitution
Project and the American Bar Association, while significant,
are not based on any analysis of performance of counsel in
state capital proceedings, and may reflect the influence of
organization's political opposition to the death penalty.\45\
---------------------------------------------------------------------------
\45\ The Majority also fails to note that almost every state which
has capital punishment already has implemented the Constitution Project
Committee's recommendation that each state enact competency of counsel
standards in capital cases. See Effective Counsel Recommendations
Number 2.
---------------------------------------------------------------------------
The Majority is left with little justification beyond
isolated, individual instances where there was clearly a
deficient performance by defense counsel (e.g. sleeping or
intoxicated defense counsel). We are all aware of such horror
stories and we submit that they are the exception, not the
rule. The Majority seeks to portray these stories as ``par for
the course.'' This view ignores the hundreds of capital cases
in which no flaws was found in the quality of legal
representation. It also ignores the hundreds of capital cases
in which defendants were either acquitted, or sentenced to a
penalty less than death, many times the result of outstanding
representation by defense counsel.
Contrary to the Majority's characterization of the
competence of state capital defense counsel, several witnesses
provided testimony during hearings on S. 486 that supports a
completely different picture of state capital litigation--
prosecutors in state capital cases are typically out-manned and
out-gunned by defense teams funded by a combination of public
and private sources. See Protecting the Innocent: Ensuring
Competent Counsel in Death Penalty Cases: Hearing Before the
United States Senate Committee on the Judiciary, 107th Cong.,
June 27, 2001 (statement of Alabama Attorney General William
Pryor, statement of Philadelphia Deputy District Attorney
Ronald Eisenberg, and statement of South Carolina District
Attorney Kevin S. Brackett); Post-Conviction Testing: When is
Justice Served?: Hearing Before United States Senate Committee
on the Judiciary, June 13, 2000 (responses of Joshua K. Marquis
to questions from Chairman Leahy), pp. 143-44; Letter from Sue
Kiorth to Chairman Patrick J. Leahy, July 10, 2002 (noting that
S. 486 is ``an effort to out-gun'' already over-taxed
prosecutors offices). Kevin Brackett explained:
I am not aware of any sleepy or drunken capital
defense attorneys in South Carolina. No judge I know
would tolerate it.
Nor have I seen any incompetent attorneys take up the
cause of a man on trial for their life. South Carolina
already imposes minimum standards for capital defense
counsel and the judges are required to find
affirmatively that any prospective capital defense
attorney is qualified. Five years of recent felony
trail experience is the minimum requirement for the
lead attorney. In most cases the actual level of
experience far surpasses this. South Carolina law
requires indigent defendants be appointed at least two
attorneys.
I have also had the pleasure of meeting many fine
defense experts over the last 10 years. South Carolina
provides ample funding for retaining expert witnesses
and private investigators. This year's budget provides
$2.75 million for use in paying appointed counsel and
hiring experts and investigators. In addition, state
law allows for part of every dollar pain in criminal
fines to be deposited into the same account. When you
consider that South Carolina tries approximately 15
capital cases per year you realize that our legislature
is not stingy in this regard.
Mr. Brackett's view was also supported by the testimony of
Ron Eisenberg, Deputy District Attorney, Philadelphia
Pennsylvania, who stated:
Capital punishment opponents charge that defense
lawyers in state capital cases are chronically
underfunded. Much of the impetus for the complaint
stems from the so-called defunding of the capital
resource centers, set up by Congress in 1994 to provide
legal advice, training and assistance in state death
penalty cases. While it was largely unreported,
however, federal assistance for state capital defense
was not actually cut off. Instead, the funding was
picked up by the Administrative Office of United States
Courts. This reallocation process began at the end of
1995, before the resource center cutoff date, so that
new funding would be immediately in place. There was
never any gap, and many of the new federal court-funded
attorneys were the very same lawyers who had worked for
the resource centers.
* * * * *
Ostensibly, this money is to be used for
representation of state capital defendants in federal
habeas proceedings, after the case has already moved
through the state courts. In my jurisdiction, however,
capital defense lawyers paid by the federal government
have spent at least as much of their time in state
court as in federal court. At the very minimum, the
federal millions free up considerable resources for
direct use in state court, at the trial, appeal and
post-conviction level.
The Majority ignores a Department of Justice study released
in November 2000, Defense Counsel in Criminal Cases, which
found that, in criminal cases, there was no significant
difference in the quality of representation between retained
and publicly-financed defense counsel:
In both Federal and large State courts, conviction
rates were the same for defendants represented by
publicly financed and private attorneys. Approximately
9 in 10 Federal defendants and 3 in 4 State defendants
in the 75 largest counties were found guilty,
regardless of type of attorney.
Bureau of Justice Statistics, Defense Counsel in Criminal
Cases, (November 2000). The study also noted that during 1996,
75 percent of defendants in state court represented by
appointed counsel either pled guilty or were convicted, while
77 percent of defendants with privately retained counsel either
pled guilty or were convicted. With the exception of State drug
offenders, Federal and State inmates received about the same
sentence on average with appointed or private legal counsel.
Id. at 1.
A Department of Justice survey conducted in 1999 of
indigent defense services shows that an estimated $1.2 billion
was spent on indigent criminal defense in the nation's largest
100 counties during 1999, and that approximately 73 percent was
spent on public defender programs, 21 percent by assigned
counsel programs, and 6 percent on awarded contracts. In the 50
counties with comparable data, 1982 expenditures totaled about
$464 million. In 1999, these same 50 counties spent
approximately $877 million on indigent criminal defense
services, an increase of 47 percent from 1982. See Carol
DeFrances, Marika F.X. Litras, Bureau of Justice Statistics,
Indigent Defense Services in Large Counties, 1999 (November
2000).
Aside from these Justice Department studies, the Majority
ignores the very substantial reforms that have already been
enacted by almost every state. Nearly all of the capital
punishment states now have competency standards for appointed
counsel. See Herman, Indigent Defense & Capital Representation
(National Center for State Courts, No. IS01-0407, July 17,
2001); see also Office of Justice Programs, Compendium of
Standards for Indigent Defense Counsel (December 2000) (study
found 17 states have statute or rule setting standards for
appointment of defense counsel in capital cases; 14 other
states have public defender systems for capital representation;
and study predated Texas indigent defense system). In most
cases, those standards exceed the qualifications that Congress
required for appointment of counsel in federal capital cases.
See 21 U.S.C. Sec. Sec. 848(q)(4)(A) and (5)-(7); Protecting
the Innocent: Ensuring Competent Counsel in Death Penalty
Cases: Hearing Before the United States Senate Committee on the
Judiciary, 107th Cong., June 27, 2001 (statement of
Philadelphia Deputy District Attorney Ronald Eisenberg).\46\
---------------------------------------------------------------------------
\46\ Equally unpersuasive is the Majority's claim that there exists
a ``crisis'' in post-conviction representation of capital defendants.
Majority Report at 21. That view is contradicted by the testimony of
Ronald Eisenberg cited above which suggests that, despite Congress'
attempt to defund capital resource litigation centers, many of the
attorneys assigned to these groups have continued to represent capital
defendants in state court proceedings. In addition, Alabama Attorney
General Bill Pryor outlined that significant appellate post-conviction
resources are made available to Alabama death row inmates. See
Protecting the Innocent: Ensuring Competent Counsel in Death Penalty
Cases: Hearing Before the United States Senate Committee on the
Judiciary, 107th Cong., June 27, 2001 (statement (and attachments) of
Alabama Attorney General William Pryor).
---------------------------------------------------------------------------
More specifically, the Majority cites five cases in which
it claims that ineffective counsel resulted in ``innocent''
defendants being convicted. Majority Report at 19-20. A closer
examination of these cases reveals the weakness in the
Majority's claim.\47\ Of the five cases, in three it is far
from clear that the defendant is, in fact, innocent. In a
fourth case, the defendant was never even sentenced to death.
And in all of these cases, any flaws in the conviction have
little to do with the system by which the State appoints its
defense attorneys. In two of the cases, prosecutors withheld
evidence that would have seriously undercut hair-analysis
testimony that was used against the defendant. In a third case,
prosecutors failed to reveal that they had reduced a prison
informant's sentence in exchange for his testimony. In another
case, although the court found ineffective assistance, it also
concluded that trial counsel was one of the best lawyers in the
city. And in the last case--from Cook County--defendant's trial
was undermined by police and prosecutors' gross misconduct,
including witness intimidation, concealment of benefits granted
in exchange for testimony, and concealment of evidence of other
suspects. No defense lawyer can be blamed for not using
evidence that the prosecution has wrongfully failed to
surrender.
---------------------------------------------------------------------------
\47\ A more detailed analysis of each of the five cases is set
forth in Attachment E.
---------------------------------------------------------------------------
Further, two of the States implicated in the Majority's
examples have substantially upgraded their indigent-defense
systems--increasing lawyer's pay and expert-witness
allowances--since the time of those examples. (Most of the
examples cited by the Majority are at least twenty years old).
See Diane Jennings, ``Indigent Defense Bill Passes Senate,''
The Dallas Morning News, April 11, 2001, at 1A; Beth Kuhles,
``County Overhauls Indigent Defense--Changes Bring More Money,
Speeder Representation,'' Houston Chronicle, January 3, 2002,
at 1; State v. Lynch, 796 P.2d 1150 (Okla. 1990). Despite its
ready use of examples from these States, the Majority neglects
to even mention these important changes. This is not
surprising, since those changes under cut any remaining
legitimate justification for this bill.
Finally, it bears describing the posture of this Minority
Report. Once the Minority issues this dissent, the Majority
will have a chance to respond, and that will end the debate. We
assume that the Majority will try to find some more credible
cases to support its argument--and may discretely delete from
its report some of the more ridiculous examples reviewed here.
We will not have a chance to respond, even to any new examples.
Such examples may seem impressive--as the initial examples no
doubt did to some--when not all of the facts have been
presented. Regardless of what may appear in the final draft, we
simply ask observers to keep in mind that ``[t]he Innocence
Protection Act was first introduced * * * on February 10, 2000,
by Senators Leahy'' et al., Majority Report at 2. It thus
speaks volumes that today--over two-and-a-half years later--the
proponents of this bill do not have readily available even a
single credible example that plausibly supports their argument
that States mast be forced to restructure their indigent
counsel systems (or fund capital resource centers) in order to
protect ``innocence.''
B. FEDERAL INTRUSION ON STATE AUTHORITY
In response to the perceived deficiencies in state judicial
systems and appointment of indigent defense counsel, S. 486
presents the states with a Hobson's choice: either accept
federal grants, which diminish over time, establish
``independent'' agencies (separate from the state executive,
legislative and judicial branches) responsible for complying
with federally-mandated competency and appointment standards,
agree to allow private civil suits against state officers
organizations. This Hobson's choice is nothing more than a
veiled attempt to resuscitate the private capital litigation
resource centers that Congress defunded in the middle 1990s.
Given the mandates and burdens imposed on the states through
the grant program, many, if not all, states will forego
possible federal grants. S. 486 is structured to deter states
from applying for such grants in order to advance the clear
intent of S. 486--resuscitate and renew the federal funding of
private capital litigation organizations.
(i) Section 201
Even assuming that there exists a problem with the quality
of representation in state capital cases, the means for
addressing the problem are misguided. Section 201 creates a
federal grant program, administered by the Department of
Justice, which requires states to create a new entity
(independent of the executive, legislative and judicial
branches) to set qualifications for attorneys who represent
indigent defendants in capital cases; to establish and maintain
a roster of qualified attorneys; \48\ and appoint 2 attorneys
from the roster to represent an indigent in a capital case. S.
486's approach simply ignores the traditional role of the
states and state courts in administering systems for the
appointment of competent counsel in state criminal courts. This
is a province legitimately reserved to the states and the state
courts, and one that should be protected from unnecessary
federal intrusions. In effect, Section 201 would strip states
and state courts of their traditional role in establishing a
system for appointing counsel to represent indigent defendants.
---------------------------------------------------------------------------
\48\ In qualifying attorneys for the appointment roster, the
independent entity is required to consider whether, in the past 5
years, an attorney has been sanctioned for ethical misconduct, found to
have rendered ineffective assistance of counsel, or asserted in 3 or
more cases that he or she rendered constitutionally ineffective
assistance of counsel.
---------------------------------------------------------------------------
Section 201 would impose significant costs on the states.
For example, Section 201 requires that the new independent
state entity would have to pay qualified attorneys at a rate
``typically paid to attorneys'' in the federal system, and
would have to provide ``reasonable reimbursement for costs''
for staff and support services comparable to such reimbursement
rates in federal capital cases. While federal grants are
authorized to assist the states in creating and administering
this new competency of counsel program, the federal share of
such costs in future years is reduced and the state will
increase.\49\
---------------------------------------------------------------------------
\49\ See Section 201(g). Federal Funding levels are authorized for
grants under this program as follows: Fiscal year 2003--$50 million;
Fiscal Year 2004--$75 million; Fiscal Years 2005 and 2006--$100 million
per year; Fiscal Year 2007--$75 million; Fiscal Year 2008--$50 million.
In subsequent years, the federal government's percentage share
decreases and the state's share increases.
---------------------------------------------------------------------------
Even more troublesome is the fact that, under Section
201(1), if Congress fails to appropriate sufficient funds in
any fiscal year, up to 10 percent of a state's Byrne block
grant money for state and local law enforcement can be used to
fund the state's defense counsel program. Such a reallocation
of critical state and local law enforcement and victim funding
is unwise. While many are concerned about the FBI's need to
focus on terrorism and its ability to continue to investigate
local crimes, this is not the time to reduce, or even threaten
to reduce, critical federal funding to support state and local
law enforcement.
(ii) Section 202
While the Attorney General is authorized to enforce state
compliance with the grant program, Section 202 inexplicably
requires states to agree to submit to private enforcement suits
in federal district court. See Section 201(i)(1)(2). If they
choose to do so, states will be required to devote significant
resources to defend against civil enforcement suits which will
be churned by a cottage industry fueled by private death
penalty opposition groups, prisoners and other interested
parties, challenging state compliance with federal competency
of counsel mandates. States will have to devote money to defend
these suits, leading to settlements and allocation of even more
state funds to implement such settlements.
C. FEDERALLY-FUNDED CAPITAL RESOURCE CENTERS: A MISTAKE WE HAVE MADE
BEFORE
Given the number of federal mandates in the Section 201
grant program and the potential exposure to private enforcement
suits authorized in Section 202, many states will choose not to
apply for federal funding. In that situation, Section 203
authorizes the Department of Justice to grant funds to a
qualified capital defender organization in a state. Such a
defender organization must consist of attorneys qualified to
handle capital cases. Grants to the organization may be used to
recruit and train attorneys, and expand the organization's
resources for providing representation in capital cases. Funds
may not be used to sponsor political activities.
(i) Section 203
We strongly oppose this provision which would, in effect,
re-fund private capital defense litigation centers like those
which were shut down in the mid-1990s because of ethical and
obstructionist tactics. See Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
for Fiscal Year 1996: Hearing Before the United States Senate
Subcommittee of the Committee on Appropriations, 104th Cong.,
March 29, 1995, pp. 270-73. When Congress discontinued public
funding for the capital-resource centers seven years ago, it
had good cause. The past several years' experience had shown
that these groups, which were not accountable to the courts or
any other branch of government, had engaged in a consistent
pattern of unethical behavior, misconduct, and abuse of the
legal process. These incidents included:
In New York, an employee of the taxpayer-funded
Legal Aid Society sent letters to prisoners throughout the
State seeking to ``incite a prison strike commemorating the
1971 Attica revolt,'' in which 11 prison guards were killed.
Legal Aid Unit Investigated Over Mailing--A Two-Week Strike Was
Proposed in a Leaflet Sent to a State Prisoner in Auburn, The
Post-Standard Syracuse, September 6, 1995, at C1. See also
Prison Strike Urged at Taxpayer's Expense, The Record, Northern
New Jersey, September 6, 1995, at A4. The letter, which noted
that its author had ``been asked to circulate [it] among
prisoners in the maximum-security prisons,'' was written on
Legal Aid Society stationery and sent through the
organization's privileged legal mail. Only one letter was
caught. On the appointed day, ``[h]undreds of prisoners were
locked in their cells * * * after refusing work assignments in
an apparent commemoration'' of the Attica riot. Lockdown at
Attica on Strike Anniversary, The Record, Northern New Jersey,
September 14, 1995, at A4. As one state Senator noted after the
letter was discovered, ``taxpayers cannot afforded to subsidize
groups that put correctional employees at risk by encouraging
civil disobedience in maximum-security prisons.''
In Virginia, the Virginia Capital Resources
Representation Center was accused of pressuring the wife of a
murder defendant into making a false videotape statement
recanting her trial testimony. See Bennett's Defenders Said to
Break Law--Changed Story Fuels Dispute, Richmond Times-
Dispatch, November 21, 1996, at A1. See also Bennett Dies for
Chesterfield Slaying, Richmond Times-Dispatch, November 22,
1996, A1; Kellers Seek Solace, Pray, Richmond Times-Dispatch,
November 21, 1996, A1. The Center declared that it was ``not
responsible'' for the incident, although the videotape was made
under oath at the Center's offices. The witness later told
police that ``she was told by the investigator [from the
Resources Center] that Virginia never would prosecute her and
that making the videotape was the only way to save [the
defendant's] life.'' The witness also told police that
``someone for the Resource Center is now calling her on a daily
basis, asking her to'' reaffirm the videotape. Chesterfield
County authorities described the incident as ``clear evidence
of suborning perjury on the part of [the resource center].''
Although the videotaped statement was more than two years old--
and had been disavowed by the witness more than a year ago--it
was ``kept secret by [the defendant's] lawyers until'' just
before the scheduled execution. See Recanted Testimony is
Disclosed--Ex-Wife's Conflicting Statements Surface as
Execution Date Nears, Richmond Times-Dispatch, November 20,
1996, at B1.
In Illinois, employees of the Capital Resource
Foundation smuggled paintings by death-row inmates out of
prison for an exhibit at a fashionable art gallery in downtown
Chicago. The President of the Foundation--whose own office ``is
decorated with some of the Death Row paintings the foundation
had planned to exhibit and sell''--explained the exhibit as
``an attempt to show the public that condemned killers are
human beings,'' noting that prisoners ``who are on Death Row
have a very difficult time.'' See From Death's Door--Promoter
Defends Killers' Art Exhibit, Chicago Sun-Times, November 21,
1996, at 24. The Foundation had previously staged a smaller but
financially successful exhibit, which featured paintings by a
man who had murdered six people in Rockford, Illinois and
Beloit, Wisconsin. State prison officials were not informed of
either exhibit, despite state laws requiring that inmates'
profits from such activities be used to compensate victims.
In Texas, the District Attorney of Harris County
described an incident in which the Texas Resource Center, ``in
lieu of timely seeking federal habeas review, issued news
releases'' to the media announcing ``their recent discovery of
`astounding proof of [the defendant's] innocence.' '' See
Letter from John B. Holmes, District Attorney, Harris County,
Texas to The Honorable Henry A. Politz, Chief Judge, United
States Court of Appeals, Fifth Circuit, March 23, 1992. The
Resource Center then filed a nine-count petition for a writ of
habeas corpus, one day before the defendant's scheduled
execution. As the District Attorney noted, the Resource
Center's `` `astounding evidence' of innocence was subsequently
characterized by the Fifth Circuit as `so riddled with holes
that it will not hold water.' '' Quoting Ellis v. Collins, 956
F.2d 76, 79 (5th Cir. 1992). See also Ellis v. State, 726
S.W.2d 39, 40-41 (Tex. Crim. App. 1986). The District Attorney
emphasized that this incident was simply one event in a pattern
of ``highly questionable practices by the Resource Center''--
practices that included ``late Friday afternoon filings prior
to a three-day holiday weekend; recurrent claims of lack of
counsel even though withdrawal of counsel was reasonably
foreseeable or, in many cases, arranged by the Resource Center;
and misrepresentation to the court as well as opposing
counsel.'' See, supra, Letter from John B. Holmes, March 23,
1992.
In Louisiana, the District Attorney of Jefferson
Parish described a case in which the Loyola Death Penalty
Resources Center helped a defendant clearly guilty of a brutal
torture-murder to draw out his post-conviction proceedings for
13 years. According to the District Attorney, this delay was
not accomplished through legitimate means. The Resource Center
``misstated medical reports from [the defendant's] medical
history, misstated [the defendant's] current mental condition,
* * * fabricated an alleged immunity statement based on
hearsay, fabricated physical evidence in the form of a silver
cigarette case, intimidated the eyewitness [to the crime], * *
* attempting to change her testimony, and badgered jurors, as
reported by two jurors, until they found a juror who would make
claims regarding coercion during jury deliberations.''
Oversight Hearing on Habeas Corpus, House Committee on the
Judiciary, Subcommittee on Civil and Constitutional Rights,
Statement of John Mamoulides, District Attorney, Jefferson
Parish, Louisiana, February 24, 1994. See also State v. Sawyer,
422 So.2d 95, 97-98 (La. 1982).
In California, the State's Supreme Court is
believed to have taken over the recruitment of capital defense
lawyers from the California Appellate Project--the state's
capital resource center--because ``it felt the center was
delaying recruitment in order to delay litigation.'' Marcia
Coyle, Death Penalty Resource Centers Are ``Obstructionist,''
Say Their Enemies--Judges Call Them Vital, NAT'L L.J.,
September 18, 1995, at A1, col. 2. Such tactics by resource
centers are inevitable, according to Charles Hobson of the
Sacramento-based Criminal Justice Legal Foundation: ``You're
always going to have that problem when people's avowed goal is
to abolish the death penalty.''
One South Carolina prosecutor has also emphasized
the need for independent supervision of all criminal-justice
attorneys--especially in the politically charged context of
capital appeals. Kevin Brackett noted that it is ``the opinion
of many prosecutors who spend any time in capital litigation
that some defense attorneys will deliberately infect a record
with error or, confess to error at a later habeas hearing in
order to secure a new trial for their client.'' See Protecting
the Innocent: Ensuring Competent Counsel in Death Penalty
Cases: Hearing Before the United States Committee on the
Judiciary, 107th Cong., June 27, 2001 (statement of statement
of South Carolina District Attorney Kevin S. Brackett).
In the early 1990s, the Texas Resource Center engaged in a
regular pattern of abusive conduct. The following are examples
of unethical and improper conduct:
In July of 1993, an attorney, from the Texas
Resource Center, representing convicted murderer Richard Wayne
Jones in Tarrant County Texas, presented a Motion to Vacate
Order Setting Execution Date ex parte, to the judge in the
case. Neither the prosecutors nor the victim's family were
notified, and therefore were not present in the judge's
chambers. These actions were a violation of Texas Rules of
Professional Conduct and Texas Rules of Appellate Procedure.
(Letter from Sharen Wilson, District Court Judge, Criminal
District Court No. 1, Fort Worth, Texas, August 16, 1992).
Investigators and interning law students from the
Texas Resource Center regularly represented themselves to
jurors who served on capital cases, as law enforcement
officials, district attorney investigators, and law students
researching trials for college credit, in an attempt to gain
affidavits from the former jurors containing information to be
used in the appellate defense of convicted murderers. (Letter
from James Elliot, First Assistant District Attorney, Bowie
County Criminal District Attorney's Office, Texarkana, Texas,
August 6, 1993).
Attorneys from TRC made up and filed false
allegations of prosecutorial misconduct in a capital murder
case in Potter County Texas in 1992. The prosecutor was forced
to litigate the claims against him, thus allowing the TRC
attorneys to delay the appellate procedure and subsequent
execution of the defendant. The claims against the prosecutor
were unsubstantiated and the findings of the trial court, that
the prosecutor engaged in no prosecutorial misconduct, were
affirmed by the Texas Court of Criminal Appeals. The prosecutor
was forced to withdraw from the case and a special prosecutor
was appointed, at taxpayer expense, which resulted in an
additional cost of at least $4,500.00 to the taxpayers in
Texas. (Letter from Danny E. Hill, District Attorney for the
47th Judicial District of Texas, Amarillo, Texas, July 19,
1993).
In Navarro County, Texas, the TRC attorney for
convicted murderer Gary Starling requested items from
prosecutors during the discovery process. Many of the items
were non-discoverable under Texas law. The TRC attorneys,
undeterred by the law, attempted to obtain the items from a
lower level employee at the Sheriff's Office. When this attempt
failed, due to the diligence of the sheriff's office employee,
the TRC then asked for personnel records of all of the
sheriff's office employees, pursuant to the Texas Open Records
Act. Much of the requested information was exempt from
discovery under the Open Records Act and most of the employees
had not even worked on the Starling case. The request was
deemed to have been made to harass the sheriff's office in
retaliation for not handing over the requested items from the
Sterling case. (Letter from Patrick C. Batchelor, Criminal
District Attorney of Navarro County, Corsicana, Texas, July 15,
1993).
One of the jurors in the Starling case was
contacted by a TRC member who tried to convince her that she
did not do the right thing by convicting Starling. (Letter from
Patrick C. Batchelor, Criminal District Attorney of Navarro
County, Corsicana, Texas, July 15, 1993).
In 1993, a paralegal for an attorney contracted by
TRC telephoned a former juror in the case of a convicted
murderer. The paralegal identified himself as Joseph Ward and
arranged an appointment with the former juror to review an
already prepared statement. The juror had discussed the case
with two people the previous year who identified themselves as
students interviewing former capital murder jurors for a
research project on the death penalty. Information that she had
given to the ``students'' was the basis for Ward's prepared
statement. When the juror expressed discomfort at the fact she
had been deceived by the ``students'' as to the purpose of
their interview, Ward asked the juror if she wasn't interested
in seeing an innocent man's plight be addressed. (Letter from
Luis V. Saenz, Cameron County Criminal District Attorney,
Brownville, Texas, July 9, 1993).
In 1992, Eden Harrington, director of TRC,
informed the Fifth Circuit Court of Appeals that the trial
court in Harris County, Texas, in the case of convicted
murderer Joe Angel Cordova, entered findings of fact and
scheduled Cordova's execution without notice to Cordova or his
attorney. The Presiding Judge of Harris County Criminal
District Courts subsequently informed the Fifth Circuit that
Harrington's statements were not true and provided
documentation of the notice to Cordova's attorney to the Fifth
Circuit. (Letter from John B. Holmes, Jr., Harris County
District Attorney, Houston, Texas, July 12, 1993).
In 1993 a TRC attorney tried to elicit a
``confession'' from the co-defendant of a TRC client in an
attempt to ``exonerate'' the client. The co-defendant refused
to change his true trial testimony. (Letter from John B.
Holmes, Jr., Harris County District Attorney, Houston, Texas,
July 12, 1993).
TRC delayed the appellate process and execution of
a death row inmate by hiring two attorneys to represent the
inmate's co-defendant and then claiming a conflict of interest
at a hearing in which an execution date was to be set. (Letter
from Deena McConnell, Assistant District Attorney for Brazos
County, Bryan, Texas, February 21, 1994).
TRC represented convicted murderer Robert Black.
Grady Deckard, who testified on behalf of Black at an
evidentiary hearing, was charged with aggravated perjury in
connection with that testimony. At Deckard's perjury trial, the
State called Eden Harrington, Director of TRC, believing that
Deckard committed perjury at the request of TRC, was bonded out
of jail with TRC money, and had an attorney provided for him by
TRC. Deckard's attorney subsequently became Harrington's
attorney, which caused a delay because the issue of attorney
client privilege had to be resolved. (Letter from Deena
McConnell, Assistant District Attorney for Brazos County,
Bryan, Texas, February 21, 1994).
TRC continued to pursue reversal of death row
inmate Johnny Cockrum's capital murder conviction despite
Cockrum's admission of guilt, request to TRC to end the
appellate procedure, and desire to be executed as soon as
possible. Cockrum claimed that TRC attorneys lied in court
pleadings regarding his alleged claims of actual innocence.
(Letter from Texas Death Row Inmate Johnny Cockrum, August 22,
1994).
Capital resource centers found ways to abuse even the most
basic elements of the habeas process. One death-row inmate--
represented by the Illinois Capital Resource Center--managed to
delay his execution simply by repeatedly abandoning and then
refiling his appeals. Convicted of bludgeoning an elderly
couple to death in a 1982 murder for hire, Robert St. Pierre,
``has asked judges to waive his appeals--and then asked to
reinstate them--seven times.'' See Alex Rodriguez, Inmate
Resumes Appeal of Dealth Sentence, Chicago Sun-Times, August 4,
1995, at 19.
Sometimes, even the inmates themselves have had no role in
resource centers' delaying tactics. One Florida prisoner, who
had raped and murdered an eleven-year-old girl, murdered two
prisoners while on death row, and indicated that he would kill
again in the future, attempted to waive his appeals. The
Capital Collateral Regional Counsel (CCRC) of Florida
nevertheless filed a federal habeas corpus petition on his
behalf. Dismissing the case, the Eleventh Circuit chastised the
CCRC for filing the petition without the inmate's ``consent and
without even telling him [CCRC] was going to do it. In fact,
[no one at CCRC] made any attempt to speak with [the inmate]
about his case until after he had learned of the petition they
had filed in his name and [he] had sent the court a pro se
motion to dismiss it.'' Sanchez-Velasco v. Secretary of Dep't
of Corrections, 287 F.2d 1015, 1017, 1021, 1022, 1024 (11th
Cir. 2002). At the district-court hearing in his case, even the
inmate--CCRC's supposed client--asked that ``CCRC to stop
`play[ing] games with the system and the taxpayers' money.' ''
These incidents cannot be ignored, nor can the consistent
complaints of state and local prosecutors be dismissed. This
troubling pattern of behavior by the resource centers--their
repeated unethical conduct and abuse of the legal process--is
endemic to their structure. The resource centers were created
to litigate against death sentences, a highly ideologically
charged subject matter. Yet, despite, the fact that they were
taxpayer funded, the resource centers' lawyers were allowed to
operate with virtually no accountability to the courts and
justice system that they served. The inevitable result of such
a system is aptly described by Kent Scheidegger, the Legal
Director of the Criminal Justice Legal Foundation:
We know from experience with the resource centers
that specialized capital defense agencies are usually,
if not invariably, captured by the hard core of death
penalty opponents. We also know that the hard core
regards obstruction as a legitimate means toward their
goals, and that they feel unconstrained by the ethical
rules against such tactics.
Keeping the appointment authority in the hands of the
local courts provides an important check on unethical
conduct by defense lawyers. This check is badly needed.
The prosecution alone, of all litigants in our courts,
cannot appeal after an adverse verdict. The
prosecution's evidence, witnesses, arguments, and
tactics are examined with a fine-toothed comb on appeal
and habeas corpus, and a conviction may be reversed for
misconduct. In contrast, even the most outrageous
violations of professional standards by the defense
side cannot endanger a verdict of acquittal. Once that
verdict comes in, the defendant walks, no matter how
clear his guilt may be. Bar discipline and contempt
proceedings are available in theory, but in practice
they provide little deterrent threat.
Because most murder defendants have appointed
counsel, the simplest and most practical way to deal
with unethical defense lawyers is to not give them any
more appointments.
Kent Scheidegger, The Death Penalty Trojan Horse, Criminal
Justice Legal Foundation, August 16, 2002.
The Majority cites Indiana's system for appointing defense
counsel to capital cases as an example of an effective system
of representation, noting that a study of Indiana's reforms,
``concluded that since their adoption in 1994, `no person has
been released from the state's death row because of innocence.
Nor has there been a case in which lawyers were appointed
pursuant to the Supreme Court's rule, complied with its
requirements, and were held to be ineffective.'' Yet the rule
in question, Indiana Rule of Criminal procedure 24(B) states
quite clearly ``it shall be the duty of the judge presiding in
a capital case to enter a written order specifically naming two
(2) qualified attorneys to represent'' the indigent defendant.
By stripping state courts--and all other branches of state
and local government--of their appointment power and
supervisory authority over publicly funded counsel, S. 486
virtually guarantees a return to the abuses of the past.
Indeed, S. 486 promises to make the problem much worse. In the
last year that they were funded by Congress, the capital
resource centers received only $20 million. Yet under S. 486,
the new resource centers are authorized to potentially receive
as much as $100 million a year from the federal government.
Moreover, under S. 486, the States' only alternative to
allowing the funding of the resource centers would be for
States to suspend supervision of their existing indigent
defense counsel systems. Under the bill, federal grants would
be given to the resource centers unless a State creates ``an
entity to identify and appoint capital defense lawyers'' that
functions ``independently of the three branches of state
government.'' Majority Report at 22. The Majority makes clear
that S. 486 would require States to give ``functional
independence from the elected branches of government for the
entity that appoints capital defense lawyers.'' Id. In other
words, States would have to restructure their indigent-defense
systems so as to suspend their supervision of public defenders.
S. 486 would force the States to eliminate their current means
of ensuring accountability and ethical behavior by their own
defense attorneys. The bill truly presents States with a
Hobson's choice: they would have to either allow federal
funding of the abuse-plagued resource centers, or allow their
own indigent-defense systems to turn into the very same thing.
As discussed in the Minority Report, the Majority's own
examples fail to demonstrate that inadequate defender systems
have caused innocent defendants to be sentenced to death.
Moreover, it is far from clear that funding ideologically
driven, scandal-plagued resource centers would actually improve
the quality of capital defense in this country. S. 486's
capital-representation grants program does not protect
innocence. Instead, what the program appears to be designed to
do is to frustrate the States' administration of their
criminal-justice systems. Resource centers may do little to aid
the truth-finding function of the courts, but their frequent,
repeated, and baseless filings are an effective means of
slowing down appellate review, and they do make it expensive
for States to implement an effective death penalty.
Unfortunately, the Majority Report simply confirms that S.
486 would allow resource centers to employ obstructionist
tactics against the States. In an effort to reach some
compromise on this legislation, members of the Minority
proposed a number of reforms designed to improve the bill and
prevent recurrence of past abuses by the resource centers. One
of the few proposals that the Majority would even consider,
albeit in weakened form, was an amendment allowing the Attorney
General to bar grants to a group if he finds that it has filed
``large numbers of frivolous claims.'' While this provision,
standing alone, would not fix all the flaws in S. 486, it would
allow the Attorney General some discretion to decline to fund
the worst of the resource centers.
The Majority Report now attempts to take away even this
limited discretion. The Report states that the new provision's
use of the term ``frivolous'' implies that the Attorney General
would have to find that a resource center acted with ``some
measure of bad faith'' before he could deny it funding.
Majority Report at 29. As every trial attorney knows, a finding
of bad faith is an extremely high threshold. While it is always
clear what an attorney actually did during litigation, and it
is possible to discover what that attorney knew or should have
known before filing a claim, it is virtually impossible to
divine an attorney's subjective intentions in filing a claim. A
bad-faith requirement would effectively nullify the already
very modest anti-abuse provision added to S. 486. Indeed, a
bad-faith requirement would be indistinguishable from the
standard for attorney sanctions that already applies to lawyers
appearing before a court--a standard that has in the past
proven woefully inadequate to regulate the resource centers'
behavior.\50\
---------------------------------------------------------------------------
\50\ Moreover, it is doubtful that the Majority Report is even
correct in asserting that the word ``frivolous'' requires a finding of
bad faith. The frivolous-litigation standard--one of the standards
applied in the alternative to prevailing Title VII defendants seeking
to recover attorneys fees by Christianburg Garment Co. v. E.E.O.C., 434
U.S. 412 (1978)--has been construed by the Supreme Court to not require
a showing of bad faith. See Independent Federation of Flight Attendants
v. Zipes, 491 U.S. 754, 759-60 (1989) (concluding that fees may be
awarded against suits that were ``brought in good faith, but only upon
a finding that the plaintiff's action was frivolous, unreasonable, or
without foundation''). The Majority Report's odd attempt to alter the
meaning of this provision after its adoption should not override the
basic interpretive rule that ``Congress expects its statutes to be read
in conformity with the [Supreme] Court's precedents.'' United States v.
Wells, 519 U.S. 482, 495 (1997). And to the extent the matter is in
dispute and S. 486 can be deemed facially ambiguous, the Attorney
General would be well within the discretion he enjoys in interpreting a
statute that he is charged with administering to construe ``frivolous''
in conformity with Christianburg. Under that standard, he would be
entitled to deny funding to any group that has filed a large number of
claims for which it knew or should have known of those facts that would
require rejection of the claim as a matter of law (see, e.g. Bill
Johnson's Restaurants v. N.L.R.B., 461 U.S. 731, 746 (1983); Wrech v.
City of Berlin, 673 F.2d 192, 195-96 (7th Cir. 1982)), or that rest on
a legal theory that is clearly precluded by binding precedent. See
Reeves v. Harrell, 791 F.2d 1481, 1485 (11th Cir. 1986).
---------------------------------------------------------------------------
Finally, lest there be any doubt about the purposes behind
S. 486, the Majority Report explicitly invites the resource
centers to engage in ``artillery barrage'' litigation, in which
numerous baseless claims are filed simply in order to overwhelm
prosecutors and the courts. The Majority Report specifically
``recognizes'' that resource centers ``may legitimately assert
a large number of claims'' that, as the Report obliquely
states, ``may become viable at a later stage in the
litigation.'' Majority Report at 30. Elsewhere in the same
paragraph, the Report makes clear what is meant by ``viable at
a later stage'': claims that are predicated on a ``reversal of
existing law.'' In other words, the Majority Report
specifically invites the resource centers to file claims that
are precluded by existing law. Nor need such claims be limited
to the occasional, much-anticipated imminent reversal of
Supreme Court precedent, as when the Court grants certiorari to
review a question that it had previously settled. The Majority
Report emphasizes that a defense lawyer may file ``a large
number'' of such claims.
We recognize that the Supreme Court may overrule its
precedent. The same criminal-justice procedure that it
specifically endorses in one decade, see Walton v. Arizona, 497
U.S. 639 (1990), it may bar in the next. See Ring v. Arizona,
122 S.Ct. 2428 (2002). Nevertheless, it would be an abuse of
the courts' process to allow criminal defendants to pursue
every claim that has already been rejected by binding
precedent, simply on the hope that the Supreme Court might
someday change its mind. Indeed, the Supreme Court itself has
made very clear that defendants generally should not be allowed
to assert newly announced rules on federal collateral review.
See Horn v. Banks, 122 S.Ct. 2147, 2150 (2002) (reiterating
general rule that ``new constitutional rules of criminal
procedure will not be applicable to those cases which have
become final before the new rules are announced''). With a
possible exception for precedents that are cast into doubt by a
recent grant of certiorari--an exception that, in any event,
does not occur in ``large numbers''--criminal defendants should
not be allowed to sue on claims that are clearly precluded by
binding precedent. The Majority Report's purported
authorization to do so casts doubt on assertions that S. 486
has anything to do with innocence.\51\ Artillery-barrage
filings do not aid the fair and efficient administration of the
States' criminal justice systems, or any other legitimate
object of federal legislation.
---------------------------------------------------------------------------
\51\ Again, we would emphasize that such a construction of the
anti-abuse provision would appear to be inconsistent with language
adopted by the Judiciary Committee, and in any event would not be
binding on the Attorney General. See supra.
---------------------------------------------------------------------------
The historical record, the current practices of delay, see
Post-Conviction DNA Testing: When is Justice Served?: Hearing
Before United States Senate Committee on the Judiciary, June
13, 2000 (statement of Oklahoma Attorney General W.A. Drew
Edmonson), and the overall structure of S. 486, create a
significant risk that funding of private capital litigation
organizations will repeat a lesson we learned from the past--
these organizations will seek to sabotage and derail the death
penalty and the overall administration of justice in our
country. Rather than leaving this issue to be resolved by each
state, in light of the available resources and the needs of the
state, S. 486 does not rely on the hand of justice but seeks to
skew justice in order to frustrate the administration of the
death penalty.
D. OPPOSITION FROM CONFERENCE OF CHIEF JUSTICES AND STATE ATTORNEYS
GENERAL
The Majority suggests that the Conference of Chief Justices
supports S. 486. (Majority Report at 24-25). In fact, the
Conference of Chief Justices has made it clear that the
Conference opposes S. 486, and in particular the competency of
counsel provisions. In a Resolution addressing both DNA testing
and Competent Counsel, the Conference of Chief Justices stated
in pertinent part:
Whereas, the provision of competent legal
representation and the use of scientific evidence in
state courts are first and foremost a state
responsibility, and particular provisions included in
legislative proposals recently introduced in Congress
raise substantial federalism concerns and intrude upon
the responsibilities of state courts and the
independence of the judiciary; and
Be it resolved that the Conference also reaffirms its
interest in working cooperatively with the federal
government to adequately fund defender programs in
capital cases but opposes any attempt by Congress to
impose on state courts standards related to the
competence of counsel, or the conduct of state court
proceedings, in addition to those required by the
Constitution.
The concerns of the Conference of Chief Justices have been
echoed by various state attorneys general. In a letter to the
Senate Judiciary Committee dated June 8, 2000, 30 state
attorneys general registered their opposition to the original
version of the Innocence Protection Act, citing federalism
concerns. Several state attorneys general have filed letters
reiterating their opposition to S. 486. See letter dated July
17, 2002, from Alabama State Attorney General Bill Pryor to the
Senate Judiciary Committee; and letter dated July 18, 2002,
from Nevada Attorney General Frankie Sue Del Papa to the Senate
Judiciary Committee. For example, M. Jane Brady, Attorney
General for the State of Delaware, stated in her July 23, 2002
letter:
The proposed [new requirements for legal
representation in capital cases] would override federal
and State precedent, as well as statutory law, and
intrude upon the states' exclusive responsibility to
define crimes, punishments, and the procedures for
administering criminal justice in State courts. This
proposal is an affront to State sovereignty in that it
requires that state court proceedings be conducted in
conformity with a Congressional mandate.
Lynne Abraham, District Attorney for Philadelphia,
Pennsylvania explained in pertinent parts of her July 12, 2002
letter to the Senate Judiciary Committee that:
[S. 486] would directly mandate jobs and high pay for
cadres of criminal defense attorneys in all state
capital prosecutions. Currently, states appoint lawyers
for indigent defendants according to local court rules
and state statutes. [S. 486] would completely
federalize this process by overriding existing state
law and instead requiring the states to set up panels
who will themselves decide which attorneys get these
lucrative appointments.
Under the bill, those chosen few defense lawyers must
be paid at rates comparable to those in federal court,
which generally means $125 an hour, or assuming a 40-
hour work week, $250,000 over the course of a year.
Moreover, if the lawyers seeking these desirable
appointments don't like the way the states set up the
new appointing panels, they can sue in federal court
for that too, and once again secure attorneys fees for
having sued.
If a state tries to opt out by not setting up
appointing panels, at all, then under this bill the
federal government would pay millions of dollars
directly into the hands of capital defense lawyer
groups, and the money for those payments, if not
specifically appropriated by Congress, would be
diverted from federal ``Byrne'' grants used now to
promote safe streets for citizens.
In light of all of these provisions, it appears the
so-called ``Innocence Protection Act'' is not really
about protecting innocent defendants at all. Instead,
it could more appropriately be known as the ``Attorney
Protection Act'' for lawyers opposed to capital
punishment.
V. Supreme Court Review and Stay of Execution
Section 301 amends title 28 of the United States Code to
require the Supreme Court to grant a stay of execution, which
requires five votes, when the Court grants a petition for
certiorari, which requires only four votes. The purpose of this
provision is to ensure that a defendant is not executed while
the Supreme Court reviews the defendant's case and the specific
issues raised in the petition.
Chief Justice Rehnquist submitted a letter to the Committee
dated August 6, 2002, commenting on this specific proposal.\52\
The Chief Justice points out that the Court's existing practice
is to issue a stay of execution upon the grant of a petition
for certiorari. In addition, the Chief Justice notes that the
decision of whether and when to issue stays of execution should
be left to the discretion of the Court. Finally, the Chief
Justice explains that the current provision, requiring the
Court to treat a motion for stay of execution as a petition for
certiorari, would significantly change the Court's current
practice which limits such treatment to rare situations where
immediate action may be required or when the stay application
contains enough information to allow the Court to make an
informed decision about the case. By requiring the Court to
treat motions for stay of execution as a petition for
certiorari, the Chief Justice notes that it will be very
difficult for the Court to determine whether or not to grant
certiorari where the stay application fails to provide
sufficient information to make such a determination.
---------------------------------------------------------------------------
\52\ Letter from Supreme Court Chief Justice Rehnquist to Chairman
Patrick Leahy, August 6, 2002.
---------------------------------------------------------------------------
We agree with the specific concerns set forth in Chief
Justice Rehnquist's August 6, 2002 letter. First, since the
Supreme Court's practice is to issue a motion for stay of
execution when the Court grants a petition for certiorari,
there is no need for legislative action in this area. Second,
the provision unnecessarily intrudes into the inner decision-
making process of the Supreme Court. Third, as noted by Chief
Justice Rehnquist, the provision as drafted would have the
unintended consequence of limiting the information available to
the Court when deciding whether or not to grant a petition.
VI. Other Provisions
A. COMPENSATION FOR THE WRONGFULLY CONVICTED
Section 401 increases the maximum amount of damages that
the United States Court of Federal Claims may award against the
United States under certain circumstances where a defendant
obtains reversal of his conviction from a cap of $5,000 to
$10,000 per year. While we agree that an increase in possible
compensation may be required, we suggest limiting any such
increase to capital cases. Such a modification would be
consistent with the sense of Congress expressed in Section 402
which is limited to reasonable compensation to any person found
to have been unjustly convicted of an offense against the State
and sentenced to death.
B. STUDENT LOAN REPAYMENT
Section 501 provides for assistance to state and local
prosecutors and public defenders to repay Stafford loans who
agree to remain employed for not less than 3 years. We agree
that additional incentives are needed to encourage prosecutors
and public defenders to continue in their public service
positions. The National District Attorneys Association
(``NDAA'') supported this proposal as a way to encourage
prosecutors to remain in public service and thereby improve the
quality of state and local prosecutions. See Protecting the
Innocent: Proposals to Reform the Death Penalty: Hearing before
the Senate Committee on the Judiciary, 107th Cong., June 18,
2002 (statement of Paul A. Logli). It should be noted, however,
that even with such a significant benefit offered to members of
the NDAA, the organization continues to oppose S. 486 for many
of the reasons outlined above.
VII. Conclusion
We reiterate our commitment to the common goals that we all
share--a fair and just death penalty system which provides for
post-conviction DNA testing where such testing will determine
whether or not the defendant is actually innocent, and which
ensures that all capital defendants are represented by
competent counsel and receive a fair trial. These important
goals cannot and should not be used as vehicles for hidden
agendas to undermine the American public's interest in
maintaining a fair and swift death penalty which saves innocent
lives, justly punishes the guilty, and vindicates the rights of
all victims to heinous and horrible crimes.
Equally troublesome in our view is the fact that S. 486
shows little regard, if any, to traditional notions of
federalism. Chief Justice Rehnquist outlined the basic
federalism principles in United States v. Lopez
We start with first principles. The Constitution
creates a Federal Government of enumerated powers. See
Art. I, Section 8. As James Madison wrote, `the powers
delegated by the proposed Constitution to the federal
government are few and defined.' Those which are to
remain the State governments are numerous and
indefinite. This constitutionally mandated division of
authority was adopted by the Framers to ensure
protection of our fundamental liberties. Just as the
separation and independence of the coordinate branches
of the Federal Government serve to prevent the
accumulation of excessive power in any one branch, a
healthy balance of power between the States and the
Federal Government will reduce the risk of tyranny and
abuse from either front.
Id. at 549, n.3 (1995) (internal citations and quotations are
omitted).
S. 486 is replete with instances in which the federal
government intrudes in areas legitimately reserved to state
control. In its brazen and unjustified attempts to impose DNA
testing requirements on states through the 14th Amendment, to
strip states and state courts of control over their criminal
justice systems, and to require compliance with burdensome and
unnecessary federal mandates on competency of counsel in state
capital criminal proceedings, S. 486 irresponsibly undermines
the ``healthy balance of power between the States and the
Federal Government.'' For all of the above-stated reasons, we
oppose S. 486.
Orrin Hatch.
ATTACHMENT--A
Critique of DPIC List (``Innocence: Freed From Death Row'')
(By Ward A. Campbell) \1\
---------------------------------------------------------------------------
\1\ Supervising Deputy Attorney General, State of California.
Member, Association of Government Attorneys in Capital Litigation
(AGACL). The writer represents the State in death penalty appeals and
is a supporter of the death penalty. This paper was the basis for a
presentation at an annual meeting of AGACL during 2002. However, this
work represents solely the views of its author and is not an official
publication of the California Department of Justice nor does it
represent the views of AGACL.
---------------------------------------------------------------------------
The Death Penalty Information Center (DPIC) Innocence List
(``Innocence: Freed from Death Row'') is frequently cited as
support for the claim that 102 innocent prisoners have been
released from Death Rows across the nation.\2\ This list is
uncritically accepted as definitive. However, an examination of
the premises and sources of the List raises serious questions
about whether many of the allegedly innocent prisoners named on
the List are actually innocent at all.
---------------------------------------------------------------------------
\2\ The DPIC List is located at its website: http://
www.deathpenaltyinfo.org/innoc.html
---------------------------------------------------------------------------
Analysis of the cases on the List suggests that the List
exaggerates the number of inaccurate convictions. For many of
its cases, the List jumps to conclusions and misstates the
implications of what has happened in the various cases that it
cites as involving ``actually innocent'' defendants. The DPIC
``falsely exonerates'' many of the former Death Row members on
its List and misleads the public about the frequency of
wrongful convictions in terms of appraising the current capital
punishment system in this country.
In fact, it is arguable that at least 68 of the 102
defendants on the List should not be on the List at all--
leaving only 34 released defendants with claims of actual
innocence--less than \1/2\ of 1% of the 6,930 defendants
sentenced to death between 1973 and 2000.
A. BACKGROUND OF DPIC LIST
The year 1972 marks the beginning of modern death penalty
jurisprudence in this country. That year, the United States
Supreme Court declared all death penalty statutes
unconstitutional. Furman v. Georgia 408 U.S. 238 (1972). The
states immediately responded by enacting various statutes
tailored to meet the concerns expressed in Furman. In 1976, the
United States Supreme Court approved new death penalty laws
that narrowed the class of murderers eligible for the death
penalty and permitted the presentation of any mitigating
evidence to justify a sentence less than death. The Court also
abrogated so-called ``mandatory statutes'' that did not permit
presentation of mitigating evidence. There is no proof that
since the reinstatement of the death penalty in 1976 that an
innocent person, convicted and sentenced under these statutes,
has been executed. Not even the DPIC makes this claim.
Nonetheless, death penalty opponents claim that numerous
innocent persons have been sentenced to death, only to escape
that ultimate punishment when subsequently exonerated. The
current source of this claim is the DPIC List. The DPIC
describes itself as ``a non-profit organization serving the
media and the public with analysis and information on issues
concerning capital punishment.'' In actuality, the DPIC is an
anti-death penalty organization that was established ``to shape
press coverage of the death penalty.'' The American Spectator,
April 2000 at 21; Washington Post (12/9/98). Its Board of
Directors is comprised of prominent anti-death penalty
advocates and defense lawyers.
The DPIC now claims that its standard for including
``innocent'' capital defendants on its List ``is to count those
whose convictions are reversed and who are then either
acquitted at retrial or have charges formally dismissed.'' The
List also includes any cases in which a governor grants an
absolute pardon. Under its current standards, the DPIC no
longer lists defendants who plead guilty to lesser charges.
Washington Times (9/12/99); The Record, Bergen County, N.J.,
(4/14/02). However, as will be shown, the DPIC's standards as a
whole are inadequate and misleading.
The DPIC List was first assembled in 1993 at the request of
the House Subcommittee on Civil and Constitutional Rights. The
List has its roots in a series of studies beginning with Bedau
& Radelet, Miscarriages of Justice in Potentially Capital
Cases, 40 Stanford Law Rev. 21 (1987) [hereinafter Stanford].
This article was followed by the 1992 publication of the book,
In Spite of Innocence, by Bedau, Radelet, and Putnam. The most
recent article is Radelet, Lofquist, & Bedau, Prisoners
Released from Death Rows Since 1970 Because of Doubts About
Their Guilt, 13 T.M. Cooley L. Rev. 907 (1996) [hereinafter
Cooley].
1. The Stanford study
The Stanford article presented 350 cases ``in which
defendants convicted of capital or potentially capital crimes
in this century, and in many cases sentenced to death, have
later been found to be innocent.'' Thus, the article included
cases during the twentieth century in which the defendants were
not actually sentenced to death. The Stanford authors
acknowledged that their study was not definitive, but only
based on their untested belief that a majority of neutral
observers examining these cases would conclude the defendants
were actually innocent. Stanford, at 23-24, 47-48, 74.
The article limited the cases it discussed to defendants in
cases in which it was later determined no crime actually
occurred or the defendants were both legally and physically
uninvolved in the crimes. The focus was primarily on ``wrong-
person mistakes.'' The article did not include defendants
acquitted on grounds of self-defense. Id. at 45. The article
relied on a variety of sources, including the ``unshaken
conviction by the defense attorney * * *'' that his or her
client was innocent. Id. at 53.\3\
---------------------------------------------------------------------------
\3\ The Stanford study includes historically controversial
defendants such as Bruno Hauptmann, executed for the kidnapping and
murder of the Lindbergh baby, and Dr. Sam Sheppard, ultimately
acquitted on retrial for the murder of his wife, as examples of
wrongfully convicted murderers. However, the most recent study of
Hauptmann's case supports the evidence of his conviction. Fisher, The
Ghosts of Hopewell (Southern Ill. Univ. Press 1999). Similarly, the
most recent civil litigation concerning the conviction of the late Dr.
Sheppard rejected evidence of his innocence. Cleveland Plain Dealer (4/
13/00).
---------------------------------------------------------------------------
The Stanford study was criticized in Markman & Cassell,
Protecting the Innocent: A Response to the Bedau-Radelet Study,
41 Stanford L. Rev. 121 (1988). In a reply, Bedau and Radelet
acknowledged that their analyses were not definitive. Bedau &
Radelet, The Myth of Infallibility: A Reply to Markman and
Cassell, 41 Stanford L. Rev. 161, 264 (1988) [hereinafter
Stanford Reply].
2. In Spite of Innocence
The book which followed the Stanford study, In Spite of
Innocence (1992), was a ``less-academic'' popularization of the
cases presented in the Stanford article. The book purportedly
corrected some unidentified errors from the Stanford article.
Significantly, In Spite of Innocence referred to the new
post-Furman death penalty statutes and conceded that
``[c]urrent capital punishment law already embodies several
features that probably reduce the likelihood of executing the
innocent. These include abolition of mandatory death penalties,
bifurcation of the capital trial into two distinct phases (the
first concerned solely with the guilt of the offender, and the
second devoted to the issue of sentence), and the requirement
of automatic appellate review of a capital conviction and
sentence.'' Id. at 279.
3. The Cooley article
The recent Cooley article is the principal source for the
DPIC List.\4\ Two of its authors, Bedau & Radelet, also wrote
the original Stanford study and In Spite of Innocence. The
Cooley article ostensibly continued the Stanford focus of
identifying ``factually innocent'' defendants--wrongly
convicted persons who were not actually involved in the crime.
Cooley, at 911.
---------------------------------------------------------------------------
\4\ Cooley itself only lists 68 defendants. The DPIC does not
explain how it has otherwise learned of the cases or defendants it has
since added to its current list of 102 defendants.
---------------------------------------------------------------------------
Cooley, however, had a narrower time focus than the
Stanford article or In Spite of Innocence. The Cooley list of
68 condemned, but allegedly innocent prisoners is supposedly
limited ``to cases since 1970 in which serious doubts about the
guilt of a death row inmate have been acknowledged.'' Cooley,
at 911. The ``admittedly somewhat arbitrary'' cutoff date of
1970 appears to be directed at eliminating cases that were
disposed of no earlier than 1973, after Furman v. Georgia, 408
U.S. 238 (1972). Cooley, at 911 fn. 27. As the authors had
indicated in their earlier book, In Spite of Innocence, current
death penalty law included features that probably reduced the
likelihood that an innocent person would be sentenced to death.
Accordingly, earlier cases under old statutes would not add
much to analyzing the contemporary problem of ``wrongful
convictions.'' Nevertheless, the Cooley cutoff date of 1970 was
still flawed for purposes of assessing our current capital
punishment system since it still included prisoners convicted
under the pre-1972, pre-Furman statutes.
The Cooley article purported not to include inmates
released because of ``due process errors'' unrelated to
allegations of innocence. Cooley, at 911-912. Finally, Cooley
excluded inmates who were found to be guilty of lesser included
homicides or not guilty by reason of mental defenses. Cooley,
at 912-913.
However, Cooley expanded the original Stanford study to
include allegedly ``innocent'' defendants who actually
committed the crime or were involved in the murder. Unlike the
Stanford article, Cooley included cases in which the defendant
was ultimately acquitted on grounds of self defense. Cooley, at
913. The Cooley article also included cases in which defendants
pled to lesser charges and were released ``because of strong
evidence of innocence.'' Id. at 914. The DPIC has since
disavowed inclusion of cases in which prisoners pled to lesser
charges, although it has not removed such prisoners from its
List.
The Cooley article failed to mention at least one
significant change from the previous studies--the inclusion of
accomplices mistakenly convicted as actual perpetrators. The
Stanford study excluded such defendants. ``We also do not
consider a defendant innocent simply because he can
demonstrate, in a case of homicide, it was not he but a co-
defendant who fired the fatal shot * * * because the law does
not nullify the [accomplice's] culpability merely because he
was not the triggerman, we do not treat him as innocent.''
Stanford, at 43. Cooley and the DPIC List abandoned that
limitation and included supposedly innocent defendants who were
still culpable as accomplices to the actual triggerman. Thus,
unlike its predecessor studies, Cooley cited cases in which
there were no actual ``wrong person'' mistakes--a practice
which the DPIC has continued.
Finally, and most importantly, Cooley ``includ[ed] cases
where juries have acquitted, or state appellate courts have
vacated, the convictions of defendants because of doubts about
their guilt (even if we personally believe the evidence of
innocence is relatively weak).'' Cooley, at 914. [emphasis
added]. However, except for defendant Samuel Poole, Cooley does
not otherwise identify the defendants which the authors
themselves believe have relatively weak evidence of innocence.
Nevertheless, a comparison of the Cooley list with the names
omitted from the Stanford study and In Spite of Innocence
suggests which cases even the authors of the Cooley article
believe only have ``weak'' evidence of innocence.
Thus, the Cooley article and the DPIC List differ from the
original Stanford article and In Spite of Innocence because
they both expand the categories of allegedly innocent
defendants. The Stanford article was ``primarily concerned with
wrong-person mistakes'' and only included defendants whom the
authors believed were legally and physically uninvolved in the
crimes. Stanford, at 45. As will be shown, neither Cooley nor
the DPIC List conforms to these original limitations. The
result is a padded list of allegedly innocent Death Row
defendants that overstates the frequency of wrongful
convictions in capital cases.
B. THE DPIC LIST: MISCARRIAGES OF JUSTICE OR MISCARRIAGES OF ANALYSES?
Using the Cooley article as a starting point, this paper
explains that as many as 68 of the 102 names on the DPIC List
(\2/3\ of the List as of September 17, 2002) should be
eliminated. In several respects, the methodology of the DPIC
List as explained in the Cooley article is deficient. The
premises used in selecting and pronouncing particular
defendants as ``actually innocent'' do not in fact support that
conclusion or do not assist in determining the actual number of
allegedly mistaken convictions under current capital punishment
jurisprudence.
1. Time frame: Relevance of DPIC list to current death penalty
procedures
In terms of the risk of condemning the innocent to death,
the ``admittedly somewhat arbitrary'' time frame used by the
DPIC List of 1970 is over-inclusive. Although the United States
Supreme Court's Furman decision did abrogate all of the
completely discretionary, standardless death penalty statutes
in 1972, it was not until 1976 that the Court upheld new death
penalty statutes. As noted in the book In Spite of Innocence,
numerous features of these new laws ``probably reduce the
likelihood of executing the innocent''.
Among the features which decreased the likelihood that an
innocent person would be sentenced the death, these statutes
(1) narrowed the range of death penalty eligible defendants and
(2) permitted convicted murderers to produce any relevant
mitigating evidence supporting a penalty less than death.
Mitigating evidence may frequently include evidence that will
raise so-called ``residual doubt'' or ``lingering doubt'' about
the defendant's guilt or otherwise raise doubts about a
defendant's level of culpability due to mental impairment or
some other factor.
In 1976, the Court abrogated statutes with so-called
``mandatory'' death penalties which did not permit
consideration of mitigating evidence. As the Stanford study
acknowledged, it has only been since those decisions that
``juries have been permitted to hear any evidence concerning
the nature of the crime or defendant that would mitigate the
offense and warrant a sentence of life imprisonment.'' These
mitigating factors include lingering doubt about guilt, mental
impairments, and limited culpability. Stanford, at 81-83.
To the extent that the DPIC List includes defendants
convicted and condemned under old statutes that did not meet
the Court's 1976 standards, those defendants are irrelevant in
terms of assessing contemporary capital punishment statutes and
should be excluded from the List. Since those defendants were
not tried under today's ``guided discretion'' laws, they were
sentenced to death without the appropriate finding of
eligibility or the opportunity to present mitigation. They were
not provided the modern protections which ``probably reduce the
likelihood of executing the innocent.'' Their sentences are not
reliable or pertinent indicators for evaluating the effect of
today's statutes on the conviction and sentencing of the
``actually innocent.'' There is no assurance they would have
been sentenced to death under today's statutes.
Implicitly, the Cooley article accepted this premise by
limiting its time frame to cases that were actually disposed of
after the 1972 Furman decision. The mistake in Cooley, however,
was in not further limiting the time frame to defendants
sentenced to death after their state enacted the appropriate
post-1972, post-Furman ``guided discretion'' statutes. See also
Markman & Cassell, Protecting the Innocent: A Response to the
Bedau-Radelet Study, 41 Stan. L. Rev. 121, 147-152 (1988).
In addition, the United States Supreme Court has from time
to time invalidated other state death penalty statutes or
issued rulings which would have affected the penalty procedures
in various states. To the extent that those changes affected
the eligibility for or selection of the penalty, it is
inappropriate to include inmates who may not have had the
benefit of those procedures.\5\
---------------------------------------------------------------------------
\5\ For example, just recently the United States Supreme Court
abrogated statutes in at least four states. Ring v. Arizona,
____U.S.____, 122 S. Ct. 2428 (2002). The Court also held that mentally
retarded defendants could not be sentenced to death. Atkins v.
Virginia, ____U.S.____, 122 S. Ct. 2242 (2002). For purposes of
assessing whether innocent defendants have been sentenced to death,
both of these cases may indicate that certain defendants currently on
the DPIC List would not have been or should not have been eligible for
the death penalty at all.
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2. The concept of ``actual innocence''
To analyze the DPIC List, it is necessary to distinguish
between the concepts of ``actual innocence'' and ``legal
innocence.'' The former is when the defendant is simply the
``wrong person,'' not the actual perpetrator of the crime or
otherwise culpable for the crime. The latter form of innocence
means that the defendant cannot be legally convicted of the
crime, even if that person was the actual perpetrator or
somehow culpable for the offense.
The United States Supreme Court and appellate courts have
discussed the concept of ``actual innocence.'' ``Actual
innocence means factual innocence, not mere legal
insufficiency.'' Bousley v. United States, 523 U.S. 614 (1998).
``Actual innocence'' does not include claims based on
intoxication or self defense. Beavers v. Saffle, 216 F.3d 918
(10th Cir. 2000). Proof of ``actual innocence'' also involves
considering relevant evidence of guilt that was either excluded
or unavailable at trial. Schlup v. Delo, 513 U.S. 298 (1995).
At a minimum, any showing of actual innocence would have to be
``extraordinarily high'' or ``truly persuasive.'' Herrera v.
Collins, 506 U.S. 390 (1993).
Although the DPIC and the Cooley article purported to limit
their lists of the ``innocent'' to defendants who were
``actually innocent,'' not just ``legally innocent,'' the
available information from the case material and media accounts
they rely upon indicate that many defendants on the List were
not ``actually innocent.'' These are not cases in which it can
be concluded that the prosecution charged the ``wrong person.''
As noted, the DPIC currently limits the cases on the List
to those in which a prisoner has been acquitted on retrial or
charges have been formally dismissed. However, the DPIC List
also includes other cases in which the conviction was reversed
because of legally insufficient evidence or because the
prisoner ultimately pled to a lesser charge. As will be shown,
inserting these cases on the List is misleading in terms of
assessing whether truly innocent defendants have been convicted
and sentenced to death. In actuality, the DPIC List includes a
number of ``false exonerations''.
To begin with, defendants are only convicted if a jury or
court finds them guilty of murder ``beyond a reasonable
doubt.'' Implicit in the ``reasonable doubt'' standard, of
course, is that a conviction does not require ``absolute
certainty'' as to guilt. Equally implicit, however, is that
many guilty defendants will be acquitted, rather than
convicted, because the proof does not eliminate all
``reasonable doubt.'' Smith v. Balkcom, 660 F.2d 573, 580 (5th
Cir. 1981).
An acquittal because the prosecution has not proven guilt
beyond a reasonable doubt does not mean that the defendant did
not actually commit the crime. Dowling v. United States, 493
U.S. 342, 249 (1990). Even an acquittal based on self defense
does no more than demonstrate the jury's determination that
there was a reasonable doubt about guilt, not that the
defendant was actually innocent. Martin v. Ohio, 480 U.S. 228,
233-234 (1987). A jury must acquit ``someone who is probably
guilty but whose guilt is not established beyond a reasonable
doubt.'' Gregg v. Georgia, 428 U.S. 153, 225 (1976) (White, J.
conc.). An acquittal means that the defendant is ``legally
innocent'', but not necessarily ``actually innocent.''
``Defendants are acquitted for many reasons, the least
likely being innocence. A defendant may be acquitted even
though almost every member of the jury is satisfied of his
guilt if even one juror harbors a lingering doubt. A defendant
may be acquitted if critical evidence of his guilt is
inadmissible because the police violated the Constitution in
obtaining the evidence by unlawful search or coercive
interrogation * * * More remarkable is the spectacle of jury
acquittal because the jury sympathizes with the defendant even
though guilt clearly has been proven by the evidence according
to the law set forth in the judge's instructions .'' Schwartz,
``Innocence''--A Dialogue with Professor Sundby, 41 Hast. L.J.
153, 154-155 (1989) cited in Bedau & Radelet, 1998 Law &
Contemporary Problems 105, 106 fn. 9. As the authors of
Stanford, In Spite of Innocence, and Cooley agree, reversals,
acquittals on retrial, and prosecutorial decisions not to retry
cases are not conclusive evidence of innocence. Stanford Reply
at 162.
Modern examples of this distinction between acquittal and
innocence (or between ``actual'' and ``legal'' innocence)
include O.J. Simpson who was acquitted of criminal charges, but
was later found responsible for his wife's and Ron Goldman's
deaths in a civil proceeding in which it was only necessary to
prove his responsibility by a preponderance of the evidence.
Or, to cite another recent example, the acquittal of the police
officers in the Rodney King beating case obviously did not
establish their ``actual innocence'' given their subsequent
conviction in federal court for violating King's constitutional
rights. Or, as an Ohio jury just demonstrated in a civil case,
Dr. Sam Sheppard's acquittal in the 1960's for murdering his
wife did not mean he was actually innocent. Cleveland Plain-
Dealer (4/13/00). The DPIC itself removed one case from its
List when it was pointed out that a supposedly innocent
defendant, Clarence Smith, was convicted in federal court of
charges which included the murder for which he had been
acquitted in the Louisiana state court.
No matter how overwhelming the evidence of a defendant's
guilt, the prosecution cannot appeal if a jury finds the
defendant ``not guilty''. Nor may the prosecution retry an
acquitted defendant. Jackson v. Virginia, 443 U.S. 307, 317 fn.
10 (1979). Due to the Double Jeopardy Clause, the prosecutor
does not get a ``second chance'' to improve his evidence or
present newly discovered evidence of guilt. The defendant, no
matter how guilty, goes free. The defendant is ``legally
innocent'', but not ``actually innocent''.
Similarly, if an appeals court reverses a conviction
because the evidence of guilt was legally insufficient to prove
guilt beyond a reasonable doubt, then the state cannot retry
the defendant under the Double Jeopardy Clause. Burks v. United
States, 437 U.S. 1, 16-18 (1978). However, the judges on the
appeals court cannot reverse or uphold convictions because they
personally believe the convicted defendant is guilty or
innocent. Ordinarily, the judges cannot substitute their
opinion for the jury's guilty verdict. They cannot second guess
how the jury resolved conflicts in the evidence or the
inferences the jury drew from the evidence. Jackson v.
Virginia, 443 U.S. at 319.\6\
---------------------------------------------------------------------------
\6\ As will be shown, in some states there are some exceptions to
this general rule of appellate review which favor the defendant.
---------------------------------------------------------------------------
Rather, when an appeals court finds that the evidence was
legally insufficient, it is only finding as a matter of law,
not fact, that the prosecution did not present enough evidence
to prove guilt beyond a reasonable doubt, i.e. the evidence of
guilt was not sufficient as a matter of law for a reasonable
juror to find the defendant guilty beyond a reasonable doubt.
Burks v. United States, at 16 fn. 10. Courts will frequently be
compelled legally to reverse these cases, even if the evidence
signals strongly that the defendant is guilty. The defendant is
``legally innocent'', but not ``actually innocent''.
As will be noted in the discussions of some of the various
cases on the DPIC List, some individual states themselves have
their own unique and more demanding standards for sufficiency
of evidence or double jeopardy. Accordingly, a reversal in one
state is not representative of the potential disposition of the
case under the United States Constitution or other states'
laws. In other words, a prisoner may have had his case reversed
for insufficient evidence in one state when that conviction
might have been upheld in federal court or another state.\7\
---------------------------------------------------------------------------
\7\ An example of such a difference relates to convictions based on
accomplice testimony. A conviction based solely on accomplice testimony
is insufficient for a conviction of California unless it is
corroborated by some other evidence. However, a conviction on
accomplice testimony would be sufficient in federal court even without
corroboration. Laboa v. Calderon, 224 F.3d 972 (9th Cir. 2000).
---------------------------------------------------------------------------
Thus, the ``reasonable doubt'' standard represents the
determination that the prosecution will pay the price if the
evidence is insufficient and that any errors in fact-finding in
criminal cases will be in favor of the defendant, i.e., that
the guilty will be acquitted because of insufficient proof.
Schlup v. Delo, 513 U.S. 298, 325 (1995). Indeed, evidence of
guilt is frequently excluded and never presented to the jury if
the prosecution or police have violated the defendant's
constitutional rights in obtaining that evidence even if the
evidence proves the defendant's guilt. Id., at 327-328.
For instance, a technical violation of the rights under
Miranda v. Arizona, 384 U.S. 436 (1966) may lead to the
exclusion of powerful evidence of guilt such as a defendant's
confession or other damaging statements. If evidence is seized
from the defendant in violation of the Fourth Amendment's rule
against unreasonable searches and seizures, the evidence which
was taken will not be presented to the jury even though that
evidence demonstrates the defendant's guilt. As a result, the
jury may be deprived of sufficient convincing evidence of guilt
even though the defendant is undoubtedly guilty or the
prosecution may no longer have sufficient evidence to try the
defendant.\8\
---------------------------------------------------------------------------
\8\ Furthermore, when a defendant secures a new trial on grounds of
ineffective assistance of counsel or because the prosecution has
improperly withheld material, exculpatory evidence, he is not required
to prove that he is innocent or even that he would have been acquitted.
In fact, he does not need to even prove that it is ``more likely than
not'' that he would be acquitted--found not guilty under a ``reasonable
doubt'' standard. He need only show a ``reasonable probability'' that
the outcome would have been different--he need only undermine
confidence in the guilt verdict in his case. Strickland v. Washington,
466 U.S. 668, 693-694 (1984); United States v. Bagley, 473 U.S. 667,
679-682 (1985). If a prosecutor presents perjured testimony, the
conviction is reversed if there is any reasonable likelihood the
verdict would be different. Bagley, at 679-680. Although a defendant
may get a new trial because of these claims, none of these standards
amount to a finding of the defendant's ``actual innocence''.
---------------------------------------------------------------------------
Finally, a prosecutor's decision whether to retry a case
that has resulted in a ``hung jury'' or has been reversed on
appeal (for reasons other than lack of sufficient evidence) is
not necessarily motivated by a prosecutor's personal belief
that a defendant is guilty or innocent. Prosecutorial
discretion is an integral part of the criminal justice system.
The decision not to retry is not ipso facto a concession that
the defendant is actually innocent. Rather, it frequently
represents the prosecutor's professional judgment that there is
simply not enough evidence to persuade an entire jury that the
defendant is guilty beyond a reasonable doubt or that for some
other reason, such as the fact that the defendant is now
serving time for other convictions, further prosecution is not
appropriate. If an earlier trial has ended in a mistrial
because the jury could not unanimously agree on guilt or
innocence, the prosecutor may simply conclude as a practical
matter that the evidence is insufficient to persuade a jury of
guilt beyond a reasonable doubt.
Local prosecutors have discretion to decide whether to seek
the death penalty. That discretion is motivated by such factors
as the strength of the case, the likelihood of conviction,
witness and evidence problems, potential legal issues, the
character of the defendant, the case's value as a deterrent to
future crime, and the Government's overall law enforcement
priorities. United States v. Armstrong, 517 U.S. 456, 463-464
(1996); Gregg v. Georgia, 428 U.S. 153, 225 (1976) (White, J.
conc.); People v. Gephart, 93 Cal.App.3d 989, 999-1000 (1979).
Prosecutors have the discretion to decline to charge the
defendant, to offer a plea bargain, or to decline to seek the
death penalty in any particular case. McCleskey v. Kemp, 481
U.S. 279, 311-312 (1987.)
``Numerous legitimate factors may influence the outcome of
a trial and a defendant's ultimate sentence, even though they
may be irrelevant to his actual guilt. If sufficient evidence
to link a suspect to a crime cannot be found, he will not be
charged. The capability of the responsible law enforcement
agency can vary widely. Also, the strength of the available
evidence remains a variable throughout the criminal justice
process and may influence a prosecutor's decision to offer a
plea bargain or go to trial. Witness availability, credibility,
and memory also influence the results of prosecutions.''
McCleskey, at 306-307 fn. 28. As even the authors of the
Stanford study concede, ``[p]rosecutors sometimes fail to retry
the defendant after a reversal not because of doubt about the
accused's guilt, much less because of belief that the defendant
is innocent or that the defendant is not guilty `beyond a
reasonable doubt', but for reasons wholly unrelated to guilt or
innocence.'' 1998 Law & Contemporary Problems at 106. When a
conviction is reversed, this discretion will also be affected
by the toll that the passage of time has taken on the witnesses
and the evidence. United States v. Mechanik, 475 U.S. 66, 72
(1986).
C. CASES ON DPIC LIST: ACTUALLY INNOCENT OR FALSELY EXONERATED?
After examination of the DPIC List and available supporting
materials including appellate opinions, newspaper reports, and
academic articles, it is submitted that the following 68
defendants should be stricken from the current DPIC List of 102
allegedly innocent defendants ``freed from Death Row.'' \9\ The
DPIC List fails to take into account many of the factors
mentioned above that may lead to an acquittal or a
prosecutorial decision not to retry a case even though a
defendant is not actually innocent. As a result, it includes
defendants whose guilt is debatable to say the least and whom
it is hard to believe that a majority of neutral observers
would conclude were innocent. The List also includes cases that
should not be considered in terms of assessing the overall
effectiveness of today's post-1972 death penalty procedures in
reliably and accurately imposing the ultimate punishment on
defendants who legitimately deserve that sanction, procedures
that ``probably reduce the likelihood of executing the
innocent.''
---------------------------------------------------------------------------
\9\ The author has also been aided by information recently compiled
by the Florida Commission on Capital Crimes, the Journal of the DuPage
County Bar Association, and the Philadelphia District Attorney's
office.
---------------------------------------------------------------------------
For ease of cross-referencing, the cases which should be
omitted from the DPIC List are discussed in the same numerical
order as they currently appear on the DPIC's website.\10\
---------------------------------------------------------------------------
\10\ This study is not exhaustive, but is based on materials
available to the author. These materials are cited in the summaries and
also include the Stanford study, In Spite of Innocence, the Cooley
article, and the summaries available on the DPIC website. It is not
conceded that other defendants on the DPIC List who are not mentioned
in this study are actually innocent. For that matter, the writer is
always interested in additional information bearing on a defendant's
claim of ``actual innocence''.
---------------------------------------------------------------------------
1. David Keaton--Conviction and sentence occurred prior to
1972 (pre-modern death penalty statute era). Anderson v.
Florida, 267 So.2d 8 (Fla. 1972).
2. Samuel A. Poole--Convicted of rape and sentenced under a
defunct mandatory sentencing law which precluded consideration
of mitigating evidence. Woodson v. North Carolina (1976) 428
U.S. 280. The United States Supreme Court has also declared the
death penalty for rape to be cruel and unusual punishment.
Coker v. Georgia, 433 U.S. 584 (1977). Moreover, Cooley
concedes that evidence of Poole's innocence is ``weak''.
Cooley, at 917.
3. Wilbur Lee.
4. Freddie Pitts--Conviction and sentence occurred prior to
1972. In re Bernard R. Baker, 267 So.2d 331 (Fla. 1972).
5. James Creamer-Creamer was mistakenly sentenced to death
for a 1971 murder. According to Cobb County court records, his
initial death sentence was imposed on February 4, 1973, but was
then reduced to life on September 28, 1973. This reduction is
understandable since the Georgia death penalty law had been
declared unconstitutional in 1972 in Furman and could not be
applied to offenses occurring prior to the passage of the new
Georgia death penalty law in March, 1973. Jackson v. State, 195
S.E.2d 921 (Ga. 1973); Clemmons v. State, 210 S.E.2d 657 (Ga.
1974); Creamer v. State, 205 S.E.2d 240 (Ga. 1974) (Creamer
sentenced to four consecutive life terms); Emmett v. Ricketts,
397 F.Supp. 1025 (N.D.Ga. 1975). By the time the case was
appealed, Creamer was serving a life sentence. There was some
initial confusion about the actual sentence in this case since
the original Stanford study and the reviewing courts' decisions
simply stated that Creamer had received a life sentence. Of
course, Creamer's case is not relevant to assessing today's
post-Furman capital punishment system.
6. Thomas Gladish.
7. Richard Greer.
8. Ronald Keine.
9. Clarence Smith--These four defendants were tried and
convicted under New Mexico's invalid mandatory death penalty
law which precluded consideration of mitigating evidence. State
v. Beaty, 553 P.2d 688 (N.M.1976). It is complete speculation
whether they would have been sentenced to death under a
``guided discretion'' statute.
10. Delbert Tibbs--Tibbs v. State, 337 So.2d 788 (Fla.
1976) (Tibbs I); State v. Tibbs, 370 So.2d 386 (Fla.App. 1979)
(Tibbs II); Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981)
(Tibbs III); Tibbs v. Florida, 457 U.S. 31 (1982) (Tibbs IV).
Tibbs was convicted of raping a woman and murdering her
boyfriend. The chief witness was the surviving rape victim who
identified Tibbs as her boyfriend's murderer.
Tibbs' conviction was reversed by a 4-3 vote of the Florida
Supreme Court. The majority applied an anachronistic review
standard that ``carefully scrutinized'' the testimony of the
prosecutrix since she was the sole witness in the rape case
``so as to avoid an unmerited conviction.'' Tibbs I at 790. The
conviction was not even reversed because the Florida court
found the evidence legally insufficient, but merely because the
Florida court found the ``weight'' of the evidence was
insubstantial. The court found the prosecutrix's testimony to
be doubtful when compared with the lack of evidence (other than
her eyewitness testimony) that Tibbs was in the area where the
rape-murder occurred. Id. at 791.
Subsequently, in a later opinion, the Florida Supreme Court
repudiated this ``somewhat more subjective'' rule that
permitted an appellate court to reverse a conviction because of
the weight of the evidence, rather than its sufficiency. In
hindsight, the Florida Supreme Court candidly conceded that it
should not have reversed Tibbs' conviction since the evidence
was legally sufficient. Tibbs III at 1126. The old review
standard applied to Tibbs' original case was a throwback to the
long discarded rule that a rape conviction required
corroboration of the rape victim's testimony--an unenlightened
rule which inherently distrusted the testimony of the rape
victim. Id. at 1129 fn. 3 (Sundberg, C.J. dis. & conc.); see
e.g. People v. Rincon-Pineda, 14 Cal.3d 864 (Cal. 1975). The
reversal of Tibbs' conviction was a windfall for Tibbs, not a
finding of innocence.
Subsequently, a debate in the Florida courts as to whether
or not Tibbs could be retried under the Double Jeopardy Clause
made its way to the United States Supreme Court. Justice
O'Connor's opinion explained that the rape victim gave a
detailed description of her assailant and his truck. Tibbs was
stopped because he matched her description of the murderer. The
victim had already viewed photos of several single suspects on
three or four occasions and had not identified them. She
examined several books of photos without identifying any
suspects. However, when she saw Tibbs' photo, she did identify
Tibbs as the rapist-murderer. She again identified Tibbs in a
lineup and positively identified him at trial. Tibbs IV at 33 &
fn. 2. At trial, the victim admitted drug use and that she used
drugs ``shortly'' before the crimes occurred. She was confused
as to the time of day that she first met Tibbs. Although not
admitted as evidence, polygraphs showed however that the victim
was truthful. Tibbs denied being in the area during the time of
the offense and his testimony was partially corroborated.
However, the prosecution introduced a card with Tibbs'
signature which contradicted his testimony as to his location.
Tibbs disputed that he had signed the card. Id. at 34-35.
O'Connor's opinion also noted the evidence that the Florida
Supreme Court had originally believed weakened the
prosecution's case. However, since the evidence of guilt was
not legally insufficient, the Double Jeopardy Clause did not
bar Tibbs' retrial. Id. at 35.
Ultimately, due to the current status of the surviving
victim--a lifelong drug addict--the original prosecutor
concluded the evidence was too tainted for retrial. In Spite of
Innocence, at 59. Nonetheless, the evidence recounted in the
United States Supreme Court decision hardly supports a claim
that Tibbs is actually innocent.
The state prosecutor who chose not to retry Tibbs recently
explained to the Florida Commission on Capital Crimes that
Tibbs ``was never an innocent man wrongfully accused. He was a
lucky human being. He was guilty, he was lucky and now he is
free.''
12. Jonathan Treadaway--State v. Treadaway, 568 P.2d 1061,
1063-1065 (Ariz. 1977); State v. Corcoran (Treadaway I) 583
P.2d 229 (Ariz. 1978) (Treadaway II). Treadaway was convicted
of the sodomy and first degree murder of a young boy in the
victim's bedroom. His conviction was reversed and he was
acquitted on retrial.
Treadaway's two palmprints were found outside a locked
bedroom window of the victim's home. When Treadaway was
arrested, he had no explanation for these palmprints. Treadaway
admitted being a peeping tom in the victim's neighborhood, but
did not remember ever looking in the victim's house. He denied
being at the victim's house the night of the murder. However,
the victim's mother testified she washed the windows the day
before the murder, ``raising an inference that the palm prints
found on the morning after the murder [were] fresh'' and also
raising the inference that Treadaway was lying. Pubic hairs on
the victim's body were similar to Treadaway's. His conviction
was reversed by the Arizona Supreme Court in a 3-2 decision
because the trial court erroneously admitted evidence that
Treadaway committed sex acts with a 13-year old boy three years
before the murder.
When Treadaway's retrial began, the Arizona Supreme Court
reviewed several pretrial evidentiary rulings. It admitted
evidence that Treadaway sexually attacked and tried to strangle
a boy three months before the murder at issue in the boy's
bedroom. However, the court excluded the interrogation in which
Treadaway failed to explain his palmprints outside the victim's
bedroom window, specifically refused to provide information any
information, and made other incriminating statements. The
exclusion was based on the police failure to comply with the
technical requirements of the Miranda decision, not because
Treadaway's statements or failure to explain the palmprints on
the window were somehow unreliable or involuntary.
This decision to exclude Treadaway's interrogation was a
crucial difference between his two trials. Although there was
defense evidence that the victim died of natural causes, the
jurors who acquitted Treadaway on retrial later stated that
they were actually concerned about the lack of evidence that
Treadaway had been inside the boy's home. Stanford, at 164; In
Spite of Innocence, at 349. Therefore, Treadaway's failure to
explain the palmprints at the window could have been critical
evidence since those palmprints at the very least would have
connected Treadaway with a location just outside the boy's home
on the night of the murder. Treadaway's inability to explain
the suspicious presence to the police of his fingerprints would
ordinarily indicate a ``consciousness of guilt'' about his
presence at the boy's home. However, the jury was never
permitted to know that Treadaway had had no explanation for
those palmprints--a circumstance consistent with his guilt.
Thus, significant probative evidence of Treadaway's
consciousness of guilt about the palmprints on the windowsill,
directly relevant to the jury's concern about the case, was
never disclosed to the jury at his second trial. Since it
cannot be known what the impact of that excluded evidence would
have been on the second jury, Treadaway's acquittal on retrial
did not demonstrate that he was innocent.
Furthermore, in light of the recent United States Supreme
Court decision in Ring v. Arizona it is speculation whether a
jury would have found Treadaway eligible to be sentenced to
death.
13. Gary Beeman--Convicted and sentenced under Ohio's
invalid death penalty statute which limited mitigating
evidence. Lockett v. Ohio, 438 U.S. 586 (1978). Accordingly, it
is speculative that he would have received a death sentence
under appropriate law.
16. Charles Ray Giddens--In 1981, the Oklahoma appellate
court reversed Giddens' conviction for insufficient evidence,
not actual innocence, because the testimony of his alleged
accomplice was ``replete with conflicts''. In 1982, the state
court held that retrial was barred under the Double Jeopardy
Clause. In Spite of Innocence, at pp. 306-307. Thus, this was a
case in which the evidence was found insufficient to prove
guilt, not a case in which the defendant was exonerated.
17. Michael Linder--This defendant was acquitted on retrial
based on grounds of self-defense. Cooley, at 948. Thus, this
was not a case involving a ``wrong person'' mistake as
originally defined in the Stanford study.
18. Johnny Ross--People v. Ross, 343 So.2d 722 (La. 1977).
This defendant's name should be removed since he was sentenced
under the unconstitutional mandatory Louisiana death penalty
statute which precluded consideration of mitigating evidence.
19. Annibal Jaramillo--Jaramillo v. State, 417 So.2d 257
(Fla. 1982). This defendant's double murder conviction and
death judgment were reversed for legal insufficiency of
evidence. The male victim had been bound with cord and then
shot. Near the body was a coil of cord and near that coil was
the packaging for a knife. Jaramillo's fingerprint was found on
the packaging and the knife, but not on the knife wrapper. A
nearby grocery bag had Jaramillo's fingerprint. Jaramillo
testified that he was helping the victims' nephew stack boxes
in the garage the day before the murder. He asked for a knife
to help cut the boxes. The nephew directed him inside to a
grocery bag with a knife. According to Jaramillo, he removed
the knife from the wrapper and returned to the garage. He
claimed he later left the knife on the dining room table where
it was found after the murder. Thus, Jaramillo's testimony
conveniently explained the fingerprints on the incriminating
objects. According to the recent report of the Florida
Commission on Capital Cases, the victims' nephew who could have
either corroborated or contradicted Jaramillo's version of
events was unavailable to testify at trial since his
whereabouts were unknown.
Although there was circumstantial evidence of Jaramillo's
guilt in the double murder, the conviction could not be
sustained under Florida law unless the evidence was
inconsistent with any reasonable hypothesis of innocence. Proof
of Jaramillo's fingerprints on several items at the scene
associated with the murder was not inconsistent with
Jaramillo's reasonable explanation of the fingerprints (helping
the nephew stack boxes in the garage).
This Florida case illustrates a key point about our
federal-state criminal justice system. Florida's ``sufficiency
of evidence'' rule in this case was more stringent than the
standard required under the Federal Constitution and applied by
the majority of other states. See, e.g., Fox v. State, 469
So.2d 800, 803 (Fla.App. 1985); Geesa v. State, 820 S.W.2d 154,
161 fn. 9 (Tex.Crim. 1991). Ordinarily, it is not necessary for
the prosecution to eliminate every hypothesis other than guilt.
Jackson v. Virginia, 443 U.S. 307, 326 (1979). Thus, in both
federal court and the majority of states, the evidence would
have been sufficient to support Jaramillo's conviction
notwithstanding his alternative explanation for his
fingerprints. The presence of Jaramillo's fingerprints on items
associated with the murder would have been sufficient for
conviction. See, e.g., Taylor v. Stainer, 31 F.3d 907 (9th Cir.
1994); Schell v. Witek, 218 F.3d 1017 (9th Cir. en banc 2000).
However, under Florida law, Jaramillo's innocent
explanation was not inconsistent with the presence of the
fingerprints on those objects. Accordingly, under state law,
the conviction was reversed since Jaramillo's innocent
explanation for the prints could not be eliminated. The Florida
Commission on Capital Cases described this case as an
``execution-style'' robbery and noted information that
Jaramillo was a Colombian ``hitman''. Jaramillo was
subsequently deported to Colombia, where he was murdered. It
was the opinion of local law enforcement that Jaramillo ``got
away with a double homicide.''
20. Lawyer Johnson--Convicted under pre-Furman death
penalty law in Massachusetts. Stewart v. Massachusetts, 408
U.S. 845 (1972); Commonwealth v. O'Neal, 339 N.E.2d 676 (Mass.
1975); Limone v. Massachusetts, 408 U.S. 936 (1972).
24. Joseph Green Brown--Brown v. State, 381 So.2d 690 (Fla.
1980); Brown v. State, 439 So.2d 872 (Fla. 1983); Brown v.
Wainwright, 785 F.2d 1457 (11th Cir. 1986). Brown was convicted
and sentenced to death based primarily on the testimony of
potential accomplice Ronald Floyd, a witness who subsequently
went through a series of recantations and retractions of his
recantations. Associate Justice Brennan actually relied on
Brown's case to note: ``Recantation testimony is properly
viewed with great suspicion.'' Dobbert v. Wainwright, 468 U.S.
1231 (1984) (Brennan, J. dis.) (citing Brown v. State, 381
So.2d 690). Brown was not granted a retrial because Floyd's
testimony implicating Brown was false, but because Floyd and
the prosecution did not disclose that Floyd was testifying in
return for an agreement that he would not be prosecuted in the
case. Floyd initially flunked a polygraph test about his
general involvement in the murder, but then passed the test
three times in terms of whether or not he was an actual
perpetrator in the crime. However, Floyd also recanted his
testimony implicating Brown, then recanted that recantation
during an evidentiary hearing. Subsequently, Floyd again
repudiated his initial trial testimony and the prosecution was
unable to retry Brown. Given the inherent unreliability of the
sequence of Floyd's multiple recantations (which are ``properly
viewed with great suspicion''), Brown cannot be deemed actually
innocent.
27. Henry Drake--Drake v. State, 247 S.E.2d 57 (Ga. 1978);
Drake v. State, 287 S.E.2d 180 (Ga. 1982); Drake v. Francis,
727 F.2d 990 (11th Cir. 1984); Drake v. Kemp, 762 F.2d 1449
(11th Cir. en banc 1985); Campbell v. State, 240 S.E.2d 828
(Ga. 1977). This case is yet another example of release due to
witness recantation, not actual innocence. Drake and William
Campbell were tried separately for the murder of a local
barber.
The elderly barber was violently assaulted in his shop with
a knife and a claw hammer. There were pools of blood and blood
smears on the wall of his barber shop. There were two pocket
knives on top of the blood on the floor. One of the knives was
similar to one owned by Drake.
When first arrested, Campbell implicated Drake as the
murderer and stated he (Campbell) was not present. Campbell
then told his own attorney that he (Campbell) alone was guilty
of the murder and that Drake was innocent. Campbell actually
offered many different versions to his lawyer before settling
on a story that did not implicate Drake. However, Campbell then
took the stand at his own trial (which occurred before Drake's)
and testified, to his attorney's surprise, that Drake attacked
the barber while Campbell was getting a haircut. Campbell was
nonetheless convicted of the barber's murder and sentenced to
death.
Subsequently, Campbell reluctantly testified at Drake's
trial and implicated Drake. The prosecution's theory was that
Campbell, an older man in ill-health with emphysema, could not
have murdered the barber by himself. After Drake was convicted
and sentenced to death, Campbell recanted his testimony against
Drake. However, his newest version of events also differed from
Drake's own testimony. Furthermore, the testimony of Drake's
girlfriend had also differed from Drake's testimony. The trial
court rejected Campbell's recantation and Campbell died soon
thereafter.
Drake's first conviction was reversed and in two subsequent
retrials, two different juries heard Campbell's recantation and
also heard forensic evidence that was offered to contradict the
prosecution's theory that the barber was attacked by two
assailants. One jury hung in favor of acquittal, but a second
jury convicted Drake again. Five former jurors from Drake's
original trial also advised the parole board that Campbell's
recantation would not have changed their verdict convicting
Drake at his first trial. Nevertheless, in a decision
uncritically accepted by the DPIC, the state parole board
``simply decided Drake was innocent.'' Atlanta Journal-
Constitution, 12/24/87; Los Angeles Times, 12/22/88, 12/23/88.
Notwithstanding the parole board's decision, Campbell's
numerous statements and recantations, which did not even always
agree with Drake's version of events, do not establish Drake's
actual innocence.
28. John Henry Knapp--Knapp had three trials for the house
fire murder of his daughters. Knapp stood outside and cooly
watched his daughters be incinerated while sipping hot coffee.
In the first trial, the jury hung 7-5 for conviction. The
second trial resulted in a conviction and death sentence, but
was reversed because of newly-developed evidence that indicated
that the fatal fire could have been accidentally set by his
dead daughters. Nonetheless, the third trial still ended in a
mistrial with the jury hung 7-5 for conviction. The evidence
included Knapp's recanted confession which he claimed he made
because he suffered a migraine headache and was trying to
protect his wife.
Finally, the prosecution concluded that the evidence was
insufficient to obtain a unanimous jury verdict of guilt or
innocence. The case was 19 years old and there had been losses
in ``some key evidence and witnesses.'' Knapp then pled ``no
contest'' to second degree murder and received a sentence of
time served. The judge who presided at Knapp's first two trials
indicated doubts about Knapp's guilt, but still said that the
fire was purposely set by either Knapp or his wife. ``Given the
original evidence and subsequent proceedings in the case, we
may never know if Knapp was guilty * * *''. 33 Ariz.T.L.J. 665,
666 (2001). Under the DPIC's current standards, Knapp's name
should not be on the DPIC List since he pled to a lesser
offense. Arizona Republic (8/27/91,11/19/92, 11/20/92,8/11/96);
Phoenix Gazette (12/6/91, 11/20/92); Associated Press (11/19/
92).
Moreover, given the recent United States Supreme Court
decision in Ring v. Arizona, it is speculative now whether a
jury would have found Knapp death penalty eligible under the
now applicable law.
29. Vernon McManus--McManus v. State, 591 S.W.2d 505 (Tex.
1980). McManus' conviction was reversed because of jury
selection issues unrelated to his guilt or innocence.
Ultimately, the prosecution chose not to retry the case, but
there were no widespread allegations of innocence. Accordingly,
his case was not even included in the Cooley article as an
``actually innocent'' defendant. Cooley, at 912. There is no
explanation for its inclusion on the DPIC List. Dallas Morning
News (6/4/00).
30. Anthony Ray Peek--Peek v. State, 488 So.2d 52 (Fla.
1986). Peek was acquitted after his two prior convictions for
this 1977 murder were reversed for various evidentiary errors,
including the admission of an unrelated rape. He was prosecuted
for raping and strangling to death an elderly woman in her
home. She lived a mile from the halfway house where Peek
resided. Her car was found also found abandoned even nearer the
halfway house. Two of Peek's fingerprints were lifted from
inside the victim's car window. Blood and seminal stains on the
victim's bedclothes were consistent with Peek's identity as a
type-O secretor. A hair with features similar to Peek's was
recovered in a cut stocking in the victim's garage area. Peek
claimed that his fingerprints got on the victim's car when he
was out of his halfway house in the morning and tried to
burglarize her abandoned car. Peek presented evidence that the
periodic night checks at the halfway house did not indicate any
unauthorized absences the night of the murder.
The acquittal represents a finding of reasonable doubt, not
actual innocence. Prosecutors attributed the acquittal to the
passage of time and loss of evidence. In particular, the state
attorney told the Florida Commission on Capital Cases: ``Mr.
Peek is also on the List, as are several others from other
circuits who got new trials and then were acquitted. I fail to
see the rationale for including these people.''
32. Robert Wallace--Acquitted on retrial based on either
self defense or accidental shooting defense. Accordingly, this
is not a ``wrong person'' mistake.
33. Richard Neal Jones--Jones v. State, 738 P.2d 525
(Okla.Crim. 1987). Jones' defense was that he was passed out in
a car while three other men beat up the victim, shot him, and
threw his weighted body in the river. Jones' conviction was
reversed in a 2-1 decision because the trial court erroneously
admitted incriminating post offense statements by Jones' non-
testifying codefendants, a violation of the hearsay rule. The
dissent noted that the only hearsay statement which actually
implicated Jones should still should have been admitted as a
prior consistent statement. At the very least, Jones was
present at the murder scene and a party to the conspiracy
leading to the murder. Accordingly, he would not have been
considered ``actually innocent'' under the standards of the
original Stanford study. His culpability would appear to be no
less than that of the actual murderers. See Mann v. State, 749
P.2d 115 (1988); Thompson v. Oklahoma, 487 U.S. 815, 817, 859
(1988); Thompson v. State, 724 P.2d 780 (Okla. Crim. App. 1986)
(separate trial of co-defendant with evidence directly
implicating Jones).
34. Jerry Bigelow--Bigelow v. Superior Court (People), 204
Cal.App.3d 1127 (1988). Bigelow's conviction and death sentence
were reversed for a reasons unrelated to his guilt. On retrial,
the jury convicted Bigelow of robbery and kidnaping. The jury
also found true that the murder occurred while Bigelow was
committing or was an accomplice in the robbery and kidnaping of
the victim. In short, the jury found true beyond a reasonable
doubt all the facts necessary to convict Bigelow of first
degree felony murder under California law. Nonetheless, the
jury did not actually convict Bigelow of the separate charge of
first degree murder. The trial judge made the mistake of
excusing the jury without clarifying its inconsistent verdict.
Therefore, under California law, the verdict had to be entered
and Bigelow was not eligible for the death penalty. However,
rather than establishing that Bigelow was innocent, the jury's
verdicts still indicated that the jury totally rejected
Bigelow's defense and found that he was at least an accomplice
to the murder. An inconsistent verdict, such as Bigelow's, is
not an exoneration. ``Inconsistent verdicts'' are often a
product of jury lenity, rather than a belief in innocence. The
prosecution cannot appeal an inconsistent verdict. United
States v. Powell, 469 U.S. 57, 65-66 (1984). As noted, the
jury's verdict also indicates that, at a minimum, it believed
that Bigelow was an accomplice to the murder. Originally, this
factual distinction between actual perpetrator and accomplice
was not considered proof of ``actual innocence''. Stanford, at
43.
35. Willie A. Brown.
36. Larry Troy--Brown v. State and Troy v. State, 515 So.2d
211 (Fla. 1987). This is a prison murder. Three inmates
testified against Brown and Troy. At least one defense witness
was impeached with prior statements implicating Brown and Troy.
The convictions of these two defendants were reversed because
of a prosecutorial discovery error--the failure to timely
disclose a prior taped statement by a witness which
contradicted another state witness. Ultimately, the state
dropped charges because one of the prison witnesses recanted.
However, the witness made the the offer to recant his testimony
against Brown to Brown's girlfriend in return for $2000.
Cooley, at 930. The ``recantation for hire'' hardly inspires
confidence that Brown and Troy are ``actually innocent.''
37. William Jent.
38. Earnest Miller--These co-defendants entered pleas to
lesser offenses of second degree murder and were sentenced to
time served after their convictions were vacated because of the
prosecution's failure to disclose exculpatory evidence.
Although Jent and Miller proclaimed their innocence, they
inconsistently asked for the ``pardon'' of the victim's family.
It appears that the passage of time made a second trial
problematic for both the prosecution and the defense. The
prosecution had lost its key physical evidence and witnesses
were scattered. Several witnesses had changed their testimony.
Associated Press, 1/15/88, 1/16/88; St. Petersburg Times, 1/16/
88, 1/19/88. Under the DPIC's current standards, these cases
should not be on the DPIC List since the two men pled to lesser
charges. In a statement to the Florida Commission on Capital
Cases, the prosecution cited conflicting statements from Miller
and Jent about their alibi to contradict assertions that the
defendants did have an alibi for this murder.
40. Jesse Keith Brown--State v. Brown, 371 S.E.2d 523 (S.C.
1988). This defendant was acquitted at his second retrial
because evidence also pointed to his half brother as the
``actual killer''. However, the jury also convicted Brown of
armed robbery, grand larceny, and entering without breaking in
connection with the homicide. The verdict indicates, therefore,
that Brown was involved in the murder even if he was not actual
perpetrator. Indeed, at his first trial he testified that he
did not remember committing the murder, but was ``sorry [if
I've done anything].'' At his second trial, on the other hand,
he testified specifically that he was not involved in the
murder. Brown's case was not included in In Spite of Innocence,
thus this appears to be one of the unidentified cases in which
the Cooley study considered the evidence of innocence to be
``relatively weak.'' Cooley, at p. 914, 928-929.
41. Robert Cox--Cox v. State, 555 So.2d 352 (Fla. 1990).
This first degree murder conviction was reversed for
insufficient evidence, not because of innocence.
``Circumstances that create nothing more than a strong
suspicion that the defendant committed the crime was not
sufficient to support a conviction * * * Although state
witnesses cast doubt on Cox' alibi, the state's evidence could
have created only a suspicion, rather than proving beyond a
reasonable doubt, that Cox, and only Cox, murdered the
victim.'' Again, this case is an example of a reversal due to
Florida's more stingent legal sufficiency standard for proof
beyond a reasonable doubt. The evidence obviously still
indicated a ``strong suspicion'' of Cox's guilt.
43. James Richardson--Richardson v. State, 546 So.2d 1037
(Fla. 1989). Convicted and sentenced under invalid pre-Furman
statute in Florida.
45. Patrick Croy--People v. Croy, 41 Cal.3d 1 (Cal. 1986).
Croy was convicted of murdering a police officer in Yreka,
California. The California Supreme Court reversed Croy's murder
conviction for instructional error, but it affirmed his
conviction for conspiracy to commit murder. His defense had
been intoxication. Yet, on retrial, Croy claimed self-defense
and was acquitted of murder. Thus, Croy was not ``actually
innocent'' in the sense of being the wrong person.
There was no dispute Croy killed the police officer.
However, he was acquitted on the basis of a controversial and
legally questionable cultural defense based on his Native
American heritage, i.e., that his background as a Native
American led him to reasonably fear that the police officer
intended to kill him. See, e.g., Comment, 99 Dick.L.Rev. 141
(1994); 13 Ariz.J.Int'l & Comp.L. 523 (1996); Note, 62 Ohio St.
L.J. 1695 (2001); Note, 2001 Duke L.J. 1809 (2001).
By contrast (and inconsistently), at his first trial, Croy
did not claim self-defense. Instead, he relied on an extensive
intoxication defense and testified that he initially ``became
concerned when he saw the police because he was on probation
and was afraid that he would be arrested for being drunk.'' He
also claimed ``he was startled when [the police officer/victim]
appeared as he was trying to find safety in his grandmother's
cabin, and that if he shot [the victim] he did not intend to.''
People v. Croy (1986) 41 Cal.3d 1, 16, 19, 21. The defenses
Croy used at his first and second trials were inconsistent with
each other.
Croy's testimony at his second trial was not all that
impressive either. While he testified emotionally that he
believed the police ``were going to kill us all'', other parts
of his testimony sounded like a ``prepared statement'' and he
was forced to admit that he had consumed an ``impressive amount
of liquor and marijuana'' during the fateful weekend he
confronted the police. Croy admitted lying at his first trial,
but explained that he lied because did not believe he could win
and he wanted to protect his friends. ``All in all, Croy's
performance was neither as commanding as [his attorney] hoped
it would be, nor as damaging as the prosecution tried to make
it. As the long trial drew to a close * * *, it seemed that
victory * * * would depend less on [Croy's] courtroom
`vibrations', than on the [defense] attorney's to indict Yreka
as a racist community.''
Croy's second trial was depicted as a political trial, not
a trial about guilt or innocence. ``What made * * * Croy worthy
in his attorney's mind was not so much his innocence as his
symbolic value as an aggrieved Indian [sic] * * *.'' More
significantly, neither defense at Croy's two trials established
that Croy was ``actually innocent'' or the ``wrong person''.
Los Angeles Times (5/1l/00); San Francisco Examiner (7/8/90);
Santa Rosa Press Democrat (7/27/97)
46. John C. Skelton--Skelton v. State, 795 S.W.2d 162
(Tex.Crim.App. 1989). In a 2-1 split decision, the Texas
appeals court was reversed the capital murder conviction for
insufficient evidence of guilt beyond a reasonable doubt. The
majority opinion believed there was a possibility that another
person committed the murder. Nevertheless, the majority
explained: ``Although the evidence against appellant leads to a
strong suspicion or probability that appellant committed the
capital offense, we cannot say that it excludes to a moral
certainty every other reasonable hypothesis except appellant's
guilt * * * Although this Court does not relish the thought of
reversing the conviction in this heinous case and ordering an
acquittal, because the evidence does not exclude every other
reasonable hypothesis, we are compelled to do so.'' [emphasis
added]. The dissent outlines the evidence of a ``strong
suspicion'' of Skelton's guilt. Once again, this reversal is
based on a stringent standard of evidentiary sufficiency not
required by the United States Constitution and no longer even
applied in Texas. This appears to be another of the
``relatively weak'' innocence cases not included in In Spite of
Innocence. The reversal of Skelton's conviction was not a
finding of ``actual innocence''.
47. Dale Johnston--State v. Johnston, 1986 WL 8798 (Oh.App.
1986) [2 unreported opinions]; State v. Johnston, 529 N.E.2d
898 (Ohio 1988); State v. Johnston, 580 N.E.2d 1162 (Ohio
1990). This defendant was convicted and sentenced to death for
slaying his stepdaughter and her fiance. The stepdaughter had
publicly complained in the past about incestuous advances by
Johnston. A witness who had been hypnotized to refresh his
recollection testified as to his pre-hypnosis recollection that
he identified Johnston angrily forcing a couple into his car on
or about the day of the murders. Feedbags consistent with
feedbags found on Johnston's farm were also found at the
gravesite of the two victims. Some bloodstained items were
seized from a strip mining pit on Johnston's property.
Johnston's first conviction was ultimately reversed because of
some problems with the hypnotized witness and the state's
failure to disclose evidence which may have helped Johnston
with his defense. Prior to retrial, the court excluded
incriminating statements Johnston made during his initial
interrogation as well as incriminating evidence seized due to
the interrogation. The prosecution then dismissed the case due
to the passage of time, poor recollection of the witnesses, and
the suppression of evidence. Johnston's subsequent wrongful
imprisonment lawsuit was rejected since ``although the evidence
did not prove Johnston committed the murders, it did not prove
his innocence.'' Cleveland Plain Dealer (5/11/90, 5/12/90, 6/
22/91, 9/13/93); Associated Press (5/11/90).
48. Jimmy Lee Mathers--State v. Mathers, 796 P.2d 866
(Ariz. 1990). Mathers was convicted, along with two
codefendants, of the murder of Sterleen Hill in 1987. In a 3-2
decision, the Arizona Supreme Court reversed Mathers'
conviction for insufficient evidence. Since the reversal was
based on insufficiency of the evidence, retrial was barred by
the Double Jeopardy Clause. The dissent points out that there
was still ample evidence of Mathers' guilt even if the majority
of the court did not believe there was substantial evidence to
support a conviction beyond a reasonable doubt. The appellate
court reversal of Mathers' conviction was not a finding of
actual innocence and the record of his case would not possibly
justify such a finding.
50. Bradley Scott--Scott v. State, 581 So.2d 887
(Fla.1991). This case was reversed due to delay in prosecution
and insufficient circumstantial evidence. The delay in
prosecution appears to have hampered both parties to the extent
that no assessment may be made of Scott's actual innocence.
According to the appeals court, the available circumstantial
evidence ``could only create a suspicion that Scott committed
this murder.'' Once again, even if the available evidence of
Scott's guilt was not sufficient to support a conviction beyond
a reasonable doubt, he certainly was not exonerated.
52. Jay C. Smith--Commonwealth v. Smith, 615 A.2d 321 (Pa.
1992); Commonwealth v. Smith, 568 A.2d 600 (Pa.1989); Smith v.
Holtz (3rd Cir. 2000), 210 F.3d 186; Smith v. Holtz (M.D.Pa.
1998) 30 F.Supp.2d 468. Smith was not freed because he was
innocent, but because the Pennsylvania court believed that
Pennsylvania's double jeopardy clause barred a retrial due to
prosecutorial misconduct in withholding exculpatory evidence.
The Pennsylvania court conceded that the United States
Constitution and other states would not necessarily have
compelled such a harsh sanction.
Without belaboring the evidence of Smith's guilt which was
unaffected by the evidence withheld by the prosecution, it is
enough to note that the DPIC List does not mention Smith's
subsequent loss in civil court when he sued the Commonwealth of
Pennsylvania for wrongful imprisonment. As the appeals court
explained, ``Our confidence in Smith's convictions for the
murder of Susan Reinert and her two children is not the least
bit diminished * * * and Smith has therefore not established
that he is entitled to compensation * * *'' [emphasis added].
Indeed, a federal jury trial ultimately found that the withheld
evidence was not ``crucial'' at all and that the prosecution's
alleged misconduct did not undermine confidence in the outcome
of Smith's trial. Thus, if anything, the courts have repeatedly
reaffirmed their conclusion that Smith was ``actually guilty''.
Smith's inclusion on the DPIC List is a ``false exoneration''
at its most extreme.
57. James Robison--Robison was accused of being one of
three participants in the conspiracy to murder Arizona news
reporter Don Bolles. The other conspirators were Adamson and
Dunlap. Robison was acquitted on retrial because the jury did
not believe the testimony of his accomplice, Adamson. However,
the separate trial of third co-defendant Dunlap elicited
evidence that Robison had received ``hush money'' to prevent
him from revealing Dunlap's role in Bolles' murder. Dunlap
admitted giving gifts and money to Robison, but only out of
``friendship''. At Dunlap's trial, evidence was admitted of
incriminating diary entries made by Robison. Dunlap filed a new
trial motion offering Robison's testimony from Robison's second
trial in which Robison testified that Dunlap's gifts to him
were not offered to obtain his silence. The trial court denied
Dunlap's motion because it did not find Robison's testimony
credible. In particular, the trial court noted that Robison had
admitted at his own trial that he had lied under oath and
``would have no hesitation in testifying to whatever he felt
was expedient.'' People v. Dunlap, 930 P.2d 518 (Ariz.App.
1996). Robison has been subsequently convicted of plotting to
murder alleged accomplice Adamson. Arizona Republic (12/19/
93,7/27/95). The Dunlap trial record does not support including
the duplicitous Robison on a list of ``actually innocent''
defendants.
58. Muneer Deeb--Deeb v. Texas, 815 S.W.2d 692 (1991). The
evidence indicates that Deeb was not ``actually innocent,''
even if there was not enough evidence to convict him beyond a
reasonable doubt. At his first trial, Deeb was convicted of
conspiring with David Wayne Spence to murder Deeb's girlfriend,
Kelley, in order to collect insurance money. However, Spence
and some confederates bungled the job by accidentally murdering
the wrong woman and two other people. A jailhouse informant
testified that Spence told him about numerous incriminating
statements by Deeb in which Deeb stated that he would benefit
from Kelley's death and that Deeb asked Spence if he knew
someone who would kill Kelley. One of Spence's confederates,
Melendez, also testified that he was present when Spence and
Deeb conspired to commit the murder. Deeb's conviction was
reversed because the trial court erroneously admitted Spence's
hearsay statements to the informant. Deeb was acquitted on
retrial. The special prosecutor at Deeb's retrial explained
that Melendez had refused to testify a second time against
Deeb.
However, the jury at Deeb's second trial did not believe
that Deeb was ``actually innocent''. After the second trial in
which Deeb was found not guilty, the jury foreperson more
accurately put it: ``We did not say that this man was innocent
of the crime. We did not say that. We just could not say that
he was guilty.''
Spence was tried separately for the triple murders and
executed for them. Evidence was presented at Spence's trial
that Spence argued with Deeb about the murder, indicating that
the murder had gone awry. There was also evidence that Deeb and
Spence frequently discussed whether Kelley should be killed.
Spence v. Johnson, 80 F.3d 989, 1004 fn. 12 (5th Cir. 1996);
Dallas Morning News (11/4/93). Thus, the record of Spence's
trial also indicates that Deeb was not ``actually innocent''.
59. Andrew Golden--Golden v. State, 629 So.2d 109 (1994).
The Florida Supreme Court felt compelled to reverse Golden's
conviction for murdering his wife to collect insurance because
the evidence was insufficient to prove guilt beyond a
reasonable doubt, but the state court noted as follows: ``The
finger of suspicion points heavily at Golden. A reasonable
juror could conclude that he more likely than not caused his
wife's death.'' After his wife's death, Golden denied having
insurance. However, it turned out he had $300,000 in insurance,
was heavily in debt, and that he filed for bankruptcy after her
death. There was evidence he forged his wife's signature on
insurance applications. The ``heavy finger of suspicion''
indicates that Golden is not ``innocent''.
62. Robert Charles Cruz--In light of the United States
Supreme Court's recent decision in Ring v. Arizona, this
Arizona case should now be deleted from the DPIC List. Pursuant
to Ring, the Arizona statute unconstitutionally denied
defendants their Sixth Amendment right to a jury trial on the
findings necessary for death penalty eligibility by giving that
power to state trial judges. As with the earlier cases in which
the defendants were tried under now defunct death penalty
statutes, Arizona convictions are no longer appropriately
considered in light of current death penalty jurisprudence. It
is simply speculative that Cruz would have been found eligible
for the death penalty by a jury under a constitutional statute.
63. Rolando Cruz.
64. Alejandro Hernandez--People v. Cruz, 521 N.E.2d 18
(Ill. 1988); People v. Cruz, 643 N.E.2d 636 (Ill. 1994); People
v. Hernandez, 521 N.E.2d 25 (Ill. 1988); Buckley v.
Fitzsimmons, 919 F.2d 1230 (7th Cir. 1991). These defendants
were charged with the notorious abduction, rape, and murder of
ten-year-old Jeanine Nicarico. Cruz was convicted and sentenced
to death twice, but both judgments were reversed. During the
third trial, the trial court judge lambasted the police for
``sloppy'' police work and accused a sheriff's deputy of lying.
He then directed a verdict for Cruz and freed him before the
presentation of the defense case. The trial court did
acknowledge that the prosecution had ``circumstantial
evidence'' but did not consider it sufficient to support a
conviction beyond a reasonable doubt. Hernandez's first
conviction was reversed. After a hung jury ended his second
trial, he was convicted in a third trial and sentenced to 80
years in prison. However, that conviction was reversed and
after the court dismissed Cruz's case the prosecution dropped
charges against Hernandez.
During this time, another convicted murderer named Brian
Dugan announced he was willing to confess to being the lone
perpetrator of the Nicarico murder in return for immunity from
the death penalty. Dugan himself had been sentenced to two life
sentences for other sex related murders. A 1995 DNA test
implicated Dugan in Nicarico's murder, but excluded Cruz and
Hernandez as actual perpetrators. However, this test result did
not exclude Cruz's and Hernandez's potental culpability as
accomplices to Nicarico's murder.
Ultimately, after Cruz's acquittal by the court, Illinois
law enforcement officers and prosecutors were prosecuted for
their roles in Cruz's case. The trial court excluded evidence
that after the first trial for the Nicarico murder, Cruz looked
at Nicarico's sister and mouthed the words, ``You're next.''
However, during this trial, the defense for the accused law
enforcement officers attempted to link Cruz with other suspects
in the murder. There was evidence which raised a question as to
whether Cruz and Dugan could have lived on the same block at
the time of the murder, thus raising questions as to whether
Dugan acted alone. Moreover, Dugan had a relevant modus
operandi for burglaries which involved accomplices. Cruz
himself took the stand and contradicted his previous testimony.
He also testified that he was seeing a psychiatrist about his
lying! The jury was advised that scientific evidence excluded
Cruz as the rapist, but did not exclude Dugan. However, the
jury was also told that the scientific evidence could not
exclude the possibility that Cruz was present at the Nicarico
murder. The police officers were acquitted. The trial court
also acquitted one of the officers of a charge that he had
falsely testified about incriminating statements Cruz made in
jail. Some jurors stated they believed Cruz was guilty of the
Nicarico murder. Other jurors observed that they could not
believe Cruz's testimony that he had not made a so-called
incriminating ``dream statement'' to the police about the
murder in which he described details of the Nicarico murder.
Chicago Daily Law Bulletin (4/28/99; 5/25/99); Chicago Daily
Herald (4/21/99, 5/5/99, 5/26/99); Chicago Tribune (12/8/95; 4/
30/99, 5/26/99); Chicago Sun-Times (12/9/95; 12/10/95; 5/26/99;
6/6/99); Chicago Daily Herald (4/21/99; 6/6/99); Associated
Press (6/5/99, 7/22/02); State Journal-Register (6/14/99).
The actual reliability of Dugan's confession that he was
the lone murderer, including his actual motivation for that
confession, is subject to question. Notwithstanding the DNA
test, Dugan has nothing to lose by confessing to the Nicarico
murder, but also has no incentive to implicate or ``snitch
off'' anyone else. People v. Cruz, 643 N.E.2d 636-695, 676-687,
691-695 (Ill. 1994) (plur.opn. of Freeman, J.) (dis.opns. of
Heiple, McMorrow, J.J.).
65. Sabrina Butler--Butler v. State, 608 So.2d 314 (Miss.
1992). Butler was convicted of murdering her infant son,
Walter. She brought Walter to the hospital with severe internal
injuries and gave numerous conflicting statements, including at
least one version in which she admitted pushing on his
protruding rectum and hitting the baby boy once in the stomach
with her fist when he was crying. Other versions included
statements by her that she had tried to apply CPR when the baby
was not breathing.
Butler's first conviction was reversed because the
prosecutor improperly commented on her failure to testify at
trial. She was acquitted on retrial, but not necessarily
because she was not the actual killer of her young baby. At
both trials, the evidence indicated that the baby died from
peritonitis, the presence of foreign substances in the abdomen.
Although a witness substantiated one of Butler's versions of
events about administering CPR to the baby and the coroner
admitted his examination had not been thorough, the jury
foreperson indicated only that the jury had a ``reasonable
doubt'' that Butler administered the fatal blow.
There does not appear to be any witness as to what occurred
prior to the CPR. The jury was not told that Butler had lost
custody of another child because of abuse. Apparently, the
defense provided sufficient alternative explanations for the
baby's injuries to ``speculate'' (but not establish) that the
cause of death was either SIDS or a cystic kidney disease.
There does not appear to be any definitive verdict as to the
cause of death. Even Butler's own attorney stated that he
``doesn't know what the truth is.'' Butler's co-counsel
indicated that at best the case should have been prosecuted as
a manslaughter, hardly an endorsement of Butler's innocence.
Butler's acquittal on retrial does not represent a finding that
she did not administer a deadly trauma to baby Walter's
abdomen. Mississippi Clarion-Ledger (1/22/96); Baltimore Sun,
(1/02/96); Washington Times (12/30/95).
69. Gary Gauger--Gauger was not actually sentenced to
death. Although the trial court erroneously imposed a death
sentence in January 1994, the court granted a motion for
reconsideration and vacated the sentence less than ten months
later in September 1994. The trial court found that it had not
considered all the mitigating evidence and concluded that
Gauger should not be sentenced to death. People v. Bull, 705
N.E.2d 824, 843 (Ill. 1999); Chicago Tribune (9/23/94).
Although Gauger served a brief time on Death Row, he was not
properly sentenced to death by the trial court. He should never
have been sent to Death Row because the trial court did not
finally sentence him to be executed. Gauger's case is an
example of how consideration of mitigating evidence under
current law results in a sentence less than death. Whatever the
reasons for Gauger's later release from prison, he is not
properly considered as an innocent person released from Death
Row since his initial death sentence was not legitimately
imposed under Illinois law. Accordingly, Gauger's case is not
appropriate for the DPIC List.
70. Troy Lee Jones--In re Jones, 13 Cal.4th 552 (1996);
People v. Jones, 13 Cal.4th 535 (1996). The conviction was
vacated because of ineffective assistance of counsel. The
California Supreme Court held that while the evidence of Jones'
guilt was not overwhelming, it still suggested Jones' guilt.
Jones was convicted of murdering Carolyn Grayson in order to
prevent Grayson from implicating him in the murder of an
elderly woman, Janet Benner.
Grayson had told Jones' brother Marlow that she had seen
Jones strangle the old lady. Grayson had told her daughter
Sauda that Jones killed Ms. Benner. Jones' sister overheard a
conversation between Jones and his mother in which Jones
arguably regretted not killing Grayson when he killed Benner.
The same sister also testified to Jones' involvement in a
family plot to murder Grayson. Although there was also evidence
that Jones was ambivalent about killing Grayson, there was more
testimony that Grayson's neighbor witnessed a violent
altercation between Grayson and Jones in which she assured him
that she would not say anything and he continued to threaten to
kill her. Grayson's body was later found in a field the day
after she had reportedly left with Jones for Oakland. At best,
Jones only had evidence to contradict the inferences suggesting
his guilt.
To sum up: ``[T]he prosecution introduced * * * evidence
that [Jones] was observed attacking Carolyn Grayson with a tire
iron a few weeks before she was fatally shot, [Jones] and his
family engaged in a plot to fatally poison Grayson, [Jones]
confided to his brother that he had to kill Grayson or she
would send him to the gas chamber, [Jones] informed his brother
of the need to establish an alibi for the evening Grayson was
murdered, and Grayson's daughter, Sauda, testified that, on the
night of Grayson's death, Grayson told her daughter that she
was going out with [Jones].'' In re Jones, 13 Cal.4th at 584.
While it was also true that this evidence had been subject to
some varying accounts and biases, the evidence came from
several different sources and it can hardly be said that Jones
has been shown to be ``actually innocent.''
The prosecution did not choose to drop charges because
Jones was innocent. Rather, due to the passage of time, it no
longer had the evidence and witnesses available to retry the
case. Modesto Bee, (11/16/96); Washington Times, (9/12/99).
71. Carl Lawson--People v. Lawson, 644 N.E.2d 1172 (Ill.
1994). Lawson was convicted of murdering eight year old
Terrance Jones. The victim's body was found in an abandoned
church. There was evidence that Lawson's romantic relationship
with the young boy's mother had ended and that Lawson was upset
about the breakup. Investigators discovered two bloody
shoeprints of a commonly worn brand of gym shoe near the body.
Lawson wore these type of shoes. The shoeprints were made near
the time of the crime and were the only evidence capable of
establishing Lawson's presence at the scene of the crime at the
time it occurred. Various items were removed from around the
victim's body. Two of the items near the body, a beer bottle
and a matchbook, had Lawson's fingerprints. Lawson's first
conviction was reversed because his attorney had a conflict of
interest. He was acquitted at his second trial, apparently,
because the shoeprint evidence could not be associated only
with him the shoe was too popular. However, this does not
change the fact that Lawson's fingerprints were on items found
near the body and that other evidence, albeit some of it highly
inconsistent, remain to incriminate Lawson, including evidence
of motive.
72. Ricardo Aldape Guerra--Guerra v. Johnson, 90 F.3d 1075
(5th Cir. 1996); Guerra v. Collins, 916 F.Supp. 620 (S.D.Tex.
1995); Guerra v. State, 771 S.W.2d 543 (Tex.Crim.App. 1988).
Guerra was convicted as the triggerman, but evidence indicates
he may have only been the accomplice. It is noted in the
federal court opinion that Guerra was not prosecuted as an
accomplice although he was undoubtedly present at the scene and
in the company of the triggerman. He fled with the shooter from
the scene and was hiding at the site of a subsequent shootout
with the police. Near him was a gun wrapped in a bandanna.
Originally, this factual distinction was not considered proof
of ``actual innocence''. Stanford, at 43.
73. Benjamin Harris--Harris (Ramseyer) v. Wood, 64 F.3d
1432 (9th Cir. 1995). Harris was convicted of hiring a hit man
named Bonds to murder a man named Turner. Harris gave numerous
inconsistent statements about his whereabouts and involvement
in the murder. Ultimately, Harris admitted taking turns with
Bonds in shooting Turner, but denied hiring Bonds to shoot
Turner. Harris did admit having a motive to murder Turner. He
admitted driving the murderer Bonds to the scene and providing
a gun. Initially, Harris confessed, but then testified at trial
that he and Bonds took turns pulling the trigger.
By denying a contract killing, Harris hoped to avoid
eligibility for the death penalty under Washington state law. A
federal court vacated his conviction because of ineffective
assistance of counsel. Although Harris's counsel claimed that
Harris fantasized his confession, the prosecution chose not to
retry Harris because the alleged hitman (Bonds) was in prison
and would not testify, other witnesses were unavailable, and
the federal court had ruled Harris's confession inadmissible.
Since Harris could not be retried, the prosecution sought
his civil commitment based on a petition from hospital
psychiatrists. He was confined in state a mental hospital, but
a jury subsequently found he should be kept in a less
restrictive environment. These circumstances do not support
placing Harris on a list of the actually innocent. Seattle
Times, (8/19/97,4/16/00); Portland Oregonian, (8/24/97);
Seattle Post-Intelligencer, (7/17/97, 8/23/97); Tacoma News
Tribune, (5/29/97).
74. Robert Hayes--Hayes v. State, 660 So.2d 257 (Fla.
1995). The initial conviction was based on a combination of DNA
evidence, Hayes's inconsistent statements about when he was
last with the victim, and hearsay statements by the victim
expressing fear of Hayes. The Florida Supreme Court reversed
the case because the trial court erroneously admitted DNA
evidence matching Hayes with semen on the victim's shirt. The
court held that a ``band-shifting'' technique used to identify
the DNA had not reached the appropriate level of scientific
acceptance--a Florida state opinion not universally shared.
See, e.g. State v. Copeland, 922 P.2d 1304 (Wash. 1996).
However, the court also held that the trial court on retrial
could consider admitting evidence of Hayes's semen in the
victim's vagina. The appeals court opinion noted that
``evidence exists in this case to establish that Hayes
committed this offense, physical evidence also exists to
establish that someone other than Hayes committed the
offense.''
On retrial, the trial court admitted evidence that Hayes'
semen was in the victim's vagina. However, there was also
evidence that the victim was clutching hairs in her hand
inconsistent with Hayes' hair. The state attorney explained to
the Florida Commission on Capital Cases: ``In the end, the jury
disregarded the fact that Hayes' DNA was found in the victim's
vagina and acquitted of murder.'' Nothing about Hayes' retrial
changes the appeals court's original observation that evidence
existed to establish Hayes' guilt. The acquittal on retrial was
based on reasonable doubt, not actual innocence.
77. Curtis Kyles--Kyles v. Whitley, 514 U.S. 419 (1995).
After one vacated conviction and four mistrials in which a jury
was unable to reach a verdict over a 14-year period, the
prosecutor chose not to retry Kyles although the final jury
hung 8-4 for conviction (an earlier jury hung 10-2 for
acquittal). The man whom Kyles alleged did the killing was
himself killed by a member of Kyles' family in 1986. New
Orleans Times-Picayune, (2/19/98,6/27/98); Baton Rouge
Advocate, (2/19/98). A 5-4 United States Supreme Court split
decision vacating Kyles' conviction disagreed on the strength
of the evidence against Kyles. That disagreement itself
certainly refutes any judgment that Kyles was actually
innocent.
78. Shareef Cousin--State v. Cousin, 710 So.2d 1065 (La.
1998). Contrary to the DPIC List's summary, Cousin's case was
not reversed because of ``improperly withheld evidence * * *''.
In fact, the Louisiana Supreme Court explicitly did not rule on
that issue. State v. Cousin, 710 So.2d at 1073 fn. 8. Rather,
the Louisiana high court reversed Cousin's conviction because
the prosecutor improperly impeached a witness with prior
inconsistent statements recounting a confession made to him by
Cousin. In other words, to prove the case against Cousin, the
prosecutor brought out the fact that the witness had previously
told the police that Cousin had confessed to the crime. Under
Louisiana law, such prior statements cannot be used as
substantive evidence of the defendant's guilt. State v. Brown,
674 So.2d 428 (La.App. 1996) Other jurisdictions, of course,
would not necessarily find this evidence inadmissible as
substantive evidence. See State v. Owunta, 761 So.2d 528 (La.
2000) (acknowledging that Louisiana follows the minority rule
in not allowing prior inconsistent statements to be used as
substantive evidence). Thus, Cousin's conviction may have been
upheld in other states. See California v. Green, 399 U.S. 49
(1970). Without these statements, the prosecution determined
that the remaining evidence (weak or tentative identifications
and Cousin's incriminating comment that the arrest warrant had
the wrong date for the murder) was insufficient to carry the
burden of proof. Baton Rouge Saturday State Times/Morning
Advocate (1/9/99); New Orleans Times-Picayune (1/9/99). Cousin
was not retried because the prosecution believed he was
``actually innocent,'' but because Louisiana state law
precluded evidence of guilt in this case that would actually
have been admissible in other states.
80. Steven Smith--People v. Smith, 565 N.E.2d 900 (Ill.
1991); People v. Smith, 708 N.E.2d 365 (Ill. 1999). In this
case, Smith was accused of assassinating an assistant prison
warden while the victim was standing by his car in a local
bar's parking lot. Various witnesses testified that they saw
Smith and two other men in the bar and then departing just
before the victim left.
The prosecution's theory was that Smith murdered the victim
at the behest of a local neighborhood criminal gang leader. One
eyewitness, who knew Smith, identified him as the shooter. When
Smith was arrested, he was talking to the leader of the local
gang. There was testimony that on certain occasions, Smith had
been seen in the company of the gang leader. When the police
searched Smith's residence they seized 77 pages of documents
including regulations or bylaws of the criminal gang, other
information relating to the gang, and two invitations to recent
gang functions. However, at trial, the court excluded this
evidence of Smith's association with the gang. The trial court
admitted evidence of gang-related activity in the Illinois
prison system, that the victim was a strict disciplinarian, and
that the leader of Smith's gang had had an altercation with the
victim. However, the trial court excluded the evidence seized
in Smith's residence connecting him to the prison gang. On
appeal, Smith's conviction was reversed because there was no
evidence at trial connecting Smith to the prison gang! The
irony was not lost on the dissenting judge: ``If there was
error at trial, it occurred not because the trial judge
admitted too much evidence, but because he admitted too
little.''
Smith's conviction after retrial was then reversed for
insufficient evidence. In any event, although various witnesses
identified Smith in the bar before the victim was shot, only
one eyewitness identified Smith as the actual shooter. The
appellate court found that there were too many serious
inconsistencies and impeachment of that witness at the trial to
support Smith's conviction for shooting the victim. The court
rejected the State's arguments reconciling some of the
conflicting accounts of the shooting, although only because the
State had not raised these arguments until it was too late for
the defense to challenge the State's theory. It is not clear if
the witness was confronted with previous statements that were
consistent with the accounts of other witnesses. Ordinarily,
the testimony of a single witness is sufficient to convict.
However, the Illinois court explained that the conviction may
be rejected if the witnesses' testimony ``is so unreasonable,
improbable, or unsatisfactory as to justify a reasonable doubt
of defendant's guilt.'' At best, the circumstantial evidence
``tending to link defendant to the murder merely narrowed the
class of individuals who may have killed the victim * * *''
Given the evidence, Smith appears to have been an accomplice to
the shooting even if he was not the actual triggerman. He was
certainly not eliminated from the ``class of individuals who
may have killed the victim * * *''.
Significantly, in reversing Smith's conviction and ending
any chance for another retrial, the appellate court explained:
``While a not guilty finding is sometimes equated with a
finding of innocence, that conclusion is erroneous. Courts do
not find people guilty or innocent. They find them guilty or
not guilty. A not guilty verdict expresses no view as to a
defendant's innocence. Rather, it indicates simply that the
prosecution has failed to meet its burden of proof. While there
are those who may criticize courts for turning criminals loose,
courts have a duty to ensure that all citizens receive those
rights which are applicable equally to every citizen who may
find himself charged with a crime, whatever the crime and
whatever the circumstances. When the State cannot meet its
burden of proof, the defendant must go free. This case happens
to be a murder case carrying a sentence of death against a
defendant where the State has failed to meet its burden. It is
no help to speculate that the defendant may have killed the
victim.'' In short, as the appeals court took pains to
emphasize, the evidence against Smith was legally insufficient,
but it was not shown that he was ``actually innocent''.
81. Ronald Keith Williamson--Even widely touted DNA
exonerations are sometimes less than they seem. For instance,
the recent decision by the Oklahoma authorities not to retry
Williamson after DNA testing established that the victim's body
did not contain his semen did not automatically make him
``poster material for Actual Innocence''.
Recent Congressional testimony by the Oklahoma Attorney
General indicates there is more to this story:
Williamson was not convicted ``on the strength of a
jailhouse snitch'' as reported. Among the direct and
circumstantial evidence of his guilt was a statement he
gave to the Oklahoma State Bureau of Investigation
describing a ``dream'' in which he had committed the
murder. Williamson said, ``I was on her, had a cord
around her neck, stabbed her frequently, pulled the
rope tight around her neck.'' He paused and then stated
that he was worried about what this would do to his
family.
When asked if Fritz was there, Williamson said,
``yes.''
When asked if he went there with the intention of
killing her, Williamson said `probably.'
In response to the question of why he killed her,
Williamson said, ``she made me mad.''
The Pontotoc County prosecutor had a tough decision
to make on a re-prosecution of Williamson and Fritz and
concluded that conviction was highly unlikely in the
wake of the DNA evidence, even though the note left at
the scene said ``Don't look fore us or ealse,'' [sic]
indicating multiple perpetrators.
Testimony of the Honorable W.A. Drew Edmondson, Attorney
General of the State of Oklahoma, Senate Judiciary Committee,
6/13/00.
Although Williamson suffered from mental problems that
included delusional thinking, there was nothing presented to
indicate that he would coincidentally ``imagine'' the actual
facts of the murder. The victim had small puncture wounds and
cuts. There was a semicircular ligature mark on her neck. The
cause of death was suffocation due to a washcloth in her mouth
and the ligature tightened around her neck. Thus, Williamson's
``dream'' was consistent with the murder. Given the evidence of
Williamson's alleged mental problems, there is no more reason
to believe his denials of guilt than his incriminating
statements.
Furthermore, the DNA testing showed only that the semen in
the victim's body belonged to another man named Gore. However,
as the Attorney General's statement indicates, the evidence at
trial indicated that more than one person could have been
involved in the assault on the victim. The evidence of a group
involvement in the murderous assault means that the failure to
find Williamson's semen in the victim does not eliminate him as
a participant in her assault. He may be exonerated as a
perpetrator of the sexual assault, but he is not necessarily
exonerated as an accomplice. Compare People v. Gholston
(Ill.App. 1998) 697 N.E.2d 415; Mebane v. State (Kan.App. 1995)
902 P.2d 494; Note, 62 Ohio L.J. 1195, 1241 fn.46; Nat'l Comm'n
on the Future of DNA Evidence, Post Conviction Testing:
Recommendations for Handling Requests, September 1999; NIJ
Research Report, Convicted by Juries, Exonerated by Science:
Case Studies in the Use of DNA Evidence to Establish Innocence
After Trial, June 1996 (all discussing potentially inconclusive
DNA results in cases involving multiple defendants).
84. Warren Douglas Manning--State v. Manning, 409 S.E.2d
372 (S.C. 1991). There were five trials in this case, including
two convictions that were reversed and two mistrials, before
Manning was acquitted. Manning was convicted of murdering a
state trooper who had taken him into custody for driving with a
suspended license. Manning first stated that the victim had
released him with a warning ticket, but then explained that he
escaped from the trooper's car when the trooper stopped another
car. However, the trooper was shot with his own revolver and
that revolver was seized in a barn behind Manning's residence.
Other circumstantial evidence was also consistent with
Manning's guilt. Manning was acquitted in his fifth trial based
on a defense of reasonable doubt. Hence, his defense lawyer
conceded in argument to the jury that ``[i]f there wasn't any
case against Warren Manning, then we wouldn't be here. But the
law requires that the state prove him guilty beyond a
reasonable doubt. Without that, the law says you cannot find
him guilty.'' Associated Press, 9/30/99. Manning's acquittal on
retrial does not mean that Manning was ``actually innocent.''
86. Steve Manning--People v. Manning, 695 N.E.2d 423 (Ill.
1998). The prosecution exercised its discretion not to retry
Manning after his conviction was reversed. The Illinois Supreme
Court forbade the use of certain evidence including
questionable informant testimony. However, the Illinois Supreme
Court also excluded the victim's wife's hearsay testimony that
the victim had warned her that if he was ever killed to tell
the FBI that Manning killed him. Apparently, the victim had
told his wife that Manning had ``ripped him off for a lot of
money'' and he was going to get the money back. Thus, while
legally inadmissible under state law, there was evidence that
Manning had a motive to murder the victim. It was also
``consolation'' to the district attorney in not retrying the
case that Manning, a former cop gone bad, was already serving
two life sentences plus 100 years for kidnaping in Missouri.
Chicago Tribune, 1/19/00.
88. Joseph N. Green, Jr.--Green v. State, 688 So.2d 301
(Fla. 1997). The prosecution's case in this robbery-murder was
based on the victim's dying declaration, an eyewitness, and
``circumstantial evidence that Green had the opportunity to
kill'' the victim. Green's conviction and death sentence were
reversed because the prosecution improperly cross-examined a
defense witness and because the trial court erroneously denied
a suppression motion. On retrial, the critical eyewitness was
found incompetent to testify. This eyewitness had given
inconsistent and contradictory testimony. The trial court then
dismissed the case because there was no physical evidence
connecting Green to the murder. The trial court found that
there was a reasonable doubt about Green's guilt and it was
``possible'' someone else had committed the crime. However, the
victim's dying declaration describing her assailant was
generally consistent with Green's description, i.e., a slim
black man in his mid-20's. The victim also said the murderer
fled toward the motel where Green resided. Green needed money.
Furthermore, when Green was arrested, he gave inconsistent
statements about his activities on the night of the murder
although one of his alibis did receive some corroboration. St.
Petersburg Times (12/29/99, 3/17/00.) Thus, while there may not
be sufficient evidence of Green's guilt, the evidence hardly
establishes his innocence.
The recent report of the Florida Commission on Capital
Cases sheds additional information on this case. Prior to the
first trial, the court suppressed evidence of gun power residue
in the pockets of Green's clothing. Although the trial court
had originally found the eyewitness competent to testify at the
first trial, it reversed itself on retrial and found the
witness incompetent. The prosecution reiterated that Green had
``been given the benefit of the doubt'', but that his innocence
was not established since he had motive, opportunity, and
problems with his alibi. Green's defense attorney actually
attributed his client's acquittal at least partially to the
``bad search warrant'' served in the case. Since the search
warrant was ``bad'', evidence of Green's guilt such as the gun
residue in his pocket was never presented to the jury.
90. William Nieves--Commonwealth v. Nieves, 746 A.2d 1102
(Pa. 2000). This Hispanic defendant was convicted of murdering
Eric McAiley due to a drug debt. As the police sped to the
scene of the murder, a bearded Hispanic in a Cadillac pointed
out where the murder occurred and drove away. A witness
ultimately identified Nieves as the man who got out of a
Cadillac and shot McAiley. The witness also admitted that she
initially failed to identify Nieves. McAiley's nephew testified
that McAiley sold drugs for Nieves. Another witness testified
that before the murder he overheard Nieves warn McAiley,
``Better get me my fucking money, I'm not playing with you.''
Nieves did not testify at the guilt phase of his first trial
because his lawyer erroneously advised him that he would be
impeached with his prior record of firearms and drug
trafficking offenses. Ultimately, Nieves did testify at his
penalty phase. He admitted he was a ``small-time drug dealer''
who had only a few drug transactions with McAiley. Nieves' case
was reversed because of his attorney's faulty advice about
whether he would be impeached if he testified.
Nieves was acquitted on retrial. His retrial defense again
impeached the eyewitness who identified Nieves with prior
conflicting statements she had made, including that she had
initially identified two thin black men and then a husky
Hispanic. The witness denied identifying the assailant(s) as
black men. Nieves is Hispanic, but not ``husky.'' Another
witness testified that he saw a black man shoot McAiley, but
this witness' testimony was also rife with inconsistencies. The
Philadelphia district attorney continues to maintain that
Nieves is guilty. The Nieves case is not an example of a
defendant who was found actually innocent, but of a defendant
for which the prosecution could not prove guilt beyond a
reasonable doubt. Associated Press (10/20/00, 5/14/01, 5/25/
01).
92. Michael Graham.
93. Ronnie Burrell--The Louisiana Attorney General
dismissed charges rather than retrying these two defendants
after their convictions were vacated due to a witness
recantation and the discovery of significant impeaching
evidence of a jailhouse informant. The Louisiana Attorney
General's decision was not based on ``innocence,'' but on the
lack of sufficient credible evidence to establish guilt.
However, Graham's and Burrell's own counsel acknowledge that
new evidence could result in reinstatement of the charges and
they have instructed their clients not to discuss the case.
Contrary to the DPIC summary, DNA played no role in this case.
The case was not dismissed because Graham and Burrell have been
established as ``innocent,'' only because there was
insufficient evidence of guilt. The local prosecutor, now
retired, indicated that he would have tried the case again.
Baton Rouge Advocate (3/20/01, 3/21/01, 3/30/02); Minneapolis-
St. Paul Star Tribune (1/1/01).
94. Peter Limone--Limone v. Massachusetts, 408 U.S. 936
(1972). As with Lawyer Johnson, Limone was convicted and
sentenced under Massachusetts' defunct, pre-1976 death penalty
statute.
96. Joaquin Martinez--Martinez v. State, 261 So.2d 1074
(Fla. 2000). Spanish native Martinez was accused of murdering a
couple at their home sometime between October 27, 1995 and
October 30, 1995. One victim was shot and the other victim died
of multiple stab wounds. There was no physical evidence of a
forced entry, indicating that the victims knew their assailant.
A phone list in the kitchen included a pager number for
``Joe.'' After the police left several messages for ``Joe,''
Martinez's ex-wife, Sloane, called and explained she had the
pager. She advised the police of her suspicions that Martinez
was involved in the murders. The detective listened to a phone
conversation Martinez had with his ex-wife in which he stated,
``[T]his is something that I explained to you before, and that
I am going to get the death penalty for what I did.'' When she
asked him if he was referring to the murder, he cryptically
replied, ``No, I can't talk to you about it on the phone right
now.'' Martinez's ex-wife Sloane then had a surreptitiously
recorded conversation at her home during which Martinez made
``several remarks that could be interpreted as incriminating.''
Martinez's girlfriend testified that Martinez went out on
October 27 and returned with ill-fitting clothes, a swollen
lip, and scraped knuckles. Another witness testified he saw
Martinez on October 27 and that he looked like he had been in a
fight. Three inmates testified to incriminating statements by
Martinez. The prosecution relied primarily on Sloane's
testimony and the surreptitious tape. Sloane testified about
the contents of the taped conversations, Martinez's behavior,
and other statements he had made to her as well.
Martinez's case was reversed because a police witness
erroneously testified as to his opinion that Martinez was
guilty. The case was returned for retrial and the prosecution
suffered many of the problems that occur on retrial in terms of
changes in the evidence. Due to the passage of time, a witness
had died, another witness had refused to cooperate (apparently
Martinez's girlfriend), and the third witness (Martinez's ex-
wife Sloane) had recanted.
Furthermore, a major piece of prosecution evidence was
excluded on retrial. At Martinez's first trial, the trial court
overruled Martinez's objection that the incriminating tape of
his conversation with ex-wife Sloane was unintelligible and
incomplete. The trial court allowed the tape to be played while
the jury read a transcript. On appeal, Martinez did not
challenge the admission of the tape. However, several of the
judges on the appeals court noted that the tape was of ``poor
quality and portions of the conversation are difficult to hear
* * *'' However, one concurring justice specifically stated
that the tape recording was ``sufficiently audible to be
admitted * * *'' In any event, even if portions of the tape
were inaudible, Sloane Martinez could herself testify as to
what was said during her incriminating conversation with
Martinez. There seems to be no question that Martinez made
potentially incriminating statements on the tape.
Nevertheless, on retrial and despite the appeals court
indications that portions of the tape were audible, the trial
court excluded the tape completely as inaudible.\11\ Sloane
Martinez now stated that she had lied about what her former
husband had said. The tape was not available to contradict her.
The prosecution chose not to call Sloane to testify and instead
relied on a police officer to testify from memory about what he
had heard when Martinez's incriminating conversation with
Sloane. However, the officer had no independent recollection
any more of the conversation and had to rely on a transcript of
the recording. The jury's request to hear the actual tape was
denied. Associated Press (6/6/01); St. Petersburg Times (6/7/
01). Martinez's acquittal on retrial appears attributable to a
deterioration and gutting of the prosecution's evidence, not
proof of innocence. Both the prosecution and the defense
advised the Florida Commission on Capital Cases that the
prosecution was unable to present the same evidence at
Martinez's retrial.
---------------------------------------------------------------------------
\11\ The appeals court holding about the tape was not binding on
the trial court. Thus, the trial court judge had the discretion on
retrial to exclude the entire tape. The prosecution would not have been
able to appeal the trial court's ruling. The Martinez acquittal could
have boiled down to no more than a disagreement between the prosecution
and the trial court about the audibility of a tape.
---------------------------------------------------------------------------
97. Jeremy Sheets--State v. Sheets, 618 N.W.2d 117 (Neb.
2000). The appellate court decision explains that Sheets was
convicted of a racially motivated murder of a young African
American girl. The evidence of Sheets' guilt included the tape-
recorded statements of an accomplice named Barnett, who had
died prior to Sheets' trial. The Nebraska Supreme Court
reversed the conviction because Sheets could not cross-examine
the dead accomplice.
According to newspaper accounts, the prosecutor did not
retry the case since he believed there was insufficient
evidence to convict Sheets beyond a reasonable doubt, not
because the prosecutor believed that Sheets was innocent. In
fact, Sheets' arrest originally resulted from a tip based on
Barnett's statements that he and Sheets had murdered the
victim. The tipster then tape recorded statements by Barnett
implicating Sheets as the murderer. Once again, there is no
reason to doubt the reliability of this particular taped
statement by Barnett since it occurred before Barnett's arrest.
Sheets' own testimony that he did not buy a car involved in the
murder until after the murder occurred was contradicted by
other police testimony. Testimony was also presented that
Sheets had threatened an African American neighbor and had a
fascination with Nazism, including shaving his head and drawing
swastikas.
Most significantly, Sheets later requested a refund of the
monies deposited in the Victim's Compensation Fund on his
behalf. The Nebraska Attorney General pointed out in denying
Sheets' request that the reversal of Sheets' conviction is not
even considered a ``disposition of charges favorable'' to the
defendant unless the case is subsequently dismissed because the
prosecution is convinced that the accused is innocent. Neb. Op.
Atty. Gen. No. 01036; Omaha World Herald, 5/6/97, 6/13/01.
Since the dismissal was not on the basis of innocence, Sheets'
request for compensation was denied.
98. Charles Fain--As with Arizona, Idaho's statute is now
invalidated under the recent decision in Ring v. Arizona. It is
speculative as to whether a jury, as opposed to a judge, would
have found Fain death eligible.
99. Juan Roberto Melendez--Melendez v. State, 498 So.2d
1258 (Fla. 1986); Melendez v. State, 612 So.2d 1366 (Fla.
1992); Melendez v. Singletary, 644 So.2d 983 (Fla. 1994);
Melendez v. State, 718 So.2d 746 (Fla. 1998). Melendez was
convicted of murdering a beauty salon owner in 1984. Melendez's
conviction was based on the testimony of a friend John Berrien
and of a David Falcon, who claimed Melendez confessed to him in
jail. The defense relied on alibi and presented evidence that a
third party named James had confessed to murdering the victim.
The defense also impeached Falcon as a paid informant.
After his conviction, Melendez continued to attack the
credibility of the prosecution's witnesses and to further
support his defense that James actually committed the murder.
Various witnesses testified as to incriminating statements by
James. However, James never explicitly confessed to these
witnesses or he otherwise gave conflicting explanations for
murdering the victim. His accounts of the murder also
conflicted. Berrien partially recanted and it was revealed he
had negotiated a deal for his testimony. However, none of these
witnesses who provided this new information for Melendez were
found to be credible.
Then, Melendez's original trial attorney suddenly
discovered a long-forgotten transcript of a jailhouse
confession by James. It was not explained why this transcript
had not been used at trial. Apparently, according to this
transcript, James had also confessed to a state investigator.
The suddenly discovered transcript and the Berrien recantation
coupled with the belated revelation of a deal for his testimony
were sufficient for a court to order a new trial. However, by
this time, James and Falcon were both dead. Thus, there was no
longer any opportunity for the prosecution to explore and
impeach their conflicting accounts. On that basis, although the
prosecution continued to believe that Melendez was the
murderer, the prosecution decided there was insufficient
evidence for a new trial and dismissed the case. Sun Herald, 1/
6/02; The Guardian, 1/5/02; St. Petersburg Times, 1/4/02, 1/5/
02; Tampa Tribune, 1/3/02; 1/4/02.
101. Thomas H. Kimbell--Commonwealth v. Kimbell, 759 A.2d
256 (Pa. 2000). Kimbell's acquittal on retrial is another
example of a case in which the prosecution could not prove
guilt beyond a reasonable doubt, but the acquittal did not
establish Kimbell's innocence.
Kimbell's defense at his first trial was that another
member of the victim's family, probably the husband, committed
the murder. The victim's mother had testified that she had been
talking on the telephone with her daughter shortly before the
murders (between two and three in the afternoon) when her
daughter said she had to go because ``someone'' had pulled into
the driveway (possibly the murderer). Previously, the mother
had told the police that her daughter had said that her husband
had driven into the driveway. The Pennsylvania Supreme Court
reversed Kimbell's conviction because Kimbell's lawyer was not
allowed to impeach the mother with her prior inconsistent
statement that her daughter had specifically said that her
husband (not just ``someone'') was arriving at the house. The
court agreed that this testimony could have created a
reasonable doubt about Kimbell's guilt.
Despite the acquittal on retrial, the prosecution
maintained that Kimbell was the murderer and noted that ``the
more time that elapses between a crime and a trial, the harder
it can be to obtain a conviction.'' Lost in the shuffle was
evidence casting doubt on the credibility of the mother's
testimony and recollection in general, given her understandable
grief about her daughter's murder. At the first trial, a
psychiatrist had testified that the mother's testimony ``could
be affected by the impact that the slayings have had on her.''
Indeed, when the mother testified at the first trial, she
repeatedly broke down sobbing and said she had talked to her
daughter a ``whole bunch'' and that the conversations were
``mixed up together''. She had also told investigators before
that her daughter had hung up to make dinner, but she could not
remember that previous statement. Furthermore, another witness
had testified that he did stop briefly at the victims' home at
around 2:00 p.m. to make a phone call and then left (although
this person could have been the person whom the daughter
referred to in the phone call with her mother, he is apparently
not considered a suspect in the case). When Kimbell was
interviewed by the police he provided them information about
the murder that he claimed he overheard on police scanners, but
this information had not been broadcast on the police radios.
At the first trial, a friend of Kimbell's testified that
Kimbell had pointed at the victims' home after the murders and
admitted killing the people. However, this witness died after
the first trial. Other witnesses had identified Kimbell as
being near the victims' home on the day of the murder and other
witnesses had testified to incriminating admissions by Kimbell.
Pittsburgh Post-Gazette, 5/4/02; 5/6/98, 5/2/98; 2/4/97;
Associated Press, 5/6/98. While there might have been
``reasonable doubt'' about Kimbell's guilt, the available
information does not exonerate him.
102. Larry Osborne--Osborne v. Commonwealth, 43 S.W.3d 234
(Ky.2001). Osborne was convicted of breaking into the home of
an elderly couple, bludgeoning them, and burning their house
down. Osborne was acquitted on retrial due to reasonable doubt,
but not because the evidence established that he was not the
actual culprit. A friend and potential accomplice of Osborne's
implicated Osborne in a grand jury proceeding. However, this
witness then died by drowning before the first trial. Instead,
his grand jury testimony was read at Osborne's first trial. The
conviction was reversed because of the admission of the dead
witnesses' grand jury testimony--since there was no opportunity
for Osborne to cross-examine the witness. On retrial, without
the grand jury testimony of the dead witness, the prosecution
had insufficient evidence to convince the jury of Osborne's
guilt beyond a reasonable doubt. Nevertheless, there was
evidence that Osborne and his mother staged a phony ``911''
call to the police in order to divert police attention to
another potential perpetrator. There was also a dispute whether
Osborne possessed a set of wire cutters removed from the
victims' home. Louisville Courier-Journal (8/2/02; 8/3/02);
Associated Press (8/2/02).
D. UNITED STATES V. QUINONES
On July 1, 2002, in the case of United States v. Quinones,
205 F.Supp.2d 256 (S.D.N.Y. 2002) the United States District
Court for the Southern District of New York declared that the
Federal Death Penalty Act unconstitutional. The federal court
based its decision in part on the DPIC List. The federal court
itself analyzed the List and applied undefined ``conservative
criteria'' to conclude that 40 defendants on the List were
released on grounds indicating ``factual innocence.'' However,
23 of the names on the Quinones' List are names which this
study submits that should be eliminated from the DPIC List. If
the Quinones court's analysis of the DPIC List is combined with
this critique's analysis, only 17 defendants should be on the
List, not the 102 defendants currently listed.
Implications and Conclusion
The DPIC engaged in a ``rush to judgment'' to compile a
list of allegedly innocent defendants released from Death Row.
It is tragic whenever an innocent person is convicted and
sentenced to death. Obviously, it is a very serious charge to
claim that 102 innocent defendants have suffered such an unjust
fate. While recent developments such as DNA have revealed
``wrongful convictions,'' the evidence does not support other
claims of such miscarriages under our current capital
punishment system.
In compiling its List, the DPIC has too often relied on
inexact standards such as acquittals on retrial, dismissals by
the prosecution, and reversals for legal insufficiency of
evidence to exonerate released death row inmates. However,
there is a big difference between ``reasonable doubt'' and the
kind of ``wrong person mistake'' that was the genesis of the
original Stanford study. Moreover, the DPIC has used old cases
in which the defendants did not receive the modern protections
that ``probably reduce the likelihood of executing the
innocent.''
No reasonable person would be so dishonest as to say that
no actually innocent person has ever been convicted and
sentenced to death. The system has always anticipated potential
factual error and has provided remedies for wrongly convicted
defendants--that is why there is a more elaborate post-Furman
trial process, an appellate process, state and federal habeas
corpus processes, and clemency. The development in DNA
technology is now giving birth to new post-conviction
procedures in many of the states designed to give inmates the
opportunity to have DNA testing that was not available at the
time of their trials. Moreover, our open society promotes
ongoing inquiry and investigation into legitimate claims of
injustice.
However, it is irresponsible to misrepresent the extent and
dimensions of this phenomenon. ``It is important to preserve
the distinction between acquittal and innocence, which is
regularly obfuscated in news media headlines. When acquittal is
interpreted as a finding of innocence, the public is led to
believe that a guiltless person has been prosecuted for
political or corrupt reasons.'' Schwartz, at 154-155. The
DPIC's gimmicky and superficial List falsely inflates the
problem of wrongful convictions in order to skew the public's
opinion about capital punishment.
The Cooley article includes the dramatic, but meaningless,
statistical conclusion that ``one death row inmate is released
because of innocence for every five inmates executed.'' Cooley,
at 916. Of course, comparing an execution rate with a
``sentenced to death'' rate is mixing apples and oranges since
there is no claim that any innocent defendants have actually
been executed--being sentenced to death is not the same as then
being executed. Yet, the recent book by Barry Scheck and Peter
Neufeld, Actual Innocence (2000), updated this hysterical ratio
to assert that one innocent inmate is being released for every
seven inmates executed. This contrived ``statistic'' has even
made its way to the Senate floor. 148 Congressional Record
S889-92 (2/15/02). The ``wide use'' of this dubious ``new
measure for evaluating the accuracy of the death penalty * *
*'' is cited as one of the events most responsible for
``igniting the current capital punishment debate.'' 33 Columbia
Human Rights Law Review 527 (2002); 63 Ohio St. Law Journal 343
(2002).
Of course, the valid comparison is between the total number
of death sentences and the number of innocent Death Row inmates
actually released from Death Row. The most recent available
statistics reveal that 6,930 death sentences were imposed
between 1973 and 2000.\12\ Thus, even under the DPIC's own
questionable estimate that 102 innocent defendants have been
sentenced to death--only 1.4% of the inmates sentenced to death
were released because of innocence. Of course, given the
analysis in this paper, the DPIC's estimate of 102 innocent
inmates is artificially inflated. If the 68 cases analyzed in
this paper are removed from the DPIC List, then the most that
can be said is that between 1973 and 2000, there were 34
wrongly convicted defendants, i.e. less than \1/2\ of 1% or
0.4% of the inmates sentenced to death were actually innocent.
---------------------------------------------------------------------------
\12\ The total number of death sentences since 2000 is not yet
available.
---------------------------------------------------------------------------
The analysis of the federal court opinion in Quinones
yields similar results. As noted, that decision held that 40
names on the DPIC List were released for reasons indicating
``actual innocence.'' This would mean that approximately \1/2\
of 1% of the 6,930 inmates sentenced to death between 1973 and
2000 were ``actually innocent.'' When the Quinones analysis and
this critique are combined to remove all but 17 names from the
List, the result is that \2/10\ of 1% or 0.2% of the 6,930
prisoners were released on actual innocence grounds.
The significance of these figures may be appreciated when
contrasted with the aforementioned hyperbolic ratio used by the
authors of the Cooley study and echoed in Actual Innocence and
in the halls of Congress which fallaciously compares executions
and exonerations. That 7:1 ratio is a nonsensical public
relations statistic that creates the misimpression of an
epidemic of wrongful convictions. The facts actually show that
for every 6,930 death sentences imposed, 102 innocent
defendants were sentenced to death or more likely it is that
for every 6,930 death sentences imposed only 40 or 34 or 17
innocent defendants have been sentenced to death. In other
words, the relative number of innocent defendants sentenced to
death appears to be infinitesimal.
The public may or may not take comfort from these
estimates. The microscopic percentage of defendants who may
have been wrongly convicted and sentenced to death can be
considered a testament to the accuracy and reliability of our
modern capital punishment system in filtering out and punishing
the actual perpetrators of our most heinous crimes. The United
States Supreme Court continues to monitor and modify this
system.
However, if a person believes that the death penalty should
be abolished if there is any risk at all that an innocent
person could be sentenced to death, then that person is
justified in advocating the abolition of capital punishment. No
criminal justice system can promise that kind of foolproof
perfection--although the minute number of cases in which an
innocent person may have been sentenced to death in this
country approaches that absolute standard.
However, the inherent risk of sentencing an innocent person
to death and the still unrealized possibility that an innocent
person may actually be executed cannot be considered in
isolation. Counterbalancing the concern that even one innocent
person may be executed is the question of whether the death
penalty saves innocent lives by deterring potential
murderers.\13\ Now, for the first time, various academic and
statistical reports have been published that examine the effect
of capital punishment during this modern post-Furman period of
death penalty jurisprudence. A recent study by the Emory
University Department of Economics concludes that capital
punishment as it is currently administered has a strong
deterrent effect, saving 8-28 lives per execution. Another
study conducted by School of Business & Public Adminstration at
the University of Houston-Clear Lake and published in Applied
Economics shows that homicides increase during periods when
there are no executions and decrease during periods when
executions are occurring. Economists with the University of
Colorado at Denver studied the impact of capital punishment
during the years 1977 through 1997. The preliminary results of
the Colorado study indicate a deterrence effect of 5-6 fewer
homicides per execution. Finally, statistical evidence has been
cited to argue that the homicide rates have fallen more
steadily and steeply in states that have conducted executions
as opposed to states that do not conduct executions or do not
have capital punishment. The Weekly Standard, 8/13/01.
Inevitably (and properly), the debate over deterrence and the
validity of these new studies will continue.\14\
---------------------------------------------------------------------------
\13\ By focusing on the deterrence aspects of capital punishment,
this writer is not ignoring that for many people there are reasons for
supporting and opposing the death penalty that are totally irrelevant
to the deterrence issue.
\14\ Indeed the Emory study notes potential problems with some of
these other studies. However, the objectivity of some of these studies
is underscored by the ambivalence expressed about the death penalty by
several of the academicians who compiled the information. For instance,
the Emory study warns: ``[D]eterrence reflects social benefits
associated with the death penalty, but one should also weigh in the
corresponding social costs. These include the regret associated with
the irreversible decision to execute an innocent person. Moreover,
issues such as the possible unfairness of the justice system and
discrimination need to be considered when making a social decision
regarding capital punishment.'' The Colorado working paper concludes
with a similar caveat about other ``significant issues'' including
racial discrimination in the imposition of the death penalty and the
pardon process. ``Given these concerns, a stand for or against capital
punishment should be taken with caution.'' Thus, the reserachers who
have prepared these most recent deterrence studies do not appear
predisposed to supporting the death penalty.
---------------------------------------------------------------------------
Deterrence, of course, involves more than numbers. As
Senator Dianne Feinstein (D.-Cal.) explained to the Senate
Judiciary Committee in 1993:
In the 1960's, I was appointed to one of the term-
setting and paroling authorities and sat on some 5,000
cases of women who were convicted of felonies in the
State of California. I remember one woman who came
before me because she was convicted of robbery in the
first degree, and I noticed on what is called the
granny sheet that she had a weapon, but it was
unloaded. I asked her the question why was the gun
unloaded and she said, so I wouldn't panic, kill
somebody and get the death penalty.
That case went by and I didn't think too much of it
at the time. I read a lot of books that said the death
penalty was not a deterrent. Then in the 1970's, I
walked into a mom-and-pop grocery store just after the
proprietor, his wife and dog had been shot. People in
real life don't die the way they do on television.
There was brain matter on the ceiling, on the canned
goods. It was a terrible, terrible scene of carnage.
I came to remember that woman because by then
California had done away with the death penalty. I came
to remember the woman who said to me in the 1960's, the
gun was unloaded so I wouldn't panic and kill someone,
and suddenly the death penalty came to have new meaning
to me as a deterrent.
Statement of the Honorable Dianne Feinstein, Senator from
California, Hearing Before the Senate Judiciary Committee on S.
221 (April 1, 1993).\15\
---------------------------------------------------------------------------
\15\ Moreover, case law reveals examples of the ineffectiveness of
imprisonment as a deterrent to murder. See, e.g. Campbell v. Kincheloe,
829 F.2d 1453 (9th Cir. 1987) (prison escapee commits triple murder of
witnesses who testified against him); Hernandez v. Johnson, 108 F.3d
554 (5th Cir. 1997) (twice-convicted murderer murders jail guard during
abortive jail escape); People v. Allen, 42 Cal. 3d 1222 (Cal. 1986)
(murderer serving life sentence convicted of murdering witness on the
outside, murder of two bystanders, and conspiracy to murder seven other
prior witnesses).
---------------------------------------------------------------------------
Under any analysis, innocent lives are at stake. On the one
hand, there is the remote prospect that an innocent person may
be executed despite the most elaborate, protracted, and
sympathetic legal review procedures in the world. On the other,
there is the possibility of innocent people horribly and
brutally murdered in the streets and in their homes with no
legal review process at all. When weighing these choices, the
public deserves information that places the innocence question
in proper perspective. The DPIC List of allegedly innocent
defendants released from Death Row fails to provide that
legitimate perspective.
Postscript: Actually Guilty
Recent international interest has focused on the case of
James Hanratty, one of the last murderers to be executed in
England. Hanratty was hung in 1962 for the notorious ``A-6
Murder''. He was convicted of murdering Michael Gregsten and
also raping/shooting Gregsten's girlfriend, Valerie Storie.
Despite some alleged confusion about Storie's identification of
him as the perpetrator, Hanratty was convicted after the
longest murder trial in English history. After Hanratty was
hung, another man confessed to the murder, but then recanted
the confession. Hanratty's case became a cause celebre and was
part of the final impetus leading to the abolition of the death
penalty in England in 1969. Bailey, Hangmen of England (1992
Barnes & Noble ed.) at 190-191. The late Beatle John Lennon
mourned Hanratty as a victim of ``class war''. However, the
continuing efforts of Hanratty's supporters to ``clear'' his
name have now come to naught. DNA evidence from Ms. Storie's
underpants established Hanratty's guilt and eliminated the
other alleged perpetrator who had ``confessed'' after
Hanratty's execution. In dismissing the Hanratty family's case,
the English court graciously ``commend[ed] the Hanratty family
for the manner in which they have logically but mistakenly
pursued their long campaign to establish James Hanratty's
innocence.'' Regina v. James Hanratty Deceased by his Brother
Michael Hanratty, 2002 WL 499035 (May 10, 2002). Since the
abolition of the death penalty, the rate of unlawful killings
in Britain has soared. McKinstry, All my Life I have Been
Passionately Opposed to the Death Penalty * * *. This is Why I
have Changed My Mind, Daily Mail, 3/13/02. ``All of us who
regret the transformation of our country from a `relative oasis
in violent world' to a society where crimes like the A6 murder
are almost daily occurrences, are surely entitled to an
apology.'' Hanratty Deserved to Die, The Spectator (May 11,
2002) at 24-25.
ATTACHMENT--B
I. 2002 Votes by Circuit (Through September 30, 2002)
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 6 4 1 1 ........... 67
Fourth............................ 9 8 ........... 1 ........... 89
Fifth............................. 18 18 ........... ........... ........... 100
Sixth............................. 10 8 2 ........... ........... 80
Seventh........................... 12 8 4 ........... ........... 67
Eight............................. 7 5 1 1 ........... 71
Tenth............................. 17 14 2 1 ........... 82
Eleventh.......................... 11 9 2 ........... ........... 82
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 90 74 12 4 ........... 82
----------------------------------------------------------------------------------------------------------------
II. 2001 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 1 1 ........... ........... ........... 100
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 5 ........... 5 ........... ........... 0
Fourth............................ 6 5 1 ........... ........... 83
Fifth............................. 24 20 4 ........... ........... 83
Sixth............................. 14 10 3 1 ........... 71
Seventh........................... 7 5 1 1 ........... 71
Eight............................. 10 8 2 ........... ........... 80
Tenth............................. 20 15 5 ........... ........... 75
Eleventh.......................... 14 12 2 ........... ........... 86
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 101 76 23 2 ........... 75
----------------------------------------------------------------------------------------------------------------
III. 2000 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 1 1 ........... ........... ........... 100
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 3 3 ........... ........... ........... 100
Fourth............................ 19 17 1 1 ........... 89
Fifth............................. 25 19 1 5 ........... 76
Sixth............................. 10 5 2 3 ........... 50
Seventh........................... 6 5 ........... 1 ........... 83
Eight............................. 10 7 1 2 ........... 70
Tenth............................. 19 13 1 5 ........... 68
Eleventh.......................... 12 10 ........... 2 ........... 83
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 105 80 6 19 ........... 76
----------------------------------------------------------------------------------------------------------------
IV. 1999 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 1 1 ........... ........... ........... 100
Fourth............................ 20 18 ........... 2 ........... 90
Fifth............................. 21 20 1 ........... ........... 95
Sixth............................. 3 2 ........... 1 ........... 67
Seventh........................... 7 7 ........... ........... ........... 100
Eight............................. 9 7 2 ........... ........... 78
Tenth............................. 20 16 1 3 ........... 80
Eleventh.......................... 11 9 2 ........... ........... 82
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 92 80 6 6 ........... 87
----------------------------------------------------------------------------------------------------------------
V. 1998 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 1 1 ........... ........... ........... 100
Third............................. 0 ........... ........... ........... ........... N/A
Fourth............................ 33 32 ........... ........... 1 97
Fifth............................. 27 26 1 ........... ........... 96
Sixth............................. 4 3 ........... 1 ........... 75
Seventh........................... 7 6 1 ........... ........... 86
Eight............................. 15 14 1 ........... ........... 93
Tenth............................. 8 8 ........... ........... ........... 100
Eleventh.......................... 12 9 3 ........... ........... 75
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 107 99 6 1 1 92.5
----------------------------------------------------------------------------------------------------------------
VI. 1997 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 3 ........... 3 ........... ........... 0
Fourth............................ 13 12 ........... 1 ........... 92
Fifth............................. 22 18 1 3 ........... 82
Sixth............................. 7 3 3 1 ........... 43
Seventh........................... 9 8 1 ........... ........... 89
Eight............................. 16 12 3 1 ........... 75
Tenth............................. 4 3 1 ........... ........... 75
Eleventh.......................... 9 8 1 ........... ........... 89
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 83 64 13 6 ........... 77
----------------------------------------------------------------------------------------------------------------
VII. 1996 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 0 ........... ........... ........... ........... N/A
Fourth............................ 15 14 1 ........... ........... 93
Fifth............................. 16 14 1 1 ........... 87.5
Sixth............................. 2 2 ........... ........... ........... 100
Seventh........................... 11 8 1 2 ........... 73
Eight............................. 18 16 1 1 ........... 89
Tenth............................. 8 5 1 2 ........... 62.5
Eleventh.......................... 9 7 1 1 ........... 78
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 79 66 6 7 ........... 83.5
----------------------------------------------------------------------------------------------------------------
VIII. 1995 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 2 1 ........... 1 ........... 50
Fourth............................ 10 9 ........... 1 ........... 90
Fifth............................. 14 14 ........... ........... ........... 100
Sixth............................. 2 1 1 ........... ........... 50
Seventh........................... 6 5 ........... ........... 1 83
Eight............................. 14 13 1 ........... ........... 93
Tenth............................. 7 5 2 ........... ........... 71
Eleventh.......................... 15 10 2 3 ........... 67
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 70 58 6 5 1 83
----------------------------------------------------------------------------------------------------------------
IX. 1994 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 2 1 ........... 1 ........... 50
Fourth............................ 9 9 ........... ........... ........... 100
Fifth............................. 17 16 ........... 1 ........... 94
Sixth............................. 1 1 ........... ........... ........... 100
Seventh........................... 8 8 ........... ........... ........... 100
Eight............................. 14 11 1 2 ........... 79
Tenth............................. 1 1 ........... ........... ........... 100
Eleventh.......................... 14 11 3 ........... ........... 79
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 66 58 4 4 ........... 88
----------------------------------------------------------------------------------------------------------------
X. 1993 Votes by Circuit
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 0 ........... ........... ........... ........... N/A
Second............................ 0 ........... ........... ........... ........... N/A
Third............................. 0 ........... ........... ........... ........... N/A
Fourth............................ 5 5 ........... ........... ........... 100
Fifth............................. 12 9 1 2 ........... 75
Sixth............................. 0 ........... ........... ........... ........... N/A
Seventh........................... 2 1 ........... 1 ........... 50
Eight............................. 10 8 1 1 ........... 80
Tenth............................. 0 ........... ........... ........... ........... N/A
Eleventh.......................... 8 7 1 ........... ........... 87.5
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 37 30 3 4 ........... 81
----------------------------------------------------------------------------------------------------------------
XI. Total Votes by Circuit (2002-1993)
----------------------------------------------------------------------------------------------------------------
Percentage
Total Affirm Reverse Remand/ Deny of rulings
Circuit courts number of death death evidentiary evidentiary resulting
cases penalty penalty hearing hearing in death
sentence penalty
----------------------------------------------------------------------------------------------------------------
First............................. 2 2 ........... ........... ........... 100
Second............................ 1 1 ........... ........... ........... 100
Third............................. 22 10 9 3 ........... 45
Fourth............................ 139 129 3 6 1 93
Fifth............................. 196 176 10 12 ........... 90
Sixth............................. 53 35 11 7 ........... 66
Seventh........................... 75 61 8 5 1 81
Eight............................. 123 101 14 8 ........... 82
Tenth............................. 104 80 13 11 ........... 77
Eleventh.......................... 115 92 17 6 ........... 80
D.C............................... 0 ........... ........... ........... ........... N/A
-----------------------------------------------------------------------------
Overall totals.............. 830 685 85 58 2 83
----------------------------------------------------------------------------------------------------------------
XII. Ninth Circuit Statistics
NINTH CIRCUIT REVERSAL RATE BY YEAR
------------------------------------------------------------------------
Year Total cases Rev'd/rem'd Percentage
------------------------------------------------------------------------
2002 \1\......................... 14 12 86
2001............................. 15 12 80
2000............................. 8 7 88
1999............................. 12 5 42
1998............................. 12 6 50
1997............................. 22 11 80
1996............................. 11 3 27
1995............................. 10 5 50
1994............................. 8 3 38
1993............................. 7 4 57
--------------------------------------
Overall.................... 115 65 57
------------------------------------------------------------------------
\1\ As of September 2002.
POST-1992 VOTES OF JUDGES APPOINTED BY REPUBLICAN PRESIDENTS
----------------------------------------------------------------------------------------------------------------
Affirm Reverse
death death Remand/ Deny
Republican President appointees penalty penalty evidentiary evidentiary
sentence sentence hearing hearing
----------------------------------------------------------------------------------------------------------------
Beezer...................................................... 7 1 ........... ...........
Brunetti.................................................... 13 3 ........... ...........
Fernandez................................................... 11 2 ........... 1
Goodwin..................................................... 2 2 ........... ...........
Hall........................................................ 6 3 ........... ...........
Kleinfeld................................................... 12 3 1 2
Kovinski.................................................... 16 5 3 1
Leavy....................................................... 4 3 ........... ...........
T.G. Nelson................................................. 16 4 2 ...........
Noonan...................................................... 1 1 ........... ...........
O'Scannlain................................................. 12 2 1 ...........
Rymer....................................................... 11 5 2 ...........
Thompson.................................................... 13 9 2 ...........
Trott....................................................... 14 4 1 ...........
Wallace..................................................... 8 1 ........... ...........
Wiggins..................................................... 6 ........... 1 ...........
---------------------------------------------------
Totals................................................ 146 48 13 4
----------------------------------------------------------------------------------------------------------------
POST-1992 VOTES OF JUDGES APPOINTED BY DEMOCRATIC PRESIDENTS
----------------------------------------------------------------------------------------------------------------
Affirm Reverse
death death Remand/ Deny
Democratic President appointees penalty penalty evidentiary evidentiary
sentence sentence hearing hearing
----------------------------------------------------------------------------------------------------------------
Alarcon..................................................... 2 ........... ........... ...........
Berzon...................................................... ........... 4 2 ...........
Boochever................................................... 1 1 ........... ...........
Browning.................................................... 7 11 ........... ...........
Canby....................................................... 1 7 ........... ...........
Farris...................................................... 9 2 ........... ...........
Ferguson.................................................... 1 10 3 ...........
Fisher...................................................... ........... 1 1 ...........
B. Fletcher................................................. 2 13 1 ...........
W. Fletcher................................................. ........... 6 2 ...........
Graber...................................................... 2 5 ........... ...........
Gould....................................................... 4 2 ........... ...........
Hawkins..................................................... 7 6 1 ...........
P. Hug-Jr................................................... 10 9 1 ...........
McKeown..................................................... ........... 1 ........... ...........
D. Nelson................................................... 3 4 ........... ...........
Norris...................................................... ........... 5 ........... ...........
Paez........................................................ ........... 2 2 ...........
Poole....................................................... 3 1 ........... ...........
Pregerson................................................... 2 17 3 ...........
Rawlinson................................................... ........... 2 ........... ...........
Reinhardt................................................... ........... 21 4 ...........
Schroeder................................................... 5 11 3 ...........
Silverman................................................... ........... 2 1 ...........
Tallman..................................................... 1 1 1 ...........
Tang........................................................ ........... 2 ........... ...........
Tashima..................................................... ........... 9 ........... ...........
Thomas...................................................... 2 8 3 ...........
K. Wardlaw.................................................. 2 2 1 ...........
---------------------------------------------------
Totals................................................ 64 165 29 0
----------------------------------------------------------------------------------------------------------------
Judge Ferguson
All but one of his votes has been to reverse/remand the
death penalty sentence. Total of seventeen cases: Caro v.
Woodford, 280 F.3d 1247 (2002); Morris v. Woodford, 273 F.3d
826 (2001); Murtishaw v. Woodford, 255 F.3d 926 (2001);
Lambright v. Stewart, 241 F.3d 1201 (2001); Smith v. Stewart,
241 F.3d 1191 (2001); Morris v. Woodford, 229 F.3d 775 (2000);
Lambright v. Stewart, 220 F.3d 1022 (2000); Comer v. Stewart,
215 F.3d 910 (2000); Lambright v. Stewart, 191 F.3d 1181
(1999); Smith v. Stewart, 189 F.3d 1004 (1999); Lambright v.
Stewart, 167 F.3d 477 (1999); Caro v. Calderon, 165 F.3d 1223
(1999); McLain v. Calderon, 134 F.3d 1383 (1998); Moore v.
Calderon, 108 F.3d 261 (1997); Adamson v. Lewis, 955 F.2d 614
(1992); Smith v. McCormick, 914 F.2d 1153 (1990); Adamson v.
Ricketts, 865 F.2d 1011 (1988).
Judge B. Fletcher
All but two of her votes have been to reverse/remand the
death penalty sentence. Total of twenty-two cases: Pizzuto v.
Arave, 280 F.3d 949 (2002); Silva v. Woodford, 279 F.3d 825
(2002); Phillips v. Woodford, 267 F.3d 966 (2001); Dyer v.
Calderon, 151 F.3d 970 (1998); Thompson v. Calderon, 151 F.3d
918 (1998) (en banc); Smith v. Stewart, 140 F.3d 1263 (1998);
McDowell v. Calderon, 130 F.3d 833 (1997) (en banc); Thompson
v. Calderon, 120 F.3d 1045 (1997); Jeffries v. Wood, 114 F.3d
1484 (1997) (en banc); Villafuerte v. Stewart, 111 F.3d 616
(1997); Ceja v. Stewart, 97 F.3d 1246 (1996); Rice v. Wood, 77
F.3d 1138 (1996) (en banc); Villafuerte v. Lewis, 75 F.3d 1330
(1996); Phillips v. Vasquez, 56 F.3d 1030 (1995); Jeffers v.
Lewis, 38 F.3d 411 (1994) (en banc); Hamilton v. Vasquez, 17
F.3d 1149 (1994); Hoffman v. Arave, 952 F.2d 1164 (1991); Smith
v. McCormick, 914 F.2d 1153 (1990); Coleman v. McCormick, 874
F.2d 1280 (1989); McKenzie v. Risley, 842 F.2d 1525 (1988);
Campbell v. Kincheloe, 829 F.2d 1453 (1987); U.S. v. Harper,
729 F.2d 1216 (1984).
Judge Pregerson
All but two of his votes have been to reverse/remand death
sentence. Twenty-eight cases total: Payton v. Woodford, 299
F.3d 815 (2002); Visciotti v. Woodford, 288 F.3d 1097 (2002);
Caro v. Woodford, 280 F.3d 1247 (2002); Petrocelli v. Angelone,
248 F.3d 877 (2001); Hoffman v. Arave, 236 F.3d 523 (2001);
Comer v. Stewart, 215 F.3d 910 (2000); McDowell v. Calderon,
197 F.3d 1253 (1999); Rich v. Calderon, 187 F.3d 1064 (1999)
(voting to uphold); Siripongs v. Calderon, 167 F.3d 1225
(1999); Caro v. Calderon, 165 F.3d 1223 (1999); Dyer v.
Calderon, 151 F.3d 970 (1998); Crandell v. Bunnell, 144 F.3d
1213 (1998); LaGrand v. Stewart, 133 F.3d 1253 (1998);
Siripongs v. Calderon, 133 F.3d 732 (1998); Carriger v.
Stewart, 132 F.3d 463 (1997); McDowell v. Calderon, 130 F.3d
833 (1997) (en banc); Fields v. Calderon, 125 F.3d 757 (1997);
Thompson v. Calderon, 120 F.3d 1045 (1997); Gretzler v.
Stewart, 112 F.3d 992 (1997); Rupe v. Wood, 93 F.3d 1434
(1996); Moran v. Godinez, 57 F.3d 690 (1995); Jeffers v. Lewis,
38 F.3d 411 (1994) (en banc); Siripongs v. Calderon, 35 F.3d
1308 (1994); Jeffers v. Lewis, 5 F.3d 1199 (1992); Jeffers v.
Lewis, 974 F.2d 1075 (1992); Moran v. Godinez, 972 F.2d 263
(1992); Adamson v. Ricketts, 865 F.2d 1011 (1988); McKenzie v.
Risley, 842 F.2d 1525 (1988); Jeffers v. Ricketts, 832 F.2d 476
(1987).
Judge Reinhardt
All his votes have been to reverse/remand the death penalty
sentence. Total of thirty one cases: Valerio v. Crawford, 2002
WL 31056609 (2002); Benn v. Lambert, 282 F.3d 1040 (2002);
Ghent v. Woodford, 279 F.3d 1121 (2002); Phillips v. Woodford,
267 F.3d 966 (2001); Lambright v. Stewart, 241 F.3d 1201
(2001); Smith v. Stewart, 241 F.3d 1191 (2001); Lambright v.
Stewart, 220 F.3d 1022 (2000); Lambright v. Stewart, 191 F.3d
1181 (1999); Smith v. Stewart, 189 F.3d 1004 (1999); Lambright
v. Stewart, 167 F.3d 477 (1999); Vargas v. Lambert, 159 F.3d
1161 (1998); Chaney v. Stewart, 156 F.3d 921 (1998); Dyer v.
Calderon, 151 F.3d 970 (1998); Thompson v. Calderon, 151 F.3d
918 (1998); Bloom v. Calderon, 132 F.3d 1267 (1997); Carriger
v. Stewart, 132 F.3d 463 (1997); McDowell v. Calderon, 130 F.3d
833 (1997) (en banc); Gerlaugh v. Stewart, 129 F.3d 1027
(1997); Thompson v. Calderon, 120 F.3d 1045 (1997); Jeffries v.
Wood, 114 F.3d 1484 (1997); Jeffries v. Wood, 103 F.3d 827
(1996); Clabourne v. Lewis, 64 F.3d 1373 (1995); Phillips v.
Vasquez, 56 F.3d 1030 (1995); Bartholomew v. Wood, 34 F.3d 870
(1994); Wade v. Calderon, 29 F.3d 1312 (1994); Campbell v.
Wood, 18 F.3d 662 (1994) (en banc); Beam v. Paskett, 3 F.3d
1301 (1993); Beam v. Paskett, 966 F.2d 1563 (1992); Richmond v.
Lewis, 948 F.2d 1473 (1990); Coleman v. McCormick, 874 F.2d
1280 (1989); Coleman v. Risley, 839 F.2d 434 (1988); Vickers v.
Ricketts, 798 F.2d 369 (1986); U.S. v. Harper, 729 F.2d 1216
(1984).
Judge Schroeder
All but five of her votes have been to reverse/remand the
death penalty sentence. Total of twenty-three cases: Valerio v.
Crawford, 2002 WL 31056609 (2002); Payton v. Woodford, 299 F.3d
815 (2002); Mayfield v. Woodford, 270 F.3d 915 (2001); Sandoval
v. Calderon, 241 F.3d 765 (2001); Coleman v. Calderon, 210 F.3d
1047 (2000); Lambright v. Stewart, 191 F.3d 1181 (1999);
Siripongs v. Calderon, 167 F.3d 1225 (1999); Thompson v.
Calderon, 151 F.3d 918 (1998); Coleman v. Calderon, 150 F.3d
1105 (1998); Vickers v. Stewart, 144 F.3d 613 (1998); Correll
v. Stewart, 137 F.3d 1404 (1997); Siripongs v. Calderon, 133
F.3d 732 (1998); Carriger v. Stewart, 132 F.3d 463 (1997);
Jeffries v. Wood, 114 F.3d 1484 (1997); Rupe v. Wood, 93 F.3d
1434 (1996); Rice v. Wood, 77 F.3d 1138 (1996); Siripongs v.
Calderon, 35 F.3d 1308 (1994); Hamilton v. Vasquez, 17 F.3d
1149 (1994); Fetterly v. Paskett, 997 F.2d 1295 (1993);
Carriger v. Lewis, 971 F.2d 329 (1992); Adamson v. Lewis, 955
F.2d 614 (1992); Hamilton v. Vasquez, 882 F.2d 1469 (1989);
Adamson v. Ricketts, 865 F.2d 1011 (1988).
Judge Tashima
All of his votes have been to reverse/remand the death
penalty sentence. Total of nine cases: Payton v. Woodford, 299
F.3d 815 (2002); Visciotti v. Woodford, 288 F.3d 1097 (9th Cir.
2002); Garceau v. Woodford, 275 F.3d 769 (2001); Petrocelli v.
Angelone, 248 F.3d 877 (9th Cir. 2001); McDowell v. Calderon,
197 F.3d 1253 (1999); Thompson v. Calderon, 151 F.3d 918 (1998)
(en banc); Paradis v. Arave, 130 F.3d 385 (1997); Thompson v.
Calderon, 120 F.3d 1045 (9th Cir. 1997); Jeffries v. Wood, 114
F.3d 1484 (1997).
Post-1992 Ninth Circuit Death Penalty Appeals--Summaries of Cases
1. Valerio v. Crawford, 2002 WL 31056609 (2002).
Judges: Schroeder, Reinhardt, O'Scannlain, Rymer, G.
Nelson, Thomas, Graber, W. Fletcher, Fisher, Paez, Berzon
(Rymer, O'Scannlain, Nelson, Graber dissenting).
Summary: Valerio was convicted of first degree murder after
he stabbed Karen Blackwell 45 times and was sentenced to death.
The district court dismissed his petition for a writ of habeas
corpus. The court of appeals reversed the district courts'
ruling stating that the jury instructions during the penalty
phase were unconstitutional under Godfrey.
2. Williams v. Woodford, 2002 WL 31012121 (2002).
Judges: Hug, Nelson, Gould.
Summary: Williams was convicted of multiple counts of first
degree murder and armed robbery and sentenced to death. He was
denied federal habeas relief by the district court who also
denied Williams' Federal Rules of Civil Procedure Rule 60(b)
motion for relief from the court's judgment denying the habeas
petition. The circuit court affirmed but vacated the order
denying Williams' Rule 60(b) motion because the district court
lacked jurisdiction to consider the motion.
3. Hayes v. Woodford, 301 F.3d 1054 (2002).
Judges: O'Scannlain, Rymer, Thomas (Thomas dissenting in
part).
Summary: Petitioner was convicted for robbery, burglary,
and first degree murder and was sentenced to death. The
district court denied habeas relief and the petitioner
appealed. The circuit court affirmed the district courts'
ruling saying that the petitioner's attorney did not provide
insufficient assistance of counsel and the evidentiary findings
of the lower court were sufficiently supported by the record.
4. Payton v. Woodford, 299 F.3d 815 (2002).
Judges: Schroeder, Pregerson, Kozinski, Trott, Fernandez,
Nelson, Tashima, W. Fletcher, Paez, Berzon, Tallman (Tallman
dissenting in part, joined by Kozinski, Trott, Fernandez,
Nelson).
Summary: Payton was convicted of first degree murder, rape,
and two counts of attempted murder and sentenced to death. He
sought a writ of habeas corpus that was granted by the district
court requiring either a new penalty trial or a reduction of
sentence to a life terms without parole. The circuit court,
sitting en banc, affirmed the ruling of the district court.
5. Visciotti v. Woodford, 288 F.3d 1097 (2002).
Judges: Pregerson, Tashima, Berzon.
Summary: After being fired from their jobs, Visciotti and
his co-worker Hefner devised a plan to rob two of their former
co-workers. After robbing the two co-workers, Visciotti shot
both of them. He was later convicted of murder, attempted
murder, and armed robbery and was sentenced to death. The court
of appeals affirmed the district court's ruling granting
petitioner's habeas petition as to the penalty phase of the
trial, but not as to the guilt phase. The court held that part
of the California Supreme Court's decision was contrary to
Supreme Court law outlined in Strickland.
6. Karis v. Calderon, 283 F.3d 1117 (2002).
Judges: Hug, Browning, Kleinfeld (Kleinfeld dissenting).
Summary: Karis abducted two women who were taking a morning
walk, raped them, shot them, and then buried them in a hole. He
was convicted of two counts of kidnapping, two counts of rape,
one count of attempted murder, and murder and was sentenced to
death. The court of appeals affirmed the district court's grant
of petition for habeas corpus as to the penalty phase, but not
as to the conviction phase of the trial. The court held that
counsel was deficient during the penalty phase of the trial
because he failed to introduce mitigating evidence regarding
the defendant's troubled childhood.
7. Benn v. Lambert, 283 F.3d 1040 (2002).
Judges: Reinhardt, Trott, W. Fletcher.
Summary: Benn shot and killed his half-brother and his
half-brother's friend. A jury convicted Benn of two counts of
premeditated murder and sentenced him to death. The court of
appeals affirmed the district court's decision granting the
petition for a writ of habeas corpus because the trial court
violated Brady and the state court's determinations were
unreasonable applications of established Supreme Court law.
8. Gray v. Klauser, 282 F.3d 633 (2002).
Judges: Berzon, Lay, Trott (Trott dissenting).
Summary: Gray was convicted of killing his wife and her
friend and was sentenced to death. The court of appeals
reversed the district court's ruling denying the habeas
petition. The court held that the Idaho trial court's rulings
regarding the admission of hearsay evidence violated Gray's
constitutional rights and that the presentation of the hearsay
evidence was not harmless error.
9. Fields v. Woodford, 281 F.3d 963 (2002).
Judges: Rymer, Kozinski, and Silverman.
Summary: After already serving a sentence for voluntary
manslaughter, a jury convicted Fields of a variety of criminal
acts including murder and sentenced him to death. The court
affirmed the district court's decision on all of the claims
having to do with the petitioner's conviction except for his
claim of juror bias. As to it, the court concluded that an
evidentiary hearing was needed and remanded the case. Given
this disposition, the court did not reach any of the penalty
phase issues.
10. Turner v. Calderon, 281 F.3d 851 (2002).
Judges: Wardlaw, Paez, Tallman.
Summary: Turner stabbed (over forty times), killed, and
robbed a man who had hired him to do yard work at his home. A
jury convicted Turner of first-degree murder and robbery and
sentenced him to death. The appellate court reversed the
district court's ruling denying Turner's request for an
evidentiary hearing on his claim that his counsel was
constitutionally ineffective during the penalty phase of his
trial. The court held that his counsel may have been
ineffective in presenting mitigating evidence during the
sentencing phase of the trial.
11. Pizzuto v. Arave, 280 F.3d 949 (2002).
Judges: B. Fletcher, Rymer, Gould (Fletcher dissenting).
Summary: Pizzuto robbed and murdered two people at a
campsite in Idaho. A jury convicted Pizzuto of two counts of
murder and sentenced him to death. The district court dismissed
Pizzuto's habeas petition, and the court of appeals affirmed.
12. Caro v. Woodford, 280 F.3d 1247 (2002).
Judges: Pregerson, Ferguson, Kleinfeld (Kleinfeld
dissenting).
Summary: Caro was convicted for the murders of two teenage
cousins who were killed by a close range gunshot wound to the
head and was sentenced to death. The court of appeals affirmed
the district court's grant of the habeas petition holding that
the district court was not clearly erroneous in finding that
the defendant's counsel was ineffective during the penalty
phase of the trial because he failed to present evidence of the
defendant's brain damage.
13. Ghent v. Woodford, 279 F.3d 1121 (2002).
Judges: Reinhardt, Hawkins, and Rawlison.
Summary: Ghent was found guilty of first degree murder and
attempted rape of an acquaintance and was sentenced to death.
The district court's denial of petitioner's habeas request with
respect to the claims regarding his first trial was affirmed.
However, the determination of the district court with respect
to petitioner's special circumstances retrial was reversed and
remanded with instructions to vacate petitioner's death
sentence. The court held that the admission of the
psychiatrist's testimony during the special circumstances
retrial warranted habeas relief.
14. Silva v. Woodford, 279 F.3d 825 (2002).
Judges: B. Fletcher, Thomas, and Wardlaw.
Summary: Silva was convicted of the abduction, robbery and
murder of a college student and was sentenced to death. The
court of appeals reversed the district court's denial of the
habeas petition as to the penalty phase of petitioner's trial,
vacated petitioner's death penalty, and remanded for a new
sentencing hearing. In addition, the appellate court remanded
for an evidentiary hearing as to the petitioner's Brady claim.
15. Garceau v. Woodford, 275 F.3d 769 (2001).
Judges: O'Scannlain, Tashima, Thomas (O'Scannlain
dissenting).
Summary: Garceau stabbed and killed his girlfriend and her
14-year-old son. A jury convicted him of double homicide and
sentenced him to death. The court of appeals reversed the
district court's ruling denying the habeas petition holding
that a jury instruction inferring Garceau's propensity for
criminal actions violated due process.
16. Morris v. Woodford, 273 F.3d 826 (2001).
Judges: Ferguson, Graber, W. Fletcher.
Summary: Morris killed a man as part of a plot to steal his
van. A jury convicted him of murder and sentenced him to death.
The court of appeals reversed the district court's ruling
denying the habeas petition holding that a typographical error
contained in a written penalty phase instruction created a
harmful constitutional error.
17. Landrigan v. Stewart, 272 F.3d 1221 (2001).
Judges: Fernandez, Rymer, and Wardlaw.
Summary: Landrigan escaped from incarceration in Oklahoma
and then killed a man in Arizona. A jury convicted him of
murder and a trial judge sentenced him to death. The appellate
court affirmed the district court's denial of the habeas
petition.
18. Mayfield v. Woodford, 270 F.3d 915 (2001) (en banc).
Judges: Schroeder, O'Scannlain, Rymer, Kleinfeld, Hawkins,
Silverman, Graber, Gould, Berzon, Tallman, and Rawlison.
Summary: Mayfield killed a person who had sworn out a
complaint against him for auto theft, and then killed again to
eliminate the only eyewitness to the case. The jury convicted
and recommended he be put to death. The court of appeals, en
banc, reversed the district court's denial of the habeas
petition and granted COAs as to two of petitioner's claims and
denied as to five of his claims. The denial of petitioner's
claim for ineffective assistance at the guilt phase was
affirmed. (Judges Schroeder, Hawkins, and Rawlison dissented on
this point.) The denial of petitioner's claim for ineffective
assistance at the penalty phase was reversed.
19. Ainsworth v. Woodford, 268 F.3d 868 (2001).
Judges: Hug, Graber, W. Fletcher (Graber dissenting).
Summary: Ainsworth and an accomplice shot a woman in the
hip, raped her, put her in the trunk of her car, dumped her
body in the woods (after she had died), and stole her car.
Ainsworth was convicted of first degree murder and was
sentenced to death. The court of appeals affirmed the district
court's ruling granting the habeas writ. The court held that
defendant's counsel was ineffective during the penalty phase of
his trial because he failed to present mitigating evidence.
20. Phillips v. Woodford, 267 F.3d 966 (2001).
Judges: B. Fletcher, Reinhardt, Kleinfeld (Kleinfeld
dissenting).
Summary: Phillips shot two people who were involved in a
cocaine deal with him, killing one of them. A jury found the
special circumstance of murder during the commission of a
robbery to be true and sentenced Phillips to death. The court
of appeals reversed the district court's denial of an
evidentiary hearing holding that petitioner showed cause for
his ineffective assistance of counsel claim.
21. Summerlin v. Stewart, 267 F.3d 926 (2000).
Judges: Trott, Thomas, Kozinski (Kozinski dissenting).
Summary: Summerlin killed a woman who was sent to his home
to collect a delinquent debt by hitting her head with a
hatchet. He was convicted of murder and sentenced to death. The
district court denied habeas relief, but the court of appeals
held that petitioner was entitled to an evidentiary hearing
regarding whether the trial judge's alleged use of marijuana
deprived his due process rights.
22. Payton v. Woodford, 258 F.3d 905 (2001).
Judges: Rymer, Gould, Hawkins (Hawkins dissenting).
Summary: Payton was convicted of rape and murder and two
counts of attempted murder and was sentenced to death. The
court of appeals reversed the district court's ruling granting
Payton's habeas petition.
23. Cooper v. Calderon, 255 F.3d 1104 (2001).
Judges: Rymer, Gould, Browning (Browning dissenting).
Summary: Cooper escaped from a California state prison and
later hacked four people to death using a hatchet or ax and a
knife. He was convicted of the four murders and was sentenced
to death. The court of appeals affirmed the district court's
denial of the habeas petition.
24. Murtishaw v. Woodford, 255 F. 3d 926 (2001).
Judges: Hug, Ferguson, and Wardlaw.
Summary: Murtishaw shot and killed three students who were
in the desert filming a movie. He was convicted of three counts
of first degree murder and sentenced to death. The court of
appeals affirmed the district court's denial of the Murtishaw's
petition pertaining to his guilt conviction, but reversed the
denial as to his sentence. The court ordered that the death
penalty sentence be vacated.
25. Petrocelli v. Angelone, 248 F.3d 877 (2001).
Judges: Rymer, Pregerson, and Tashima.
Summary: Petrocelli killed his fiancee in Washington and
then killed a car salesman in Reno to obtain a vehicle for his
flight. A jury convicted Petrocelli of first-degree murder and
robbery with use of a deadly weapon and imposed the death
penalty. The court of appeals reversed the district court's
ruling that some of petitioner's claims were procedurally
defaulted and remanded for the evaluation of those claims.
26. Lambright v. Stewart, 241 F.3d 1201 (2001).
Judges: Ferguson, Reinhardt, and D.R. Thompson.
Summary: Lambright was convicted of first degree murder,
sexual assault, and kidnapping and was sentenced to death. The
conviction was affirmed as was the district court's ruling that
the especially heinous, atrocious, and cruel aggravating factor
applied. However, the court of appeals reversed the district
court's ruling denying habeas relief as to the penalty phase of
the trial. The court held that the state-court procedural
default of petitioner's ineffective counsel claim did not bar
federal habeas review and that he was entitled to an
evidentiary hearing on this claim.
27. Smith v. Stewart, 241 F.3d 1191 (2001).
Judges: Ferguson, Reinhardt, and D.R. Thompson.
Summary: Smith and his accomplice, Lambright, were
convicted of sexual assault, kidnapping, and first-degree
murder and the trial judge sentenced him to death. The court of
appeals reversed the district court's denial of the habeas
petition. Federal habeas review was not barred because it was
unclear from the state court order denying rehearing whether
the court invoked a procedural bar as the basis of its ruling.
The court ordered an evidentiary hearing because petitioner had
made a colorable claim of ineffective assistance.
28. Sandoval v. Calderon, 241 F.3d 765 (2001).
Judges: Schroeder, Hawkins, and Fisher.
Summary: Sandoval was convicted of four murders and one
attempted murder and was sentenced to death for one of the
murders. The court of appeals reversed the district court's
ruling, which granted Sandoval relief from his conviction, but
affirmed the writ as to the death sentence.
29. Odle v. Woodford, 238 F.3d 1084 (2001).
Judges: Kozinski, Hawkins, Berzon.
Summary: Odle was convicted of two first degree murders and
sentenced to death. The court of appeals held that failure to
conduct a competency hearing resulted in denial of due process
and remanded the case to the district court.
30. Hoffman v. Arave, 236 F.3d 523 (2001).
Judges: Pregerson, W. Fletcher, and Gould.
Summary: An Idaho jury found Hoffman guilty of first-degree
murder for killing a police informant. The court of appeals
reversed the ruling that the U.S. Constitution amendments V, VI
did not apply to petitioner's pre-sentence interview, and
deferred judgment whether the denial of counsel during
petitioner's pre-sentence interview constituted harmless error
until after the hearing. They affirmed the district court's
denial of all other claims.
31. Anderson v. Calderon, 232 F.3d 1053 (2000).
Judges: Trott, Fernandez, McKeown (McKeown dissenting).
Summary: Anderson killed an 81-year-old woman who was lying
in bed before robbing her house. A jury convicted him and
sentenced him to death. The court of appeals affirmed the
district court's denial of the habeas petition.
32. Mayfield v. Calderon, 229 F.3d 895 (2000).
Judges: Brunetti, Fernandez, Kleinfeld.
Summary: Mayfield shot and killed two people who had filed
charges against him for auto theft. He was convicted of both of
the murders and was sentenced to death. The appellate court
affirmed the district court's ruling denying petitioner's
habeas relief request.
33. Morris v. Woodford, 229 F.3d 775 (2000).
Judges: Ferguson, Graber, W. Fletcher.
Summary: Morris was convicted of murder in 1985 and was
sentenced to death. The district court dismissed Morris's
habeas petition, but the court of appeals held that petitioner
stated colorable constitutional claims that warranted an
evidentiary hearing.
34. Lambright v. Stewart, 220 F.3d 1022 (2000).
Judges: Ferguson, Reinhardt, Thompson.
Summary: Lambright was convicted of first degree murder,
sexual assault, kidnapping and was sentenced to death. The
court of appeals granted certificates of appealability on five
of his nine claims, reversing the district court's denial of
the certificates.
35. Comer v. Stewart, 215 F.3d 910 (2000).
Judges: Pregerson, Ferguson, Rymer.
Summary: Comer was convicted of murder and sentenced to
death. The district court denied his habeas petition, but the
court of appeals remanded for an evidentiary hearing to
determine petitioner's competence to withdraw appeal.
36. Jackson v. Calderon, 211 F.3d 1148 (2000).
Judges: Canby, Thomas, O'Scannlain (O'Scannlain
dissenting).
Summary: Jackson, while intoxicated with PCP, shot and
killed a police officer. He was convicted of first-degree
murder and sentenced to death. The court of appeals affirmed
petitioner's conviction, but reversed the district court's
denial of the habeas petition as to the penalty phase holding
that the claims of ineffective assistance of counsel were not
procedurally defaulted.
37. Coleman v. Calderon, 210 F.3d 1047 (2000).
Judges: Schroeder, Thompson, Brunetti (Brunetti
dissenting).
Summary: A jury convicted Coleman of rape and murder and
sentenced him to death. The court of appeals affirmed the
district court's grant of the habeas petition as to Coleman's
death sentence holding that an erroneous jury instruction had a
substantial and injurious effect on the jury's verdict.
38. McDowell v. Calderon, 197 F.3d 1253 (1999) (en banc).
Judges: Hug, Browning, Pregerson, Brunetti, Kozinski,
Rymer, T.G. Nelson, Kleinfeld, Tashima, Silverman, Graber.
Summary: McDowell was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
ruling granting McDowell's habeas petition.
39. Lambright v. Stewart, 191 F.3d 1181 (1999) (en banc).
Judges: Hug, Ferguson, Reinhardt, Browning, Schroeder,
Kozinski, O'Scannlain, Trott, T.G. Nelson, Graber, and Wardlaw
(Reinhardt dissenting).
Summary: Lambright and an accomplice (Smith) killed a woman
who they had kidnaped and Smith had raped. Lambright was
convicted of murder and sentenced to death. The district court
denied Lambright's habeas petition. The court of appeals, en
banc, took up the issue of whether the use of dual juries
violated due process and affirmed the district court's ruling
that the use of dual juries did not violate due process.
40. Smith v. Stewart, 189 F.3d 1004 (1999).
Judges: Reinhardt, Ferguson, Fernandez (Fernandez
dissenting).
Summary: Smith picked up two teenage hitchhikers (on two
different occasions), stabbed them multiple times, suffocated
them by putting dirt in their mouths then taping them shut, and
left them in the desert to die. Smith was convicted and
sentenced to death for the two murders. The court of appeals
affirmed on all but the ineffective assistance of counsel
claim, which it reversed holding counsel's failure at
sentencing to present any mitigating evidence of defendant's
mental condition or background was sufficient to undermine
confidence in the sentence, and remanded for re-sentencing.
41. Rich v. Calderon, 187 F.3d 1064 (1999).
Judges: Pregerson, Kleinfeld, Hawkins.
Summary: A jury convicted Rich of a series of sexual
attacks and murders of several defenseless young women and
sentenced him to death. The judgment of the district court
denying defendant prisoner's petition for habeas corpus was
affirmed because there were no constitutional errors in the
selection and composition of the grand jury, jury instructions,
defense counsel, defendant's shackling during the trial, and
because there was no prosecutorial misconduct, and defendant
was mentally competent to stand trial.
42. Wallace v. Stewart, 184 F.3d 1112 (1999).
Judges: Kozinski, Hug, T.G. Nelson.
Summary: Wallace brutally killed his girlfriend and her two
children in their mobile home. He was convicted of the murders
and was sentenced to death. The district court denied his
habeas petition. The appellate court remanded for an
evidentiary hearing because petitioner made a prima facie case
of ineffective assistance in the penalty phase of the trial.
43. Lord v. Wood, 184 F.3d 1083 (1999).
Judges: Kozinski, Browning, T.G. Nelson.
Summary: A jury convicted Lord of first degree murder of a
sixteen year old girl and sentenced him to death. The district
court granted habeas relief as to the penalty phase of the
petitioner's trial, but not as to the guilt phase. The
appellate court held that habeas relief should be granted as to
the guilt phase because petitioner's counsel failed to call
three witnesses who claimed to have seen the victim after
petitioner was supposed to have killed her.
44. Houston v. Roe, 177 F.3d 901 (1999).
Judges: D.W. Nelson, Kozinski, Trott.
Summary: After seeing his wife hug and kiss another man,
Houston hid outside his wife's office and shot her with a
shotgun as she exited. He was convicted of the murder and was
sentenced to death. The court of appeals affirmed the district
court's denial of the habeas petition.
45. Poland v. Stewart, 169 F.3d 573 (1999).
Judges: Hug, Browning, T.G. Nelson.
Summary: Poland was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
ruling denying his habeas petition holding that he did not
establish that any prejudice resulted from the denial of his
right to exercise his challenges for cause. Therefore, the
court ruled that no violation of his constitutional right to an
impartial jury occurred.
46. Siripongs v. Calderon, 167 F.3d 1225 (1999).
Judges: Schroeder, Fernandez, Pregerson (Pregerson
dissenting).
Summary: Siripongs brutally killed the owner and an
employee of a Thai market. He was convicted of the murders and
sentenced to death. The court of appeals affirmed the district
court's ruling denying petitioner's successive habeas petition.
(This was the fourth time the case was brought before the
panel).
47. Lambright v. Stewart, 167 F.3d 477 (1999).
Judges: Ferguson, Reinhardt, Thompson (Thompson
dissenting).
Summary: Lambright was convicted of first degree murder and
was sentenced to death. The district court denied habeas
relief, but the court of appeals reversed holding that the
trial court violated the Fourteenth Amendment by conducting
dual trials.
48. Malone v. Calderon, 165 F.3d 1234 (1999).
Judges: Beezer, Kleinfeld, Hawkins.
Summary: Malone was under sentence of death in California
and Missouri and filed a habeas petition a few days prior to
his execution date. The district court denied the petition and
the court of appeals affirmed.
49. Caro v. Calderon, 165 F.3d 1223 (1999).
Judges: Pregerson, Ferguson, Kleinfeld (Kleinfeld
dissenting).
Summary: Caro was convicted of two counts of first degree
murder, the kidnapping of one of the victims, and two counts of
assault with intent to commit murder. The jury sentenced him to
death. The district court dismissed petitioner's habeas
petition, but the court of appeals held that he was entitled to
an evidentiary hearing on his claim that counsel was
ineffective during the sentencing phase of the trial.
50. Bean v. Calderon, 163 F.3d 1073 (1998).
Judges: Canby, Thomas, O'Scannlain (O'Scannlain
dissenting).
Summary: Bean and an accomplice, on two different
occasions, killed two older women while burglarizing and
robbing their homes. He was convicted of two counts of first
degree murder, two counts of burglary, and two counts of
robbery and was sentenced to death. The court of appeals
affirmed the district courts ruling granting habeas relief
holding that petitioner received ineffective assistance during
the penalty phase of his trial. The court held that the joinder
of two indictments deprived the petitioner of a fundamentally
fair trial.
51. Vargas v. Lambert, 159 F.3d 1161 (1998).
Judges: Reinhardt, Thompson, Kleinfeld (Kleinfeld
dissenting).
Summary: Sagastegui admitted sodomizing and killing a
three-year-old boy whom he was babysitting and then killing the
boy's mother and her friend. He was convicted of three counts
of first-degree murder and was sentenced to death. The court of
appeals reversed the district court's judgment denying
appellant's application for a stay of execution in order to
conduct a hearing to determine Sagastegui's present competency.
52. Chaney v. Stewart, 156 F.3d 921 (1998).
Judges: Hawkins, Rymer, Reinhardt (Reinhardt dissenting).
Summary: Chaney stole a truck in New Mexico and some guns
in Texas, hid out in a wooded area in Flagstaff, AZ, and shot a
Deputy in pursuit. He was convicted of the murder of the
reserve deputy and was sentenced to death. The appellate court
affirmed the district court's ruling denying habeas relief.
53. Babbitt v. Calderon, 151 F.3d 1170 (1998).
Judges: Hall, Brunetti, Thompson.
Summary: Babbitt was found guilty of first-degree murder
after his victim died of heart failure during Babbitt's
burglary, robbery, and attempted rape. The court of appeals
affirmed the district court's grant of summary dismissal in
favor of the state regarding petitioner's habeas petition.
54. Dyer v. Calderon, 151 F.3d 970 (1998) (en banc).
Judges: Hug, Browning, Fletcher, Pregerson, Reinhardt,
Brunetti, Kozinski, Thompson, O'Scannlain, T.G. Nelson, and
Kleinfeld. (Judges Brunetti, D.R. Thompson, Kleinfeld, and
O'Scannlain dissented).
Summary: Dyer and two friends took four people hostage,
drove them into some remote hills, and shot them (two
survived). He was convicted of the murders and sentenced to
death. The court of appeals vacated the panel decision that
affirmed the denial of defendant's petition for federal habeas
relief. The court determined that the state court's finding of
juror impartiality was not entitled to a presumption of
correctness. The court concluded that juror bias was implied
from the lies that the juror told during voir dire and during
the state court investigation of the matter.
55. Thompson v. Calderon, 151 F.3d 918 (1998) (en banc).
Judges: Hug, Browning, Schroeder, B. Fletcher, Kozinski,
O'Scannlain, T.G. Nelson, Kleinfeld, Thomas, Reinhardt, Tashima
(Reinhardt and Tashima dissenting).
Summary: Thompson was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
denial of a second habeas petition.
56. Coleman v. Calderon, 150 F.3d 1105 (1998).
Judges: Thompson, Brunetti, Schroeder.
Summary: Coleman was convicted of rape and murder and was
sentenced to death. The court of appeals affirmed the district
court's ruling granting petitioner's habeas petition.
57. Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998).
Judges: D.W. Nelson, Brunetti, Hawkins.
Summary: A jury found Ortiz guilty of one count of first-
degree murder, three counts of attempted first-degree murder,
two counts of aggravated assault, one count of arson of an
occupied structure, one count of first-degree burglary, and one
count of conspiracy to commit first-degree murder. The court of
appeals affirmed the decision granting summary judgment in
favor of the state on petitioner's petition for a writ of
habeas corpus because his arguments lacked merit or were
partially barred.
58. Crandell v. Bunnell, 144 F.3d 1213 (1998).
Judges: Hall, Beezer, Pregerson.
Summary: During an argument, Crandell killed his roommate
and his roommate's son. Crandell was convicted of two counts of
first degree murder and was sentenced to death. The court of
appeals affirmed the district court's ruling granting habeas
relief holding that defense counsel's representation was
incompetent and appointment of substitute counsel was
warranted.
59. Vickers v. Stewart, 144 F.3d 613 (1998).
Judges: Schroeder, Rymer, T.G. Nelson.
Summary: Vickers killed a fellow inmate while on death row,
was convicted of first-degree murder, and was sentenced to
death. The court of appeals affirmed the district court's
denial of habeas relief.
60. Smith v. Stewart, 140 F.3d 1263 (1998).
Judges: B. Fletcher, Brunetti, Fernandez.
Summary: Smith killed a store clerk during a robbery, was
found guilty, and was sentenced to death. The court of appeals
affirmed the district court's order granting summary judgment
for the state and denying summary judgment for defendant, but
reversed the district court's denial of habeas relief with
respect to the death sentence and remanded the case with
directions that defendant be re-sentenced. The court reasoned
that counsel's ineffectiveness during the sentencing phase, by
failing to present mitigating factors, prejudiced the
defendant.
61. Ainsworth v. Calderon, 138 F.3d 787 (1998).
Judges: Leavy, Browning, Trott.
Summary: Ainsworth and an accomplice shot a woman in the
hip, raped her, put her in the trunk of her car, dumped her
body in the woods (after she had died), and stole her car.
Ainsworth was convicted of first degree murder and was
sentenced to death. The appellate court reversed the district
court's ruling granting petitioner's habeas relief holding that
petitioner did not have ineffective counsel at trial.
62. Correll v. Stewart, 137 F.3d 1404 (1997).
Judges: Schroeder, O'Scannlain, Thomas.
Summary: Correll brought three victims, who he rounded up
during a robbery, to the Phoenix desert and shot all of them.
He was convicted of first-degree murder, attempted first-degree
murder, kidnapping, armed robbery, and first-degree burglary
and was sentenced to death. The appellate court reversed the
lower court's denial of an evidentiary hearing because Correll
made a colorable ineffective assistance of counsel claim.
63. Bonillas v. Hill, 134 F.3d 1414 (1998).
Judges: Hall, Brunetti, Rymer.
Summary: Bonillas was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
ruling denying petitioner's habeas petition.
64. McLain v. Calderon, 134 F.3d 1383 (1998).
Judges: Ferguson, Hall, Kozinski.
Summary: A jury convicted McLain of killing a young girl
(he has a history of raping and sometimes killing young women)
and was convicted to death. The court of appeals affirmed the
district court's judgment, which set aside his death sentence
because the jury instructions violated that which was set forth
in another decision.
65. LaGrand v. Stewart, 133 F.3d 1253 (1998).
Judges: Hug, Pregerson, T.G. Nelson (Pregerson dissenting).
Summary: LaGrand killed a bank employee during a bank
robbery. He was convicted of murder and sentenced to death. The
court of appeals affirmed the district court's denial of the
habeas petition.
66. Siripongs v. Calderon, 133 F.3d 732 (1998).
Judges: Schroeder, Pregerson, Fernandez.
Summary: Siripongs was convicted and sentenced to death in
1983 for the murders of the owner and an employee of a Thai
market. The court of appeals affirmed the district court's
ruling denying petitioner's successive habeas petition.
67. Bloom v. Calderon, 132 F.3d 1267 (1997).
Judges: Reinhardt, Thompson, Hawkins.
Summary: During a fight with his father, Bloom, an
eighteen-year-old, shot and killed his father, his step-mother,
and his sister. A jury convicted Bloom of three counts of
murder and sentenced him to death. The court of appeals
reversed the district court's ruling denying habeas relief
holding that counsel's representation was constitutionally
deficient.
68. Carriger v. Stewart, 132 F.3d 463 (1997).
Judges: Hug, Browning, Schroeder, Pregerson, Reinhardt,
Thomas, Kozinski, Farris, Fernandez, T.G. Nelson, Kleinfeld
(Kozinski, Farris, Fernandez, T.G. Nelson, and Kleinfeld
dissenting).
Summary: During the robbery of a jewelry store, Carriger
strangled the owner, killing him. Carriger was convicted of
murder and was sentenced to death. The court of appeals
reversed the district court's denial of petitioner's second
habeas petition holding that the Brady violation warranted
habeas relief.
69. McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en
banc).
Judges: Browning, Hug, B. Fletcher, Pregerson, Reinhardt,
Brunetti, Kozinski, Thompson, Trott, Kleinfeld, Thomas
(Thompson, Brunetti, Kozinski, Kleinfeld dissenting).
Summary: McDowell was convicted of murder with the special
circumstance of burglary and rape, and was sentenced to death.
The court of appeals reversed the district court's denial of
the habeas petition holding that the jury misunderstood its
task, which had a substantial and injurious effect and
influence on its verdict of death.
70. Paradis v. Arave, 130 F.3d 385 (1997).
Judges: Tashima, Canby, Silver.
Summary: Paradis was convicted of murder and was sentenced
to death. The court of appeals reversed the district court's
dismissal of petitioner's habeas petition. The court held that
petitioner demonstrated cause and prejudice sufficient to
permit his presentation of successive claim that prosecution
violated Brady.
71. Gerlaugh v. Stewart, 129 F.3d 1027 (1997).
Judges: Reinhardt, Trott, Thompson (Reinhardt dissenting).
Summary: Gerlaugh and two others hitched a ride from a man
who they robbed and killed. Gerlaugh was convicted of the
murder and sentenced to death. The appellate court affirmed the
district court's denial of the habeas petition.
72. Fields v. Calderon, 125 F.3d 757 (1997).
Judges: Pregerson, Wiggins, T.G. Nelson.
Summary: Fields was convicted of murder and sentenced to
death. The district court dismissed his claims ruling that they
were procedurally defaulted. The court of appeals vacated the
district court's ruling that petitioner's claims were
procedurally defaulted and remanded to the district court.
73. Gallego v. McDaniel, 124 F.3d 1065 (1997).
Judges: Camby, Norris, Leavy.
Summary: A jury convicted Gallego of the kidnap and murder
of several teenage girls. The district denied the habeas
petition. The court of appeals held that the jury instructions
during the penalty phase of the trial were incorrect and
remanded the penalty portion of the action. The court ordered
the district court to issue the writ unless Nevada re-sentences
the defendant within a specified time.
74. Amaya-Ruiz v. Stewart, 121 F.3d 486 (1997).
Judges: Thompson, Kozinski, Fernandez.
Summary: Amaya-Ruiz killed his employer while working on
her ranch. He was convicted of murder and sentenced to death.
The court of appeals affirmed the district court's ruling
denying his habeas petition.
75. Thompson v. Calderon, 120 F.3d 1045 (1997).
Judges: Browning, Fletcher, Pregerson, Reinhardt, Hall,
Kozinski, T.G. Nelson, Kleinfeld, Tashima, and Thomas. (Judges
Hall, T.G. Nelson, Kozinski, and Kleinfeld dissented).
Summary: Thompson raped and murdered a 20-year-old and was
sentenced to death. The court affirmed the grant of defendant's
petition for writ of habeas corpus on his ineffective
assistance claim, because counsel's deficient performance at
trial affected the verdict and vacated the death penalty. The
court reversed the denial of defendant's petition on his
prosecutorial misconduct claim because the prosecutor advanced
inconsistent theories, which constituted fundamental error that
violated due process.
76. Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997).
Judges: Wallace, Farris, Boochever.
Summary: Woratzeck was on death row and sentenced to die
the next day when this appeal was taken. The appellate court
denied petitioner's application to file a successive
application for a writ of habeas corpus because petitioner had
failed to make a prima facie showing that his claims complied
with federal requirements to file such a successive writ.
77. Poland v. Stewart, 117 F.3d 1094 (1997).
Judges: Hug, Browning, T.G. Nelson.
Summary: Poland hijacked, robbed, and killed two drivers of
an armored truck. He was convicted of the two murders and
sentenced to death. The court of appeals affirmed the district
court's denial of the habeas petition.
78. Jeffries v. Wood, 114 F.3d 1484 (1997) (en banc).
Judges: Hug, Schroeder, B. Fletcher, Reinhardt, Tashima,
Thomas, Kozinski, Goodwin, Brunetti, T.G. Nelson, Hawkins
(Kozinski, Goodwin, Brunetti, T.G. Nelson, Hawkins dissenting).
Summary: After being released from jail, the Skiffs invited
Jeffries to live in their home. A few months later the Skiffs'
bodies were found in a shallow grave with bullet wounds. A jury
found Jeffries guilty of two counts of aggravated first degree
murder and sentenced him to death. The court of appeals
reversed the district court's ruling denying habeas relief.
79. Gretzler v. Stewart, 112 F.3d 992 (1997).
Judges: Farris, Leavy, Pregerson (Pregerson dissenting).
Summary: In California, Gretzler pleaded guilty and was
convicted for nine counts of first-degree murder. In Arizona,
he was convicted of two murders and sentenced to death. The
court of appeals affirmed the district court's ruling denying
his habeas petition.
80. Villafuerte v. Stewart, 111 F.3d 616 (1997).
Judges: B. Fletcher, Thompson, T.G. Nelson.
Summary: Villafuerte physically assaulted his girlfriend,
tied her to a bed, gagged her, and left. A few days later the
police found his girlfriend dead. Villafuerte was sentenced to
death after a jury convicted him of kidnapping, theft, and
felony murder. The court of appeals affirmed the district
court's denial of petitioner's habeas petition.
81. Langford v. Day, 110 F.3d 1380 (9th Cir. 1997).
Judges: Canby, Trott, Hawkins.
Summary: Langford was convicted of robbing and killing two
people and was sentenced to death. The court of appeals
affirmed the district court's denial of the habeas petition.
82. Moore v. Calderon, 108 F.3d 261 (1997).
Judges: O'Scannlain, Ferguson, Fernandez.
Summary: A jury found Moore guilty of two murders and
sentenced him to death. The court of appeals affirmed the
district court's ruling granting petitioner's habeas request.
The court held that his request for self-representation made
two weeks before trial began was timely, so that denial of the
request violated his Sixth Amendment right to self-
representation.
83. Greenawalt v. Stewart, 105 F.3d 1268 (1997).
Judges: Wallace, Alarcon, Wiggins.
Summary: Greenawalt was convicted of four murders and
sentenced to death. The court of appeals affirmed the district
court's denial of petitioner's habeas petition.
84. Poland v. Stewart, 104 F.3d 1099 (1996).
Judges: Hug, Browning, T.G. Nelson.
Summary: Poland and his brother were convicted of the
murders of two armored car drivers and sentenced to death. The
court of appeals affirmed the district court's ruling denying
petitioner's habeas request.
85. Ceja v. Stewart, 97 F.3d 1246 (1996).
Judges: Farris, Beezer, B. Fletcher (B. Fletcher
dissenting).
Summary: Ceja was tried, convicted and sentenced to death
for the drug related murders of two people. The court of
appeals affirmed the district court's denial of the habeas
petition.
86. Carriger v. Stewart, 95 F.3d 755 (1996).
Judges: Farris, Kozinski, O'Scannlain.
Summary: Carriger was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
ruling denying petitioner's second habeas petition.
87. Rupe v. Wood, 93 F.3d 1434 (1996).
Judges: Wallace, Schroeder, Pregerson.
Summary: Rupe was convicted and sentenced to death for
killing two bank tellers during a robbery. The court of appeals
affirmed the district court's grant of the habeas petition that
vacated petitioner's sentence and granted him a new penalty
phase hearing so that the jury could consider a previously
excluded polygraph test as mitigating evidence.
88. Morales v. Calderon, 85 F.3d 1387 (1996).
Judges: Farris, Canby, Thompson.
Summary: Morales was convicted of murder and sentenced to
death. The court of appeals reversed the district court's
ruling dismissing petitioner's habeas petition holding that
California's habeas corpus timeliness requirements were not
clear, consistently applied, and well-established and thus
could not procedurally bar his claims.
89. Williams v. Calderon, 83 F.3d 281 (1996).
Judges: Poole, Thompson, Trott.
Summary: Williams was convicted of murder and sentenced to
death. He brought this appeal days before his scheduled
execution. The court of appeals affirmed the district court's
ruling denying petitioner's second habeas petition.
90. Martinez-Villareal v. Lewis, 80 F.3d 1301 (1996).
Judges: T.G. Nelson, D.W. Nelson, Leavy.
Summary: Martinez-Villareal was sentenced to death for two
homicides committed after stealing guns and ammo from another
family's residence. The court of appeals reversed the district
court's grant of habeas relief as to the petitioner's penalty
phase holding that his claims had been procedurally defaulted.
91. Bonin v. Calderon, 77 F.3d 1155 (1996).
Judges: Wallace, Brunetti, Kozinski.
Summary: Bonin was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
denial of his habeas petition.
92. Rice v. Wood, 77 F.3d 1138 (1996) (en banc).
Judges: Kozinski, Wallace, Hall, T.G. Nelson, Hawkins,
Trott, D.W. Nelson, Browning, Schroeder, B. Fletcher, Thompson
(D.W. Nelson, Browning, Schroeder, B. Fletcher, Thompson
dissenting).
Summary: Rice entered his victims' home and proceeded to
kill all four family members. He was convicted of the murders
and sentenced to death. The court of appeals reversed the
district court's ruling granting petitioner's habeas request.
The court held that imposing the death penalty in defendant's
absence was not structural error and therefore was subject to
harmless error analysis. In this case, the error was harmless.
93. Villafuerte v. Lewis, 75 F.3d 1330 (1996).
Judges: T.G. Nelson, B. Fletcher, Thompson.
Summary: A jury convicted Villafuerte of felony murder for
kidnapping and sentenced him to death. The court of appeals
reversed the district court's ruling denying petitioner's
habeas request holding that the state trial court erred in
failing to instruct on lesser included offense to kidnapping
and that error had a substantial and injurious effect on the
verdict.
94. Jeffries v. Wood, 75 F.3d 491 (1996).
Judges: Goodwin, Farris, Fernandez.
Summary: Jeffries was convicted on two counts of aggravated
murder and was sentenced to death. The court of appeals
reversed the district court's ruling granting petitioner's
habeas petition.
95. Hendricks v. Calderon, 70 F.3d 1032 (1995).
Judges: Goodwin, Canby, Rymer.
Summary: The jury found Hendricks guilty of multiple
murders and felony-murder and imposed the death penalty. The
court of appeals affirmed the district court's grant of the
habeas petition as to the penalty phase of petitioner's trial.
96. McKenna v. McDaniel, 65 F.3d 1483 (1995).
Judges: Hug, Hall, Trott.
Summary: While in jail, McKenna killed another inmate in
his cell. A jury convicted him and sentenced him to death. The
court of appeals affirmed the district court's grant of the
habeas petition finding an exception to a procedural bar.
97. Clabourne v. Lewis, 64 F.3d 1373 (1995).
Judges: Kozinski, Reinhardt, Rymer.
Summary: Clabourne admitted to raping and killing a college
student. He was convicted of kidnapping, sexual assault, and
first degree murder. The court of appeals affirmed the district
court's ruling granting petitioner's habeas petition holding
that the defense counsel's failure to adequately prepare and
present a case for mitigation at the sentencing hearing
amounted to ineffective assistance of counsel.
98. Bonin v. Calderon, 59 F.3d 815 (1995).
Judges: Wallace, Brunetti, Kozinski.
Summary: A jury found Bonin guilty of a series of murders
of boys ranging from ages 12 to19. The court of appeals
affirmed denial of appellant prisoner's two petitions for writ
of habeas corpus relief because the performance of appellant's
counsel did not fall below the standard of objective
reasonableness, appellant was not deprived of a fair trial, and
there were no due process violations. Furthermore, the death
penalty was properly handed out and there were no other
procedural or substantive errors which entitled appellant to
the relief requested.
99. McKenzie v. Day, 57 F.3d 1493 (1995) (en banc).
Judges: Wallace, Wiggins, Brunetti, Kozinski, O'Scannlain,
Trott, Rymer, Kleinfeld, Browning, D. Thompson, Hawkins
(Browning, D. Thompson, Hawkins dissenting).
Summary: McKenzie was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
decision denying McKenzie's petition for habeas relief.
100. McKenzie v. Day, 57 F.3d 1461 (1995).
Judges: Kozinski, Beezer, Norris (Norris dissenting).
Summary: McKenzie was convicted of murder and sentenced to
death. (He had been on death row for two decades when this
appeal came up--this was his third habeas petition) The court
of appeals affirmed the district court's decision denying
McKenzie's petition for habeas relief.
101. Moran v. Godinez, 57 F.3d 690 (1995).
Judges: Thompson, Farris, Pregerson (Pregerson dissenting).
Summary: Moran was convicted of two murders and sentenced
to death. The court of appeals affirmed the district court's
ruling denying petitioner's habeas petition.
102. Phillips v. Vasquez, 56 F.3d 1030 (1995).
Judges: B. Fletcher, Reinhardt, Kleinfeld.
Summary: Phillips was convicted of first-degree murder and
was sentenced to death. The court of appeals reversed the
district court's ruling denying petitioner's habeas petition.
103. Williams v. Calderon, 52 F.3d 1465 (1995).
Judges: Poole, Thompson, Trott.
Summary: To recover a $1500 check, Williams shot and killed
three people who had sold a car to him. A jury found Williams
guilty of three counts of first-degree murder. The court of
appeals affirmed the district court's denial of the habeas
writ.
104. Rice v. Wood, 44 F.3d 1396 (1995).
Judges: D.W. Nelson, Leavy, Wallace (Wallace dissenting).
Summary: Rice was convicted of four murders and sentenced
to death. The court of appeals affirmed the district court's
ruling granting petitioner's habeas petition.
105. Jeffers v. Lewis, 38 F.3d 411 (1994) (en banc).
Judges: Thompson, Farris, Wallace, Beezer, Wiggins, Leavy,
Rymer, Pregerson, B. Fletcher, Norris, Noonan (Pregerson,
Fletcher, Norris, Noonan dissenting).
Summary: A jury convicted Jeffers of murder and the court
sentenced him to death. The court of appeals affirmed the
district court's denial of the habeas petition because the
sentencing court adequately reviewed the record and reweighed
and explained the mitigation and aggravation factors offered by
defendant.
106. Siripongs v. Calderon, 35 F.3d 1308 (1994).
Judges: Schroeder, Pregerson, Fernandez (Fernandez
dissenting).
Summary: Siripongs was convicted of first-degree murder and
sentenced to death for a violent robbery/double homicide. The
appellate court reversed the district court's ruling that
petitioner is not entitled to an evidentiary hearing holding
that petitioner may have an ineffective assistance claim.
107. Wade v. Calderon, 29 F.3d 1312 (1994).
Judges: Canby, Reinhardt, Trott (Trott dissenting).
Summary: Wade beat his wife's ten-year-old child to death.
He was then convicted of murder and sentenced to death. The
court of appeals reversed the district court's denial of the
habeas petition holding that the torture-murder circumstance
instruction failed to meet requirements of Eighth Amendment and
petitioner received ineffective assistance of counsel at the
penalty phase of the trial.
108. McKenzie v. McCormick, 27 F.3d 1415 (1994).
Judges: Kozinski, Beezer, Norris (Norris dissenting).
Summary: McKenzie was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
ruling denying petitioner's habeas petition.
109. James v. Borg, 24 F.3d 20 (1994).
Judges: Hug, Wiggins, Noonan.
Summary: James shot two women while attempting to rob them.
A jury convicted James of first-degree murder committed during
a robbery. The court affirmed the court's denial of the habeas
petition.
110. Paradis v. Arave, 20 F.3d 950 (1994).
Judges: Alarcon, Beezer, Nielsen (sitting by designation).
Summary: A jury convicted Paradis of murder and the trial
judge sentenced him to death. The appellate court affirmed the
district court's ruling denying the habeas petition.
111. Campbell v. Wood, 18 F.3d 662 (1994) (en banc).
Judges: Wallace, Browning, Tang, Poole, D.W. Nelson,
Reinhardt, Beezer, Wiggins, Thompson, O'Scannlain, Kleinfeld
(Browning, Tang, Poole, D.W. Nelson, Reinhardt dissenting).
Summary: Campbell was convicted of three counts of
aggravated murder and sentenced to death (Two of the three had
testified against Campbell on a previous charge of sexual
assault). The appellate court affirmed the district court's
ruling denying the habeas petition.
112. Hamilton v. Vasquez, 17 F.3d 1149 (1994).
Judges: Schroeder, B. Fletcher, Trott (Trott dissenting).
Summary: A jury convicted Hamilton of first degree murder,
burglary, robbery and kidnapping and sentenced him to death.
The court of appeals reversed the district court's denial of
the habeas petition as to the penalty phase of petitioner's
trial. The court held that the trial court's penalty phase jury
instruction distracted jurors from considering relevant
mitigating evidence and thus violated Hamilton's due process
rights.
113. Jeffries v. Blodgett, 5 F.3d 1180 (1993).
Judges: Goodwin, Farris, Fernandez (Fernandez dissenting).
Summary: Jeffries was convicted of two counts of aggravated
first-degree murder and sentenced to death. The appellate court
vacated the district court's ruling, which denied petitioner's
request for habeas corpus relief.
114. Beam v. Paskett, 3 F.3d 1301 (1993).
Judges: Reinhardt, Boochever, D.W. Nelson.
Summary: Beam was convicted of the rape and murder of a
thirteen-year-old girl. The appellate court remanded to the
district court directing it to grant the habeas petition.
Additionally, the court vacated the death sentence and directed
the state court to conduct new sentencing proceedings.
115. Blazak v. Ricketts, 1 F.3d 891 (1993).
Judges: Tang, Beezer, Brunetti (Beezer (no opinion on the
merits) Brunetti dissenting).
Summary: During an attempted robbery of a bar, a man
wearing a ski mask shot and killed two people. Blazak was
convicted of two counts of first-degree murder and was
sentenced to death. The court of appeals affirmed the district
court's ruling granting petitioner's habeas petition.
116. Clark v. Lewis, 1 F.3d 814 (1993).
Judges: Farris, Brunetti, Thompson.
Summary: Clark was convicted of four counts of first-degree
murder (two guests and two wranglers at a dude ranch he worked
at). The court of appeals affirmed the district court's denial
of his application for certificate of probable cause and stay
of execution.
117. Fetterly v. Paskett, 997 F.2d 1295 (1993).
Judges: Trott, Schroeder, Leavy.
Summary: A jury convicted Fetterly of murder and sentenced
him to death. The appellate court reversed the district court's
denial of the habeas petition.
118. Campbell v. Blodgett, 997 F.2d 512 (1993).
Judges: Hug, Poole, Hall.
Summary: Campbell was convicted of murder and sentenced to
death. The court of appeals affirmed the district court's
dismissal of the habeas writ.
119. Brewer v. Lewis, 989 F.2d 1021 (1993).
Judges: Hall, Browning, Norris (Norris dissenting).
Summary: Brewer was convicted of murder and sentenced to
death. The court of appeals dismissed the writ appealing the
district court's denial of the habeas petition.
XIII. Citations
2002 TO 1993 CIRCUIT COURT CASES, EXCLUDING THE NINTH CIRCUIT
2002 circuit cases (From January 1 to October 1). See
Marshall v. Hendricks, 2002 WL 31018600 (3rd Cir. 2002);
Scarbrough v. Johnson, 300 F.3d 302 (3rd Cir. 2002); Carpenter
v. Vaughn, 296 F.3d 138 (3rd Cir. 2002); Cristin v. Brennan,
281 F.3d 404 (3rd Cir. 2002); Whitney v. Horn, 280 F.3d 240
(3rd Cir. 2002); Gattis v. Snyder, 278 F.3d 222 (3rd Cir.
2002); Brosius v. Pennsylvania, 278 F.3d 239 (3rd Cir. 2002);
Hunt v. Lee, 291 F.3d 284 (4th Cir. 2002); Fullwood v. Lee, 290
F.3d 663 (4th Cir. 2002); Basden v. Lee, 290 F.3d 602 (4th Cir.
2002); Wiggins v. Corcoran, 288 F.3d 629 (4th Cir. 2002); Ivey
v. Catoe, 36 Fed.Appx 718 (4th Cir. 2002); Booth-El v. Nuth,
288 F.3d 571 (4th Cir. 2002); Carter v. Lee, 283 F.3d 240 (4th
Cir. 2002); Hartman v. Lee, 283 F.3d 190 (4th Cir. 2002); McWee
v. Weldon, 283 F.3d 179 (4th Cir. 2002); Woods v. Cockrell,
2002 WL 31114329 (5th Cir. 2002); Johnson v. Cockrell, 2002 WL
31059311 (5th Cir. 2002); Dunn v. Cockrell, 302 F.3d 491 (5th
Cir. 2002); Kutzner v. Cockrell, 303 F.3d 333 (5th Cir. 2002);
Janecka v. Cockrell, 301 F.3d 316 (5th Cir. 2002); Johnson v.
Cockrell, 301 F.3d 234 (5th Cir. 2002); Collier v. Cockrell,
300 F.3d 577 (5th Cir. 2002); U.S. v. Bernard, 299 F.3d 467
(5th Cir. 2002); Ogan v. Cockrell, 297 F.3d 349 (5th Cir.
2002); Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002); Foster
v. Johnson, 293 F.3d 766 (5th Cir. 2002); Lookingbill v.
Cockrell, 293 F.3d 256 (5th Cir. 2002); Martinez v. Keller, 292
F.3d 417 (5th Cir. 2002); Riddle v. Cockrell, 288 F.3d 713 (5th
Cir. 2002); U.S. v. Jones, 287 F.3d 325 (5th Cir. 2002); Neal
v. Puckett, 286 F.3d 230 (5th Cir. 2002); Tennard v. Cockrell,
284 F.3d 591 (5th Cir. 2002); Williams v. Puckett, 283 F.3d 272
(5th Cir. 2002); Buell v. Anderson, 2002 WL 31119679 (6th Cir.
2002); Brewer v. Anderson, 2002 WL 31027950 (6th Cir. 2002);
Hutchison v. Bell, 2002 WL 1988196 (6th Cir. 2002); Jamison v.
Collins, 291 F.3d 380 (6th Cir. 2002); Lorraine v. Coyle, 291
F.3d 416 (6th Cir. 2002); Caldwell v. Bell, 288 F.3d 838 (6th
Cir. 2002); Coleman v. Coyle, 37 Fed. Appx. 134 (6th Cir.
2002); Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002); House v.
Warden, 283 F.3d 737 (6th Cir. 2002); Martin v. Mitchell, 280
F.3d 594 (6th Cir. 2002); Williams v. Davis, 301 F.3d 625 (7th
Cir. 2002); Trueblood v. Davis, 301 F.3d 784 (7th Cir. 2002);
Holleman v. Cotton, 301 F.3d 737 (7th Cir. 2002); Pierre v.
Walls, 297 F.3d 617 (7th Cir. 2002); Henderson v. Walls, 296
F.3d 541 (7th Cir. 2002); Mahaffey v. Schomig, 294 F.3d 907
(7th Cir. 2002); Roche v. Davis, 291 F.3d 473 (7th Cir. 2002);
Wright v. Walls, 288 F.3d 937 (7th Cir. 2002); Pecoraro v.
Walls, 286 F.3d 439 (7th Cir. 2002); Bracy v. Schomig, 286 F.3d
406 (7th Cir. 2002); Todd v. Schomig, 283 F.3d 842 (7th Cir.
2002); Rastafari v. Anderson, 278 F.3d 673 (7th Cir. 2002);
Simmons v. Luebbers, 299 F.3d 929 (8th Cir. 2002); Hall v.
Luebbers, 296 F.3d 685 (8th Cir. 2002); Johnston v. Luebbers,
288 F.3d 1048 (8th Cir. 2002); Gray v. Bowersox, 281 F.3d 749
(8th Cir. 2002); Owesley v. Luebbers, 281 F.3d 687 (8th Cir.
2002); Moore v. Kinney, 278 F.3d 774 (8th Cir. 2002); Kenley v.
Bowersox, 275 F.3d 709 (8th Cir. 2002); Jackson v. Mullin, 2002
WL 31053984 (10th Cir. 2002); Duckett v. Mullin, 2002 WL
31075013 (10th Cir. 2002); Gilbert v. Mullin, 2002 WL 2005911
(10th Cir. 2002); Scott v. Mullin, 2002 WL 1965329 (10th Cir.
2002); Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002); Hooker
v. Mullin, 293 F.3d 1232 (10th Cir. 2002); Willingham v.
Mullin, 296 F.3d 917 (10th Cir. 2002); Knighton v. Mullin, 293
F.3d 1165 (10th Cir. 2002); Charm v. Mullin, 37 Fed.Appx. 475
(10th Cir. 2002); Hawkins v. Mullin, 291 F.3d 658 (10th Cir.
2002); Revilla v. Gibsoni, 283 F.3d 1203 (10th Cir. 2002);
Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002); Hain v.
Gibson, 287 F.3d 1224 (10th Cir. 2002); Romano v. Gibson, 278
F.3d 1145 (10th Cir. 2002); Fields v. Gibson, 277 F.3d 1203
(10th Cir. 2002); Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir.
2002); Robinson v. Gibson, 35 Fed.Appx. 715 (10th Cir. 2002);
Brownlee v. Haley, 2002 WL 31050882 (11th Cir. 2002); Robinson
v. Moore, 300 F.3d 1320 (11th Cir. 2002); Isaacs v. Head, 300
F.3d 1232 (11th Cir. 2002); Fortenberry v. Haley, 297 F.3d 1213
(11th Cir. 2002); Van Poyck v. Florida, 290 F.3d 1318 (11th
Cir. 2002); Nelson v. Alabama, 292 F.3d 1291 (11th Cir. 2002);
Brown v. Head, 285 F.3d 1325 (11th Cir. 2002); Moon v. Head,
285 F.3d 1301 (11th Cir. 2002); Bui v. Haley, 279 F.3d 1327
(11th Cir. 2002); Breedlove v. Moore, 279 F.3d 952 (11th Cir.
2002).
2001 circuit cases: See U.S. v. Acosta-Martinez, 252 F.3d
13 (1st Cir. 2001); Banks v. Horn, 271 F.3d 527 (3rd Cir.
2001); Appel v. Horn, 250 F.3d 203 (3rd Cir. 2001); Jermyn v.
Horn, 266 F.3d 257 (3rd Cir. 2001); Szuchon v. Lehman, 273 F.3d
299 (3rd Cir. 2001); Riley v. Taylor, 277 F.3d 261 (3rd Cir.
2001); Jones v. Catoe, 9 Fed. Appx. 245 (4th Cir. 2001); U.S.
v. Stitt, 250 F.3d 878 (4th Cir. 2001); Rose v. Lee, 252 F.3d
676 (4th Cir. 2001); Beck v. Angelone, 261 F.3d 377 (4th Cir.
2001); Burch v. Corcoran, 273 F.3d 577 (4th Cir. 2001); Mickens
v. Taylor, 240 F.3d 348 (4th Cir. 2001); Valdez v. Cockrell,
274 F.3d 941 (5th Cir. 2001); Haynes v. Cain, 272 F.3d 757 (5th
Cir. 2001); Briseno v. Cockrell, 274 F.3d 204 (5th Cir. 2001);
Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001); Tigner v.
Cockrell, 264 F.3d 521 (5th Cir. 2001); Styron v. Johnson, 262
F.3d 438 (5th Cir. 2001); Penry v. Johnson, 261 F.3d 541 (5th
Cir. 2001); Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001);
In re Garza, 253 F.3d 201 (5th Cir. 2001); Martinez v. Johnson,
255 F.3d 229 (5th Cir. 2001); Richardson v. Johnson, 256 F.3d
257 (5th Cir. 2001); Rudd v. Johnson, 256 F.3d 317 (5th Cir.
2001); Miller-El v. Johnson, 261 F.3d 445 (5th Cir. 2001);
Hafdahl v. Johnson, 251 F.3d 528 (5th Cir. 2001); Neal v.
Puckett, 239 F.3d 683 (5th Cir. 2001); Beazley v. Johnson, 242
F.3d 248 (5th Cir. 2001); Tucker v. Johnson, 242 F.3d 617 (5th
Cir. 2001); Kutzner v. Johnson, 242 F.3d 605 (5th Cir. 2001);
Martin v. Cain, 246 F.3d 471 (5th Cir. 2001); Garnder v.
Johnson, 247 F.3d 551 (5th Cir. 2001); In re Goff, 250 F.3d 273
(5th Cir. 2001); Hernandez v. Johnson, 248 F.3d 344 (5th Cir.
2001); Wheat v. Johnson, 238 F.3d 357 (5th Cir. 2001); Wilkens
v. Johnson, 238 F.3d 328 (5th Cir. 2001); Buell v. Mitchell,
274 F.3d 337 (6th Cir. 2001); Fox v. Coyle, 271 F. 3d 658 (6th
Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001);
Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001); Scott v.
Mitchell, 250 F.3d 1011 (6th Cir. 2001); Chambers v. Million,
16 Fed. Appx. 370 (6th Cir. 2001); Henderson v. Collins, 262
F.3d 615 (6th Cir. 2001); Lott v. Coyle, 261 F.3d 594 (6th Cir.
2001); Williams v. Coyle, 260 F.3d 684 (6th Cir. 2001); Dixon
v. Coyle, 27 Fed. Appx. 268 (6th Cir. 2001); Coleman v.
Mitchell, 244 F.3d 533 (6th Cir. 2001); Greer v. Mitchell, 264
F.3d 663 (6th Cir. 2001); Cone v. Bell, 243 F.3d 961 (6th Cir.
2001); West v. Bell, 242 F.3d 338 (6th Cir. 2001); Hough v.
Anderson, 272 F.3d 878 (7th Cir. 2001); Whitehead v. Cowan, 263
F.3d 708 (7th Cir. 2001); Miller v. Anderson, 255 F.3d 455 (7th
Cir. 2001); Lowery v. Anderson, 14 Fed.Appx. 643 (7th Cir.
2001); Matheney v. Anderson, 253 F.3d 1025 (7th Cir. 2001);
Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); Bracy v.
Schomig, 248 F.3d 604 (7th Cir. 2001); U.S. v. Lee, 274 F.3d
485 (8th Cir. 2001); Kinder v. Bowersox, 272 F.3d 532 (8th Cir.
2001); Singleton v. Norris, 267 F.3d 859 (8th Cir. 2001);
Carter v. Bowersox, 265 F.3d 705 (8th Cir. 2001); Jones v.
Delo, 258 F.3d 893 (8th Cir. 2001); U.S. v. Allen, 247 F.3d 741
(8th Cir. 2001); Weaver v. Bowersox, 241 F.3d 1024 (8th Cir.
2001); Basile v. Luebbers, 1 Fed. Appx 567 (8th Cir. 2001);
Amrine v. Bowersox, 238 F.3d 1023 (8th Cir. 2001); Simmons v.
Bowersox, 235 F.3d 1124 (8th Cir. 2001); Bryan v. Gibson, 276
F.3d 1163 (10th Cir. 2001); Carter v. Gibson, 27 Fed.Appx. 934
(10th Cir. 2001); Fleming v. LeMaster, 28 Fed. Appx. 797 (10th
Cir. 2001); Cheney v. Hargett, 21 Fed. Appx. 850 (10th Cir.
2001); Toles v. Gibson, 269 F.3d 1167 (10th Cir. 2001);
McCracken v. Gibson, 268 F.3d 970 (10th Cir. 2001); Neill v.
Gibson, 263 F.3d 1184 (10th Cir. 2001); Humphreys v. Gibson,
261 F.3d 1016 (10th Cir. 2001); Mitchell v. Gibson, 262 F.3d
1036 (10th Cir. 2001); Cannon v. Gibson, 259 F.3d 1253 (10th
Cir. 2001); U.S. v. McVeigh, 9 Fed.Appx. 980 (10th Cir. 2001);
Williams v. Hargett, 9 Fed.Appx. 958 (10th Cir. 2001); Johnson
v. Gibson, 254 F.3d 1155 (10th Cir. 2001); Brown v. Gibson, 7
Fed.Appx. 894 (10th Cir. 2001); McGregor v. Gibson, 248 F.3d
946 (10th Cir. 2001); Rojem v. Gibson, 245 F.3d 1130 (10th Cir.
2001); Romano v. Gibson, 239 F.3d 1156 (10th Cir. 2001);
LaFevers v. Gibson, 238 F.3d 1263 (10th Cir. 2001); Allen v.
Massie, 236 F.3d 1243 (10th Cir. 2001); Battenfield v. Gibson,
236 F.3d 1215 (10th Cir. 2001); Parker v. Ray, 275 F.3d 1032
(11th Cir. 2001); Brown v. Head, 272 F.3d 1308 (11th Cir.
2001); Putman v. Head, 268 F.3d 1223 (11th Cir. 2001); Mobley
v. Head, 267 F.3d 1312 (11th Cir. 2001); Fugate, III v. Head,
261 F.3d 1206 (11th Cir. 2001); Grayson v. Thompson, 257 F.3d
1194 (11th Cir. 2001); Johnson v. Alabama, 256 F.3d 1156 (11th
Cir. 2001); Thompson v. Haley, 255 F.3d 1292 (11th Cir. 2001);
Brown v. Jones, 255 F.3d 1273 (11th Cir. 2001); Romine v. Head,
253 F.3d 1349 (11th Cir. 2001); Arthur v. Haley, 248 F.3d 1302
(11th Cir. 2001); Parker v. Head, 244 F.3d 831 (11th Cir.
2001); Chandler v. Moore, 240 F.3d 907 (11th Cir. 2001); Housel
v. Head, 238 F.3d 1289 (11th Cir. 2001).
2000 circuit cases: See Oken v. Warden, 233 F.3d 86 (1st
Cir. 2000); U.S. v. Hammer, 226 F.3d 229 (3rd Cir. 2000); Weeks
v. Snyder, 219 F.3d 245 (3rd Cir. 2000); Hameen v. Del., 212
F.3d 226 (3rd Cir. 2000); Frye v. Lee, 235 F.3d 897 (4th Cir.
2000); Skipper v. Lee, 238 F.3d 414 (4th Cir. 2000); White v.
Lee, 238 F.3d 418 (4th Cir. 2000); Sanders v. Easley, 230 F.3d
679 (4th Cir. 2000); Mickens v. Taylor, 227 F.3d 203 (4th Cir.
2000); Goins v. Angelone, 226 F.3d 312 (4th Cir. 2000); Bacon
v. Lee, 225 F.3d 470 (4th Cir. 2000); Green v. Cateo, 220 F.3d
220 (4th Cir. 2000); Grandison v. Corcoran, 225 F.3d 654 (4th
Cir. 2000); Baker v. Corcoran, 220 F.3d 276 (4th Cir. 2000);
Oken v. Corcoran, 220 F.3d 259 (4th Cir. 2000); Evans v. Smith,
220 F.3d 306 (4th Cir. 2000); Fisher v. Lee, 215 F.3d 438 (4th
Cir. 2000); Tucker v. Catoe, 221 F.3d 600 (4th Cir. 2000);
Barnabei v. Angelone, 214 F.3d 463 (4th Cir. 2000); McCarver v.
Lee, 221 F.3d 583 (4th Cir. 2000); U.S. v. Barnette, 211 F.3d
803 (4th Cir. 2000); Burket v. Angelone, 208 F.3d 172 (4th Cir.
2000); Young v. Catoe, 205 F.3d 750 (4th Cir. 2000); Soffar v.
Johnson, 237 F.3d 411 (5th Cir. 2000); Robertson v. Johnson,
234 F.3d 890 (5th Cir. 2000); Burdine v. Johnson, 231 F.3d 950
(5th Cir. 2000); Williams v. Cain, 229 F.3d 468 (5th Cir.
2000); Dowthitt v. Johnson, 230 F.3d 733 (5th Cir. 2000);
Lockett v. Anderson, 230 F.3d 695 (5th Cir. 2000); Clark v.
Johnson, 227 F.3d 273 (5th Cir. 2000); Caldwell v. Johnson, 226
F.3d 367 (5th Cir. 2000); Moore v. Johnson, 225 F.3d 495 (5th
Cir. 2000); In re David, 223 F.3d 308 (5th Cir. 2000);
Barrientes v. Johnson, 221 F.3d 741 (5th Cir. 2000); Chambers
v. Johnson, 218 F.3d 360 (5th Cir. 2000); Penry v. Johnson, 215
F.3d 504 (5th Cir. 2000); Hernandez v. Johnson, 213 F.3d 243
(5th Cir. 2000); Alexander v. Johnson, 211 F.3d 895 (5th Cir.
2000); Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000); Hill v.
Johnson, 210 F.3d 481 (5th Cir. 2000); Mata v. Johnson, 210
F.3d 324 (5th Cir. 2000); Soria v. Johnson, 207 F.3d 232 (5th
Cir. 2000); Martin v. Cain, 206 F.3d 450 (5th Cir. 2000);
Perillo v. Johnson, 205 F.3d 775 (5th Cir. 2000); Murphy v.
Johnson, 205 F.3d 809 (5th Cir. 2000); Beets v. Tex. Bd.
Pardons and Paroles, 205 F.3d 192 (5th Cir. 2000); Clark v.
Johnson, 202 F.3d 760 (5th Cir. 2000); Miller v. Johnson, 200
F.3d 274 (5th Cir. 2000); Skaggs v. Parker, 235 F.3d 261 (6th
Cir. 2000); Gall v. Parker, 231 F.3d 265 (6th Cir. 2000);
Abdur'rahman v. Bell, 226 F.3d 696 (6th Cir. 2000); Workman v.
Bell, 227 F.3d 331 (6th Cir. 2000); Byrd v. Collins, 227 F.3d
756 (6th Cir. 2000); Carter v. Bell, 218 F.3d 581 (6th Cir.
2000); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000); Coe v.
Bell, 209 F.3d 815 (6th Cir. 2000); Byrd v. Collins, 209 F.3d
486 (6th Cir. 2000); Combs v. Coyle, 205 F.3d 269 (6th Cir.
2000); Lowery v. Anderson, 225 F.3d 833 (7th Cir. 2000); U.S.
v. Johnson, 223 F.3d 665 (7th Cir. 2000); Spreitzer v. Schomig,
219 F.3d 639 (7th Cir. 2000); Pierre v. Cowan, 217 F.3d 939
(7th Cir. 2000); Foster v. Schomig, 223 F.3d 626 (7th Cir.
2000); Lear v. Cowan, 220 F.3d 825 (7th Cir. 2000); Owsley v.
Bowersox, 234 F.3d 1055 (8th Cir. 2000); Copeland v.
Washington, 232 F.3d 969 (8th Cir. 2000); Kreutzer v. Bowersox,
231 F.3d 460 (8th Cir. 2000); Kenley v. Bowersox, 228 F.3d 934
(8th Cir. 2000); Hendrickson v. Norris, 224 F.3d 748 (8th Cir.
2000); Young v. Hayes, 218 F.3d 850 (8th Cir. 2000); U.S. v.
Paul, 217 F.3d 989 (8th Cir. 2000); Johnson v. Norris, 207 F.3d
515 (8th Cir. 2000); White v. Bowersox, 206 F.3d 776 (8th Cir.
2000); Johns v. Bowersox, 203 F.3d 538 (8th Cir. 2000); Smith
v. Massey, 235 F.3d 1259 (10th Cir. 2002); U.S. v. Chanthadara,
230 F.3d 1237 (10th Cir. 2002); Walker v. Gibson, 228 F.3d 1217
(10th Cir. 2002); Hale v. Gibson, 227 F.3d 1298 (10th Cir.
2002); Johnson v. Gibson, 229 F.3d 1163 (10th Cir. 2002);
McGregor v. Gibson, 219 F.3d 1245 (10th Cir. 2002); Valdez v.
Ward, 219 F.3d 1222 (10th Cir. 2002); Thomas v. Gibson, 218
F.3d 1213 (10th Cir. 2002); Scott v. Kennedy, 216 F.3d 1088
(10th Cir. 2002); Tillman v. Cook, 215 F.3d 1116 (10th Cir.
2002); Mayes v. Gibson, 210 F.3d 1284 (10th Cir. 2002); James
v. Gibson, 211 F.3d 543 (10th Cir. 2002); Woudenberg v. Gibson,
211 F.3d 560 (10th Cir. 2002); Pickens v. Gibson, 206 F.3d 988
(10th Cir. 2002); LaFevers v. Gibson, 208 F.3d 226 (10th Cir.
2002); Jones v. Gibson, 206 F.3d 946 (10th Cir. 2002); Allen v.
Massie, 202 F.3d 281 (10th Cir. 2002); Medlock v. Ward, 200
F.3d 1314 (10th Cir. 2002); Fox v. Ward, 200 F.3d 1286 (10th
Cir. 2002); Fowler v. Ward, 200 F.3d 1302 (10th Cir. 2002);
Gilreath v. Head, 234 F.3d 547 (11th Cir. 2000); Bottoson v.
Moore, 234 F.3d 526 (11th Cir. 2000); Peoples v. Haley, 227
F.3d 1342 (11th Cir. 2000); Wyzykowski v. Dept. of Corrections,
226 F.3d 1213 (11th Cir. 2000); Hauser v. Moore, 223 F.3d 1316
(11th Cir. 2000); Cade v. Haley, 222 F.3d 1298 (11th Cir.
2000); Chandler v. U.S., 218 F.3d 1305 (11th Cir. 2000); Meeks
v. Moore, 216 F.3d 951 (11th Cir. 2000); Bradley v. Nagle, 212
F.3d 559 (11th Cir. 2000); High v. Head, 209 F.3d 1257 (11th
Cir. 2000); Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000),
Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000).
1999 circuit cases: See Morris v. Horn, 187 F.3d 333 (3rd
Cir. 1999); Carter v. Lee, 202 F.3d 257 (4th Cir. 1999); Graham
v. Angelone, 191 F.3d 447 (4th Cir. 1999); Royal v. Taylor, 188
F.3d 239 (4th Cir. 1999); Ramdass v. Angelone, 187 F.3d 396
(4th Cir. 1999); Williams v. Taylor, 189 F.3d 421 (4th Cir.
1999); Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999); Harris v.
French, 182 F.3d 907 (4th Cir. 1999); Joseph v. Angelone, 184
F.3d 320 (4th Cir. 1999); Colvin-El v. Nuth, 205 F.3d 1332 (4th
Cir. 1999); Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999);
Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999); Roach v.
Angelone, 176 F.3d 210 (4th Cir. 1999); Williams v. Angelone,
178 F.3d 1288 (4th Cir. 1999); Thomas v. Taylor, 170 F.3d 466
(4th Cir. 1999); Rocheville v. Moore, 175 F.3d 1015 (4th Cir.
1999); Swann v. Taylor, 173 F.3d 425 (4th Cir. 1999); Sheppard
v. Early, 168 F.3d 689 (4th Cir. 1999); Yeatts v. Angelone, 166
F.3d 255 (4th Cir. 1999); Drayton v. Moore, 168 F.3d 481 (4th
Cir. 1999); Chichester v. Taylor, 168 F.3d 481 (4th Cir. 1999);
Fierro v. Johnson, 197 F.3d 147 (5th Cir. 1999); Jackson v.
Johnson, 194 F.3d 641 (5th Cir. 1999); Hughes v. Johnson, 191
F.3d 607 (5th Cir. 1999); Kitchens v. Johnson, 190 F.3d 698
(5th Cir. 1999); Hicks v. Johnson, 186 F.3d 634 (5th Cir.
1999); U.S. v. Causey, 185 F.3d 407 (5th Cir. 1999); McGinnis
v. Johnson, 181 F.3d 686 (5th Cir. 1999); Felder v. Johnson,
180 F.3d 206 (5th Cir. 1999); Beets v. Johnson, 180 F.3d 190
(5th Cir. 1999); Lamb v. Johnson, 179 F.3d 352 (5th Cir. 1999);
Faulder v. Johnson, 178 F.3d 741 (5th Cir. 1999); Crane v.
Johnson, 178 F.3d 309 (5th Cir. 1999); Beathard v. Johnson, 177
F.3d 340 (5th Cir. 1999); Moreland v. Scott, 175 F.3d 347 (5th
Cir. 1999); Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999);
Williams v. Johnson, 171 F.3d 300 (5th Cir. 1999); Graham v.
Johnson, 168 F.3d 762 (5th Cir. 1999); Trevino v. Johnson, 168
F.3d 173 (5th Cir. 1999); Boyd v. Johnson, 167 F.3d 907 (5th
Cir. 1999); McFadden v. Johnson, 166 F.3d 757 (5th Cir. 1999);
U.S. v. Garza, 165 F.3d 312 (5th Cir. 1999); Harper v. Parker,
177 F.3d 567 (6th Cir. 1999); Mapes v. Coyle, 171 F.3d 408 (6th
Cir. 1999); Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999);
Coleman v. Ryan, 196 F.3d 793 (7th Cir. 1999); Britz v. Cowan,
192 F.3d 1101 (7th Cir. 1999); Sanchez v. Gilmore, 189 F.3d 619
(7th Cir. 1999); Franklin v. Gilmore, 188 F.3d 877 (7th Cir.
1999); Tenner v. Gilmore, 184 F.3d 608 (7th Cir. 1999); Fleenor
v. Anderson, 171 F.3d 1096 (7th Cir. 1999); Ashford v. Gilmore,
167 F.3d 1130 (7th Cir. 1999); Tokar v. Bowersox, 198 F.3d 1039
(8th Cir. 1999); Ervin v. Delo, 194 F.3d 908 (8th Cir. 1999);
Richardson v. Bowersox, 188 F.3d 973 (8th Cir. 1999); Parker v.
Bowersox, 188 F.3d 923 (8th Cir. 1999); Harris v. Bowersox 184
F.3d 744 (8th Cir. 1999); Roll v. Bowersox, 177 F.3d 697 (8th
Cir. 1999); Lingar v. Bowersox, 176 F.3d 453 (8th Cir. 1999);
Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999); Hunter v.
Bowersox, 172 F.3d 1016 (8th Cir. 1999); Clayton v. Gibson, 199
F.3d 1162 (10th Cir. 1999); Hogan v. Gibson, 197 F.3d 1297
(10th Cir. 1999); Smith v. Gibson, 197 F.3d 454 (10th Cir.
1999); Trice v. Ward, 196 F.3d 1151 (10th Cir. 1999); Moore v.
Gibson, 195 F.3d 1152 (10th Cir. 1999); Smallwood v. Gibson,
191 F.3d 1257 (10th Cir. 1999); Braun v. Ward, 190 F.3d 1181
(10th Cir. 1999); Wallace v. Ward, 191 F.3d 1235 (10th Cir.
1999); Bryson v. Ward, 187 F.3d 1193 (10th Cir. 1999); Hooks v.
Ward, 184 F.3d 1206 (10th Cir. 1999); Robedeaux v. Gibson, 189
F.3d 478 (10th Cir. 1999); Foster v. Ward, 182 F.3d 1177 (10th
Cir. 1999); Lafevers v. Gibson, 182 F.3d 705 (10th Cir. 1999);
Boyd v. Ward, 179 F.3d 904 (10th Cir. 1999); Rogers v. Gibson,
173 F.3d 1278 (10th Cir. 1999); Roberts v. Ward, 176 F.3d 489
(10th Cir. 1999); Johnson v. Gibson, 169 F.3d 1239 (10th Cir.
1999); Walker v. Ward, 167 F.3d 1339 (10th Cir. 1999);
Stouffer, II, v. Reynolds, 168 F.3d 1155 (10th Cir. 1999); Ross
v. Ward, 165 F.3d 793 (10th Cir. 1999); Glock v. Moore, 195
F.3d 625 (11th Cir. 1999); King v. Moore, 196 F.3d 1327 (11th
Cir. 1999); Ford v. Haley, 195 F.3d 603 (11th Cir. 1999);
Chandler v. U.S., 193 F.3d 1297 (11th Cir. 1999); Tompkins v.
Moore, 193 F.3d 1327 (11th Cir. 1999); Williams v. Head, 185
F.3d 1223 (11th Cir. 1999); Hill v. Moore, 175 F.3d 915 (11th
Cir. 1999); U.S. v. Battle, 173 F.3d 1343 (11th Cir. 1999);
Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999); Tarver v.
Hopper, 169 F.3d 710 (11th Cir. 1999); Wright v. Hopper, 169
F.3d 695 (11th Cir. 1999).
1998 circuit cases: See Tyson v. Keane, 159 F.3d 732 (2nd
Cir. 1998); Watkins v. Angelone, 133 F.3d 920 (4th Cir. 1998);
Noland v. French, 134 F.3d 208 (4th Cir. 1998); Gilliam v.
Simms, 133 F.3d 914 (4th Cir. 1998); Breard v. Pruett, 134 F.3d
615 (4th Cir. 1998); Gilbert v. Moore, 134 F.3d 642 (4th Cir.
1998); Roberts v. Moore, 134 F.3d 364 (4th Cir. 1998); Smith v.
Moore, 137 F.3d 808 (4th Cir. 1998); Atkins v. Moore, 139 F.3d
887 (4th Cir. 1998); Eaton v. Angelone, 139 F.3d 990 (4th Cir.
1998); Huffington v. Nuth, 140 F.3d 572 (4th Cir. 1998); King
v. Greene, 141 F.3d 1158 (4th Cir. 1998); Truesdale v. Moore,
142 F.3d 749 (4th Cir. 1998); Green v. French, 143 F.3d 865
(4th Cir. 1998); Williams v. French, 146 F.3d 203 (4th Cir.
1998); Chandler v. Greene, 145 F.3d 1323 (4th Cir. 1998);
Dubois v. Greene, 149 F.3d 1168 (4th Cir. 1998); Stewart v.
Angelone, 149 F.3d 1170 (4th Cir. 1998); Brown v. French, 147
F.3d 307 (4th Cir. 1998); Strickler v. Pruett, 149 F.3d 1170
(4th Cir. 1998); Boyd v. French, 147 F.3d 319 (4th Cir. 1998);
Fitzgerald v. Greene, 150 F.3d 357 (4th Cir. 1998); Wright v.
Angelone, 151 F.3d 151 (4th Cir. 1998); U.S. v. Degout, 153
F.3d 723 (4th Cir. 1998); Cardwell v. Greene, 152 F.3d 331 (4th
Cir. 1998); Wilson v. Greene, 155 F.3d 396 (4th Cir. 1998);
Johnson v. Moore, 164 F.3d 624 (4th Cir. 1998); Ward v. French,
165 F.3d 22 (4th Cir. 1998); Sheppard v. Taylor, 165 F.3d 19
(4th Cir. 1998); Quesinberry v. Taylor, 162 F.3d 273 (4th Cir.
1998); Keel v. French, 162 F.3d 263 (4th Cir. 1998); Fisher v.
Angelone, 163 F.3d 835 (4th Cir. 1998); Williams v. Taylor, 163
F.3d 860 (4th Cir. 1998); Sexton v. French, 163 F.3d 874 (4th
Cir. 1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir. 1998);
Lucas v. Johnson, 132 F.3d 1069 (5th Cir. 1998), Earhart v.
Johnson, 132 F.3d 1062 (5th Cir. 1998); De la Cruz v. Johnson,
134 F.3d 299 (5th Cir. 1998); Cannon v. Johnson, 134 F.3d 683
(5th Cir. 1998); Narvaiz v. Johnson, 134 F.3d 688 (5th Cir.
1998); Billiot v. Puckett, 135 F.3d 311 (5th Cir. 1998); Pyles
v. Johnson, 136 F.3d 986 (5th Cir. 1998); Meanes v. Johnson,
138 F.3d 1007 (5th Cir. 1998); Moody v. Johnson, 139 F.3d 477
(5th Cir. 1998); Blackmon v. Johnson, 145 F.3d 205 (5th Cir.
1998); Barber v. Johnson, 145 F.3d 234 (5th Cir. 1998); Vega v.
Johnson, 149 F.3d 354 (5th Cir. 1998); Corwin v. Johnson, 150
F.3d 467 (5th Cir. 1998); Robinson v. Johnson, 151 F.3d 256
(5th Cir. 1998); U.S. v. Hall, 152 F.3d 381 (5th Cir. 1998);
White v. Johnson, 153 F.3d 197 (5th Cir. 1998); Cordova v.
Johnson, 157 F.3d 380 (5th Cir. 1998); Thompson v. Cain, 161
F.3d 802 (5th Cir. 1998); Fuller v. Johnson, 158 F.3d 903 (5th
Cir. 1998); Barnes v. Johnson, 160 F.3d 218 (5th Cir. 1998);
Green v. Johnson, 160 F.3d 1029 (5th Cir. 1998); Dunn v.
Johnson, 162 F.3d 302 (5th Cir. 1998); U.S. v. Webster, 162
F.3d 308 (5th Cir. 1998); Little v. Johnson, 162 F.3d 855 (5th
Cir. 1998); Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998);
U.S. v. Jones, 132 F.3d 232 (5th Cir. 1998); Franklin v.
Francis, 144 F.3d 429 (6th Cir. 1998); Pritchett v. Jabe, 156
F.3d 1231 (6th Cir. 1998); Workman v. Bell, 160 F.3d 276 (6th
Cir. 1998); Coe v. Bell, 161 F.3d 320 (6th Cir. 1998); Wilson
v. Washington, 138 F.3d 647 (7th Cir. 1998); Pitsonbarger v.
Gramley, 141 F.3d 728 (7th Cir. 1998); Jackson v. Parke, 142
F.3d 439 (7th Cir. 1998); Thomas v. Gilmore, 144 F.3d 513 (7th
Cir. 1998); Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998);
Azania v. Moore, 165 F.3d 31 (7th Cir. 1998); Fretwell v.
Norris, 133 F.3d 621 (8th Cir. 1998); Wise v. Bowersox, 136
F.3d 1197 (8th Cir. 1998); Malone v. Vasquez, 138 F.3d 711 (8th
Cir. 1998); Roberts v. Bowersox, 137 F.3d 1062 (8th Cir. 1998);
Rodden v. Delo, 143 F.3d 441 (8th Cir. 1998); Wilkins v.
Bowersox, 145 F.3d 1006 (8th Cir. 1998); Ramsey v. Bowersox,
149 F.3d 749 (8th Cir. 1998); Henderson v. Norris, 162 F.3d
1164 (8th Cir. 1998); O'Rourke v. Endell, 153 F.3d 560 (8th
Cir. 1998); Walls v. Bowersox, 151 F.3d 827 (8th Cir. 1998);
Pruett v. Norris, 153 F.3d 579 (8th Cir. 1998); Chambers v.
Bowersox, 157 F.3d 560 (8th Cir. 1998); Parkus v. Bowersox, 157
F.3d 1136 (8th Cir. 1998); Mallet v. Bowersox, 160 F.3d 456
(8th Cir. 1998); Young v. Bowersox, 161 F.3d 1159 (8th Cir.
1998); Sellers v. Ward, 135 F.3d 1333 (10th Cir. 1998); Gee v.
Shillinger, 139 F. 3d 911 (10th Cir. 1998); Castro v. Ward, 138
F.3d 810 (10th Cir. 1998); Duvall v. Reynolds, 139 F.3d 768
(10th Cir. 1998); Moore v. Reynolds, 153 F.3d 1086 (10th Cir.
1998); U.S. v. McVeigh, 153 F.3d 1166 (10th Cir. 1998); Newsted
v. Gibson, 158 F.3d 1085 (10th Cir. 1998); Cooks v. Ward, 165
F.3d 1283 (10th Cir. 1998); Hill v. Turpin, 135 F.3d 1411 (11th
Cir. 1998); In re Jones, 137 F.3d 1271 (11th Cir. 1998);
Neelley v. Nagle, 138 F.3d 917 (11th Cir. 1998); Bryan v.
Singletary, 140 F.3d 1354 (11th Cir. 1998); Oats v. Singletary,
163 F.3d 1362 (11th Cir. 1998); Dobbs v. Turpin, 142 F.3d 1383
(11th Cir. 1998); Baldwin v. Johnson, 152 F.3d 1304 (11th Cir.
1998); Collier v. Turpin, 155 F.3d 1277 (11th Cir. 1998); Sims
v. Singletary, 155 F.3d 1297 (11th Cir. 1998); Duren v. Hopper,
161 F.3d 655 (11th Cir. 1998); Mills v. Singletary, 161 F.3d
1273 (11th Cir. 1998); Johnston v. Singletary, 162 F.3d 630
(11th Cir. 1998).
1997 circuit cases: See Frey v. Fulcomer, 132 F.3d 916 (3rd
Cir. 1997); Banks v. Horn, 126 F.3d 206 (3rd Cir. 1997); Smith
v. Horn, 120 F.3d 400 (3rd Cir. 1997); Hill v. French, 133 F.3d
915 (4th Cir. 1997); MacKall v. Angelone, 131 F.3d 442 (4th
Cir. 1997); Howard v. Moore, 131 F.3d 399 (4th Cir. 1997);
Plath v. Moore, 130 F.3d 595 (4th Cir. 1997); Beavers v.
Pruett, 125 F.3d 847 (4th Cir. 1997); Satcher v. Pruett, 126
F.3d 561 (4th Cir. 1997); Mu'Min v. Pruett, 125 F.3d 192 (4th
Cir. 1997); Murphy v. Netherland, 116 F.3d 97 (4th Cir. 1997);
Pope v. Netherland, 113 F.3d 1364 (4th Cir. 1997); Arnold v.
Evatt, 113 F.3d 1352 (4th Cir. 1997); Smith v. Angelone, 111
F.3d 1126 (4th Cir. 1997); Mackall v. Murray, 109 F.3d 957 (4th
Cir. 1997); Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997);
Goodwin v. Johnson, 132 F.3d 162 (5th Cir. 1997); Carter v.
Johnson, 131 F.3d 452 (5th Cir. 1997); Hogue v. Johnson, 131
F.3d 466 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409 (5th
Cir. 1997); Ramson v. Johnson, 126 F.3d 716 (5th Cir. 1997);
Williams v. Cain, 125 F.3d 269 (5th Cir. 1997); East v.
Johnson, 123 F.3d 235 (5th Cir. 1997); Emery v. Johnson, 139
F.3d 191 (5th Cir. 1997); In re Davis, 121 F.3d 952 (5th Cir.
1997); Rector v. Johnson, 120 F.3d 551 (5th Cir. 1997); Cockrum
v. Johnson, 119 F.3d 297 (5th Cir. 1997); Green v. Johnson, 116
F.3d 1115 (5th Cir. 1997); Tucker v. Johnson, 115 F.3d 276 (5th
Cir. 1997); Fuller v. Johnson, 114 F.3d 491 (5th Cir. 1997);
Muniz v. Johnson, 114 F.3d 43 (5th Cir. 1997); Carter v.
Johnson, 110 F.3d 1098 (5th Cir. 1997); Hernandez v. Johnson,
108 F.3d 554 (5th Cir. 1997); Sharp v. Johnson, 107 F.3d 282
(5th Cir. 1997); Turner v. Johnson, 106 F.3d 1178 (5th Cir.
1997); Mata v. Johnson, 105 F.3d 209 (5th Cir. 1997); Brown v.
Cain, 104 F.3d 744 (5th Cir. 1997); Lockhart v. Johnson, 104
F.3d 54 (5th Cir. 1997); Lyons v. Ohio Adult Parole Auth., 105
F.3d 1063 (6th Cir. 1997); Preston v. Morgan, 107 F.3d 871 (6th
Cir. 1997); Morris v. Bell, 124 F.3d 198 (6th Cir. 1997);
Williams v. Carlton, 124 F.3d 201 (6th Cir. 1997); Austin v.
Bell, 126 F.3d 843 (6th Cir. 1997); Rickman v. Bell, 131 F.3d
1150 (6th Cir. 1997); Groseclose v. Bell, 130 F.3d 1161 (6th
Cir. 1997); Hampton v. Page, 103 F.3d 1338 (7th Cir. 1997);
Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); Porter v.
Gramley, 112 F.3d 1308 (7th Cir. 1997); Spreitzer v. Peters,
114 F.3d 1435 (7th Cir. 1997), Burris v. Parke, 116 F.3d 256
(7th Cir. 1997); Holman v. Gilmore, 126 F.3d 876 (7th Cir.
1997); Stewart v. Gilmore, 129 F.3d 1268 (7th Cir. 1997);
English v. Page, 132 F.3d 36 (7th Cir. 1997); Kokorales v.
Gilmore, 131 F.3d 692 (7th Cir. 1997); Ruiz v. Norris, 104 F.3d
163 (8th Cir. 1997); Denton v. Norris, 104 F.3d 166 (8th Cir.
1997); Schneider v. Bowersox, 105 F.3d 397 (8th Cir. 1997);
Perry v. Norris, 107 F.3d 665 (8th Cir. 1997); Singleton v.
Norris, 108 F.3d 872 (8th Cir. 1997); Powell v. Bowersox, 112
F.3d 966 (8th Cir. 1997); Hochstein v. Hopkins, 113 F.3d 143
(8th Cir. 1997); Anderson v. Hopkins, 113 F.3d 825 (8th Cir.
1997); Henderson v. Norris, 118 F.3d 1283 (8th Cir. 1997);
Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997); Kilgore v.
Bowersox, 124 F.3d 985 (8th Cir. 1997); Sweet v. Delo, 125 F.3d
1144 (8th Cir. 1997); McDonald v. Bowersox, 125 F.3d 1183 (8th
Cir. 1997); Bannister v. Bowersox, 128 F.3d 621 (8th Cir.
1997); Amrine v. Bowersox, 128 F.3d 1222 (8th Cir. 1997); Cox
v. Norris, 133 F.3d 565 (8th Cir. 1997); Williamson v. Ward,
110 F. 3d 1508 (10th Cir. 1997); Darks v. Ward, 116 F.3d 489
(10th Cir. 1997); Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.
1997); Duvall v. Reynolds, 131 F.3d 907 (10th Cir. 1997); In re
Waldrop, 105 F.3d 1337 (11th Cir. 1997); In re Medina, 109 F.3d
1556 (11th Cir. 1997); In re Hill, 113 F.3d 181 (11th Cir.
1997); Lusk v. Singletary, 112 F.3d 1103 (11th Cir. 1997); In
re Magwood, 113 F.3d 1544 (11th Cir. 1997); Freund v.
Butterworth, 117 F.3d 1543 (11th Cir. 1997); Thompson v. Nagle,
118 F.3d 1442 (11th Cir. 1997); Davis v. Singletary, 130 F.3d
446 (11th Cir. 1997); Cargill v. Turpin, 131 F.3d 157 (11th
Cir. 1997).
1996 circuit cases: See Cooper v. Taylor, 103 F.3d 366 (4th
Cir. 1996); Buchanan v. Angelone, 103 F.3d 344 (4th Cir. 1996);
George v. Angelone, 100 F.3d 353 (4th Cir. 1996); Gray v.
Netherland, 99 F.3d 158 (4th Cir. 1996); O'Dell v. Netherland,
95 F.3d 1214 (4th Cir. 1996); Beaver v. Thompson, 93 F.3d 1186
(4th Cir. 1996); Hoke v. Netherland, 92 F.3d 1350 (4th Cir.
1996); Bennett v. Angelone, 92 F.3d 1336 (4th Cir. 1996); Payne
v. Netherland, 94 F.3d 642 (4th Cir. 1996); U.S. v. Roane, 90
F.3d 861 (4th Cir. 1996); Savino v. Murray, 82 F.3d 593 (4th
Cir. 1996); Tuggle v. Netherland, 79 F.3d 1386 (4th Cir. 1996);
Middleton v. Evatt, 77 F.3d 469 (4th Cir. 1996); Townes v.
Angelone, 73 F.3d 545 (4th Cir. 1996); Darden v. Barnett, 74
F.3d 1231 (4th Cir. 1996); Lauti v. Johnson, 102 F.3d 166 (5th
Cir. 1996); Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996);
Mata v. Johnson, 99 F.3d 166 (5th Cir. 1996); Herman v.
Johnson, 98 F.3d 171 (5th Cir. 1996); Drinkard v. Johnson, 97
F.3d 751 (5th Cir. 1996); Graham v. Johnson, 94 F.3d 958 (5th
Cir. 1996); West v. Johnson, 92 F.3d 1385 (5th Cir. 1996);
Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996); Guerra v.
Johnson, 90 F.3d 1075 (5th Cir. 1996); Washington v. Johnson,
90 F.3d 945 (5th Cir. 1996); Westley v. Johnson, 83 F.3d 714
(5th Cir. 1996); Lackey v. Johnson, 83 F.3d 116 (5th Cir.
1996); Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996); Spence
v. Johnson, 80 F.3d 989 (5th Cir. 1996); Perillo v. Johnson, 79
F.3d 441 (5th Cir. 1996); Woods v. Johnson, 75 F.3d 1017 (5th
Cir. 1996); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996);
O'Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996); Pitsonbarger
v. Gramley, 103 F.3d 1293 (7th Cir. 1996); Neal v. Gramley, 99
F.3d 841 (7th Cir. 1996); Burris v. Parke, 95 F.3d 465 (7th
Cir. 1996); Eddmonds v. Peters, 93 F.3d 1307 (7th Cir. 1996);
Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996); Gaston v.
Washington, 85 F.3d 631 (7th Cir. 1996); Collins v. Welborn, 81
F.3d 684 (7th Cir. 1996); Steward v. Gilmore, 80 F.3d 1205 (7th
Cir. 1996); Jones v. Page, 76 F.3d 831 (7th Cir. 1996); Gosier
v. Welborn, 76 F.3d 381 (7th Cir. 1996); Stewart v. Gramley, 74
F.3d 132 (7th Cir. 1996); Reeves v. Hopkins, 102 F.3d 977 (8th
Cir. 1996); Zeitvogal v. Bowersox, 103 F.3d 54 (8th Cir. 1996);
Clemmons v. Delo, 100 F.3d 1394 (8th Cir. 1996); Preston v.
Delo, 100 F.3d 596 (8th Cir. 1996); Bannister v. Delo, 100 F.3d
610 (8th Cir. 1996); Mathenia v. Delo, 99 F.3d 1476 (8th Cir.
1996); Boliek v. Bowersox, 96 F.3d 1070 (8th Cir. 1996); Reese
v. Delo; 94 F.3d 1177 (8th Cir. 1996); Six v. Delo, 94 F.3d 469
(8th Cir. 1996); Feltrop v. Bowersox, 91 F.3d 1178 (8th Cir.
1996); Oxford v. Bowersox, 86 F.3d 127 (8th Cir. 1996);
Schneider v. Delo, 85 F.3d 335 (8th Cir. 1996); Wainwright v.
Lockhart, 80 F.3d 1226 (8th Cir. 1996); Zeitvogal v. Delo, 78
F.3d 335 (8th Cir. 1996); Sloan v. Bowersox, 77 F.3d 234 (8th
Cir. 1996); Joubert v. Hopkins, 75 F.3d 1232 (8th Cir. 1996);
Davis v. Exec. Dir. Dept. of Corrections, 100 F.3d 750 (10th
Cir. 1996); Silver v. Hargett, 96 F.3d 1453 (10th Cir. 1996);
U.S. v. McCullah, 87 F.3d 1136 (10th Cir. 1996); U.S. v.
Montoya, 85 F.3d 641 (10th Cir. 1996); Stouffer v. Fields, 85
F.3d 641 (10th Cir. 1996); Selsor v. Kaiser, 81 F.3d 1492 (10th
Cir. 1996); Hatch v. Reynolds, 76 F.3d 392 (10th Cir. 1996);
Chateloin v. Singletary, 89 F.3d 749 (11th Cir. 1996); Booker
v. Singletary, 90 F.3d 440 (11th Cir. 1996); Williams v.
Turpin, 87 F.3d 1204 (11th Cir. 1996); Hays v. Alabama, 85 F.3d
1492 (11th Cir. 1996), Hill v. Jones, 81 F.3d 1015 (11th Cir.
1996); Waldrop v. Jones, 77 F.3d 1308 (11th Cir. 1996);
Buenoano v. Singletary, 74 F.3d 1078 (11th Cir. 1996);
Strickland v. Linahan, 72 F.3d 1531 (11th Cir. 1996); Lambrix
v. Singletary, 72 F.3d 1500 (11th Cir. 1996).
1995 circuit cases. See Flamer v. Snyder, 68 F.3d 736 (3rd
Cir. 1995); Riley v. Taylor, 62 F.3d 86 (3rd Cir. 1995); Bell
v. Evatt, 72 F.3d 421 (4th Cir. 1995); Townes v. Murray, 68
F.3d 840 (4th Cir. 1995); Kornahrens, III v. Evatt, 66 F.3d
1350 (4th Cir. 1995); Correll v. Thompson, 63 F.3d 1279 (4th
Cir. 1995); Tuggle v. Thompson, 57 F.3d 1356 (4th Cir. 1995);
Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995); Gray v.
Thompson, 58 F.3d 59 (4th Cir. 1995); Hunt v. Nuth, 57 F.3d
1327 (4th Cir. 1995); Turner v. Jabe, 58 F.3d 924 (4th Cir.
1995); Noland v. Dixon, 53 F.3d 328 (4th Cir. 1995); Rogers v.
Scott, 70 F.3d 340 (5th Cir. 1995); Nichols v. Scott, 69 F.3d
1255 (5th Cir. 1995); Johnson v. Scott, 68 F.3d 106 (5th Cir.
1995); Belyeu v. Scott, 67 F.3d 535 (5th Cir. 1995); Beets v.
Scott, 65 F.3d 1258 (5th Cir. 1995); Montoya v. Scott, 65 F.3d
405 (5th Cir. 1995); U.S. v. Flores, 63 F.3d 1342 (5th Cir.
1995); Briddle v. Scott, 63 F.3d 364 (5th Cir. 1995); Vuong v.
Scott, 62 F.3d 673 (5th Cir. 1995); Amos v. Scott, 61 F.3d 333
(5th Cir. 1995); Irving, III v. Hargett, 59 F.3d 23 (5th Cir.
1995); Fearance v. Scott, 56 F.3d 633 (5th Cir. 1995); Davis v.
Scott, 51 F.3d 457 (5th Cir. 1995); James v. Cain, 50 F.3d 1327
(5th Cir. 1995); Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995);
In re Parker, 49 F.3d 204 (6th Cir. 1995); Stewart v. Lane, 70
F.3d 955 (7th Cir. 1995); Enoch v. Gramley, 70 F.3d 1490 (7th
Cir. 1995); Stewart v. Lane, 60 F.3d 296 (7th Cir. 1995); Smith
v. Farley, 59 F.3d 659 (7th Cir. 1995); Burris v. Farley, 51
F.3d 655 (7th Cir. 1995); Williams v. Chrans, 50 F.3d 1356 (7th
Cir. 1995); Ruiz v. Norris, 71 F.3d 1404 (8th Cir. 1995);
LaRette v. Bowersox, 70 F.3d 986 (8th Cir. 1995); Parker v.
Norris, 64 F.3d 1178 (8th Cir. 1995); Battle v. Delo, 64 F.3d
347 (8th Cir. 1995); Nave v. Delo, 62 F.3d 1024 (8th Cir.
1995); Oxford v. Delo, 59 F.3d 741 (8th Cir. 1995); Jones v.
Delo, 56 F.3d 878 (8th Cir. 1995); Sloan v. Delo, 54 F.3d 1371
(8th Cir. 1995); Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995);
Fairchild v. Norris, 51 F.3d 129 (8th Cir. 1995); Feltrop v.
Delo, 46 F.3d 766 (8th Cir. 1995); Sidebottom v. Delo, 46 F.3d
744 (8th Cir. 1995); LaRette v. Delo, 44 F.3d 681 (8th Cir.
1995); O'Neal, II v. Delo, 44 F.3d 655 (8th Cir. 1995); Castro
v. Oklahoma, 71 F.3d 1502 (10th Cir. 1995); Stafford v. Ward,
59 F.3d 1025 (10th Cir. 1995); Hatch v. Oklahoma, 58 F.3d 1447
(10th Cir. 1995); Smith v. Reynolds, 56 F.3d 78 (10th Cir.
1995); Brewer v. Reynolds, 51 F.3d 1519 (10th Cir. 1995); Smith
v. Kerby, 50 F.3d 801 (10th Cir. 1995); White v. Singletary, 70
F.3d 1198 (11th Cir. 1995); Glock v. Singletary, 65 F.3d 878
(11th Cir. 1995); Mills v. Singletary, 63 F.3d 999 (11th Cir.
1995); Marek v. Singletary, 62 F.3d 1295 (11th Cir. 1995);
Medina v. Singletary, 59 F.3d 1095 (11th Cir. 1995); Lonchar v.
Thomas, 58 F.3d 590 (11th Cir. 1995); Upshaw v. Singletary, 54
F.3d 718 (11th Cir. 1995); Kennedy v. Herring, 54 F.3d 678
(11th Cir. 1995); Weeks v. Jones, 52 F. 3d 1559 (11th Cir.
1995); Felker v. Thomas, 52 F.3d 907 (11th Cir. 1995); Stano v.
Butterworth, 51 F.3d 942 (11th Cir. 1995); Porter v.
Singletary, 49 F.3d 1483 (11th Cir. 1995); Kight v. Singletary,
50 F.3d 1539 (11th Cir. 1995); Baxter v. Thomas, 45 F.3d 1501
(11th Cir. 1995); Horslet v. Alabama, 45 F.3d 1486 (11th Cir.
1995).
1994 circuit cases: See Story v. Kindt, 26 F.3d 402 (3rd
Cir. 1994); Deputy v. Taylor, 19 F.3d 1485 (3rd Cir. 1994);
Stockton v. Murray, 41 F.3d 920 (4th Cir. 1994); Adams v.
Aiken, 41 F.3d 175 (4th Cir. 1994); Turner v. Williams, 35 F.3d
872 (4th Cir. 1994); Huffstetler v. Dixon, 28 F.3d 1209 (4th
Cir. 1994); Lawson v. Dixon, 25 F.3d 1040 (4th Cir. 1994);
Spencer v. Murray, 18 F.3d 237 (4th Cir. 1994); Edmonds v.
Thompson, 17 F.3d 1433 (4th Cir. 1994); Spencer v. Murray, 18
F.3d 229 (4th Cir. 1994); Smith v. Dixon, 14 F.3d 956 (4th Cir.
1994); Mann v. Scott, 41 F.3d 968 (5th Cir. 1994); Allridge v.
Scott, 41 F.3d 213 (5th Cir. 1994); Kinnamon v. Scott, 40 F.3d
731 (5th Cir. 1994); Williams v. Scott, 35 F.3d 159 (5th Cir.
1994); Wilkerson v. Whitley, 28 F.3d 498 (5th Cir. 1994);
Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994); Drew v. Scott, 28
F.3d 460 (5th Cir. 1994); Blackmon v. Scott, 22 F.3d 560 (5th
Cir. 1994); Ward v. Whitley, 21 F.3d 1355 (5th Cir. 1994);
Andrews v. Collins, 21 F.3d 612 (5th Cir. 1994); Clark v.
Collins, 19 F.3d 959 (5th Cir. 1994); Crank v. Collins, 19 F.3d
172 (5th Cir. 1994); Anderson v. Collins, 18 F.3d 1208 (5th
Cir. 1994); Motley v. Collins, 18 F.3d 1223 (5th Cir. 1994);
Madden v. Collins, 18 F.3d 304 (5th Cir. 1994); Williams v.
Collins, 16 F.3d 626 (5th Cir. 1994); Marquez v. Collins, 11
F.3d 1241 (5th Cir. 1994); King v. Dutton, 17 F.3d 151 (6th
Cir. 1994); Williams v. Chrans, 42 F.3d 1137 (7th Cir. 1994);
Barnhill v. Flannigan, 42 F.3d 1074 (7th Cir. 1994); Del
Vicchio v. Illinois Dept. of Corrections, 31 F.3d 1363 (7th
Cir. 1994); Jackson v. Roth, 24 F.3d 1002 (7th Cir. 1994);
Milone v. Camp, 22 F.3d 693 (7th Cir. 1994); U.S. v. Cooper, 19
F.3d 1154 (7th Cir. 1994); Albanese v. Peters III, 19 F.3d 21
(7th Cir. 1994); Davis v. Greer, 13 F.3d 1134 (7th Cir. 1994);
Williams v. Clark, 40 F.3d 1529 (8th Cir. 1994); Foster v.
Delo, 39 F.3d 873 (8th Cir. 1994); Murray v. Delo, 34 F.3d 1367
(8th Cir. 1994); Parkus v. Delo, 33 F.3d 933 (8th Cir. 1994);
Griffin v. Delo, 33 F.3d 895 (8th Cir. 1994); Pollard v. Delo,
28 F.3d 887 (8th Cir. 1994); Hill v. Lockhart, 28 F.3d 832 (8th
Cir. 1994); Bivens v. Groose, 28 F.3d 62 (8th Cir. 1994); Starr
v. Lockhart, 23 F.3d 1280 (8th Cir. 1994); Nave v. Delo, 22
F.3d 802 (8th Cir. 1994); Fairchild v. Norris, 21 F.3d 799 (8th
Cir. 1994); Battle v. Delo, 19 F.3d 1547 (8th Cir. 1994);
Chambers v. Armontrout, 16 F.3d 257 (8th Cir. 1994); Snell v.
Lockhart, 14 F.3d 1289 (8th Cir. 1994); Brecheen v. Reynolds,
41 F.3d 1343 (10th Cir. 1994); Scott v. Singletary, 38 F.3d
1547 (11th Cir. 1994); Davis v. Zant, 36 F.3d 1538 (11th Cir.
1994); Glock v. Singletary, 36 F.3d 1014 (11th Cir. 1994);
Spaziano v. Singletary, 36 F.3d 1028 (11th Cir. 1994); Routly
v. Singletary 33 F.3d 1279 (11th Cir. 1994); Roberts v.
Singletary, 29 F.3d 1474 (11th Cir. 1994); Ingram v. Zant, 26
F.3d 1047 (11th Cir. 1994); Clisby v. Alabama, 26 F.3d 1054
(11th Cir. 1994); Weeks v. Jones, 26 F.3d 1030 (11th Cir.
1994); Burden v. Zant, 24 F.3d 1298 (11th Cir. 1994); Alderman
v. Zant, 22 F.3d 1541 (11th Cir. 1994); Bolender v. Singletary,
16 F.3d 1547 (11th Cir. 1994); Porter v. Singletary, 14 F.3d
554 (11th Cir. 1994); Rogers v. Zant, 13 F.3d 384 (11th Cir.
1994); Walker v. Jones, 10 F.3d 1569 (11th Cir. 1994).
1993 circuit cases: See Spencer v. Murray, 5 F.3d 758 (4th
Cir. 1993); Lawson v. Dixon, 3 F.3d 743 (4th Cir. 1993);
Watkins v. Murray, 998 F.2d 1011 (4th Cir. 1993); Pruett v.
Thompson, 996 F.2d 1560 (4th Cir. 1993); Delong v. Thompson,
985 F.2d 553 (4th Cir. 1993); Kyles v. Whitley, 5 F.3d 806 (5th
Cir. 1993); Motley v. Collins, 3 F.3d 781 (5th Cir. 1993); Webb
v. Collins, 2 F.3d 93 (5th Cir. 1993); King v. Puckett, 1 F.3d
280 (5th Cir. 1993); Knox v. Collins, 999 F.2d 824 (5th Cir.
1993); Russell v. Collins, 998 F.2d 1287 (5th Cir. 1993);
Callins v. Collins, 998 F.2d 269 (5th Cir. 1993); Nethery v.
Collins, 993 F.2d 1154 (5th Cir. 1993); Kirkpatrick v. Whitley,
992 F.2d 491 (5th Cir. 1993); Harris v. Collins, 990 F.2d 185
(5th Cir. 1993); James v. Collins, 987 F.2d 1116 (5th Cir.
1993); Sawyers v. Collins, 986 F.2d 1493 (5th Cir. 1993); Beets
v. Collins, 986 F.2d 1478 (5th Cir. 1993); Free v. Peters, III,
12 F.3d 700 (7th Cir. 1993); Gacy v. Welborn, 994 F.2d 305 (7th
Cir. 1993); Foster v. Delo, 11 F.3d 1451 (8th Cir. 1993);
Whitmore v. Lockhart, 8 F.3d 614 (8th Cir. 1993); Guinan v.
Delo, 7 F.3d 111 (8th Cir. 1993); Otey v. Hopkins, 5 F.3d 1125
(8th Cir. 1993); Bannister v. Armontrout, 4 F.3d 1434 (8th Cir.
1993); Pickens v. Lockhart, 4 F.3d 1446 (8th Cir. 1993); Guinan
v. Delo, 5 F.3d 313 (8th Cir. 1993); Orndorff v. Lockhart, 998
F.2d 1426 (8th Cir. 1993); Otey v. Hopkins, 992 F.2d 871 (8th
Cir. 1993); Bolder v. Delo, 985 F.2d 941 (8th Cir. 1993);
Devier v. Zant, 3 F.3d 1445 (11th Cir. 1993); Duest v.
Singletary, 997 F.2d 1336 (11th Cir. 1993); U.S. v. Chandler,
996 F.2d 1073 (11th Cir. 1993); James v. Singletary, 995 F.2d
187 (11th Cir. 1993); Johnson v. Singletary, 991 F.2d 663 (11th
Cir. 1993); Bush v. Singletary, 988 F.2d 1082 (11th Cir. 1993);
Burger v. Zant, 984 F.2d 1129 (11th Cir. 1993); Hance v. Zant,
981 F.2d 1180 (11th Cir. 1993).
State-by-State Summary of Statutes Applicable to DNA Testing
Alabama
Pending Legislation in Alabama--(2002 Ala. Acts HB245;
SB420)
An individual serving a term of imprisonment or waiting
execution for a capital offense to file a motion to obtain
forensic Deoxyribonucleic acid (DNA) testing must meet the
following criteria:
1. The individual must make an assertion of actual
innocence.
2. A prima facie evidence demonstrating that the identity
of the defendant was at issue in the trial that resulted in the
conviction of the applicant and that DNA testing of the
specified evidence would, assuming exculpatory results,
exonerate the applicant of the offense for which the applicant
was convicted.
3. The chain of custody is sufficient to establish that the
evidence has not been altered in any material aspect.
4. The motion must be made in a timely manner and for the
purpose of demonstrating actual innocence of the applicant and
not to delay the execution of sentence or administration of
justice.
Alaska (AS 12.72.010-.020)
A person who has been convicted of, or sentenced for, a
crime may institute a proceeding for post-conviction relief
based on newly discovered evidence if (among other
requirements):
1. The applicant establishes due diligence in presenting
the claim and sets out facts supported by evidence that is
admissible.
2. The evidence was not known within two years after entry
of the judgment of conviction if the claim relates to a
conviction; two years after entry of a court order revoking
probation if the claim relates to a court's revocation of
probation; or one year after an administrative decision of the
Board of Parole or the Department of Corrections is final if
the claim relates to the administrative decision.
3. The evidence is not cumulative to the evidence presented
at trial; is not impeachment evidence; and establishes by clear
and convincing evidence that the applicant is innocent.
Arizona (Sec. 13-4240)
Convicted felon may at any time request DNA testing of
evidence in control of the state that is related to the
investigation or prosecution that resulted in the judgment of
conviction, and that may contain biological evidence. The
statute allows for both mandatory testing and discretionary
testing.
The court is required to allow for testing if the court
finds that all of the following apply:
1. A reasonable probability exists that the petitioner
would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA testing.
2. The evidence is still in existence and is in a condition
that allows DNA testing to be conducted.
3. The evidence was not previously subjected to DNA testing
or was not subjected to the testing that is now requested and
that may resolve an issue not previously resolved by the
previous testing.
The court may order DNA testing if the court finds that all
of the following apply:
1. A reasonable probability exists that either: the
petitioner's verdict or sentence would have been more favorable
if the results of DNA testing had been available at the trial
leading to the judgment of conviction; or DNA testing will
produce exculpatory evidence.
2. The evidence is still in existence and is in a condition
that allows DNA testing to be conducted.
3. The evidence was not previously subject to DNA testing
or was not subjected to the testing that the petitioner is
requesting and that may resolve an issue not previously
resolved by the previous testing.
If the results are unfavorable, the court may make further
appropriate orders, including requesting that the petitioner's
sample be added to CODIS (i.e., matching to unsolved crimes).
Arkansas (Sec. Sec. 16-112-202-205)
Except when direct appeal is available, a person convicted
of a crime may make a motion for the performance of DNA
testing, or other tests which may become available through
advances in technology, to demonstrate the person's actual
innocence if:
1. Identity must have been an issue at trial.
2. The testing is to be performed on evidence secured in
relation to the trial which resulted in the conviction.
3. The evidence was not subject to the testing because the
testing was not available as evidence at the time of trial.
4. Must meet the standard that testing has scientific
potential to produce new, noncumulative evidence materially
relevant to the defendant's assertion of actual innocence.
5. The motion is filed with the court in which the
conviction was entered.
6. The evidence to be tested has been subject to a chain of
custody sufficient to establish that it has not been
substituted, tampered with, replaced, or altered in any
material aspect.
California (Penal Code Sec. 1405)
In order to obtain DNA testing a petitioner must make a
motion, under penalty of perjury, that establishes the
following:
1. The motion must explain why the identity of the
perpetrator was, or should have been, a significant issue in
the case.
2. The evidence has not been previously subjected to the
requested DNA testing for reasons beyond the petitioner's
control, or a different type of DNA test must be requested
having a reasonable likelihood of providing a more probative
result.
3. The evidence to be tested has been subject to a chain of
custody sufficient to establish that the evidence has not been
substituted, tampered with, replaced or altered in any material
aspect.
4. Explain, in light of all the evidence, how the requested
DNA testing would raise a reasonable probability that the
convicted person's verdict or sentence would be more favorable
if the results of DNA testing had been available at the time of
conviction.
5. The motion is not solely for the purpose of delay.
Colorado (Colo. Rev. Stat. 16-11-401.5; C.R.S. 18-1-410)
Colorado allows post-conviction review, however, the burden
of establishing a basis for post-conviction relief rests upon
the petitioning defendant. Crim. P. 35(b) enables trial courts
to review a sentence to ensure that it is proper before making
it final. Ghrist v. People, 897 P.2d 809, 812 (Colo. 1995). A
court's review of a Crim. P. 35(b) motion focuses on the
fairness of the sentence in light of the purposes of the
sentencing laws. Id. Any decision to reduce a sentence based on
a Crim. P. 35(b) motion remains within the sound discretion of
the trial court. Id. In its analysis, the trial court may
consider all relevant and material factors, including new
evidence as well as facts known at the time the court
pronounced the original sentence. Spann v. People, 193 Colo.
53, 55, 561 P.2d 1268, 1269 (1977).
Connecticut (Conn. Gen. Stat. Sec. 52-582 (2001))
Provides an exception to three-year time limit for petition
for a new trial, where the petition is based on DNA evidence
that was not discoverable or available at the time of the
original trial. Therefore, the petition may be brought at any
time after the discovery or availability of such new evidence.
Delaware (11 Del. C. Sec. 4504 )
A motion for DNA testing must be filed within three years
of final judgment, and must be requested to demonstrate the
person's actual innocence. The motion may be granted if:
1. The testing is to be performed on evidence secured in
relation to the trial which resulted in the conviction.
2. The evidence must not have been previously subject to
testing because ``the technology for testing was not available
at the time of the trial.''
3. Identity was an issue in the trial.
4. The evidence to be tested has been subject to a chain of
custody sufficient to establish that the evidence has not been
substituted, tampered with, degraded, contaminated, altered or
replaced in any material aspect.
5. The requested testing has the scientific potential to
produce new, noncumulative evidence materially relevant to the
person's assertion of actual innocence
6. The relief available is limited to a new trial, and that
relief may be granted only if the person establishes by clear
and convincing evidence that no reasonable trier of fact would
have convicted the person on consideration of the DNA test
results in conjunction with all other possible evidence in the
case.
Florida (2001 Fla. Laws. Ch. 97)
Any defendant who has been tried, convicted and sentenced
by a Florida court may petition the trial court for DNA testing
according to the following requirements:
1. Petition is filled within two years after a conviction
become final, or petition by October 1, 2003, whichever comes
later.
2. Evidence is available and was not subjected to
tampering. Also the evidence must not have been tested
previously or if it was, a proper explanation of why previous
tests were inconclusive must be provided.
3. There is a reasonable probability that the sentenced
defendant would have been acquitted or would have received a
lesser sentence if the DNA evidence had been admitted at trial.
4. The defendant must claim innocence and explains how the
DNA evidence would exonerate, or mitigate the sentence,
received by him or her.
5. Identification must have been genuinely disputed at
trial.
Georgia (O.C.G.A. Sec. 9-14-40 (2002))
While there is no specific statute authorizing DNA testing,
Georgia allows post-conviction statute permits DNA testing
under certain circumstances. DNA testing is ordered by the
court on a case by case basis, by filing a writ of Habeas
Corpus petition.
Hawaii
Pending Legislation in Hawaii--HB 42
This legislation will allow a convicted person in custody
acces to DNA testing if certain criteria are met.
1. The petitioner must show that evidence to be tested is
``related to the investigation or prosecution that resulted in
the judgment; is in the actual or constructive possession of
the state; and was not previously subjected to DNA testing, or
can be subjected to retesting with new DNA techniques that
provide a reasonable likelihood of more accurate and probative
results.''
2. DNA test should produce noncumulative, exculpatory
evidence relevant to a claim of wrongful conviction.
3. Petitioners may apply at any time after conviction.
Idaho (Idaho Code Sec. 19-4902)
A petitioner may, at any time, file a petition before the
trial court for DNA testing of evidence collected by the state
according to the following requirements:
1. Petition for DNA testing must be filed by July 1, 2002,
or within a year of conviction.
2. Petition must request testing of evidence secured in
relation to the trial resulting in conviction, which was not
subject to the requested testing because the technology for the
testing was not available at the time of trial.
3. Petitioner must present prima facie case that identity
was an issue in the trial resulting in conviction, and the
result of testing must have the scientific potential to produce
new evidence showing that petitioner's innocence is more
probable than not.
4. Petitioner must present prima facie case that the
evidence to be tested has been subject to a chain of custody
sufficient to establish that such evidence has not been
substituted, tampered with, replaced or altered in any material
aspect.
5. Relief is to be ordered if DNA test results, in
conjunction with all other admissible evidence, demonstrate
that petitioner is not the person who committed the offense.
Illinois (ch. 725, Sec. 5/116-3)
A petitioner may file a petition before the trial court
that entered the judgment of conviction in his or her case
requesting the performance of DNA testing on evidence that was
secured in relation to the trial which resulted in his or her
conviction. The defendant must present a prima facie case that:
1. Identity was the issue in the trial which resulted in
his or her conviction.
2. The evidence must not have been subject to the testing
which is now requested ``because the technology for the testing
was not available at the time of trial.''
3. The results of the testing must potentially produce
``new, noncumulative evidence materially relevant to the
defendant's assertion of actual innocence.''
Indiana (Sec. 35-38-7, As added by P.L.49-2001, SEC.2.)
A person who was convicted of and sentenced for an offense
may file a written petition with the court that sentenced the
petitioner for the offense to require DNA testing and analysis
of any evidence that establishes the following:
1. The evidence is in the possession or control of a court
or the state; or otherwise contained in the Indiana DNA data
base.
2. The evidence sought to be tested was not previously
subjected to DNA testing, or was tested, but the requested DNA
testing and analysis will provide additional information as to
the identity of the perpetrator or accomplice; or would have a
reasonable probability of contradicting prior test results.
3. The evidence is related to the investigation or
prosecution that resulted in the person's conviction.
4. A reasonable probability exists that the petitioner
would not have been prosecuted for, or convicted of, the
offense if exculpatory results had been obtained through the
requested DNA testing and analysis.
Iowa (I.C.A. Sec. 822.2)
Any person who has been convicted of, or sentenced for, a
public offense and who claims: (among other things) that there
exists evidence of material facts, not previously presented and
heard, that requires vacation of the conviction or sentence in
the interest of justice; * * * may institute, a proceeding to
secure relief.
Pending Legislation in Iowa--SF 229
In order to gain approval for testing a petitioner must
establish that:
1. Identity was an issue at trial,
2. DNA profiling was not obtainable because testing was not
available at the time of the criminal proceedings.
3. The DNA evidence must have ``the potential to produce
material facts not previously presented and heard that would
require vacation of the conviction or sentence in the interest
of justice.''
4. Applicant or state has the right to appeal.
Kansas (K.S.A. Sec. 21-2512)
Persons convicted of murder or a or for rape as defined by
K.S.A. 21-3502, may petition court for DNA testing that:
1. Is related to the investigation or prosecution that
resulted in the conviction;
2. Is in the actual or constructive possession of the
state; and
3. Was not previously subjected to DNA testing, or can be
subjected to retesting with new DNA techniques that provide a
reasonable likelihood of more accurate and probative results.
Kentucky (KRS Chapter 422)
Authorizes a person who was convicted of and sentenced to
death for a capital offense to request, at any time, DNA
testing, if the court finds that all of the following apply:
1. Identity was an issue at trial.
2. The biological evidence was not previously subjected to
DNA testing or, if it was, the type of testing requested in the
motion must be capable of resolving an issue not resolved in
the previous test.
3. Applicant must show by a preponderance of evidence that
``it is possible to subject the biological evidence to forensic
DNA testing or retesting, and an exclusionary result would
necessarily exonerate the applicant.''
4. There is a statute of limitations of 2 years.
5. A reasonable probability exists that either: the
petitioner's verdict or sentence would have been more favorable
if the results of DNA testing and analysis had been available
at the trial leading to the judgment of conviction; or DNA
testing and analysis will produce exculpatory evidence.
6. The evidence is still in existence and is in a condition
that allows DNA testing and analysis to be conducted. The
evidence was not previously subject to DNA testing and analysis
or was not subjected to the testing and analysis that is now
requested and that may resolve an issue not previously resolved
by the previous testing and analysis.
Louisiana (Code Crim. Pro. art. 926.1 et al.)
A special remedy for post-conviction DNA testing is
available until August 31, 2005 (except that time limit does
not apply to defendants sentenced to death prior to the Act's
effective date), provides that:
1. The evidence to be tested is available and in a
condition that would permit DNA testing.
2. Articulable doubt based on competent evidence must be
shown as to guilt of petitioner, and reasonable likelihood that
the requested DNA testing will resolve the doubt and establish
petitioner's innocence.
3. Application for testing must include factual
circumstances establishing the timeliness of the application,
identification of the particular evidence for which DNA testing
is sought, and affidavit under penalty of perjury that
applicant is factually innocent of the crime for which
convicted.
4. Relief to be granted only if the DNA test results prove
by clear and convincing evidence that the petitioner is
factually innocent of the crime for which convicted.
Maine (15 M.R.S. Sec. Sec. 2137, 2138 (2001)
Person incarcerated for offense potentially punishable by
imprisonment for at least 20 years may file a motion for post-
conviction DNA analysis of evidence in the case and for a new
trial based on the analysis results. To secure testing (among
other conditions) the person must:
1. Present a prima facie case that identity was at issue
during the person's trial.
2. If the DNA analysis shows that the person is the source
of the evidence, the person's DNA record must be added to the
state DNA database and data bank.
3. The court must hold a hearing if DNA analysis shows that
the person is not the source of the evidence. The person must
establish by clear and convincing evidence at the hearing that:
only the perpetrator of the crime could be the source of the
evidence; the evidence was collected, handled, and preserved in
such a way that the court can find that the DNA profile of the
analyzed sample is identical to the DNA sample initially
collected during the investigation; and the person's exclusion
as the source of the evidence, balanced against the other
evidence in the case, is sufficient to justify a new trial.
Maryland (Crim. Pro. Sec. 8-201)
Persons convicted of specified homicidal or sexual offenses
may petition for DNA testing of scientific identification
evidence that the State possesses that is related to the
judgment of conviction. A court shall order DNA testing if the
court finds that:
1. The evidence has not been previously subjected to the
requested DNA testing for reasons beyond the petitioner's
control, or a different type of DNA test must be requested
having a reasonable likelihood of providing a more probative
result.
2. The scientific identification evidence to be tested must
have been subject to a chain of custody that is sufficient to
establish that it has not been substituted, tampered with,
replaced, or altered in any material aspect.
3. Identity must have been an issue in the trial that
resulted in the petitioner's conviction.
4. There must be a reasonable probability that the DNA
testing has the scientific potential to produce results
materially relevant to the petitioner's assertion of innocence.
Massachusetts (Mass.R.Crim.P.), Rule 30
Any person who is imprisoned or whose liberty is restrained
pursuant to a criminal conviction may at any time, as of right,
file a written motion requesting the trial judge to release him
or her or to correct the sentence then being served upon the
ground that the confinement or restraint was imposed in
violation of the Constitution or laws of the United States or
of the Commonwealth of Massachusetts.
Post Conviction Procedure:
1. Any grounds not in the raised in the original motion are
waived unless the judge in the exercise of discretion permits
them to be raised in a subsequent motion, or unless such
grounds could not reasonably have been raised in the original
or amended motion.
2. The judge may rule on the issue or issues presented by
such motion on the basis of the facts alleged in the affidavits
without further hearing if no substantial issue is raised by
the motion or affidavits.
3. Where affidavits filed by the moving party establish a
prima facie case for relief, the judge on motion of any party,
be heard, may authorize such discovery as is deemed
appropriate, subject to appropriate protective order.
Michigan (Mich. Comp. Laws 770.16 (2000)
Convicted felons may petition not later than January 1,
2006, for DNA testing of biological material identified during
the investigation of crime if convict can show prima facie
proof that the evidence sought to be tested is material to the
issue of the convicted person's identity as the perpetrator to,
the crime that resulted in the conviction. The petitioner must
also establishes all of the following by clear and convincing
evidence:
1. Evidence is available for testing but was not tested or
was tested using inadequate technology.
2. If testing proves evidence not linked to convicted
person, hearing determines whether new trial is warranted.
3. The identity of the defendant as the perpetrator of the
crime was at issue during his or her trial.
Minnesota (Minn. Stat. Sec. 590.01 (2001))
Motion for DNA testing must demonstrate the person's actual
innocence. Additionally, the motion must meet the following
conditions:
1. The evidence must have been secured in relation to the
trial which resulted in the conviction;
2. The evidence must not have been subject to testing
previously because the technology for the testing was not
available at the time of trial or the testing was not available
as evidence at the time of the trial.
3. Prima facie case must be shown that identity was an
issue in the trial.
Mississippi (Miss. Code Ann. Sec. 99-39-1)
Allows persons convicted of capital crime to petition for
DNA testing that was not available at trial. Ellis v. State,
No. 97-M-01326 which is and unpublished opinion.
Pending Legislation in Mississippi--(Miss. H.B. 217 (2002))
This bill will allow ``all prisoners in custody for a
capital death penalty conviction shall have the right to file a
post-conviction motion for DNA testing.''
Missouri (V.A.M.S. 547.035)
A person in custody claiming that forensic DNA testing will
demonstrate the person's innocence of the crime for which the
person is in custody may file a postconviction motion in the
sentencing court seeking such testing. The motion must allege
facts under oath demonstrating that:
1. Testing must ``have the scientific potential to produce
new, noncumulative evidence materially relevant'' to the
``assertion of actual innocence.'' For specific felonies listed
in the bill, evidence shall be preserved for an unknown
duration.
2. DNA test will demonstrate his innocence of the crime for
which he is in custody.
3. There is evidence upon which DNA testing can be
conducted; and the evidence must not have been previously
tested because the technology for testing was not reasonably
available at the time of trial, or the evidence to be tested
was unknown or otherwise unavailable to both the movant and his
lawyer.
4. Identity must have been an issue in the trial.
5. Granting testing requires judicial finding that a
reasonable probability exists that the movant would not have
been convicted if exculpatory results had been obtained through
the requested DNA testing.
Montana (MCA 46-21-102(2))
MCA 46-21-102(2) was added in anticipation of a post
conviction DNA testing request. It states ``[A] claim that
alleges the existence of newly discovered evidence that, if
proved and viewed in light of the evidence as a whole would
establish that the petitioner did not engage in the criminal
conduct for which the petitioner was convicted, may be raised
in a petition filed within 1 year of the date on which the
conviction becomes final or the date on which the petitioner
discovers, or reasonably should have discovered, the existence
of the evidence, whichever is later.''
Nebraska (Neb.-Rev.-St. Sec. Sec. 29-3001, 4118, 4120-4125)
At any time after conviction the inmate may file motion
with trial court for DNA testing of material related to
conviction in possession or control of the state which was not
subject to testing or can be retested with greater accuracy
using new techniques. Petitioners must meet a requirement that
``testing was effectively not available at the time of trial,''
with exceptions for ``current DNA techniques that provide a
reasonable likelihood of more accurate and probative results''
and the standard that ``testing may produce noncumulative,
exculpatory evidence relevant to the claim.''
Nevada (Nev. Rev. Stat. Ann. Sec. 34.726)
While there is no specific statute authorizing DNA testing,
Nevada post-conviction statute permits DNA testing under
certain circumstances. DNA testing is ordered by the court on a
case by case basis, by filing a writ of Habeas Corpus petition.
Additionally, Clark County, which include Las Vegas and
surrounding communities, is reviewing every criminal case to
determine whether DNA testing should be conducted.
New Hampshire
Pending Legislation in New Hampshire--(SB30) (HB 1258)
SB30--This bill expands the existing DNA testing program
which requires testing of sexual offenders by including DNA
testing of violent criminal offenders who have been convicted
of the commission or attempted commission of murder,
manslaughter, assault, kidnapping, robbery, or burglary.
Testing would also be required for juvenile offenders who have
been certified for trial as an adult and who are convicted of
the commission or attempted commission of the same violent
crimes.
HB 1258--This bill allows a person in custody pursuant to
the judgment of court to, at any time after conviction or
adjudication as a delinquent, apply to the court for forensic
DNA testing of any biological material that:
1. Is related to the investigation or prosecution that
resulted in the judgment.
2. Is in the actual or constructive possession of this
state or the United States or has been retained by any other
person under conditions sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in any
respect material to the DNA testing.
3. Was not previously subjected to DNA testing, or can be
subjected to retesting with different DNA techniques that
provide a reasonable probability of reliable and probative
results.
New Jersey (N.J.S.A. 2A:84A-32a-b)
Convicted felon claiming actual innocence may request DNA
testing if favorable results of the testing could have resulted
in acquittal. The court must determine that all of the
following criteria has been established before the motion can
be granted:
1. The evidence to be tested is available and in a
condition that would permit the DNA testing that is requested
in the motion; and the evidence has been subject to a chain of
custody sufficient to establish that it has not been
substituted, tampered with, replaced or altered in any material
aspect.
2. The identity of the defendant was a significant issue in
the case.
3. The convicted person has made a prima facie showing that
the evidence sought to be tested is material to the issue of
the convicted person's identity as the offender.
4. The requested DNA testing result would raise a
reasonable probability that if the results were favorable to
the defendant, a motion for a new trial based upon newly
discovered evidence would be granted.
5. The evidence sought to be tested was not previously
tested, or it was tested previously, but the requested DNA test
would provide results that are reasonably more discriminating
and probative of the identity of the offender or have a
reasonable probability of contradicting prior test results.
6. The motion is not made solely for the purpose of delay.
New Mexico (NMSA 1978, Sec. 31-1A)
A person may petition for DNA testing when such tests were
not available at the time of trial and will establish his or
her innocence. The petition must be filed prior to July 1,
2002. To obtain testing, the petitioner must prove by clear and
convincing evidence (among other conditions) that:
1. Identity was an issue in the trial.
2. The evidence was not tested previously because the
technology for DNA testing was not available at the time of the
trial, and if the evidence for which testing is sought had been
admitted at trial, a reasonable judge or jury would not have
been able to find him guilty beyond a reasonable doubt.
3. The evidence was secured and preserved by the law
enforcement agency that investigated the case, and was subject
to a chain of custody sufficient to establish that it was not
substituted, tampered with, replaced or altered in any material
respect.
4. testing must ``be highly likely to produce evidentiary
results that would have been admissible at the * * * initial
trial; and if the evidence * * * had been admitted * * * a
reasonable judge or jury would not have been able to find [the
petitioner] guilty beyond a reasonable doubt.''
New York (Crim. Pro. Law Sec. 440.30)
Post-conviction DNA testing remedy is limited to cases
involving convictions occurring before 1996. Before the court
can order testing, the court must find that there must be a
reasonable probability that the verdict would have been more
favorable to the defendant if such testing had been.
Pending Legislation in New York--A09250
This bill amends the criminal procedure law to authorize an
order for DNA testing in support of a motion to vacate a
judgment regardless of when the defendant's conviction
occurred.
North Carolina (N.C.G.S.A. Sec. 15A-269)
A defendant may make a motion before a trial court for
performance of DNA testing of any biological evidence that
meets all of the following conditions:
1. The requested evidence is material to the defense.
2. Is related to the investigation or prosecution that
resulted in the judgment.
3. The DNA was either not tested or newer testing will
result in greater accuracy and probity or is likely to
contradict prior results.
4. Granting post-conviction DNA testing requires reasonable
probability that the verdict would have been more favorable to
the defendant if the requested testing had been done.
North Dakota (N.D. Cent. Code, Sec. 29-32.1--(2002))
An applicant for post-conviction relief has the burden of
establishing grounds for relief. Post-conviction proceedings
are civil in nature and a trial court may summarily dismiss an
application for post-conviction relief if there is no genuine
issue of fact and the moving party is entitled to judgment as a
matter of law. A party opposing a motion for summary
disposition under the Uniform Post-Conviction Procedure Act
must raise an issue of material fact. If the moving party
establishes there is no genuine issue of material fact, the
burden shifts to the non-moving party to show a genuine issue
of fact exists. The resisting party may not merely rely on
pleadings or unsupported conclusory allegations but must
present competent admissible evidence by affidavit or other
comparable means which raises an issue of material fact.
Section 29-32.1-12(2), N.D.C.C., authorizes denial of an
application for post-conviction relief on the ground of misuse
of process. A defendant is not entitled to post-conviction
relief if the contentions are simply variations of previous
arguments. An applicant for a post-conviction relief is only
entitled to an evidentiary hearing if a reasonable inference
raises a general issue of material fact.
Ohio
The State Attorney Generals's office has a voluntary
program for death row inmates called the Capital Justice
Initiative. A copy of the Capital Justice Initiative is
available on the Ohio Attorney General's website:
This program allows the petitioner to
make an application to the Ohio AG's office for DNA testing if:
1. The DNA was not subjected to previous testing.
2. The expected results must be exonerative in nature and
outcome determinative.
3. The results are retained by the AG's office for use as
evidence and are of public record.
Oklahoma (title 22, Sec. Sec. 1371, 1371.1)
Makes provision, until July 1, 2005, for committed
defendants to request DNA testing where the defendant is
factually innocent. Factual innocence requires the defendant to
establish by clear and convincing evidence that no reasonable
jury would have found the defendant guilty beyond a reasonable
doubt in light of the new evidence.
Oregon (OR ST T. 14, Ch. 138)
Motions for DNA testing of specific evidence must be filed
by January 1, 2006. A person may file in court a motion
requesting the performance of DNA testing if the person was
convicted for an aggravated murder or a felony, and present a
prima facie showing that:
1. The identity of the perpetrator was an issue in the
trial resulting in conviction or, for a retarded person,
identity should have been an issue in the trial or plea
agreement.
2. DNA testing, assuming exculpatory results, would
establish the actual innocence of the person or entail a
mandatory sentence reduction.
3. A reasonable possibility that testing will produce
exculpatory evidence that would establish innocence or a
mandatory sentence reduction.
Pennsylvania (S.B. 589 pn 2169, effective September 8, 2002, 42
P.A.C.S. Sec. 9543.1)
The convicted felon claiming actual innocence may request
DNA testing if the evidence is related to their conviction
provided that:
1. The individuals did not request DNA testing at trial,
and was convicted after 1995.
2. Petitioner must make a prima facie case showing that the
identity was at issue.
3. No right to appeal.
4. Applicant must assert ``actual innocence of the
offense'' in order to meet the standard for postconviction DNA
tests.
5. In a capital case, the motion must ``assert the
applicant's actual innocence of the charged or uncharged
conduct constituting an aggravating circumstance if the
applicant's exoneration of the conduct would result in vacating
a sentence of death; of, in a capital case, assert that the
outcome of the DNA testing would establish a mitigating
circumstance.''
Rhode Island (Chapter 10-9.1-10 (RI General Laws))
Statute applies to any person ``convicted of and sentenced
for a crime and who is currently serving an actual term of
imprisonment and incarceration pursuant to said sentence,'' and
authorizes a person to ``file a petition with the superior
court requesting the forensic DNA testing of any evidence that
is in the possession or control of the prosecution, law
enforcement, laboratory, or court.'' The superior court shall
order testing if it finds that:
1. A reasonable probablity exists that the defendant would
not have been prosecuted or convicted if the DNA results were
exculpatory.
2. The evidence exists and is amenable to DNA testing.
3. The evidence or a portion of it was not previously
tested using DNA testing or that the testing required will
resolve an issue not addressed by previous testing.
4. The petition is presented in order to show actual
innocence and not to delay the ``administration of justice.''
South Carolina (S.C. Code Ann. Sec. 17-27-160)
Authorizes post-conviction DNA testing where inmate
convicted of capital crime. The rules of discovery are
applicable to DNA testing requests. It has been allowed when an
appropriate showing has been made to the court on a case by
case basis.
South Dakota (Case Law)
Jenner v. Dooley, 1999 SD 20; 590 N.W.2d 463 (1999);
Davi v. Class, 2000 SD 30; 609 N.W.2d 107 (2000)
Decisions allow persons access to DNA testing where they
have been convicted of a capital crime and claim actual
innocence.
Jenner v. Dooley, 1999 SD 20; 590 N.W.2d 463 (1999)
After careful consideration, the following guidelines apply
to requests to post-conviction scientific analysis:
1. The evidence and test results must meet the Daubert
standard for scientific reliability. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). A showing must be
made that if the matter were presently tried the defendant
would be entitled to the testing and the results would be
admissible.
2. Because convicted defendants may not obtain
reconsideration of their cases whenever some new technology
promises to reveal another angle on the evidence against them,
it must be shown that a favorable result using the latest
scientific procedures would most likely produce an acquittal in
a new trial.
3. Testing should not be allowed if it imposes an
unreasonable burden on the State. See generally State v.
Fowler, 1996 SD 78, P21, 552 N.W.2d 92, 96. An exorbitant cost
may be grounds for denial, for example, especially if
anticipated test results promise to be less than definite.
4. If testing is allowed, the court should impose
reasonable safeguards to ensure the preservation and integrity
of the evidence. With biological evidence, courts have
generally found post-conviction testing most suitable when
(a) identity of a single perpetrator is at issue;
(b) evidence against the defendant is so weak as to
suggest real doubt of guilt;
(c) the scientific evidence, if any, used to obtain
the conviction has been impugned; and,
(d) the nature of the biological evidence makes
testing results on the issue of identity virtually
dispositive.
Tennessee (Tenn. Code Ann. Sec. Sec. 40-30-401-413)
A person convicted of and sentenced for commission of first
degree murder, second degree murder, aggravated rape, rape,
aggravated sexual battery or rape of a child, attempted
commission of any of these offenses, any lesser included
offense of these offenses, or, at the direction of the trial
judge, any other offense, may at any time, file a petition
requesting the forensic DNA analysis of any evidence. The court
shall order DNA analysis if it finds that:
1. The evidence is in the possession or control of the
prosecution, law enforcement, laboratory, or court, and that is
related to the investigation or prosecution that resulted in
the judgment of conviction and that may contain biological
evidence.
2. A reasonable probability exists that the petitioner
would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA analysis.
3. The evidence was never previously subjected to DNA
analysis or was not subjected to the analysis that is now
requested which could resolve an issue not resolved by previous
analysis.
4. The application for analysis is made for the purpose of
demonstrating actual innocence and not to unreasonably delay
the execution of sentence or administration of justice.
Texas (Tex. Code Crim. Proc. art. 64.01-03)
A convicted person may submit to the convicting court a
motion for DNA testing of evidence containing biological
material if:
1. The evidence exists and is in a condition making DNA
testing possible; and has been subjected to a chain of custody
sufficient to establish that it has not been substituted,
tampered with, replaced, or altered in any material respect.
2. The evidence must not have been previously subjected to
DNA testing: because DNA testing was either not available; or
if it was available, the test was not technologically capable
of providing probative results. However, if the evidence was
previously subjected to DNA testing, it still can be subjected
to testing with newer testing techniques that provide a
reasonable likelihood of results that are more accurate and
probative than the results of the previous test.
3. Identity must be an issue in the case and convicted
person must show reasonable probability that he would not have
been prosecuted or convicted if exculpatory results had been
obtained through DNA testing.
4. The request for the proposed DNA testing must not be
made in order to unreasonably delay the execution of sentence
or administration of justice.
Utah (Utah Code Ann. Sec. 78-35a-301-304 (2002))
Person asserting actual innocence under oath may file a
petition identifying specific evidence for DNA testing, the
petition must allege that:
1. Evidence has been obtained regarding the person's case
which is still in existence and is in a condition that allows
DNA testing to be conducted.
2. The chain of custody is sufficient to establish that the
evidence has not been altered in any material aspect.
3. The petition identifies the specific evidence to be
tested and states a theory of defense, not inconsistent with
theories previously asserted at trial, that the requested DNA
testing would support.
4. The evidence was not previously subjected to DNA
testing, or if the evidence was tested previously, the evidence
was not subjected to the testing that is now requested, and the
new testing may resolve an issue not resolved by the prior
testing.
5. The evidence that is the subject of the request for
testing has the potential to produce new, noncumulative
evidence that will establish the person's actual innocence.
6. The court may not order DNA testing where DNA testing
was available at the time of trial and the person did not
request DNA testing or present DNA evidence for tactical
reasons.
7. The defendant is entitled to relief only if the test
results demonstrate by clear and convincing evidence that the
defendant is actually innocent.
Vermont (13 V.S.A. Sec. 7131-7137)
According to the Vermont Attorney General's office there
has yet to be a post-conviction challenge based on DNA testing.
A prisoner who is in custody under sentence of a court and
claims the right to be released upon the ground that the
sentence was imposed in violation of the constitution or laws
of the United States, or of the state of Vermont, or is
otherwise subject to collateral attack, may at any time move
the superior court of the county where the sentence was imposed
to vacate, set aside or correct the sentence. The court may
entertain and decide the motion without requiring the
production of the prisoner at the hearing but the prisoner may
attend if he so requests. If the court finds that the judgment
was made without jurisdiction, or that the sentence imposed was
not authorized by law or is otherwise open to collateral
attack, or that there has been such a denial or infringement of
the constitutional rights of the prisoner as to make the
judgment vulnerable to collateral attack, it shall vacate and
set the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence as
may appear appropriate.
Virginia (Va. Code Ann. Sec. 19.2-327.1 (2001))
Convicted felon may petition to circuit court that entered
the original conviction for new testing of biological evidence
if:
1. The evidence was not known or available at the time of
conviction.
2. The evidence was subject to chain of custody sufficient
to establish integrity.
3. The evidence is materially relevant, non-cumulative, and
necessary and may prove actual innocence.
4. The convicted person has not unreasonably delayed the
filing of petition after the evidence or testing procedure
became available.
5. There is no right to appeal.
6. In a writ of actual innocence, the petitioner must
allege ``the reason or reasons the evidence will prove that no
rational trier of fact could have found proof of guilty beyond
a reasonable doubt.''
Washington (Rev. Code Wash. (ARCW) Sec. 10.73.170 (2002))
Until the end of 2004, imprisoned persons who have been
denied post-conviction DNA testing may submit a request to the
county prosecutor for post-conviction DNA testing, if:
1. The DNA evidence was not admitted because the court
ruled DNA testing did not meet acceptable scientific standards,
or DNA testing technology was not sufficiently developed to
test the DNA evidence in the case.
2. Prosecutor must review the request based upon the
likelihood that the DNA evidence would demonstrate innocence on
a more probable than not basis, and have the testing done if it
is warranted.
3. Denial of a testing request by the county prosecutor may
be appealed to the State Attorney General.
West Virginia (W. Va. Code Sec. 53-4A-7)
Post trial DNA test results, which were not introduced at
trial, could be considered in ruling on habeas petition.
Wisconsin (Wis. Stat. Sec. 974.07 (2001))
Allows a convict at any time after being convicted, to make
a motion in the court in which they were convicted for DNA
testing if all of the following apply:
1. The evidence is relevant to the investigation or
prosecution that resulted in the conviction.
2. The evidence is in the actual possession of a government
agency. The chain of custody of the evidence to be tested
establishes that the evidence has not been tampered with or, if
the chain of custody does not establish the integrity of the
evidence, the testing itself can establish the integrity of the
evidence.
3. The evidence has not previously been subjected to
testing or, if the evidence has previously been tested, it may
now be subjected to another test using a scientific technique
that was not available at the time of the previous testing and
that provides a reasonable likelihood of more accurate and
probative results.
4. For applications involving claims of innocence, must be
a reasonable probability that no prosecution or conviction
would have occurred had exculpatory DNA testing results been
available.
5. For applicants relating to wrongful sentencing, the
conviction or sentence in a criminal proceeding would have been
more favorable.
6. May order testing if the conviction or sentence would
have been more favorable.
Wyoming (Wyo. Stat. Sec. 1-27-101 (2002))
No Statute and no provision for post conviction DNA
testing.
ATTACHMENT E
The Majority Report cites five cases to support its
contention that incompetent and underfunded counsel resulted in
``innocent'' defendants being convicted. Majority Report at 19-
20. A careful examination of the facts in these five cases does
not support this assertion.
1. Albert Burrell--Burrell was sentenced to death for the
1986 robbery-murder of an elderly couple in Louisiana. (All
facts discussed herein are from a trio of investigative news
stories about this case published by a local Louisiana
newspaper. See Christopher Baughman and Tom Guarisco, ``Justice
for None'', The Baton Rouge Sunday Advocate, March 18-20, 2001,
at A-1.) In 2000, a state judge granted Burrell a new trial on
the basis that prosecutors had concealed the fact that they had
given a reduced sentence to a prison informant who had
testified against him. Burrell's codefendant also was given a
new trial--in part on the basis that prosecutors had concealed
evidence placing the murder weapon in Burrell's hands rather
than the codefendant's. The principle evidence against Burrell
was the testimony of Janet Burrell, his ex-wife and mother of
his child. Janet Burrell stated at trial that she saw Burrell
on the night of the murders with a large amount of cash and
with blood on his clothing, and that Burrell admitted to her
that he had committed the crime. Burrell's brother also
testified against him. Janet Burrell later recanted her
testimony, but subsequently withdrew the recantation,
explaining that she had been pressured to recant by a friend of
the Burrell family. Burrell's brother also recanted. The judge
who ordered a new trial did not credit these recantations, and
the original prosecutor has stated that he would try the case
again. The current prosecutor, however, declined to retry the
case. His office cited the lack of physical evidence--even the
house where the crimes had occurred had been demolished. And as
press accounts noted at the time, ``[m]emories of witnesses and
investigators have faded,'' and key testimony is ``tainted''--
including that of Janet Burrell, who could easily be impeached
with her prior recantation. Finally, although Burrell's habeas
counsel attacked trial counsel's supposed ``shocking
incompetence''--a common postconviction petition tactic--press
accounts have noted that counsel established an alibi for
Burrell at trial, attacked the prosecution's lack of physical
evidence or percipient witnesses, and highlighted the
inconsistencies in the prosecution testimony. Trial counsel's
performance was not a basis for the court's 2000 grant of a new
trial.
2. Federico Martinez-Macias--Macias was sentenced to death
in Texas for the 1983 home-invasion robbery and murder of an
older couple for whom he had once worked. Macias's codefendant,
whom witnesses positively identified as being at the scene with
an associate, testified that Macias was that associate and that
Macias was the actual killer. Martinez-Macias v. Collins, 810
F. Supp. 782, 792-95 (W.D. Tex. 1991). A habeas court found
that Macias's trial counsel should have called a witness who
would have given Macias an alibi, despite counsel's concerns
that the witness was not credible and that his testimony would
have opened to the door to evidence of Macias's past crimes.
Id. at 797, 803-05. Macias had over two dozen prior arrests,
including two robbery arrests and one conviction, and a recent
burglary arrest. Id. at 819 n.75. The prosecution also was
prepared to present evidence that, during the previous year,
Macias had assaulted and robbed at their home an elderly couple
for whom he had once worked. Id. at 799-800. The habeas court
second-guessed trial counsel's tactical decision and found that
he should have deemed this last offense too dissimilar to the
present crime to be admissible as to identity under Texas law.
Id. at 802-03. That court concluded that defendant had received
ineffective assistance, despite finding that trial counsel--who
had ten year's experience as an assistant district attorney and
had ``tried seven or eight capital murder cases''--``is, and in
1984 was, one of the best attorneys in El Paso.'' Id. at 790.
(Incidentally, the habeas court also found ineffective
assistance in counsel's failure to present evidence at the
sentencing phase that, among other things, Macias never shot
heroin in front of his stepchildren, but ``would [only] take
heroin behind the closed bathroom door.'' Id. at 816.) Ten
years after the murders, ``[l]ocal prosecutors said they were
unable to get a new indictment [of Macias] because a witness
had died and the memories of others are fading.'' ``Man Freed
After 9 Years on Death Row'', The Dallas Morning News, June 25,
1993, at 14D.
3. Gary Nelson--The Majority Report describes Nelson as
having been ``exonerated'' after 11 years on death row. Nelson
was convicted in Georgia in 1980 of the rape and murder of a
six-year-old girl. His conviction was reversed in 1991 when it
was discovered that the prosecution had concealed evidence that
undermined a hair analysis linking Nelson to the victim.
Although the State had argued at trial that a limb hair found
on the victim closely linked Nelson to the crime, prosecutors
had failed to turn over an FBI report stating that limb hairs
are generally unsuitable for identification purposes. See
Nelson v. Zant, 405 S.E.2d 250, 252 (Ga. 1991). Although this
error required reversal, other evidence still pointed to
Nelson. The victim was last known to have gone to a house that
Nelson shared with a roommate; Nelson claimed to have been
working on his car at the time, and a man was seen working on a
car at the house when the victim arrived; Nelson had a history
of violence towards women, and had recently killed a man in a
fight outside of a bar; and a child witness identified Nelson
as ``look[ing] like'' the man she saw with the victim. Jeanne
Cummings, ``Attorneys: Lies, Sloppy Defense Landed Client on
Death Row--Testimony on Slaying Tainted, New Team Argues'', The
Atlanta Journal-Constitution, August 15, 1989, at A1. Even the
court that reversed Nelson's conviction on the basis of the
withheld FBI report found that ``the jury in this case might
have arrived at the same verdict if the state had not
suppressed this critical evidence.'' Nelson, 405 S.E.2d at 252.
According to contemporaneous news accounts, local prosecutors
were considering retrying Nelson but were having great
difficulty locating key witnesses 13 years after the crime had
occurred. See Mark Curriden, ``Man Convicted of Rape, Killing
Could Go Free--Court Cited Evidence Withheld in '80'', The
Atlanta Journal-Constitution, October 28, 1991, at F1; Jeanne
Cummings, ``Murder Convict on Death Row Wins New Trial--
`Critical' Evidence Withheld, Court Says--`Now a Very Old File'
'', The Atlanta Journal-Constitution, at C1.
4. Dennis Leon Fritz--Although the Majority Report
discusses Fritz's case in the context of ``innocent people
[who] are sentenced to death''--and several tabloid-style news
stories mistakenly refer to Fritz as having received a death
sentence--the courts have made clear that Dennis Fritz ``was
sentenced to life imprisonment.'' Fritz v. Champion, 66 F.3d
338, No. 94-6327, September 11, 1995 (10th Circuit). At his
trial, the strongest evidence used against Fritz was a state
forensic chemist's opinion that numerous hairs found at the
crime scene were linked to Fritz and his codefendant. See Fritz
v. Oklahoma, 811 P.2d 1353, 1362 (Okla. Crim. App. 1991). Since
then, it has been discovered that prosecutors had suppressed a
report by the first state chemist to analyze the evidence in
the case; she had concluded that none of the hairs at the crime
scene could be linked to Fritz or his codefendant. See Diana
Baldwin, ``Experts Disagree on Hair Analysis'', The Daily
Oklahoman, May 27, 2001, at 1A. It is not apparent why Fritz's
counsel should be faulted for neglecting to exploit evidence
that prosecutors had failed to disclose.
5. Dennis Williams--Alone among the five examples cited in
the Majority Report, evidence shows that Williams is actually
innocent, and Williams was in fact sentenced to death. Again,
however, the flaws in Williams's case have little to do with
his public defender. Instead, Williams appears to be another
victim of a culture of gross corruption and governmental
misconduct in Cook County, Illinois. His case merits a thorough
discussion of its facts and the context in which it arose.
THE SPECIAL CASE OF COOK COUNTY
Dennis Williams was arrested after a neighbor who had a
grudge against him linked him to the brutal kidnaping, gang
rape, and double murder of a young couple in Chicago in 1978.
See People v. Williams, 444 N.E.2d 136, 139-40 (Ill. 1983).
Chicago police and prosecutors manufactured the rest of the
case against Williams. Paula Gray, an illiterate and mildly
retarded woman who testified against Williams, was taken by
police to the abandoned townhouse where the crimes occurred.
She later recounted, ``They kept yellin', `This is where she
got raped and killed--Dennis shot her twice in the head, didn't
he? They takes me to a motel an' says, `The same thing that
happened to the lady, it will happen to you.' '' William
Freivogel, ``Lessons from 13 Innocent Men'', St. Louis Post-
Dispatch, April 30, 2000, at B3. When Gray nevertheless refused
to testify at one of the trials, prosecutors brought murder and
perjury charges against her; she was convicted and sentenced to
50 years in prison. Gray was later persuaded to testify against
Williams at his retrial in exchange for having all charges
against her dropped. Prosecutors allowed Gray to lie and
testify that she had not been promised anything in exchange for
her testimony. See Ken Armstrong, Maurice Possley, ``Reversal
of Fortune'', Chicago Tribune, January 13, 1999, at 1.
Williams's prosecutors also concealed that burglary charges had
been dropped against a jail informant who agreed to testify
against Williams. The lead prosecutor also falsely stated to
the jury that hair found in Williams's car matched the victims.
Id.
Seventeen years after the murders occurred, private
investigators discovered records of a police interview
conducted five days after the bodies were found--records that
were never turned over to defense attorneys--which implicated
other suspects. Two of those suspects confessed in 1995, their
guilt was confirmed by DNA tests in 1996, they and a third new
defendant were sentenced to long prison terms in 1997, and
Williams and his codefendants were released. See Janan Hanna,
``Man Convicted of Ford Heights Killings Gets 65 Years'',
Chicago Tribune, January 30, 2001, at 3. One possible reason
why one new suspect so readily confessed in 1995, even before
any DNA evidence was tested, is that he was already serving a
long prison term. He had murdered a woman in 1991, near the
same location where the 1978 murders had occurred.
Appellate courts have reversed and remanded five Cook
County murder and attempted murder convictions because of
misconduct by the same assistant district attorney who
prosecuted Williams. See ``Reversal of Fortune'', supra. Yet
two years after Williams's trial, that prosecutor was made
supervisor of Cook County's south suburban office by then-
State's Attorney Richard M. Daley. In 1985, a death sentence
secured by the same prosecutor was reversed by the Illinois
Supreme Court, which accused him of ``destroy[ing] the aura of
dignity in the courtroom''; the prosecutor had personally
attacked the defense attorney, judge, and a defense witness,
and had physically intimidated the defense lawyer. Id. Yet six
months after this reprimand, Daley promoted the same individual
to direct Cook County's felony division, and later placed him
in charge of training prosecutors and monitoring misconduct.
Id.
Nor is the case of Dennis Williams's prosecutor an anomaly
in Cook County. In 1984, a state appellate court reversed a
conviction secured by another prosecutor, describing her
actions as ``a veritable hornbook of `do nots.' '' As a result
of that court's rebuke, this person became one of only two
prosecutors ever sanctioned for trial misconduct by the state's
lawyer disciplinary agency, which expressed wonder that she had
not been disciplined internally by her office. Yet the same
prosecutor was later elected a Cook County judge, after
receiving the crucial endorsement of the local Democratic Party
through the influence of her former supervisor, now-Mayor
Richard M. Daley. See Ken Armstong, Maurice Possley, ``Break
Rules, Be Promoted'', Chicago Tribune, January 14, 1999.
Another Cook County assistant district attorney, who had three
convictions reversed for misconduct--including a reversal for
knowingly using perjured testimony--has since been made a state
appellate judge. Id. Yet another prosecutor had convictions for
two murders, a rape, and an attempted murder reversed for what
different appellate courts labeled ``outrageous'' courtroom
behavior and ``brazen misconduct.'' Five months after another
court described his conduct as ``an insult to the court and to
the dignity of the trial bar,'' Daley promoted this man to
supervise the Cook County narcotics unit. Id.
A Chicago Tribune investigation found that 42 Cook County
prosecutors who have had convictions reversed for misconduct
later were made judges. A prosecutor who had a murder
conviction overturned for misconduct subsequently was appointed
the City of Chicago's Inspector General. Although many of these
cases only involved improper argument--such as a prosecutor who
told jurors that police ``would have done us all a favor by
killing [the defendant]''--many cases also involved failing to
disclose evidence favorable to the defendant, allowing
witnesses to lie, or racial discrimination in jury selection.
``Break Rules, Be Promoted'', supra. The Tribune's
investigation described ``a culture that fosters misconduct''
in the Cook County State's Attorney's office. Notably, the same
leadership also presided over what is one of the more horrific
of the authentic ``actual innocence'' cases, the conviction of
Anthony Porter. See John Kass, ``With Porter Free, Who's Sorry
Now? Not Our Mayor'', Chicago Tribune, February 11, 1999, at 3.
When asked if he would apologize to Porter after his
exoneration, the former State's Attorney responded: ``I'm not
the person who has to apologize. America has to apologize.''
Id.
With all due respect, all of America is not Cook County
under the Daley Administration. The extraordinary level of
corruption and abuse that appears to have infected government
operations there is fairly unique in the United States. While
all Americans should be concerned about the crisis of
government in Chicago, the particular problems that Daley's
leadership has entailed cannot be used to indict all of
America. Nor can Cook County's problems be blamed on anything
other than a basic failure to hold leaders accountable for
their actions, and to insist on integrity in government. When
civic ethics are not enforced, fair and efficient operation of
government invariably fades. The changes that Cook County needs
are specific to that area, and can only ever be implemented
through local action. Cook County's problems cannot justify the
national mandates of this bill, nor are those problems even
remotely addressed by S. 486's provisions.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 486, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman);
UNITED STATES CODE
* * * * * * *
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
Part Section
1 I. CRIMES.................................................
* * * * * * *
PART I--CRIMES
Chapter Section
1. General provisions..................................... 1
* * * * * * *
1501. Obstruction of justice................................
* * * * * * *
CHAPTER 73--OBSTRUCTION OF JUSTICE
Sec.
1501. Assault on process server.
* * * * * * *
1518. Obstruction of criminal investigations of health care offenses.
1519. Destruction or altering of DNA evidence.
* * * * * * *
Sec. 1518. Obstruction of criminal investigations of health care
offenses
(a) Whoever willfully prevents, obstructs, misleads, delays
or attempts to prevent, obstruct, mislead, or delay the
communication of information or records relating to a violation
of a Federal health care offense to a criminal investigator
should be fined under this title or imprisoned not more than 5
years, or both.
(b) As used in this section the term ``criminal
investigator'' means any individual duly authorized by a
department, agency, or armed force of the United States to
conduct or engage in investigations for prosecutions for
violations of health care offenses.
Sec. 1519. Destruction or altering of DNA evidence
Whoever willfully or maliciously destroys, alters,
conceals, or tampers with evidence that is required to be
preserved under section 2292 of title 28, United States Code,
with intent to--
(1) impair the integrity of that evidence;
(2) prevent that evidence from being subjected to DNA
testing; or
(3) prevent the production or use of that evidence in
an official proceeding,
shall be fined under this title or imprisoned not more than 5
years, or both.
* * * * * * *
TITLE 20--EDUCATION
Chapter Section
1 1. Office of Education [Repealed].........................
* * * * * * *
CHAPTER 28--HIGHER EDUCATION RESOURCES AND STUDENT ASSISTANCE
SUBCHAPTER I--GENERAL PROVISIONS
* * * * * * *
SUBCHAPTER IV--STUDENT ASSISTANCE
Part A--Grants to Students in Attendance at Institutions of Higher
Education
* * * * * * *
Part D--Federal Perkins Loans
1087aa. Appropriations authorized.
* * * * * * *
Sec. 1087ee. Cancellation of loans for certain public service
(a) Cancellation of Percentage of Debt Based on Years of
Qualifying Service.--
(1) The percent specified in paragraph (3) of this
subsection of the total amount of any loan made after
June 30, 1972, from a student loan fund assisted under
this part [20 U.S.C.A. Sec. 1087aa et seq.] shall be
canceled for each complete year of service after such
date by the borrower under circumstances described in
paragraph (2).
(2) Loans shall be canceled under paragraph (1) for
service--
(A) as a full-time teacher * * *
* * * * * * *
(E) as a volunteer under the Peace Corps Act
[22 U.S.C.A. Sec. 2501 et seq.] or a volunteer
under the Domestic Volunteer Service Act of
1973 [42 U.S.C.A. Sec. 4950 et seq.];
(F) as a full-time law enforcement officer or
corrections officer for service to local,
State, or Federal law enforcement or
corrections agencies, or as a public defender
(as defined in section 428L);
* * * * * * *
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
Part Section
L. ORGANIZATION OF COURTS................................. 1
* * * * * * *
V. PROCEDURE.............................................. 1651
* * * * * * *
PART I--ORGANIZATION OF COURTS
Chapter Section
1. Supreme Court.......................................... 1
* * * * * * *
PART V--PROCEDURE
111. General Provisions................................... 1651
* * * * * * *
133. Review--Miscellaneous Provisions..................... 2101
* * * * * * *
CHAPTER 113--REVIEW--MISCELLANEOUS PROVISIONS
Sec.
2101. Supreme Court; time for appeal or certiorari; docketing; stay.
* * * * * * *
Sec. 2101. Supreme Court; time for appeal or certiorari; docketing;
stay
(a) A direct appeal to * * *
* * * * * * *
(g) The time for application for a writ of certiorari to
review a decision of the United States Court of Appeals for the
Armed Forces shall be as prescribed by rules of the Supreme
Court.
(h) Upon notice that the requisite number of justices of
the Supreme Court have voted to grant certiorari, the Director
of the Bureau of Prisons, the Secretary of a military branch,
or any other Federal official with authority to carry out a
death sentence, shall suspend the execution of the sentence of
death until the Supreme Court enters a stay of execution or
until certiorari is acted upon and the case is disposed of by
the Supreme Court.
(i) For purposes of this section, the Supreme Court shall
treat a motion for a stay of execution as a petition for
certiorari.
(j) In an appeal from, or petition for certiorari in, a
case in which the sentence is death, a stay of execution shall
immediately issue if the requisite number of justices vote to
grant certiorari. The stay shall remain in effect until the
Supreme Court disposes of the case.
* * * * * * *
Part VI--Particular Proceedings
Chapter Section
151. Declaratory Judgments................................ 2201
* * * * * * *
155. Injunctions; Three-Judge Courts...................... 2281
156. DNA testing.......................................... 2291
* * * * * * *
CHAPTER 156--DNA TESTING
Sec.
2291. DNA testing.
2292. Preservation of evidence.
Sec. 2291. DNA testing
(a) Application.--Notwithstanding any other provision of
law, a person convicted of a Federal crime may apply to the
appropriate Federal court for DNA testing by asserting under
oath that the person did not commit--
(1) the Federal crime of which the person was
convicted; or
(2) any other offense that a sentencing authority may
have relied upon when it sentenced the person with
respect to the Federal crime either to death or to an
enhanced term of imprisonment as a career offender or
armed career criminal.
(b) Notice to Government.--The court shall notify the
Government of an application made under subsection (a) and
shall afford the Government an opportunity to respond.
(c) Preservation Order.--The court shall order that all
evidence secured in relation to the case that could be
subjected to DNA testing must be preserved during the pendency
of the proceeding. The court may impose appropriate sanctions,
including criminal contempt, for the intentional destruction of
evidence after such an order.
(d) Order.--
(1) In general.--The court shall order DNA testing
pursuant to an application made under subsection (a)
upon a determination that--
(A) the evidence is still in existence, and
in such a condition that DNA testing may be
conducted;
(B) the evidence was never previously
subjected to DNA testing, or was not subject to
the type of DNA testing that is now requested
and that may resolve an issue not resolved by
previous testing;
(C) the proposed DNA testing uses a
scientifically valid technique;
(D) the proposed DNA testing has the
scientific potential to produce new,
noncumulative evidence which is material to the
claim of the applicant that the applicant did
not commit, and which raises a reasonable
probability that the applicant would not have
been convicted of--
(i) the Federal crime of which the
applicant was convicted; or
(ii) any other offense that a
sentencing authority may have relied
upon when it sentenced the applicant
with respect to the Federal crime
either to death or to an enhanced term
of imprisonment as a career offender or
armed career criminal; and
(E) the identity of the perpetrator was or
should have been a significant issue in the
case.
(2) Limitation.--
(A) In General.--The court shall not order
DNA testing under paragraph (1) if the
Government proves by a preponderance of the
evidence that the application for testing was
made to interfere with the administration of
justice rather than to support a claim
described in paragraph (1)(D).
(B) Government's claim.--The Government's
claim under subparagraph (A)--
(i) may be supported by evidence of
the defendant's unexplained delay in
seeking testing;
(ii) may be supported by evidence
that the defendant's attorney presented
at trial an affirmative defense that is
factually inconsistent with the current
application; and
(iii) shall succeed if the defendant
testified at trial in support of an
affirmative defense that is factually
inconsistent with the current
application.
(3) Testing procedures.--If the court orders DNA
testing under paragraph (1), the court shall impose
reasonable conditions on such testing designed to
protect the integrity of the evidence and the testing
process and the reliability of the test results,
including a condition that the test results are
simultaneously disclosed to defense counsel,
prosecuting counsel, and the court of jurisdiction.
(e) Cost.--The cost of DNA testing ordered under subsection
(c) shall be borne by the Government or the applicant, as the
court may order in the interests of justice, except that an
applicant shall not be denied testing because of an inability
to pay the cost of testing.
(f) Counsel.--The court may at any time appoint counsel for
an indigent applicant under this section pursuant to section
3006A(a)(2)(B) of title 18.
(g) Post-Testing Procedures.--
(1) Inconclusive results.--If the results of DNA
testing conducted under this section are inconclusive,
the court may order such further testing as may be
appropriate or dismiss the application.
(2) Results unfavorable to applicant.--If the results
of DNA testing conducting under this section inculpate
the applicant, the court shall--
(A) dismiss the application;
(B) assess the applicant for the cost of the
testing;
(C) submit applicant's DNA testing results to
the Department of Justice for inclusion in the
Combined DNA Index System; and
(D) make such further orders as may be
appropriate, including an order of contempt.
(3) Results favorable to applicant.--If the results
of DNA testing conducted under this section are
favorable to the applicant, the court shall order a
hearing and thereafter make such further orders as may
be appropriate under applicable rules and statutes
regarding post-conviction proceedings, notwithstanding
any provision of law that would bar such hearing or
orders as untimely.
(h) Rules of Construction.--
(1) Other post-conviction relief unaffected.--Nothing
in this section shall be construed to limit the
circumstances under which a person may obtain DNA
testing or other post-conviction relief under any other
provision of law.
(2) Finality rule unaffected.--An application under
this section shall not be considered a motion under
section 2255 for purposes of determining whether it or
any other motion is a second or successive motion under
section 2255.
(i) Definitions.--In this section:
(1) Appropriate federal court.--The term
``appropriate Federal court'' means--
(A) the United States District Court which
imposed the sentence from which the applicant
seeks relief; or
(B) in relation to a crime under the Uniform
Code of Military Justice, the United States
District Court having jurisdiction over the
place where the court martial was convened that
imposed the sentence from which the applicant
seeks relief, or the United States District
Court for the District of Columbia, if no
United States District Court has jurisdiction
over the place where the court martial was
convened.
(2) Federal crime.--The term ``Federal crime''
includes a crime under the Uniform Code of Military
Justice.
Sec. 2292. Preservation of evidence
(a) In General.--Notwithstanding any other provision of law
and subject to subsection (b), the Government shall preserve
all evidence that was secured in relation to the investigation
or prosecution of a Federal crime (as that term is defined in
section 2291(i)), and that could be subjected to DNA testing,
for not less than the period of time that any person remains
subject to incarceration in connection with the investigation
or prosecution.
(b) Exceptions.--The Government may dispose of evidence
before the expiration of the period of time described in
subsection (a) if--
(1) other than subsection (a), no statute,
regulation, court order, or other provision of law
requires that the evidence be preserved; and
(2)(A)(i) the Government notifies any person who
remains incarcerated in connection with the
investigation or prosecution and counsel of record for
such person (or, if there is no counsel of record, the
public defender for the judicial district in which the
conviction for such person was imposed), of the
intention of the Government to dispose of the evidence
and the provisions of this chapter; and
(ii) the Government affords such person not less than
180 days after such notification to make an application
under section 2291(a) for DNA testing of the evidence;
or
(B)(i) the evidence must be returned to its rightful
owner, or is of such a size, bulk, or physical
character as to render retention impracticable; and
(ii) the Government takes reasonable measures to
remove and preserve portions of the material evidence
sufficient to permit future DNA testing.
(c) Remedies for Noncompliance.--
(1) General limitation.--Nothing in this section
shall be construed to give rise to a claim for damages
against the United States, or any employee of the
United States, any court official or officer of the
court, or any entity contracting with the United
States.
(2) Civil penalty.--
(A) In general.--Notwithstanding paragraph
(1), an individual who knowingly violates a
provision of this section or a regulation
prescribed under this section shall be liable
to the United States for a civil penalty in an
amount not to exceed $1,000 for the first
violation and $5,000 for each subsequent
violation, except that the total amount imposed
on the individual for all such violations
during a calendar year may not exceed $25,000.
(B) Procedures.--The provisions of section
405 of the Controlled Substances Act (21 U.S.C.
844a) (other than subsections (a) through (d)
and subsection (j)) shall apply to the
imposition of a civil penalty under
subparagraph (A) in the same manner as such
provisions apply to the imposition of a penalty
under section 405.
(C) Prior conviction.--A civil penalty may
not be assessed under subparagraph (A) with
respect to an act if that act previously
resulted in a conviction under chapter 73 of
title 18.
(3) Regulations.--
(A) In general.--The Attorney General shall
promulgate regulations to implement and enforce
this section.
(B) Contents.--The regulations shall include
the following:
(i) Disciplinary sanctions, including
suspension or termination from
employment, for employees of the
Department of Justice who knowingly or
repeatedly violate a provision of this
section.
(ii) An administrative procedure
through which parties can file formal
complaints with the Department of
Justice alleging violations of this
section.
* * * * * * *
CHAPTER 165--UNITED STATES COURT OF FEDERAL CLAIMS PROCEDURE
Sec.
2501. Time for filing suit.
* * * * * * *
2513. Unjust conviction and imprisonment.
* * * * * * *
Sec. 2513. Unjust conviction and imprisonment
(a) Any person suing under section 1495 of this title must
allege and prove that:
* * * * * * *
(d) The Court may permit the plaintiff to prosecute such
action in forma pauperis.
(e) The amount of damages awarded shall not exceed the sum
of [$5,000] $10,000 for each 12-month period of incarceration.
* * * * * * *
TITLE 42--THE PUBLIC HEALTH AND WELFARE
Chapter Section
1. The Public Health Service [See Chapter 6A]............. 1
* * * * * * *
46. Justice System Improvement............................ 3701
* * * * * * *
CHAPTER 46--JUSTICE SYSTEM IMPROVEMENT
* * * * * * *
SUBCHAPTER I--OFFICE OF JUSTICE PROGRAMS
* * * * * * *
SUBCHAPTER V--BUREAU OF JUSTICE ASSISTANCE GRANT PROGRAMS
* * * * * * *
Part A--Drug Control and System Improvement Grant Program
Sec. 3751. Description of drug control and system improvement grant
program
(a) Purpose of Program.--It is the purpose * * *
(b) Grants to States and Units of Local Government; Purpose
of Grants.--The Director of the Bureau of Justice Assistance
(hereafter in this subchapter referred to as the ``Director'')
is authorized to make grants to States, for the use by States
and units of local government in the States, for the purpose of
enforcing State and local laws that establish offenses similar
to offenses established in the Controlled Substances Act (21
U.S.C. 801 et seq.) and to improve the functioning of the
criminal justice system with emphasis on violent crime and
serious offenders. Such grants shall provide additional
personnel, equipment, training, technical assistance, and
information systems for the more widespread apprehension,
prosecution, adjudication, and detention and rehabilitation of
persons who violate these laws, and to assist the victims of
such crimes (other than compensation), including--
(1) demand reduction education programs in which law
enforcement officers participate;
* * * * * * *
(26) to develop and implement antiterrorism training
programs and to procure equipment for use by local law
enforcement authorities;
(27) enforcing child abuse and neglect laws,
including laws protecting against child sexual abuse,
and promoting programs designed to prevent child abuse
and neglect; [and]
(28) establishing or supporting cooperative programs
between law enforcement and media organizations, to
collect, record, retain, and disseminate information
useful in the identification and apprehension of
suspected criminal offenders[.];
[(27)] (29) improving the quality, timeliness, and
credibility of forensic science services for criminal
justice purpose[.] ; and
(30) prosecutor-initiated programs to conduct a
systematic review of convictions to identify cases in
which DNA testing is appropriate and to offer DNA
testing to inmates in such cases.
* * * * * * *
Sec. 3756. Allocation and distribution of funds under formula grants
(a) States.--Subject to subsection * * *
* * * * * * *
(f) Testing Certain Sex Offenders for Human
Immunodeficiency Virus.--
(1) For any fiscal year beginning more than 2 years
after November 29, 1990--
* * * * * * *
(3) For purposes of this subsection--
(A) the term ``convicted'' includes
adjudicated under juvenile proceedings; and
(B) the term ``sexual act'' has the meaning
given such term in subparagraph (A) or (B) of
section 2245(1) of Title 18.
(g) Rule.--Funding under this section is subject to the
special authorization rule set forth at section 201(l) of the
Innocence Protection Act of 2002.
* * * * * * *
THE STATE JUSTICE INSTITUTE ACT OF 1984
SHORT TITLE
Sec. 201. This title may be cited as the ``State Justice
Institute Act of 1984''.
DEFINITIONS
Sec. 202. As used in this title, the term--
(1) ``Board'' means the Board of Directors of the
Institute;
* * * * * * *
LIMITATIONS ON GRANTS AND CONTRACTS
Sec. 207. (a) With respect to grants made and contracts or
cooperative agreements entered into under this title, the
Institute shall--
* * * * * * *
(d) To ensure that funds made available under this Act are
used to supplement and improve the operation of State courts,
rather than to support basic court services, funds shall not be
used--
(1) to supplant State or local funds currently
supporting a program or activity; or
(2) to construct court facilities or structures,
except to remodel existing facilities to demonstrate
new architectural or technological techniques, or to
provide temporary facilities for new personnel or for
personnel involved in a demonstration or experimental
program.
SEC. 207A. GRANTS TO TRAIN DEFENSE COUNSEL.
(a) Grants Authorized.--The Institute may make grants to
States and units of local government to conduct training
programs to improve the performance and competency of defense
counsel representing defendants charged with capital offenses
in State and local courts.
(b) Eligibility.--Grants authorized by this section may
only be made for the training of defense counsel in a State
that has capital punishment.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $15,000,000 for fiscal years 2003 through
2007 to carry out this section.
SEC. 207B. GRANTS TO TRAIN STATE AND LOCAL JUDGES.
(a) Grants Authorized.--The Institute may make grants to
State and local courts to conduct programs to train trial
judges in handling capital cases.
(b) Eligibility.--Grants authorized by this section may
only be made to a State or local court in a State that has
capital punishment.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $15,000,000 for fiscal years 2003 through
2007 to carry out this section.
* * * * * * *
Public Law 105-244
HIGHER EDUCATION AMENDMENTS OF 1998
AN ACT To extend the authorization of programs under the Higher
Education Act of 1965, and for other purposes
* * * * * * *
TITLE I--GENERAL PROVISIONS
* * * * * * *
TITLE IV--STUDENT ASSISTANCE
Part A--Grants to Students
* * * * * * *
PART B--FEDERAL FAMILY EDUCATION LOAN PROGRAM
SEC. 411. LIMITATION REPEALED.
* * * * * * *
``SEC. 428K. LOAN FORGIVENESS FOR CHILD CARE PROVIDERS.
``(a) Purpose.--It is the purpose of this section--
``(1) to bring more highly trained individuals into
the early child care profession; and
``(2) to keep more highly trained child care
providers in the early child care field for longer
periods of time.
``(h) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section
$10,000,000 for fiscal year 1999, and such sums as may be
necessary for each of the 4 succeeding fiscal years.''.
* * * * * * *
``SEC. 428L. LOAN FORGIVENESS FOR PUBLIC ATTORNEYS.
``(a) Purpose.--The purpose of this section is to encourage
qualified individuals to enter and continue employment as
prosecutors and public defenders.
``(b) Definitions.--In this section:
``(1) Prosecutor.--The term `prosecutor' means a
full-time employee of a State or local agency who--
``(A) is continually licensed to practice
law; and
``(B) prosecutes criminal cases at the State
or local level.
``(2) Public defender.--The term `public defender'
means an attorney who--
``(A) is continually licensed to practice
law; and
``(B) is a full-time employee of a State or
local agency, or of a nonprofit organization
operating under a contract with a State or unit
of local government, which provides legal
representation services to indigent persons
charged with criminal offenses.
``(3) Student loan.--The term `student loan' means--
``(A) a loan made, insured, or guaranteed
under this part;
``(B) a loan made under part D or E; and
``(C) a health education assistance loan made
or insured under part A of title VII of the
Public Health Service Act (42 U.S.C. 292 et
seq.) or under part E of title VIII of such Act
(42 U.S.C. 297a et seq.).
``(c) Program Authorized.--For the purpose of encouraging
qualified individuals to enter and continue employment as
prosecutors and public defenders, the Secretary shall carry out
a program, through the holder of a loan, of assuming the
obligation to repay (by direct payments on behalf of a
borrower) a qualified loan amount for a loan made under section
428 or 428H, in accordance with subsection (d), for any
borrower who--
``(1) is employed as a prosecutor or public defender;
and
``(2) is not in default on a loan for which the
borrower seeks forgiveness.
``(d) Terms of Agreement.--
``(1) In general.--To be eligible to receive
repayment benefits under this section, a borrower shall
enter into a written agreement that specifies that--
``(A) the borrower will remain employed as a
prosecutor or public defender for a required
period of service specified in the agreement
(but not less than 3 years), unless
involuntarily separated from that employment;
``(B) if the borrower is involuntarily
separated from that employment on account of
misconduct, or voluntarily separates from that
employment, before the end of the period
specified in the agreement, the borrower will
repay the Secretary the amount of any benefits
received by such employee under this section;
``(C) if the borrower is required to repay an
amount to the Secretary under subparagraph (B)
and fails to repay the amount described in
subparagraph (B), a sum equal to the amount is
recoverable by the Government from the employee
(or such employee's estate, if applicable) by
such method as is provided by law for the
recovery of amounts owing to the Government;
``(D) the Secretary may waive, in whole or in
part, a right of recovery under this subsection
if it is shown that recovery would be against
equity and good conscience or against the
public interest; and
``(E) the Secretary shall make student loan
payments under this section for the period of
the agreement, subject to the availability of
appropriations.
``(2) Repayments.--Any amount repaid by, or recovered
from, an individual (or an estate) under this
subsection shall be credited to the appropriation
account from which the amount involved was originally
paid. Any amount so credited shall be merged with other
sums in such account and shall be available for the
same purposes and period, and subject to the same
limitations (if any), as the sums with which the amount
was merged.
``(3) Limitations.--
``(A) Student loan payment amount.--Student
loan payments made by the Secretary under this
section shall be made subject to such terms,
limitations, or conditions as may be mutually
agreed to by the borrower concerned and the
Secretary in the agreement described in this
subsection, except that the amount paid by the
Secretary under this section may not exceed--
``(i) $6,000 for any borrower in any
calendar year; or
``(ii) a total of $40,000 in the case
of any borrower.
``(B) Beginning of payments.--Nothing in this
section shall be construed to authorize the
Secretary to pay any amount to reimburse a
borrower for any repayments made by such
borrower prior to the date on which the
Secretary entered into an agreement with the
employee under this subsection.
``(e) Additional Agreements.--On completion of the required
period of service under such an agreement, the borrower
concerned and the Secretary may enter into an additional
agreement described in subsection (d) for a successive period
of service specified in the agreement (which may be less than 3
years).
``(f) Award Basis; Priority.--
``(1) Award basis.--The Secretary shall provide
repayment benefits under this section on a first-come,
first-served basis (subject to paragraph (2)) and
subject to the availability of appropriations.
``(2) Priority.--The Secretary shall give priority in
providing repayment benefits under this section for a
fiscal year to a borrower who--
``(A) received repayment benefits under this
section for the preceding fiscal year; and
``(B) has completed less than 3 years of the
first required period of service specified for
the borrower in an agreement entered into under
subsection (d).
``(g) Regulations.--The Secretary is authorized to issue
such regulations as may be necessary to carry out the
provisions of this section.
``(h) Authorization of Appropriations.--There are
authorized to be appropriated such sums as may be necessary to
carry out this section for each fiscal year.''.