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Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

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of judicially-created restrictions on federal habeas include the
following: Where the state has fully and fairly litigated a Fourth
Amendment claim, a state prisoner cannot obtain relief in federal
court based upon a claimed unconstitutional search and seizure.
fltone V. Powell , 428 U.S. 465 (1976). Where the state requires
defense counsel object to evidence at the time it is offered by the
prosecutor (a "contemporaneous objection" rule) , failure to make a
timely objection to the introduction of incriminating statements
bars federal habeas review, absent a showing of cause for the non-


Stephen Bright, Director of the Southern Center for Human
Rights in Atlanta cind counsel in dozens of capital cases at the

compliance and a showing of actual prejudice that resulted to the
defendant. Wainwright v. Sykes , 433 U.S. 72 (1977). There is no
federal constitutional right requiring the states to appoint
counsel for death row inmates seeking post -convict ion review in
state court. Murray v. Giayy^tano , 492 U.S. 106 (1989). With two
exceptions, new rules of constitutional law do not apply
retroactively to cases on heQjeas review. Teacnjft v. i.ani* . i09 S.Ct.
1060 (1990) . The definition of a "new rule" under Teaoue is to be
construed broadly ( Butler v. McKellar . 494 U.S. 407 (1990)) and the
two exceptions are to be narrowly applied. Saffle v. Parks . 4 94
U.S. 484 (1990) . No successor petition based on new claims may be
heard unless the petitioner can show cause for failure to bring the
claim earlier and actual prejudice; this rule effectively limits
petitioner to one federal habeas. McCleskey v. Zant ^ 111 s.Ct.
1454 (1991) . The failure of counsel to file timely a state
hcdjeas petition does not constitute cause to excuse counsel's
omission because there is no constitutional right to a lawyer in
these proceedings. Coleman v. Alabama, ill S.Ct. 2546 (1991). A
petitioner is entitled to an evidentiary hearing on federal habeas
only upon a showing he had cause for failure to develop a record in
a state hearing and suffered actual prejudice as a result. Keeney
V. Tamayn -Reyes. 112 S.Ct. 1715 (1992) . The "harmless error
doctrine" has been relaxed in habeas corpus. Previously, relief
was denied only if the error in state court was "harmless beyond a
reasonable doubt." Now, relief can be denied unless it is shown
that the constitutional error that occurred at trial had a
"substantial" effect on the verdict. Brecht v . Abrahamson . 113
S.Ct. 1710 (1993) .

For a more comprehensive analysis of the impact of judicially
created preclusion doctrines, see Statement of George Kendall, Esq.
(Assist. Counsel, NAACDP Legal Defense & Educational Fund, Inc.)
before the Subcommittee on Civil & Constitutional Rights of the
Committee on the Judiciary of the United States House of
Representatives concerning the Reform of Haibeas Corpus Review
Process, pp. 14-33 (Oct. 22, 1993).


trial and postconviction level reminds us:

The rights protected by federal habeas corpus -
those set out in the Bill of Rights - are not a
collection of technicalities. . . They are the most
precious birthright of every American, rich and poor, to
be treated fairly and justly in the courts. . . On the
other hand, the procedural barriers to habeas corpus
which have been erected by the United States Supreme
Court since 1977 are technicalities. They are not the
work of Jefferson, Madison and Henry, but judicially
created rules which often frustrate vindication of the
Bill of Rights. . . '

Habeas corpus review by the federal courts is essential for
enforcement of the Bill of Rights. wisely, the ABA Task Force
recommended chopping down the procedural thicket to ensure that
federal courts are able to act expeditiously in reaching the merits
of habeas petitions. H.R. 3 discards this sensible and well-
researched advice.

Any congressional action should simplify the postconviction
review process. Among the measures omitted from Title I of H.R. 3
which Congress should enact are the following:

1. Codify the de novo standard of review in federal court.
Congress should guarantee that, once a petition is properly before
the district court, a federal judge has the duty to make an

* Statement of Stephen B. Bright concerning Habeas Corpus
to the Subcommittee on Civil and Constitutional Rights, Committee
on the Judiciary, United States House of Representatives, May 20,
1993, p. 17.


independent determination of a prisoner's constitutional claims.

2 . Restore the former harmless error standard of Chapman v.
■California, 386 U.S. 18 (1967) replaced in Brecht v. Abrahamfion.
fi^ipra ■ If a habeas petitioner can prove that his conviction or
sentence was obtained in violation of the constitution, the state
should not be permitted to benefit from this fundamental violation
unless it can show the error was "harmless beyond a reasonable
doubt . "

3 . Overturn the Supreme Court ' s decision in Teague v. Lane ,
aupxa, that has caused such judicial confusion. Return to the
unambiguous, traditional, easily applied meaning of "new rule".

4. Reject the decision in Keeney v. Tamayo- Reyes , supra . so
that federal courts do not depend upon flawed and unreliable fact-
findings made in state court. Establish a rule making it clear
that, at least in the original h2d>eas proceeding, the district
court may receive evidence to ensure that its decision is fully

5. Declare that a defendant shall not have to pay with his
life when his inept lawyer has failed to meet a state procedural
law. (See Coleman v. Thompson ^ auj^ca.) Restore the power of the
federal court to excuse a procedural default where the petitioner
shows the default was the result of counsel's neglect or



ignorance . ^^

6. Insist that under our system of justice the clock never
runs out for those who are factually innocent. Congress should
respond to the Supreme Court's decision in Herrera v. Collins ^^ by
providing a directive to federal courts that where a claim of
innocence is sufficiently pleaded and supported, the state must
respond and a hearing be held.

H.R. -^ noefi Not Address the Root Pr oblem of Inadequate Trial


Contrary to popular belief that most death penalty cases are
not final for a dozen or more years, the ABA Task Force found that
the current average time from sentence to execution is less than
half that time. After taking testimony from prosecutors and
defense attorneys, the Task Force concluded that "much of the delay
in carrying out the death sentences occurs at the state level;

19 "The [ABA] Task Force found - with hq exceptions - that
procedural defaults are not committed by strategically astute (if
unethical) lawyers who intentionally "sandbag" the state courts in
service of their clients, but rather by ill-prepared,
inexperienced, and ignorant lawyers who inadvertently do so to the
great detriment of their clients." Statement of Curtin and
Liebman, su pra , pp. 4 8-49.

" 224 S.Ct. 853 (1993) .


other aspects of the 'delay' are both indispensable and desirjible

to allow for solemn and studied scrutiny."*^ While the reasons for

delay are complex and some are disputed, the Task Force determined

that the single, outstanding cause is the states' refusal to train,

appoint and adequately compensate trial lawyers who are qualified

to represent indigent defendants.

The findings of the Task Force, as summarized in Curtin and

Liebman's testimony, bear repeating. They described "a legal

process stood on its head."

Inadequate, often grossly inadequate, resources are
devoted to state court trials, appeals, and
postconviction review of capital cases. At least six
States have a maximum fee of $1500 or less for appointed
counsel to try a capital case - a fee that many lawyers
would find insufficient to permit adequate representation
in routine dr\ink-driving cases. Only one or two States
provide full compensation. A number of States also cap
reimbursable investigative expenses at $100 or $500.
Typically, counsel handling state postconviction
petitions receive no remuneration.

Poor compensation almost inevitably means that
virtually the only lawyers who are available to handle
capital cases are inexperienced and ill-prepared and that
the few more competent lawj'ers who become involved cannot
develop any expertise because they are financially unable
to handle more than one capital case. Not surprisingly,
therefore, the inexperienced and inexpert co\insel who
handle many of the cases frequently conduct inadequate
factual investigations, are unable to keep abreast of the

12 Statement of John P. Curtin, Jr., and James S. Liebman supra ,.
p. 37.



compl«x and constantly changing legal doctrines that
apply in capital litigation, and mistakenly fail to make
timely objections to improper procedures. Indeed, the
Task Force heard overwhelming evidence of incompetent
representation in death cases - ignorance of death
penalty law, overlooked objections, failure to present
mitigating evidence, failure to file briefs on appeal,
and similar deficiencies.

What is the result of the States' failure to provide
adequate representation in state trial, appellate, and
postconviction proceedings? Most importantly,
incompetent trial and appellate representation make it
necessary to pour massive amounts of resources into
federal habeas corpus review conducted by the reasonably
compensated counsel that Congress made available in
habeas corpus proceedings in the Anti-Drug Abuse Act of
1988. The high level of constitutional error implanted
in capital trials and appeals by uncompensated, inexpert,
and ill-prepared counsel has required the federal courts
to overturn and order retrials of more than 40 percent of
the post- 1976 death sentences that they have reviewed in
habeas corpus proceedings. The expensive and time-
consuming proceedings necessary to uncover that
astonishing number of constitutional violations and to
retry and re -review all those cases are without doubt the
single largest cause of delay in capital litigation.^*

The frequency with which capitally charged defendants go

without minimally effective representation, much less adequately

funded, vigorous advocacy, is a national scandal. "in six of the

seven states where the death penalty is most often imposed -

^' Statement of John J. Curtin, Jr., and James S. Liebman
s ypya , pp. 33-34. See also ABA Task Force report, supra . 40
American University L. Rev., pp. 64-92; Statement of Stephen B.
Bright, supra : and Statement of George H. Kendall, supra, pp. 2-8,
for dozens of specific examples of the inadequacy defender services
in those states where the death penalty is most frequently applied.



Alabama, Georgia, Ijouisiana, Miseissippi, Virginia and Texas -
there is no statewide public defender system." " A report in The
Advocate published by the Kentucky Department of Advocacy revealed
that "one -fourth of those under a death sentence in the state at
the beginning of 1989 were represented at trial by lawyers who were
since disbarred or who resigned rather than face disbarment . " "

The time limits Title I of H.R. 3 proposes for filing
petitions in federal court are unrealistic, unreasonable and
unworkable. (28 U.S.C. § 2244 and 2258.) Given the woefully
deficient trial representation afforded defendants in most death
penalty states, the superimpoaition of rigid timetables at the
federal habeas level promises to lead to more missed deadlines and
miscarriages of justice.

Title I or H.R. 3 mandates an accelerated track (180 days) for
filing of federal petitions by inmates from states which have
adopted a system of appointment and compensation of "competent"
counsel in state postconviction proceedings. (28 U.S.C. §2256 et

-* Debra Cassens Moss, "Death, Habeas and Good Lawyers;
Balancing Fairness and Finality", ABA Journal . Dec. 1992, 83-86.

Id. pp. 83-86,



3eq.) Tn other words, indigent death row inmates who are provided
attorneys to pursue state habeas relief must file their petitions
in federal court within six months after the conclusion of state
postconviction proceedings.

First, six months is not enough time for even the most
diligent and skilled attorney to complete such a task.^* The
complexity of legal issues and extensive factual investigation
involved in capital litigation do not permit the job to be
completed in such a short time. ^''

The Effective Death Penalty Act requires only that states
opting into these expedited timetables provide a "mechanism for the
appointment, compensation and payment of reasonable litigation
expenses of competent counsel" in state postconviction proceedings.
(28 U.S.C. § 2256.) Its terms offer no guidance, much less the
sorely needed directive to the states, that defense attorneys meet
specific training and experience standards, be assured expert and

" Vivian Berger, "Justice Delayed or Justice Denied? - A
Comment on Recent Proposals to Reform Death Penalty Habeas Corpus,"
90 Colum. L. Rev . . 1665, 1696 n. 197 (1990).

"■' Michael Mello and Donna Duffy, "Suspending Justice: The
Unconstitutionality of the Proposed Six-Month Time Limit on the
Filing of Habeas Corpus Petitions by State Death Row Inamtes, 18
N.Y.n. Rev. T.. ft finr. Change 451, 487 n. 6, 4S0-491, 497 (1990-



investigative services and be fully compensated at an hourly rate
of commensurate with the expertise and responsibility inherent in
representing capital defendants.^' Worse still, the bill fails to
seize the appointment power from state court judges who are ever-
more susceptible to electoral challenge.^'

Many NACDL members have witnessed first-hand the effects of
incompetent, ill -prepared capital defense lawyers on our criminal
justice system. The price of correcting these grievous mistakes is
tremendous. Not only is resolution delayed and litigation more
costly, but the risk that innocent men and women will be executed
increases when they are not adequately represented at trial.

At bottom, H.R. 3 does not address the root problem of

^' See American Bar Association Guidelines for the
Appointment and Performance of Counsel In Death Penalty Cases,
adopted 1989.

*' Justice John Paul Stevens has express his concern that
the "'voice of higher authority' to which elected judges
too often Appear to listen is that of the many voters who
generally favor capital punishment but who have far less
information about a particular trial than the jurors who
have sifted patiently through the details of the relevant
and admissible evidence. . . " Walton v. Arizona . 497 U.S.
369, 713 n.4 (1990), Stevens, J. dissenting); See also
Statement of Stephen B. Bright, supra . pp. 6-14 and
Statement of George H. Kendall, aupia, pp. ll-i4, both
of which detail examples of independent jurists who have
been defeated based primarily upon their opponents'
exploitation of the death penalty issue.



inadequate state trial and appellate counsel. Speeding up the
process by furnishing competent lawyers after trial and direct
appeal is like trying to stop massive internal bleeding with a
butterfly patch.

H.R. 3 Increases the Likelihood that Innocent — Persons Will Re

Our nation's historical commitment to equal justice cannot
tolerate a system where the life and death determination is more
often a product of chance instead of fundamental fairness.
Frequently, the deciding factors in a capital case are race,
geography, poverty, and inept lawyering, rather than legal or moral

Not long ago, two Supreme Court justices who once sanctioned
capital punishment rejected it. In 1986, Justice Lewis F. Powell
Jr. cast the deciding vote in favor of executing Warren McClesJcey.^^
That opinion is best remembered as the Supreme Court ' s
acknowledgement that racial bias is "an Inevitable part" of the

^^ See Stephen B. Bright, "Death By Lottery - Procedural
Bar of Constitutional Claims in Capital Cases Due to Inadequate
Representation of Indigent Defendants," 92 West Virginia L.Rev. 679
(1990) .

^i- McCleskey v. Kemn . 481 U.S. 2979 (1986).



capital punishment scheme and its astounding conclusion that

unrefuted evidence of systemic prejudice does not warrant

overturning a sentence of death." McCleekey was executed in

Georgia's electric chair on September 25, 1991. After his

retirement, Justice Powell announced that if there was any case in

which he wished he had voted differently it was McClsskey . Justice

Powell went further ajid said, "'I would vote the other way in any

capital case ... I have come to think that capital punishment

should be abolished.'" "

Shortly before his retirement in X994, Justice Blackmun -

who, in 1976, joined in the decision reinstating capital pvinishment

- wrote:

. . . [N] o combination of procedural rules of stibstantive
regulations ever can save the death penalty from its
inherent constitutional deficiencies. . . The problem is
that the inevitability of factual, legal, and moral error
gives us a system that we know must wrongly kill some
defendants, a system that fails to deliver the fair,
consistent, and reliable sentences of death required by
the Constitution. "

The year before Justice Blackmun 's stinging repudiation of the

" Id- P- 312.

" Prof. John C. Jeffries, Jr., "A Crisis of Moral

Confidence," b fQW York Times . June 23, 1994.

•* Blackmun, J., dissenting. Calling v. Collins . ii4 S.Ct.
1127, 1130 (1994) .



death penalty, the Supreme Court in Herrera v. Collina decided

that, standing alone, a claim of factual innocence "is not a

constitutional claim."" The opinion prompted Justice Blackroun to

respond, " [T] he execution of an innocent person who can show that

he is innocent comes perilously close to simple murder.""

On January 2, by a vote of 6 to 3, the United States Supreme

Court denied a stay of execution for Dewayne Jacobs who was

convicted of kidnapping and murder in Texas in 1987.^'' Mr. Jacobs

originally confessed to the killing, but later recanted and said

his sister carried out the murder. After trying Jacobs and winning

his conviction, the same prosecutor put Jacobs' sister on trial.

The prosecutor argued to the jury that he now believed the sister

had been the killer and Jacobs had not even known she had a gun,

let alone the intent to kill. Jacobs' sister was also convicted.

Justice Stevens called the decision "a denial of due process under

law."^' Dissenting from the denial of stay. Justice Stevens wrote:

. . . [I]t is fundamentally unfair for the State of Texas
to go forward with the execution of Jesse E)ewayne Jacobs.

" 224 S.Ct. at 862.

" Blackmun, J., dissenting, Id- p- 884.

" Jacobs V. Scoet . No. 94-7010.

" Jacobs. V. Scott . No. 94-17010, 1995 U.S. Lexis 1.



The principal evidence supporting his conviction was a
confession that was expressly and unequivocally-
disavowed, at a subsequent crial, by the same prosecutor
who presented the case against Jacobs. That same
prosecutor's office now insists that the State may
constitutionally go forward and execute Jacobs. The
injustice, in my view, is self-evident. "

Dewayne Jacobs was executed in Texas on January 4, 1955.

In 1987, Professors Hugo Adam Bedau and Michael I. Radelet
published the results of their research demonstrating that capital
punishment necessarily entails an intolerable risk of wrongfully
executing those who are factually innocent despite their
convictions. Their study documents at least 23 executions of the
innocent in the United States during this century.^' In their
updated findings. In Spite of Innocence, they describe more than
400 potential capital cases in which innocent people were shown to
have been wrongfully convicted. ^^ More than 25 percent of these 400
convictions were obtained by the deliberate participation of
prosecutors or law enforcement in coerced confessions, perjured
testimony by informants and the suppression of exculpatory

" Thirl .

" Bedau and Radelet, "Miscarriages of Justice in
Potentially Capital Cases, 40 Stan. I. .Rev . 21 (1987) .

" Bedau, Radelet and Putnam, In Spite of Innocence ^
(Northeastern University Press 1992) .



evidence. Coupled with the lack of resources available to most
capital defendants at the trial and post -convict ion stages, this
staggering record of governmental collusion in gaining wrongful
convictions goes a long way to explaining why it takes many years
before the truth is uncovered and presented.

As members of Congress are pressed to set deadlines for filing
petitions and deciding habeas claims, a review of just how long it
has taken to free some of the innocent and how perilously close
even they have come to execution is necessary:

In 1978, Gary Nelson was convicted of the rape and murder of
a 6 -year old girl in Georgia &nd sentenced to die. It took his
appellate lawyers eleven years of work without pay to secure his
release in 1991. They succeeded in proving that to win his
conviction, the government had used perjured testimony and
suppressed evidence of Nelson's innocence.

Joseph Green Brown spent 14 years on Florida ' s death row
before a federal appeals court granted his habeas petition, having
determined that the prosecution deliberately concealed key evidence
from the trial jury. At one point. Brown came within fifteen hours
of execution. After the federal court ordered a new trial, the
prosecutor declined to retry him and he was released.

Randall Dale Adams' wrongful conviction, also based on



perjured testimony, for killing a Dallas police officer inspired
the film The Thin Rliie Line . Just days before he was scheduled to
die, the Supreme Court of the United States stayed his execution.
Adams ' sentence was overturned because the Texas death penalty was
declared unconstitutional. Subsequently, new evidence was
presented, including proof that the prosecution had coerced an
eyewitness to identify Adams in a line-up after the witness had
initially identified cinother man. A new trial was ordered, but the
state declined to prosecute Adams again. He was released after
spending twelve years on death row for a crime he did not commit.

A United States Marine, Kirk Bloodsworth had no prior criminal
record when he was arrested in Maryland in 1984 for the rape-murder
of a 19-year old based on an anonymous tip and a questionable photo
identification. The jury rejected his alibi evidence, convicted
him and sentenced him to death. Bloodworth's conviction was
reversed, but he was convicted a second time on a retrial.
Ultimately DNA evidence exonerated him, proving that two juries had
convicted the wrong man.

Even where wrongful conviction is not the product of
governmental misconduct, the requisite scientific evidence that
could exonerate the defendant is not always availe±>le at trial.
The trials of most inmates whose release was later won by DNA



analysis concluded many years before the technology was fully
developed. The FBI now estimates that in the last several years,
since the acceptance of DNA testing, approximately 30 to 35 percent
of the more than 4,000 sexual assault suspects subjected to this
genetic analysis were excluded as the perpetrators.

James Richardson was sentenced to die in Florida before the
Supreme Court decision in Furman invalidated capital piinishment in
1972, was released in 1989 after serving 21 years on death row.
Volunteer legal counsel proved the prosecution had knowingly
introduced false evidence and withheld evidence that would have
resulted in Richardson ' s acquittal .

Clarence Brandley, a black Texas death row inmate, was
released in 1990, a decade after his murder conviction, when two
white prosecution witnesses admitted that a white man had committed
the crime.

Walter McMilliam was placed on death row before he was ever
tried. He was convicted in 1986 of murder based upon the perjured
testimony of two prison inmates and a third individual who was
himself a suspect in the killing. The jury sentenced him to life,
but the Alabama judge who heard his case imposed a death sentence.
Although the other suspect later confessed he had framed McMillian
and the prosecution knew of the perjury from other sources, the



government concealed the evidence that would have exonerated
McMillian. It took six years of work by attorneys at the Alabama
Resource Center to free Mr. McMiillian. If the provisions of the
Effective Death Penalty Act had been in place, Walter McMillan,

Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 26 of 51)