United States. Congress. House. Committee on the J.

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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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 29 of 51)
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Federal claim a second time or looking at different claims, so that
the same prisoner comes to Federal court more than once.

I think, though, that it makes sense to strike a balance to ensure
one chance to be in Federal court and then compromise on proce-
dural changes. That is, a person in your position, I think, might
well take the view that habeas corpus should be retained, that Fed-
eral courts should determine the merits independently, but there
ought to be, perhaps, a harsh rule that in some cases is hardly fair
but that cuts off second attempts. That tradeoff would make some
sense to me.

We could — we could worry about what that successive petition
cutoff rule ought to look like, precisely how it ought to be crafted
to try to make it the best rule possible, but that is where the focus
ought to be. The guts of it is getting that one chance the first time
around.

Mr. SCHIFF. Doesn't H.R. 3, as drafted, allow the one Federal bite
at the apple, the one Federal chance? I don't believe H.R. 3 takes
that away.

Mr. Yackle. It does and it doesn't. It is silent. It doesn't include
a provision that would have the Federal courts defer to State
courts. It doesn't have that fuU-and-fair-adjudication provision that
I discussed a moment ago, and that is to the good, it seems to me.
That would go in the wrong direction. But it is silent on the basic
jurisdiction, and that silence can be very risky.

There are going to be amendments in this body. The other body
is also going to consider habeas corpus legislation. The Supreme
Court will continue working on these problems, and there will be
a buildup of case law. There is, I think, a good bit of risk for the
basic jurisdiction in the country at the present time, and the way,
then, to preserve habeas corpus is to put the substance of the juris-
diction explicitly in the bill so that there is no mistake about it.

Mr. SCHIFF. Whatever time I have left, Ms. Bolel3m, do you want
to add anything on that question?

Ms. BOLELYN. I think I do. I think perhaps in my remarks this
morning I shared what you have expressed. My primary focus, at
least as a practitioner, is with the successive petition.

I think I would be remiss if I did not point out in the initial in-
stance of Federal habeas, we are retrying the trial again, we are
calling in the witnesses again, we are putting on trial the trial at-
torneys, no matter what their competence or what their experience
level. So I would disagree with the nature and the substance of the
Federal court's job in the first instance — as it is applied, not nec-
essarily as it is drawn statutorily.



328

But part of the problem is that we do have Federal judges that
are sitting as if they were the Supreme Court of Georgia, and we
do have Federal judges who are tr3dng to remake the facts, not
apply the Federal legal standard but remake the facts that have
already been developed in the State courts. I disagree with that.

Mr. SCHIFF. Thank you.

Mr. Heineman. The gentleman's time has expired.

Ms. Lofgren.

Ms. Lofgren. Excuse me. Given the hour, I will be very brief.

Listening to you, both of you, this has been extremely interesting
and thought provoking for me. I was interested following up really
on the comments made by Mr. Scott.

If we were to adopt H.R. 3, as written, what — how would an indi-
vidual who, for example, years later could conclusively prove that
they didn't do it because of DNA evidence or something, how would
justice be done in that case? I mean, I am actually not opposed to
the death penalty in appropriate cases, but we want to make sure
thai innocent people are not paying that ultimate price.

Ms. K-iT ELYN. As I read the proposed legislation, I don't think it
would CO a.vay with the existing case law that would always per-
mit a h



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 29 of 51)