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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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Mr. Schumer. You haven't seen the kinds of horror stories we oc-
casionally hear about in the last 3, 4, 5 years?



335

Ms. BOLELYN. No. The only one I have heard is a retained coun-
sel horror story. And that, I think, is totally different.

Mr. SCHUMER. One final. I know I said one final question before,
but I had a discussion with General Lungren.

Do you generally have more than one prosecutor in a capital
case?

Ms. BOLELYN. Generally what you have is two.

Mr. SCHUMER. Two.

Ms. BoLELYN. You will have one that is more experienced and
one that is a so-called go-fer.

Mr. ScHUMER. Is it almost always the fact there is more than one
counsel?

Ms. BOLELYN. What they suggested — the Georgia Supreme Court
has suggested, but not required — is that you attempt to have an ex-
perienced and inexperienced in order to increase the pool of experi-
enced lawyers. So that is what they have suggested. And then the
U.S. Supreme Court in a (Georgia case, Berger v. Kemp, also sug-
gested that it is proper.

Mr. SCHUMER. You are talking about prosecution, right?

Ms. BoLELYN. Well, both. It is probably better to have two de-
fense attorneys.

Mr. ScHUMER. Are there a significant number of cases where
there is only one prosecutor or one defense counsel?

Ms. BOLELYN. When you say one prosecutor, usually the district
attorney themselves will handle the case.

Mr. ScHUMER. Mr. Lungren was railing about the fact that the
Federal — was it last year's bill or was it a case? The bill that was
reported out of committee last year required that there be two
counsel, defense counsel.

Ms. BoLELYN. I think what he was

Mr. SCHUMER. Do you find that to be a horrible provision?

Ms. BoLELYN. I don't think two attorneys — I think that just
makes your pool more, if you have more experienced people, if
there is two.

Mr. SCHUMER. You don't consider that a heavy-handed Federal
abuse?

Ms. BOLELYN. No, I don't think that is onerous. I think it may
help get some more people experienced to do it.

Mr. SCHUMER. Thank you.

Mr. McCOLLUM. Mr. Chabot, you don't have any questions; is
that right?

Mr. Chabot. No, I don't.

Mr. McCoLLUM. All right. I have just a couple I would like to
wrap up with, if I could. It may help us with some of the drafting
of this.

Ms. Bolelyn, do you favor defunding the resource centers or mak-
ing sure that every dime of these resource centers goes to the State
attorneys general, or do you have a view on that?

Ms. Bolelyn. I think, like many members of the general public,
I am confused about the way in which they are funded; and it
seems as if they are confused, or maybe I am, about what their
mission is.



336

Are they to be a resource center in the sense of assisting in ob-
taining counsel? Are they to provide counsel for those persons who
don't have counsel?

So it seems to me there ought to be a clearer definition of what
their role is and a little bit more accountability, either to the
State's highest supreme court, or to the public at large, as to what
there is.

I do find it a little bit difficult when they have seven attorneys
and four paralegals and we have eight and two paralegals and we
do capital and noncapital and they ask me for a stay — they ask me
for a continuance on a case and they have twice as many people
doing the same thing as I do.

Mr. McCOLLUM. Well, we would welcome you or Mr. Yackle, or
both of you, submitting a suggestion of some language that might
do the right thing by this. The resource centers are sitting out
there and getting criticized, and we ought to do the right thing by
it. And I am not sure what it is, but we are listening to you.

Ms. BOLELYN. Their role is not clearly defined.

Mr. SCHUMER. Rather than take

Mr. Yackle. I would be glad to submit something.

Mr. McCOLLUM. If you would, I would appreciate it. Both of you,
for that matter, if you would.

[The information follows:]



337



Boston University

School of Law

765 Commonwealth Avenue

Boston, Massachusetts 02215

Faculty Services
Tel: 617/353-3110
Fax 617/353-3077




Honorable Bill McCollum

Chairman

Subcommittee on Crime

Committee on Judiciary

United States House of Representatives

Washington, D.C. 20515

Dear Mr. McCollum:



February 14, 1995



When I gave oral and written testimony before the
Subcommittee on January 19, 1995, you invited me to submit a
written statement regarding the work of the existing, federally
financed Death Penalty Resource Centers. Please accept this
letter as my response.

As you know, the resource centers are community defender
organizations authorized pursuant to the Criminal Justice Act to
provide representation to persons sentenced to death. Primarily,
the centers recruit, train, and otherwise support private
attorneys who volunteer to perform this valuable public service.

At present, centers are in operation in twenty states:
Alabama, Arizona, Arkansas, California, Florida, Georgia,
Illinois, Kentucky, Louisiana, Mississippi, Missouri, Nevada,
North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina,
Tennessee, Texas, and Virginia. Six of these are located in
state agencies, three are affiliated with universities, and
eleven are free-standing, not-for-profit organizations. All are
accountable to a board of directors and must comply with the
grants and conditions established by the Administrative office of
the United States Courts. All centers are audited on an annual
basis by an independent accounting firm selected by that Office.

Virtually all the centers were established at the
recommendation of blue-ribbon committees, consisting of bar
leaders, federal and state judges, prosecutors, and, often,
representatives of the state executive and legislative branches.
Always, there was review and approval by the local federal
district council, the circuit council, and the Judicial
Conference of the United States.



338



The centers enjoy broad support both from the bar and from
state and federal judges in these jurisdictions. They enable the
system to process death penalty cases in an orderly and
expeditious manner that promotes both fairness and finality. The
expertise available through the centers is critical in recruiting
private counsel who would otherwise hesitate to undertake the
representation of death row inmates in these complex, time-
consuming cases. The centers further reduce delay by providing
continuity of counsel, by serving as a bridge between the state
and federal courts and, to the extent permitted by their limited
resources, by providing direct representation when no private
attorney is willing to serve.

I understand that questions have been raised about whether
the availability of federal funds for the centers has created an
imbalance of resources within the capital post-conviction system.
Yet the impetus for the creation of the centers was an existing
imbalance (the lack of counsel resources for petitioners at the
post-conviction statge) . Due to severe delays in processing
cases, the lack of defense counsel threatened to bring the system
to a standstill in a number of states with large death row
populations. Funding for the centers was designed to address
those delays by correcting that, existing imbalance.

A 1991 study, prepared by an independent consultant for the
Subcommittee on Civil and Constitutional Rights of the House
Judiciary Committee, examined and compared the relative resources
available to the prosecution and defense in capital cases. That
study concluded that "there is an imbalance nationwide favoring
prosection over defense at all stages of capital litigation.
While this imbalance appears to exist at all stages of capital
litigation, it appears to be the greatest at the state post-
conviction level...." -_

I urge you to support the resource centers and to maintain
their federal funding. Certainly, any new federal funding
initiatives should promote and reward, rather than discourage,
adequate state funding of defense services, as well as the
prosecution function, and should ensure that the states utilize
federal funds as an addition to, rather than as a substitute for,
local funding.

I hope these comments are useful to you. I/f) I may be of
further help, I hope you will contact me.

With



cc. Honorable Henry J. Hyde
Honorable John Conyers
Honorable Charles E. Schumer




ackle
or of Law



339

Mr. McCOLLUM. Also in our bill, there are different provisions in
terms of the periods of limitation depending on whether it is State
or Federal — one is 1 year, one is 2 years — whether you believe in
the 1-year or 2-year or whatever, is there any reason why the State
and the Federal court limitation should be a different year?

I don't remember the history of this. I haven't been around very
long.

Mr. Yackle. I think I do.

Mr. McCoLLUM. Mr. Yackle, will you tell me?

Mr. Yackle. That was in the original bill back in the Reagan ad-
ministration in 1982.

Mr. McCOLLUM. That differential?

Mr. Yackle. Yes, that difference. A 1-year statute for State pris-
oners seeking Federal habeas corpus relief, but a 2-year statute of
limitations for prisoners, generally Federal prisoners, attacking
Federal judgments and sentences. And the explanation, I think you
will find in the legislative history was this. In the case of State
prisoners, there is additional time consumed in the exhaustion of
State remedies. It was expected that it would be a while before
that kind of case gets to Federal court, whereas in the case of a
prisoner attacking a Federal conviction or sentence, the exhaustion
of State remedies isn't presented, so a little extra time was allowed
there. I think that is the explanation.

Mr. McCOLLUiVL Does either one of you have any problem with
there being a differential even if you might disagree on the number
of years?

The principle is sound as far as that argument is concerned,
then, in both of your minds, is that correct, or am I

Mr. Yackle. That distinction, you mean?

Mr. McCOLLUM. Yes, that distinction. Would you agree with that
distinction? You explained it to me very carefully. I appreciated it.
It helps me.

Mr. Yackle. I hope it is. I don't know that my articulation of the
explanation is necessarily an articulation of my own view. I would
distinguish between capital and noncapital cases.

Mr. McCoLLUM. That is the question I was going to ask, so go
right to it.

Why are we distinguishing between capital and noncapital?

Mr. Yackle. First, with respect to prisoners using section 2255
ta attack Federal convictions and sentences, if they are noncapital,
they are unlikely to have a lawyer. It seems to me then that the
statute of limitations ought to be longer to take account of that.

On the other hand, if they are on death row, on Federal death
row — and we will have more of those in the future — they will have
lawyers; and it seems to me, then, that lawyers will be able to con-
tend with a statute of limitations. Since capital cases turn out to
be, though, more complicated, it may be that the statute of limita-
tions needs to be as long, or even longer, in death cases. One has
to take account of what is going on in those cases.

Mr. McCoLLUM. Ms. Bolelyn, do you have a view of either of
these?

Ms. Bolelyn. I think from my perspective, it isn't as — the time
limits originally are not important except in those cases in which,
say, for example, the Governor sets the execution date and then



340

you don't want someone to be able to delay forever and ever before
they take some sort of action to get that stay of execution. To me,
the more crucial time limits is how long it is going to be there once
it gets there.

Mr. McCOLLUM. OK.

Ms. BOLELYN. So I am not as wed to the distinction. I think it
is reasonable to have, especially when you are changing lawyers,
when you go from no lawyer to a lawyer, or you are going from the
trial attorney to an appellate attorney, it is reasonable to have a
pretty significant period of time for them to get familiar with the
record.

Mr. McCOLLUM. OK. Let me ask a question that I am curious
about. In title I, we incorporate most of the recommendations of the
Powell Commission and the intent of this chapter, chapter 2, which
is where this is, is to help ensure that competent counsel are avail-
able to represent persons during post-conviction proceedings and
that they will be appropriately compensated and for States to opt
in and enact such procedures that that statute provides that the
period of limitation on filing habeas corpus petitions will be re-
duced from 1 year to 180 days. I am stating something you are
very familiar but that is just a predicate for the question.

Given the 1-year limitation period for States that do opt in, do
you, Ms. Bolelyn, believe that the 180-day limitation period will be
sufRcient inducement to cause States to opt in?

Ms. Bolelyn. Well, it hasn't been for Georgia since the Powell
Commission. We still have no State habeas corpus provision for
counsel in State habeas corpus, and we are well aware of the Pow-
ell Commission. It hasn't been an incentive. As I said, I think the
public, at least, they are more frustrated by the successive than
they are by the original. So I think that may have been — I think
that may not have been a big enough carrot for us to opt in.

Mr. McCOLLUM. OK. That answers that the best I know.

Mr. Yackle, I assume you concur in that analysis.

Mr. YACKI.E. Well, I do, except to make clear that, of course, the
Powell Commission report is not law. That option has never been
held out to the State of Georgia or any other State.

Mr. McCOLLUM. Do you like that option?

Mr. Yackle. I don't. I think that the Congress ought to be able
to decide what the habeas corpus statutes should look like, and
those statutes ought to be the same in every State. The option
doesn't appeal to me.

Mr. McCoLLUM. Last, and I do want to wrap this up, H.R. 3
would impose limits on Federal judges in order to force them to de-
cide habeas corpus petitions within a specified time. This provision
applies only to habeas corpus petition in capital cases decided in
those States that have opted in. Should this limitation on Federal
courts apply in all capital cases, regardless of whether the State
convicted the person, has enacted the special provisions of H.R. 3?
And this is a variation of what you have been talking about but
it is still a difference.

And I wonder, Mr. Yackle, what you think, Ms. Bolelyn, what
you think, and then we will wrap this all up.

Mr. Yackle. I do think that if the committee reports a bill in-
cluding timetables, those timetables ought to be applicable in all



341

States, and individual States ought not to be able to opt in or opt
out through that kind of provision. You can decide as a matter of
Federal statute law whether you want to install timetables, and
then I think if you do, you should do it. I do, though, suggest that
you bring in Judge Merritt, who chairs the Executive Committee
of the Judicial Conference, and ask the Federal judges for their tes-
timony about that kind of provision.

Mr. McCoLLUM. Ms. Bolelyn.

Ms. Bolelyn. I think we should be able to get advantage of it
if we don't opt in. But I think — ^again, I agree that looking at the
period of time is going to be very, very important. And of course
we can mandamus them now, but it is not a very popular thing to
do. We could go — under present law, we can mandamus them for
holding it too long and they did.

Mr. McCoLLUM. I think we have had a full and fair hearing
today. I don't know about anj^hing else that has gone on. But I ap-
preciate your both staying so late today and so many of the com-
mittee members staying for this part of the hearing.

The subcommittee, when it recesses, will reconvene tomorrow at
9 a.m., and the hearing will be held in room 2237 of this building.
So the subcommittee now stands in recess until tomorrow at 9 a.m.

[Whereupon, at 6:43 p.m., the subcommittee adjourned, to recon-
vene at 9 a.m., Friday, January 20, 1995.1



TAKING BACK OUR STREETS ACT OF 1995



FRroAY, JANUARY 20, 1995

House of REPRESE^^^ATIVES,

Subcommittee on Crime,
Committee on the Judiciary,

Washington, DC.

The subcommittee met, pursuant to notice, at 9:03 a.m., in 'room
2237, Raybum House Office Building, Hon. Bill McCoUum (chair-
man of the subcommittee) presiding.

Present: Representatives Bill McCollum, Steven Schiff, Stephen
E. Buyer, Howard Coble, Fred Heineman, Bob Barr, Ed Bryant of
Tennessee, Charles E. Schumer, Robert C. Scott, Zoe Lofgren, Pa-
tricia Schroeder, and Sheila Jackson Lee.

Also present: Representative John Conyers, Jr.

Staff present: Paul J. McNulty, chief counsel; Glenn R, Schmitt,
counsel; Daniel J. Bryant, assistant counsel; Aerin D. Dunkle, re-
search assistant; Audray Clement, clerk; Dan Freeman, par-
liamentarian; and Tom Diaz, minority counsel.

Mr. McCollum. The subcommittee will come to order. At this
point, we are in the second day of our hearings on the crime bill
that was introduced, H.R. 3. We have two distinguished panels this
morning to hear from and we are very happy to have them here.

We are dealing with two specialty issues this morning inside the
crime bill. The first one is the exclusionary rule and the questions
of whether we change it, how we change it, and what we do with
it. There are, of course, specific provisions in this bill which would
go forward with what is known as the good-faith exception to the
exclusionary rule, a broadening of what has already been a Su-
preme Court decision that encompasses the area involving searches
where there are search warrants. This provision would expand that
into the field of areas where the search warrants do not exist pres-
ently, something not covered by that ruling, but very ambiguous,
I guess, in the court system.

So we are very pleased this morning to have two gentlemen who
are sitting with us this morning. I am going to introduce both of
them to us. Paul Larkin is a partner in the Washington DC, office
of King & Spalding. He is a graduate of Washington Lee University
and the Stanford School of Law. From 1985 to 1993, he was an at-
torney in the Office of Solicitor Greneral of the United States brief-
ing 50 cases before the Supreme Court and arguing 27 of them per-
sonally. Two of these cases involve the scope of the good-faith ex-
ception to the exclusionary rule. He is a member of the Rules Advi-
sory Committee of the U.S. Court of Military Appeals and was
awarded the Secretary of Defense Medal for Meritorious Civilian

(343)



344

Service in 1994. He also is a member of Virginia Gov. George Al-
len's Commission on Parole Abolition and Sentencing Reform.

In addition to Mr. Larkin, we have with us this morning E. Mi-
chael McCann, district attorney in Milwaukee County, WI. He is
graduate of the University of Detroit, the Georgetown University
Law Center, and holds a master's of law degree from Harvard Uni-
versity. He presently serves as chairman of the criminal section of
the i^erican Bar Association. Mr. McCann was first elected as
Milwaukee County district attorney in 1968 and has served con-
tinuously in that office since that time. He is most famous for his
prosecution of serial killer Jeffrey Dahmer.

I would like to welcome both of you and we will start with you,
Mr. Larkin.

STATEMENT OF PAUL J. LARKIN, ESQ., KING & SPALDING,
WASHINGTON, DC

Mr. Larkin. Thank you, Mr. Chairman, for the privilege of testi-
fying before this subcommittee.

Mr. McCOLLUM. As you proceed, let me say to both you of you
before you go on, you are welcome to summarize your statements.
We have them for the record. It is your choice how much of it you
do, but obviously we want to get to questioning as soon as we can,
but we don't want to keep you from giving us as complete an ac-
count of this as you think we need to hear from you. Please go
ahead.

Mr. Larkin. Thank you very much. It was my intent to ask that
the statement that I had previously submitted be made part of the
record so I could briefly summarize for the Members today the com-
ments I have on the provision of the bill before you.

Mr. McCoLLUM. Thank you. Please do.

Mr. Larkin. The exclusionary rule has been controversial
throughout its history, principally because of the widely shared be-
lief that it is unreasonable to free a guilty criminal because of an
error made by law enforcement officers in effecting a search or a
seizure. Operation of the rule can mean that, in Justice Cardozo's
famous epigram, the criminal is to go free because the constable
has blundered.

In response to that concern, in 1984, the Supreme Court of the
United States adopted an exception to the exclusionary rule that
has come to be known as the good faith, or more accurately, rea-
sonable mistake exception.

In those two cases, one called the United States v. Leon, another
called Massachusetts v. Sheppard, the Supreme Court held that the
exclusionary rule should not be applied when law enforcement offi-
cers act in objectively reasonable reliance on a search warrant.

Three years later in a case known as Illinois v. Krull, the Su-
preme Court extended that exception to cases involving a statute
authorizing a search as well as a search warrant.

Title VI of H.R. 3 proposes to modify the exclusionary rule to in-
corporate a reasonable mistake exception into the United States
Code. In my view. Congress clearly has the power to adopt title VI
and Congress should do so because the provisions of that law would
make an important step forward in the progressive development of
a rational criminal justice system. That is so for two reasons.



345

First, the reasonable mistake exception is a valuable develop-
ment in the law. The reason why is that society is unjustifiably
punished when the exclusionary rule is applied to conduct that an
objectively reasonable police ofBcer would find lawful. Title VI pre-
vents that harm. Society expects law enforcement officers vigor-
ously to pursue criminal investigations and also vigorously to re-
spect the fourth amendment. Both goals are important.

Although society has an interest in deterring impropriety by law
enforcement officers, it follows, however, that society has an equal-
ly strong interest in encouraging good police work. Deterring the
latter is costly and therefore should be avoided. The reasonable
mistake exception returns the balance to its proper position by
eliminating the overdeterrence that follows from an unyielding ap-
plication of the exclusionary rule.

After all, the cases in which a reasonable mistake exception
would apply are ones in which different courts could disagree over
the correct resolution to a legal issue. Since the exclusionary rule
does not exist to deter the courts and since the police should not
be deterred from engaging in objectively reasonable conduct, apply-
ing the exclusionary rule in a category of cases covered by a rea-
sonable mistake exception severely punishes society without mate-
rially contributing to the deterrent purposes of the rule.

What the suppression of evidence in those circumstances would
do ironically, but predictably, is induce in the police and the public
exactly the type of disrespect for the fourth amendment that the
exclusionary rule was not designed to create. No one at all profits
from that type of result.

Accordingly, since the only legitimate justification for the rule is
its presumed deterrent effect on police misconduct, when the sup-
pression of evidence cannot measurably contribute towards that
goal, the rule should not be applied.

Second, the reasonable mistake exception should be applied to
warrant-authorized and warrantless searches alike. Title VI
achieves that result.

The rationale underlying a reasonable mistake exception applies
to both types of searches, warrant-authorized and warrantless. For
deterrence purposes, the critical factor is not whether a magistrate
has issued a warrant, but is whether a law enforcement officer has
an objectively reasonable belief that his conduct is lawful. If he
does, the potential "for deterrence, as well as its social value, is
drastically reduced; and when that is true, the justification for ap-
plying the exclusion rule largely vanishes.

Indeed, extension of the reasonable mistake exception to
warrantless searches and seizures is a sensible development in the
law governing fourth amendment remedies. A person whose home
is unlawfully searched can sue the officer involved for damages.
Under the qualified immunity doctrine, however, those officers will



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 30 of 51)