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                                                       Calendar No. 731
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-315

======================================================================



 
                  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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

         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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

              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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \29\ See Section 2291(d)(2).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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.''.