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this could happen to an innocent person before it happened to me, and I am sure that many people listening today feel the same way. I ask you to listen to my story and to the many others like mine and do what you can to fix the process.

Thank you.
[The prepared statement of Mr. Graham follows:]

STATEMENT OF MICHAEL GRAHAM, ROOFER, VIRGINIA BEACH, VIRGINIA My name is Michael Graham. In 1986, I was 22 years old, working as a roofer, and living with my mom and my two little brothers in Virginia Beach. That summer, I met a family from Louisiana and got friendly with their son, Kenneth. They suggested that I return with them to Louisiana for a vacation. I took up their offer.

While down in Louisiana, Kenneth and I got arrested for writing some bad checks. I was no angel back then, but I never physically hurt anyone, and was never accused of hurting anyone,

That is, until a couple of months later. While in jail for the bad checks, I was arrested for the brutal murders of an elderly couple. I couldn't believe it. I told the police that I didn't know anything about the murders and had never met the couple.

All the time, I was sure that the truth would come out and I would be found innocent. It seems funny now, but I even asked one of my public defenders if he would represent me in my false arrest lawsuit.

My trial was in early 1987. One of my two lawyers had some criminal law experience, but had never tried a death penalty case. My other lawyer had just graduated from law school. The state didn't have any physical evidence against me. Basically, all it had was three witnesses, including a jailhouse snitch with a history of serious mental illness.

My lawyers had a tough time at the trial. They didn't investigate the snitch's deal with the prosecution. They didn't know the rules of evidence. They didn't object to a jury instruction that I later learned was totally illegal under Louisiana law. And they did nothing to prepare for my sentencing phase. They

didn't even ask my mother to come down and testify on my behalf.
My trial only lasted a few days. When the jury convicted me of capital

murder, I was stunned. So was my experienced lawyer, who disappeared. That left my inexperienced lawyer, just out of law school, to handle the sentencing hearing by himself

. When the jury sentenced me to death, I could hardly talk - I was in such a state of shock.

A few months later, my co-defendant, Albert Burrell, was also convicted and given a death sentence. I understand that his lawyers were even worse than mine.

I'll never forget my first night on death row. The night before the state had executed another inmate, and I was given his cell. During the night, I looked down at the floor and completely freaked out. I thought I saw a pool of blood. It turned out to be rusty water.

That pretty much set the tone for the next fourteen years. I spent 23 hours a day in my 5 by 10 foot cell, alone. I was allowed out one hour a day to shower and walk up and down my tier. Three times a week I could go outside and spend an hour by myself in an exercise yard. Whenever I left my tier, my hands and legs were shackled. Everyone in my world was either a prison guard who considered me an animal or a condemned man. The guards told me when to wake up and when to go to sleep, and just gave me a few minutes to eat.

I tried not to go crazy by reading and praying to the Lord. I also passed the time by trying to keep up on my case and what was happening in the outside world. I studied for a GED, but the prison ended the program right before I was going to take the test.

Each day I would beg the Lord to make sure nothing happened to my family. My family is poor and my mother was only able to visit me twice. My brothers never made it down. The Lord answered my prayers. But my co-defendant wasn't so fortunate. Albert's mother died while we were on death row. One of the guards told me that telling Albert his mother was dead was one of the hardest things he ever did.

As in many cases, there was no DNA evidence to exonerate me and Albert. But we were two of the lucky ones. We both had pro bono lawyers who worked their tails off for us and stuck with our cases for many years. If we had depended on state lawyers, we probably would still be on death row, or worse.

After years of hard work, my attorneys got me a new trial on March 3, 2000. It was the second greatest day in my life. My lawyers proved that the prosecution had withheld evidence showing I was innocent. They also proved that the jailhouse


snitch was a pathological liar, and got sworn statements from the other two witnesses recanting their testimony. They even got a statement from the prosecutor saying that the case should never have been brought in the first place because the evidence was too weak.

Ten long months later, in December, the state dismissed the case against me and Albert. The Attorney General said that there was “a total lack of credible evidence” linking us to the crime.

On December 28, 2000 - the best day in my life - I was released from Louisiana's death row, where I had spent close to 14 years for two murders I did not commit. I was the 92nd innocent person released from death row since 1973. Albert was released a few days later, and became the 93rd innocent person released from death

Half of my adult life had been taken from me. I had been falsely branded as a murderer in connection with horrible crimes. Meanwhile, the suffering family of the victims was misled into believing that the crime was solved, when in fact the real murderer or murderers had not been brought to justice.

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.

At first, when I got back to my family in Virginia, I was afraid to go out. I thought people would guess from my complexion that I had just come out of prison. I couldn't stop guzzling down my food and pacing the floor. Men in uniforms freaked me out.

Nowadays, I am just trying to put my life back together. I am getting to know my family again, including my brothers who are now young men. I have a job as a roofer, and I am getting married in October.

During my 14 wasted years on death row, I always hoped that my nightmare would count for something. That's why I'm here today. Mistakes like my nightmare are real. I never figured that this could happen to an innocent person before it happened to me, and I am sure that many people listening today feel the same way. I ask you to listen to my story and to the many others like mine, and do what you can to fix the process.

Chairman LEAHY. Thank you very much, Mr. Graham, and I wish you and your fiancee well. I met her earlier this morning.

Mr. GRAHAM. Thank you.

Chairman LEAHY. I will submit for the record a letter I received from Mr. Charles Lloyd, who represented your co-defendant, Albert Burrell. Mr. Lloyd took the case pro bono after Burrell was convicted and sentenced to death. The letter describes the shocking incompetence of Burrell's trial lawyers, who were just a few years out of law school, apparently did little investigation before the trial, were ineffective during the trial, and did nothing to prepare for the penalty phase. Mr. Burrell was sentenced to death, both of his lawyers were indicted and convicted, one on a drug charge, the other for stealing client money. Both were later disbarred.

Ronald Eisenberg is the Deputy District Attorney in Philadelphia. He previously served as chief of the Appeals Unit in Philadelphia, an office where he began work as a prosecutor in 1981. Mr. Eisenberg served on the Task Force on Death Penalty Litigation of the Third Circuit Court of Appeals. He is a member of the Pennsylvania Supreme Court's Criminal Rules Committee.

Mr. Eisenberg, thank you for taking the time to come down and join us today.


ATTORNEY, PHILADELPHIA, PENNSYLVANIA Mr. EISENBERG. Thank you, Mr. Chairman, and members of the committee. I would like to touch briefly on two points from my written testimony that I have submitted to the committee.

First, one of the arguments that has been made in favor of Federal intervention into the State appointment process in capital cases is that there is a chronic lack of funding for lawyers in State capital cases, and that, in fact, previous Federal funding for those cases, for assistance in State capital cases, was cutoff by Congress in 1996.

In fact, however, while that money was cutoff in the form of one program, it was then paid out again ever since in the form of another program administered by the United States courts. And in fiscal year 2001, over $20 million was paid by the Federal Government to lawyers for assistance and training in State capital cases, not Federal cases like the McVeigh case, but State capital cases.

Now, I know that the argument will be made that, well, if they were paying out that money and we still have a bad system, it must not be enough money. The point is that for opponents of capital punishment, and I understand their position, there is no amount of money or Federal intervention that is ever going to be enough to solve the problem as long as juries in State capital cases, on review of all the evidence, keep returning death penalties in

some cases.

Chairman LEAHY. So your position is totally the opposite of what the three Members of Congress testified earlier, that it is not a question of whether you are for or against the death penalty, and it is totally different from that of the position of the pro-death penalty Members of Congress who have supported this legislation?

Mr. EISENBERG. Senator, my point was that I understand that for people who are opponents of the death penalty—and as we have acknowledged, there are many who are and I can understand their position—the amount of money or the nature of the standards will not be enough, whatever they are, and that leads me to my next point about standards.

Chairman LEAHY. So you do not accept the testimony of Congressman LaHood, for example?

Mr. EISENBERG. I don't think it is a contradiction, Senator.
Chairman LEAHY. OK.

Senator SESSIONS. He is simply saying if you oppose the death penalty, Senator Leahy, deeply and personally and so greatly, nothing is going to make you satisfied with the system.

Chairman LEAHY. I just wanted to make sure I understood him. Mr. EISENBERG. Thank you, Senator.

On the issue of standards, there has been a lot of talk about the absence of standards in State courts. The reality is that most death penalties arise in States that do have standards for the appointment of counsel. In fact, those standards are in most cases much stricter, much higher, than the standards that the Federal Government itself imposes for appointment of counsel in Federal capital cases such as the McVeigh case.

The Justice Department, not the current Justice Department but the previous Justice Department, did a study reviewing standards for appointment of counsel in capital cases and collected all of this information. Those States have been doing that, have been promulgating these standards on their own, without Federal compulsion, for many years.

Now, there has been talk about State courts today and about the claim that we can't trust the State courts, that there are a lot of errors found in death penalties, reference to the study by Professor Liebman. While I certainly believe that the numbers in his study are greatly exaggerated, there is no question that death penalty cases are reversed at a significantly higher rate than other cases, even cases that were tried under identical circumstances but simply resulted in the end in a non-capital verdict rather than a death penalty verdict, and that significant numbers of those reversals occur in the State courts.

Now, the question arises, I believe, that if the State legislatures and courts are already out in front in many areas in the standards that they have promulgated, and if the State courts are already out in front in the number of death penalty cases that they are reversing, that they are reviewing and reversing, I think it is quite questionable whether it is necessary for the Federal Government then to come in and mandate different standards for those States and different procedures than they have already been following.

I understand the argument-and I believe that this is Professor Liebman's argument—that if lots of cases are being reversed in the State courts, then there must be lots more that should have been reversed. In other words, in effect, what we are saying is we can trust the State courts completely to the extent they reverse death penalty cases, but they must be wrong as to the cases they are not reversing

I think really that the argument goes the other way that if we are going to trust the State courts are properly reversing in the cases where they are, then we should trust the results in the cases where, after years of review, they do not reverse those cases.

The argument has been made that because of the alleged politically biased nature of those same State courts that are reversing so many death penalty cases, we can't let those courts appoint counsel; we have to have an independent appointing authority that will be run by zealous advocates against the death penalty. After all, it is argued, prosecutors can be zealous advocates for the death penalty.

Well, an independent counsel-appointing authority is not performing a function of an advocate; it is a performing a function of the court, of a neutral arbitrator and it controls access to the system. That access can have a great effect on the ability of the capital litigation system to proceed or not.

In California, for example, death penalty cases are routinely delayed for 3 and 4 years at the appellate stage after the conviction merely to wait for the court to try to find lawyers to take the cases. So if the access of available lawyers is restricted, these cases can't proceed and delay results.

We already have, on average, 10 and 20 years of delay in these cases. If we put the access to the system in the hands of lawyers whose job it is to be against the death penalty, we cannot assume a proper result. The appointment process is a function that we put in the hands of a neutral body, the court system. People can make complaints about the court system, but certainly it is far more neutral, we can assume, than either adversary on either side. And if we want the system to be able to function at all, we have to make sure that that neutrality remains.

The current proposal, as I understand it, would penalize the States or not adopting such a proposal. It would penalize the States for not paying defense lawyers, for example, at local markets rates, which in my jurisdiction for lawyers for complex litigation may be $200, $300, $400 an hour.

One of the penalties that the States will suffer is the elimination of various provisions for Federal habeas corpus review of State courts. Right now, the Federal courts that have these cases, after three and sometimes four appeals in State courts, are required to abide by the factfinding and give deference to the legal rulings of the State courts.

The argument is made that if the State courts aren't following mandated Federal standards, we can't trust their results, and the Federal courts therefore should ignore them. As I have said, however, we trust the State courts to reverse death penalty cases that we know they are doing in large numbers. We trust the State courts to appoint counsel on standards which are higher than the current Federal standards.

I think that if we want to encourage a system, as Attorney General Pryor said, where the States provide this process, we must continue current law that gives effect to the process that occurs in the State courts.

Thank you very much.

[The prepared statement and an attachment of Mr. Eisenberg follow:]


PENNSYLVANIA Mr. Chairman and Members of the Committee: Thank you for the opportunity to address the Committee on the important issue of competency of counsel in state capital proceedings. I believe there is no real disagreement on this goal; I know of no prosecutor who does not desire an active, ethical capital defense bar pursuing clients' interests. Such quality representation is necessary to achieve justice, public confidence, and efficiency.

The real question here is whether it is appropriate and productive for the federal government to intervene in the states' processes for appointing counsel in state criminal proceedings. I would like to address two points that may bear on that question: the existence of federal funding for state capital litigation, and the existence of standards for appointment of counsel.

Existing federal funding. 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.

Each year, the funding level has risen. In FY 2001, the total amount was over $20,000,000. The money went to many of the most active capital litigation jurisdictions: California, Pennsylvania, Georgia, Oklahoma, Arizona, Nevada, and Tennessee. The federal office administering the program reports that no defender organizations in other states have been refused funding. (The list does not include states such as Florida and New York that have independently established highly-funded statewide capital defense organizations.)

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