study the matter more carefully before acting, and if action is taken, the committee should resolve to take a more comprehensive approach to the system's problems.

I would ask that my statement be made part of the record. Thank you again, Mr. Chairman, for this opportunity to be here today and I look forward to answering your questions.

[The prepared statement of Mr. Brackett follows:]

[Additional material is being retained in the Committee files.]

STATEMENT OF KEVIN S. BRACKETT, DEPUTY SOLICITOR, 16TH JUDICIAL CIRCUIT, YORK, SOUTH CAROLINA

I am honored to be here today to participate in this important debate on the quality of our criminal justice system as it relates to capital murder trials. I have been a prosecutor for ten years now and have participated in the prosecution of six capital murder trials in South Carolina. While in law school I also enjoyed the experience of participating in the defense of an individual on trial for capital murder. Additionally, I was witness to the first execution in South Carolina by lethal injection. More than this though, I think a lot about what I do. The prosecution of capital cases demands a great deal of sober reflection: This is a business with no room for regrets.

I take no exception to the goals of Title II of the Innocence Protection Act. Who, after all, could be opposed to protecting the innocent? In fact, I believe that I come from a jurisdiction that will, in all likelihood, probably be found to already meet any standards set by the proposed commission:

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 trial 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 paid 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.

In short, I believe that Title II of the Innocence Protection Act won't really have much of an impact on my state. South Carolina should have an impact on the Innocence Protection Act though. Consider this case study:

Three months ago our office concluded the retrial of Bobby Lee Holmes. Mr. Holmes was being retried for the rape and murder of 86-year-old Mary Stewart. He was granted a new trial after a post-conviction relief hearing in which he asserted that he was denied a fair trial because the judge led him to believe that he OR his attorney could make a closing argument instead of he AND his attorney. Had he realized that both he and his attorney could have addressed the jury he asserted that he would have spoken in his own defense. Both of his experienced attorneys from the first trial conceded at the hearing that they had failed to properly advise Mr. Holmes of his rights. The court granted his request.

The evidence against the defendant was straightforward: Blood from the victim (who was sodomized) was found on the defendant's underwear, the defendants bodily fluids were found on a paper towel in the victims apartment. Fibers consistent with the defendant's clothes were found in the apartment and fibers consistent with the victims bedding were found on the defendant's clothes. Finally, the defendants palm print was found in the victim's apartment. The defendant told the police he had never been in the apartment.

Mr. Holmes was represented by at least five attorneys. I say at least because I am still not sure who at the defense table was an attorney and who was not. The "lead" attorney specialized in capital murder litigation in South Carolina and his cocounsel has approximately 15 years felony trial experience. I don't know who paid for the other attorneys.

During jury selection there appeared to be a jury consultant working with the defense. Throughout the trial there was a social worker/therapist by the defendants side at almost all times. There was at least one investigator in the courtroom at all times. Possibly two.

During the defendants case in chief numerous experts from various parts of the country were called on his behalf. An expert on DNA, an expert from New Mexico on laboratory standards, one hair and fiber expert from Alabama, a fingerprint expert from South Carolina, an expert on criminal investigation from North Carolina, a professor of neuro-psychology from the University of South Carolina, a psychiatrist from the Medical University of South Carolina, the former Director of the Indiana State Department of Corrections and a social worker all were paid to give testimony on the defendants behalf. There were at least four other experts who were retained yet never used.

The first point to be made concerns the attorneys who represented Mr. Holmes in his first trial. There are no apparent consequences in South Carolina for being found to be an ineffective attorney in a post conviction relief hearing. It is close to impossible to prove but 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. A competent prosecutor worries not only about their own case but also must be vigilant to protect the record to ensure that the conviction can withstand appellate and habeas scrutiny.

If Congress intends to compel the states to maintain rosters of qualified capital defense attorneys they should establish as a criteria for determining competence the number of times the attorney has been adjudicated ineffective. This should then be tracked to guarantee continued competence.

The second point concerns effective allocation of resources. Everyone agrees that an indigent defendant should be entitled to the reasonable resources needed to present his defense. But consider the defense in Mr. Holmes' case. How many Americans could afford to mount such an extravagant defense?

Unfortunately this sword has two edges. If we spend the money then the cost of the death penalty is cited as a reason for it's abolishment, if we don't then the battle cry becomes "No justice for the poor”.

The solution to the problem has to lay in stricter accountability. The law allows for ex parte applications for funding. These must be explicitly detailed by defense counsel and then more carefully scrutinized by the judiciary. In addition, no funds should be disbursed until a detailed report from the expert or investigator is tendered to the court. The report should include the results of any testing done along with a strict accounting of the time spent. Lastly, judges should not hesitate to limit the amount that any expert can charge. The former director of the Indiana Department of Corrections was paid five hundred ($500.00) dollars per hour to testify in the Holmes case. Would he have refused to participate if the court had told him that he could only charge $150.00 per hour? How about if they had capped his total payment at $2000.00?

A balance must be struck between the need to provide adequate resources to indigent defendants and the need to prevent frivolous expenditures of public funds. The Constitution guarantees every criminal defendant to equal access to justice. This does not absolve the legislatures or the courts of their responsibility to regulate the spending of these monies.

In conclusion it is my opinion that while the goals of the Innocence Protection Act are laudable I am concerned about the methods that will be employed to achieve these goals. We don't know what conclusions or recommendations the proposed commission will make. Perhaps it would be a more intelligent use of our time and resources to commission the study first and then draft the legislation needed to address the problems the commission identifies. The scope of the study could be widened to include an investigation into the issue of incompetent counsel and inadequate resources. Our course could then be charted based on reliable information rather than anecdotal evidence and reports issued by individuals and organizations with a known bias towards the death penalty.

Chairman LEAHY. I thank you for making the trip to Washington to do this. I appreciate it very much.

Senator Hatch has a scheduling conflict. Normally, I would begin questioning, but to accommodate him, of course, I will yield to him first.

Senator HATCH. Well, thank you, Mr. Chairman. I only intend to take a minute or so.

I apologize for not being here for your testimony, General Pryor, and yours, Senator Ellis. I apologize for that, but I have really appreciated this whole panel. Each of you has, I think, presented your case very persuasively and well.

Let me also say I want to make a point about the cases Chairman Leahy mentioned in his opening statement. Many, if not all, of these individuals were released because of DNA testing, not all, but many of them. Senator Leahy's bill contains two major parts, one dealing with DNA testing, and the other addressing competency of counsel. As you can tell, the competency of counsel provisions are controversial.

The DNA provisions, however, are similar to a bill I introduced last year and a bill Senator Feinstein recently introduced. Indeed, DNA legislation enjoys nearly universal support in this committee. I notice Mr. Scheck here, for whom I have a great deal of respect, who has been a great advocate on this and has been persuasive to

me.

Now, I am confident that we could reach an agreement on DNA immediately. We very quickly could get it through both Houses of Congress. I think we could have done this 2 years ago, to be honest with you, or at least a year ago, on the DNA provisions. I am equally confident the House would move quickly on such a bill. This would ensure that innocent individuals in prison have the opportunity to prove their innocence, and immediately, not while we argue this other part.

I am also concerned about this other aspect. I think all of you have made good cases, but I am concerned about competency of counsel. Let me just say that I will commit to continue to work with the chairman of this committee on the issues related to competency of counsel, but let us at least accomplish what we can to help remedy some of the injustices that the distinguished chairman has described, and let's do that right away.

I think we should have done this a couple of years ago and we were just unable to, but I would like to offer that to the chairman and get that done, and then make a good-faith effort to try and solve the competency of counsel difficulties that all of you have spoken eloquently about on both sides.

In particular, I am very happy to have your report, Ms. Wilkinson. I appreciate the work that you have done and I appreciate the bipartisan nature of your testimony, and we will read that very carefully and see what we can do to help here.

So, I would like to have that done. It is something that can be done now, and the other we may be able to do also, but I don't think that it can happen as quickly as we can solve the DNA problem. So I just want to make that good-faith offer here so that we don't waste another day not providing this type of resource, help from the Federal Government, in both State and Federal cases in ways that will help to alleviate and remedy some of these problems. And then I commit to work on the competency of counsel aspect in good faith and try and see what we can do, taking into consideration all of the testimony and the evidence to see what can be done in that particular area.

But thank you, Mr. Chairman. I will get out of your hair.

Chairman LEAHY. It is very easy to get out of my hair with my hair line. But if you could hold just for a moment, do we agree that DNA evidence should be available? Of course, we all do on this panel. That is not an issue.

Senator HATCH. But every day we delay

Chairman LEAHY. That is not an issue. But let's not fool ourselves. You have got to have competent counsel to know when and how to ask for DNA evidence and determine whether it is available. It is not so that the person charged can prove their innocence. That is not their burden. The burden is on the state to prove their guilt beyond a reasonable doubt. The burden is on the state in this

case.

I would remind everybody-every prosecutor and former prosecutor knows this—a lot of the cases aren't going to have DNA evidence of any sort anyway, just like a lot of cases don't have fingerprints. I recall once when I was prosecuting cases, I had to put an investigator on the stand to testify that, one, he or she didn't find any fingerprints at the scene; second, they had investigated several hundred cases; and, third, it is not unusual that there are no fingerprints. In the large majority of the cases they investigated, there were no fingerprints. Well, in the large majority of cases that are going to be raised here, there is not going to be any DNA evidence.

An easy example is somebody goes into a bank to rob the bank. On the way out, they shoot the guard and the guard dies. We have got a Federal case against this bank robber. In most States, it would be a felony murder; if the State had the death penalty, it would carry the death penalty. But it would be awfully hard to think where there was going to be DNA there. Now, there may have been three people who identify somebody as being the perpetrator. Then you go in to question everything from alibi to eyewitnesses, and so on.

In Mr. Graham's case, a man who served years upon years upon years on death row, who was finally released with a check for $10 and a suit that was too big, there was no DNA. So we want access to DNA, of course; to fingerprints, of course; to blood samples, of course. But you are not going to get any of these things unless you have competent counsel.

Senator HATCH. If the Senator would yield, I am, of course, talking about post-conviction DNA for people who already may be unjustly convicted. I think we could start that tomorrow and I think we could get it through both Houses even before we leave this week, if we really wanted to do it.

Why not do that, and at the same time accept by good-faith offer to try and resolve the competency of counsel issue, taking into consideration all these respective points of view that are sincere and educated and well thought through?

That is my point. There is no reason to continue to hold post-conviction DNA from being enacted when we can do that right off the bat. And hopefully we can solve this other problem, too, because I am concerned about it; anybody with brains would be concerned about it. But there are two sides to that issue. That is my point, and both sides have good arguments. I think we have got the abil

ity on this committee to resolve these conflicts and to try and do what is in the best interests of people.

I don't think you need to hold up the passage of post-conviction DNA solutions in order to solve trial competency problems, but I do think it is going to take more effort to solve the competency of counsel problems. We can do the post-conviction DNA stuff, like I say, right now.

Well, I need to leave, but I want to thank you for letting me make that statement.

Chairman LEAHY. I appreciate it, and I will continue to work with you on that. Obviously, post-conviction DNA is a small part of this problem. We can work on achieving that. We should also make sure that if we are going to have post-conviction DNA, we also have counsel competent enough to know when to ask for it. We will start questions on 5-minute rounds.

Ms. Wilkinson, you described your committee's recommendations regarding competence counsel, and I am going to submit for the record the executive summary of your committee's report.

What are some of the other recommended reforms, if you could just briefly mention them?

MS. WILKINSON. Yes, Mr. Chairman. Some of them are so basic, I think they are recommendations that many people would hope are already in place across the jurisdictions, but they are not.

For example, we recommend that no one who is mentally retarded or a juvenile who commits the crime under 18 be subject to the death penalty. We did that because, as we saw most recently in Texas, jurisdictions have refused to set that standard, and so we think that is a minimal standard that should be set in all jurisdictions.

We have also asked for things like the felony murder rule to be limited in capital cases so that a felony defendant who had no intent to commit the murder or did not commit the murder would not be subject to the death penalty, even though they would under the precedent of the felony murder rule in many jurisdictions.

We made recommendations about the roles of prosecutors and judges. We asked that judges ensure that every capital defendant be provided with a jury instruction to jurors to choose between death and life without parole, meaning truly life with no reduced sentence, and that juries understand what those sentencing options are, just like a judge would if he or she were to make that determination.

We talked about open-file discovery, which I know Mr. Brackett was saying has been used by some defense counsel in nefarious ways. I found just the opposite. I found that as a prosecutor in the McVeigh and Nichols cases what really saved our conviction at the very end was that we did have open-file discovery, and that the defense has access to all the information that honestly we couldn't have known at some points whether it was Brady or not. And only by sharing all of it with the other side were we able to know that they could pursue whatever they thought was appropriate during the pre-trial phase.

So those are some of the recommendations that we made as a committee. There are 18 recommendations that we are going to send obviously not just to you, but to State legislatures and policy

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