Senator Feingold?

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman.

First of all, in his opening statement Senator Hatch spoke briefly about the Federal system and he said that the Department of Justice has confirmed that there is no evidence of bias in the Federal death penalty system. But he didn't mention that the Department of Justice has a renewed commitment to studying racial and geographic disparities.

So I would like to correct the record at this point and note that at the subcommittee hearing that I held on this issue following the release of the June report, the Justice Department announced that it would proceed with a thorough examination of these disparity issues. Deputy Attorney General Thompson acknowledged that the June report was not the Department's final word on this matter. So I simply want to clear the record on that.

Mr. Chairman, I want to thank you for this hearing. It has been extremely good. I want to commend you for your efforts on this issue overall. I think it is one of the finest legislative efforts I have witnessed since I have been in the U.S. Senate and I am grateful to you for it.

Chairman LEAHY. Thank you.

Senator FEINGOLD. I wish every American could hear Mr. Graham's words and the words of other people in the room that I have met and the stories that they have to tell.

Mr. Chairman, I would ask that my full statement be placed in the record.

Chairman LEAHY. Without objection.

[The prepared statement of Senator Feingold follows:]

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF

WISCONSIN

Mr. Chairman, I commend you for holding this hearing. I am proud to be an original cosponsor of your bill, the Innocence Protection Act. I am very pleased that this Committee-and, more importantly, our nation—is beginning to re-examine the administration of the ultimate punishment a society can impose, the death penalty. Mr. Chairman, the American people are becoming increasingly uncomfortable with the fact that our criminal justice system runs the very real risk of executing innocent people. Many believe that we have already executed innocent people. Since 1973, close to 100 people who were sentenced to death were later found innocent and released from death row. And the number of innocent people walking free keeps growing.

We know that one of the primary factors resulting in wrongful convictions across the country is the fact that all too often, incompetent counsel defend those needing the best legal representation, and at a very minimum, competent representation. It is clear, to even the most cursory observer of our nation's death penalty system, that the standards for competent counsel and the process for assigning counsel to capital cases is in dire need of repair. I hope the national attention brought to this issue by this hearing will do much to begin to repair that breach.

Mr. Chairman, I think Congress should pass your bill. But Congress should do even more, and I think the American people expect more. A key part of the Innocence Protection Act focuses on the need for a national commission to develop standards for competent counsel in death penalty cases. I think this is such a good idea that I propose Congress go a step further. A national, blue ribbon commission can not only provide excellent guidance for counsel standards but can provide Congress and the American people with a thorough, top-to-bottom review of all the flaws in the administration of the death penalty at the state and federal levels. There are

a number of additional issues that can be addressed by a commission-issues like racial disparities, geographic disparities and other questions of arbitrariness in the application of the death penalty, police or prosecutorial misconduct, and the fallibility of eyewitness testimony.

I hope my colleagues would agree that a matter as grave as the risk of executing innocent people should be reviewed at the highest levels of our government, with input from experts. An independent, blue ribbon commission could do just that.

Furthermore, if we are prepared to acknowledge that our death penalty system is broken, we should not go forward with executions. As most Americans have come to realize, a suspension of executions while a thorough study is undertaken is the fair and just approach. It is time we had a time-out on executions and review of why basic fairness and due process are sometimes ignored. Yes, we should consider legislation like the Innocence Protection Act but as part of a broader program that includes a thorough review of the death penalty system at the state and federal levels and a suspension of executions while it takes place. That is why I encourage my colleagues to join me on the National Death Penalty Moratorium Act.

Mr. Chairman, I thank you again for holding this hearing, and I look forward to hearing from the witnesses.

Senator FEINGOLD. I would also like to commend Ms. Wilkinson. I am very impressed with the report of your group, the Death Penalty Initiative group. It is a thoughtful set of recommendations to improve our criminal justice system and, very importantly, reduce the risk that innocent people are executed.

The recommendations touch on a number of areas that are in dire need of reform and some of the issues that are addressed in the Innocence Protection Act, like competent counsel, access to DNA testing, and the right to an informed jury. I, of course, am a proud cosponsor of the Innocence Protection Act. The Death Penalty Initiative's report clearly and unequivocally makes the case for why this has to become law, and I hope the Congress takes up this legislation soon and passes it.

I also believe that the Innocence Protection Act is part of a broader program to ensure fairness and restore public confidence in our criminal justice system. In fact, I believe that, given the grave issues we are confronting obviously, the risk of executing innocent people that the work of the Initiative should be elevated to the national level. I have a bill that would do that.

The National Death Penalty Moratorium Act would create a national blue-ribbon commission to review the fairness of the administration of the death penalty, and I believe it is time for Congress to create a commission to thoroughly review the State and Federal death penalty systems.

Mr. Chairman, in the couple of minutes I have, I would like to ask a couple of questions, first, of Mr. Brackett.

You mentioned that you witnessed, I believe, a lethal injection. Was that the execution of Sylvester Adams on August 18, 1995? Mr. BRACKETT. Yes, it was.

Senator FEINGOLD. Now, the Adams case, I am told, arose from your home county of York. Is that right?

Mr. BRACKETT. That is correct.

Senator FEINGOLD. Isn't it true that no mitigation evidence was presented to the jury by Adams' court-appointed attorneys, even though his I.Q. scores were in the mentally retarded range?

Mr. BRACKETT. Well, I didn't come prepared to discuss that in any detail, but I did review the file before I went down to see the execution. I wanted to know exactly what it is that I was going to witness, so I took the time to go to the police department and re

view the file. I did not have a copy of the transcript, so I couldn't read the transcript of the trial so I don't know exactly what took place there.

However, I also went and reviewed the physical evidence in that case. It involved the kidnapping of a 12-year-old boy from his home. He was taken out back into the woods and a piece of cloth tied around his neck. A stick was stuck inside the piece of cloth and twisted like a tourniquet until he was choked to death. He was then buried under a pile of leaves and sticks. Mr. Adams then went to a telephone and attempted to ransom the boy to his mother. Apparently, they believed that the family had money, and they did not. The police

Senator FEINGOLD. Is that your way of suggesting that his I.Q. was not in the mentally retarded range?

Mr. BRACKETT. Well, no, sir. In the course of investigating the case and making these determinations, I wanted to give you some background on the crime. But I did review some of the files and it appeared from the files that the individual who tested his I.Q. at the Department of Disabilities and Special Needs found him to be malingering when they were attempting to determine what his I.Q. was.

The expert that was appointed by the court to evaluate his I.Q. said that basically I can't tell you what is I.Q. is because he appears to be attempting to fake the results to this test to possibly get an advantage. I think that is indicative that perhaps he was not mentally retarded.

Senator FEINGOLD. Mr. Chairman, I would ask if we could supplement the record subsequently with information regarding this individual.

Chairman LEAHY. Yes. In fact, the record will remain open for a week and further questions from Senators can be submitted until Thursday, July 5.

Senator FEINGOLD. Let me ask you one other question, sir, about this case. Isn't it true that on the day you watched Mr. Adams die, his lead defense attorney at his trial was sitting in Federal prison?

Mr. BRACKETT. I have no knowledge of that. I know Mr. Bruck, who is seated in the room here, was standing behind me. And Í suppose that Mr. Bruck was involved in his defense, but I have no knowledge of who his defense counsel were at the various stages of the proceedings or where they might have been. I know that he was allowed to have one attorney in the chamber with him, and then ultimately Mr. Bruck stepped out of the chamber and was standing behind me. I assumed that he was the counsel for Mr. Adams.

Senator FEINGOLD. Now, I would like to ask Beth Wilkinson and Stephen Bright, how do you respond to the argument that the fact that innocent people have been freed from death row is a sign that the system is working and that there is no need for the Innocence Protection Act and other legislation to ensure fairness?

We will start with Ms. Wilkinson.

MS. WILKINSON. Well, just simply I think it is a red herring and really doesn't get to the point that we are trying to get to today. The fact that the system somehow, through efforts of individuals like college journalism students or pro bono lawyers who come in

at the last minute and find that there are facts, obvious facts in some cases, that would free individuals like Mr. Graham, only tells me that with more diligence and better representation, we will find that there are more of these problems, not less.

So I don't understand the argument that somehow, because the system has thankfully freed people like Mr. Graham, it is working properly. I don't think anyone sitting here today believes that these stories of sleeping counsel, drunk counsel, or lack of investigation, lack of mitigating evidence is something any of us should be proud of. We shouldn't here one of those stories in capital litigation. Senator FEINGOLD. Mr. Bright?

Mr. BRIGHT. Well, I would just echo that. I think somebody spending 16 years on death row for a crime they didn't commit is not an example of the system working. I think when undergraduate journalism students-and I should have pointed out when I talked about Anthony Porter that he was the third person freed from Illinois' death row by the journalism students, not by the police, not by the prosecution, not by defense lawyers, not by judges, but by journalism students who took this on as a class project. I would also point out that Illinois is a State that provides a much better quality of representation than a lot of the States in the Death Belt where so many people are sentenced to death.

It has been suggested that the notion of an independent appointing authority would somehow be unusual. Florida, Tennessee, Kentucky-there are a number of States where the defense function is independent of the courts. In fact, we recently had hearings in Georgia where the public defenders in both Florida and Tennessee came and said the judges were relieved not to have that responsibility anymore. And the system was working a lot better; it was a real adversary system. So it is not true.

The ABA standards say that the appointment function should be independent. In Illinois, for example, the Cook County public defender's office has an excellent capital defender unit where people are represented by lawyers who really specialize and who know what they are doing, investigate the cases, and you don't have these sorts of things happening.

Not a single one of the 13 innocent people freed from death row in Illinois was represented by that public defender's office. It shows what a difference and how fundamental counsel is. Counsel is the most fundamental because DNA doesn't apply in the vast majority of cases. So what Senator Hatch was saying about DNA-in the small number of cases where there is biological evidence that is very helpful, but really what is fundamental is that people be adequately represented by real lawyers who know what they are doing.

Senator FEINGOLD. I thank you for that.

Mr. Chairman, I just have one more question, if I could.
Chairman LEAHY. Go ahead.

Senator FEINGOLD. Ms. Wilkinson, the Justice Department, as I pointed out, recently renewed its commitment to continue a study by the NIJ on racial and geographic disparities in the Federal death penalty system.

As a former Federal prosecutor, were you troubled by the Justice Department's September 2000 report on the Federal death penalty

system that related to these issues of racial and geographic disparities, and do you support a thorough examination of these disparities to be conducted by the National Institute of Justice?

MS. WILKINSON. I do, and I am glad that finally this Justice Department has supported that, although belatedly, this new and more thorough investigation. I believe last year when the initial report came out, Ms. Reno and the rest of the Justice Department recognized that we needed a more thorough, extensive study.

One of the recommendations that we put forward as the bipartisan Committee for the Death Penalty Initiative was to look at racial bias. People who are much more experienced than I am who have lived through the system in the 1950's, 1960's, 1970's, former prosecutors and defense attorneys, all say they are very troubled by the history of racial bias in capital litigation. So I think it is something we should pursue vigorously and I am happy, although it is belated, that the Justice Department has authorized the study. Senator FEINGOLD. Thank you very much. Thank you, Mr. Chair

man.

Chairman LEAHY. Thank you.

Senator Sessions?

Senator SESSIONS. Well, Ms. Wilkinson, a study had already been done in great depth by Attorney General Reno, who opposes the death penalty herself, and this was just an additional study that focused, I think, on one additional aspect. Isn't that correct?

MS. WILKINSON. That is part of it, but I don't believe that the study was exhaustive. As you know, there are very few Federal defendants on death row, and so it makes a statistical study very difficult to pursue. And I think Ms. Reno and others determined that there was additional research that needed to be done, and I am sure most people

Senator SESSIONS. And that is being done by General Ashcroft. But let me ask you, just basically on the death row and death penalty charges in Federal court, you have to do, as a prosecutor, a prosecutorial memorandum to the Department of Justice, and a committee reviews that for objectivity and fairness and legal soundness. Isn't that correct?

MS. WILKINSON. Yes, that is right.

Senator SESSIONS. The individual prosecutors don't have that authority.

MS. WILKINSON. No, they don't have the authority to make the ultimate decision, but obviously they are, with the Federal agents that are normally involved in the State, law enforcement agents, conducting the investigation, developing the facts that they would put forward in the memorandum. As we all know, prosecutors have extraordinary discretion, and that includes how they develop the case and present it to the Justice Department.

Senator SESSIONS. One more thing, General Pryor and Mr. Eisenberg. You work on appeals, do you not, Mr. Eisenberg? Mr. EISENBERG. Yes, Senator.

Senator SESSIONS. My question is simply this: do you have an opinion, Mr. Eisenberg, on generally what percentage of the appeals actually focus on guilt or innocence as a primary part of the appeal, and what percentage of the appeals focus on issues such as ineffective counsel or other issues of that kind?