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Mr. EISENBERG. In our capital cases, Senator, I would be surprised if it is even more than 1 or 2 percent. In fact, the Department of Corrections in Pennsylvania

Senator SESSIONS. Only 1 or 2 percent focus on guilt or innocence?

Mr. EISENBERG. On issues related to guilt or innocence.

In Pennsylvania, the Department of Corrections wanted to take DNA samples from every death row inmate in the State. There are over 200. The lawyers for those defendants opposed that effort to have DNA samples taken from those death row inmates. We have only had one case in my experience, death penalty case, where the defense lawyers asked for DNA testing. We agreed to that testing. The testing was done by the defense and they then refused to turn over the results to us, as they had previously promised to do.

Senator SESSIONS. General Pryor, is that somewhat consistent with your experience?

Mr. PRYOR. Yes.
Senator SESSIONS. You handle all the appeals in Alabama?

Mr. PRYOR. We do, and some trials as well. I don't know if I would characterize it as less than 1 percent, but it is a very small percentage.

Senator SESSIONS. Mr. Chairman, I think in many of these cases lawyers defend them aggressively and it is a question of whether death should be the jury verdict or other questions. But for the most part, most cases that come to a trial of this kind, the guilt or the innocence of the defendant is pretty plain, almost undisputed.

Chairman LEAHY. All those "guilty accused," is that it, as a former Attorney General once said?

Senator SESSIONS. Well, the evidence is overwhelming many times. I mean, sometimes the murders are committed, filmed by the cameras in the 7-Eleven store and things of that kind.

Chairman LEAHY. I understand. Like you, I prosecuted my share of murder cases, and I think most prosecutors do want to make sure they are convinced in their own mind of the guilt of the accused, before they go pursue a charge. But we also know of a number of people on death row who were about to be executed. Suddenly somebody says, “Wait. We made a mistake”. But it is usually not the prosecutor who says, "wait.” It is usually not the judge. Typically, it is somebody on the outside that makes that statement. This is a cause for worry.

I will let his Mr. Eisenberg's testimony speak for itself. But I would like to point out that it gives the impression that there are no problems. I read a very recent report by the Administrative Office of the U.S. Courts about Pennsylvania. Allow me to read this.

In that report it says, “The Commonwealth of Pennsylvania has long been widely regarded as having one of the worst systems in the country for providing indigent defense services. Indeed, Pennsylvania's death penalty representation crisis has been recognized for years. As early as 1990, the Joint Task Force on Death Penalty Litigation in Pennsylvania warned of a problem of major proportions in the provision of legal representation to indigent death row inmates, and noted several series problems including the shortage of qualified counsel to assist inmates in State and Federal post-conviction proceedings, the lack of standards governing the qualifications for capital counsel or the appointment of counsel at any stage of State capital proceedings, the lack of standards for the compensation of counsel, the lack of State funding for investigation of capital cases, and the lack of any mechanism for the identification and recruitment of qualified counsel. In the decade since the Task Force report, little in Pennsylvania has changed."

Mr. EISENBERG. Senator, I would like to comment on those points briefly.

Chairman LEAHY. Of course. Please go ahead.
Mr. EISENBERG. Well, thank you.

Chairman LEAHY. I would not present this material without giving you a chance to respond.

Mr. EISENBERG. Thank you, Senator. Pennsylvania is a State where appointment of counsel standards funding is done at the county level rather than on a uniform statewide basis. So that report, when it referred to, for example, an absence of State standards, what it meant was not that there were no appointment standards; it meant that the standards are implemented at the county level rather than the State level.

Let me tell you briefly about the standards for appointment of counsel in Philadelphia, which represents over two-thirds of the death penalty cases in the State. They were promulgated in 1991. To get appointed to a murder trial, any murder trial, since it could be capital, you have to have 5 years of trial or appellate criminal law experience. You have to have previously been the sole or lead counsel in 10 serious criminal jury trials.

You have to have previously been the sole or lead counsel in at least one homicide case that went to verdict, or assisted in two homicide cases that went to verdict. And you have to have taken continuing legal education classes within the previous 2 years focusing on capital cases. You are then screened by a committee of defense lawyers in order to get on to the roster for appointment by the court. Those standards are well in excess of the standards that the Federal Government implemented for appointment of counsel in Federal death penalty cases.

Chairman LEAHY. It is interesting, with those standards, that they still say the Commonwealth of Pennsylvania has long been widely regarded as having one of the worst systems in the country for providing indigent defense services. Pennsylvania's death penalty representation crisis has been recognized for years.

Mr. EISENBERG. Based, Senator, on the technicality that those standards are implemented at the county level, and the Commonwealth is the Commonwealth, the State. The report that you mention makes no reference to the kind of protections that I have just outlined. It doesn't dismiss them. It doesn't say that they weren't good enough. It just doesn't talk about them.

Chairman LEAHY. The executive summary of that report will be part of the record.

General Pryor, is your office seeking execution of any people who have never had State or Federal post-conviction review of their cases?

Mr. PRYOR. Well, in our earlier colloquy that we were not able to finish that Senator Feingold began

Chairman LEAHY. That is why I wanted to give you a chance to respond.

Mr. PRYOR. There are two cases where we have moved to set execution dates where, at least after the last conviction, there had not been—there had been, of course, the direct appeal process with an appeal to the Court of Criminal Appeals.

Chairman LEAHY. Was there any State or Federal post-conviction review?

Mr. PRYOR. There had not been a Rule 32 proceeding in the State courts as to Mr. Arthur. There had been an evidentiary hearing and a Rule 32 as to Mr. Barber. There was no appeal taken from that, and neither filed a petition for a Federal writ of habeas corpus within the statute of limitations. They did so outside of the statute of limitations and Federal courts have stayed both of those executions.

Chairman LEAHY. Let me ask you this, and then I will go back to that other question. Do you have any death row inmates in Alabama who are currently not represented by lawyers?

Mr. PRYOR. That is a difficult thing for us and the prosecution to know.

Chairman LEAHY. Are you aware of any death row inmates in Alabama who are currently not represented?

Mr. PRYOR. I am aware that Brian Stevenson, who heads the Equal Justice Initiative of Alabama, sometimes claims that there are not attorneys for some inmates.

Chairman LEAHY. Are you aware of any inmates on death row in Alabama who do not have lawyers? Are you aware of any?

Mr. PRYOR. No, I am not, because I don't represent inmates.

Chairman LEAHY. Is it your understanding that all death row inmates in Alabama are represented?

Mr. PRYOR. It is my understanding that all inmates on death row in Alabama can obtain counsel and have counsel appointed by the courts at all stages, including Rule 32 stages.

Chairman LEAHY. Notwithstanding your earlier comment to me suggesting that if one went through a death penalty case as a defendant, one would have a pretty good understanding of the system—would it be fair to say that if you really wanted to file for post-conviction relief in State or Federal court, with the standards required in State and Federal court, you had better have a lawyer to do it for you, a lawyer who is competent in such post-conviction relief acts?

Mr. PRYOR. I think the obsessions with Federal and State postconviction proceedings is a bad one. I think that we need to spend much more of our resources at the trial and direct appeals stage.

Chairman LEAHY. I must be having a difficult time conveying my question to you, and it is probably my Vermont accent. I apologize for that. I don't think you understand my question, so I will ask it again.

Is it your understanding that if somebody wants to take a postconviction relief act remedy in State or Federal court that they are hampered at the very least in that effort unless they are represented by counsel who has some experience in that type of postconviction relief act?

Mr. PRYOR. They are certainly assisted by counsel, Senator.

Chairman LEAHY. Mr. Bright, what do you think?

Mr. BRIGHT. I think having just any lawyer in town represent somebody in a death penalty case is sort of like if someone in town brain surgery and you say, well, we don't have any brain surgeons in this town, but there is a chiropractor down the street, so we will just take this person down to the chiropractor and have him do the brain surgery.

The Barber case is a good example of that, Mr. Chairman. Barber was given a local lawyer who had no idea what he was doing. The lawyer showed up for a little evidentiary hearing. He didn't even file the notice of appeal.

A few years ago, Mr. Chairman, the idea of a person not having a lawyer during the post-conviction process and being executed because they were too poor to afford a lawyer would have been unthinkable, absolutely unthinkable. Now, we have got two people, and there are more in the pipeline in Alabama, who have missed the statute of limitations. Or in Barber's case, the lawyer shows up for this hearing, doesn't file a notice of appeal, and then misses the Federal statute. So this fellow has no post-conviction review at all. That is unthinkable in any system that says we are going to have equal justice. If he had been a person of means, he would have had State post-conviction review and he would have had Federal postconviction review.

I agree there is a need to provide lawyers at trial for people, and the quality of representation at trial is a scandal and something has to be done about it and this bill is a small first step toward that. But people have to be represented all the way through this process if this system is going to be fair.

I will give you another example, Walter McMillan, the innocent man who was freed in Alabama by Brian Stevenson, first with our office and then with the Equal Justice Institute. Walter McMillan would have never been freed if he had not had post-conviction review. Brian Stevenson got his case. He proved that Walter was in another community at the time the crime took place, and he was ultimately exonerated and released from death row after a number

of years.

Mr. Chairman, one other thing that I just think is important to point out here. Brian Stevenson's office, the Equal Justice Institute, and our office, the Southern Center for Human Rights, receive no State or Federal money. We simply are there providing representation to people because there are people that desperately need legal assistance that don't have any other source of it.

The lawyers from law firms that provide pro bono assistance are recruited by the American Bar Association or by our office to provide that representation, but none of these people are paid anything. The State of Alabama has no system for providing people, and some people that we represent or the firms represent do get good representation. Many other people don't get any representation at all, and that is just a cruel lottery that says that one person, because their number comes up, gets competent legal representation, and the next person the statue of limitations expires on because they are not represented at all.

Chairman LEAHY. Mr. Pryor, I don't want you to feel that you were treated unfairly. Did you want to respond to that?

Mr. PRYOR. Whenever Stephen speaks, there are so many things I would like to respond to, but the notion that Walter McMillan would have been executed had he not had post-conviction proceedings is not true. His conviction was overturned in the direct appeal stage, in the first level of review, where we ought to spend most of our considerable resources in this system, and do.

Chairman LEAHY. Do you disagree with the article in the New York Times which said the lack of appeals lawyers in Alabama is one reason the State has the fastest growing death row in the country and the second largest number of condemned prisoners per capita?

Mr. PRYOR. Yes, I disagree, and I was, I think, quoted in that article.

Chairman LEAHY. I would note in the article that you were quoted as saying the State should increase the money paid to trial lawyers for indigent defendants, which is consistent with what you have said here.

Mr. PRYOR. Right, trial and direct appeals.

Chairman LEAHY. I understand, and I will put that article in the record.

Well, General Pryor and Senator Ellis and Mr. Bright and Mr. Graham and Mr. Eisenberg and Ms. Wilkinson and Mr. Brackett, we have kept you here a long time. I appreciate you being here. I realize we have gone back and forth with some of you, and I am sure each of you can think of other things you would like to say. I will keep the record open for a week. I will keep it open to Senators for additional questions until Thursday, July 5.

I think everybody agrees that there is a need to have evidence of all kinds available to both the prosecution and the defense. I think there is a need to have standards for competent counsel throughout the country.

When I prosecuted cases I wanted the best counsel possible on the other side because I didn't want the case to be remanded 5 or 6 years later for lack of competent counsel. Every prosecutor knows it is extraordinarily difficult to retry a case 5 or 6 years later. You want to get it right the first time.

I hope that if any of you have further material you want to add, you will do so. If you feel that you were not given adequate time to answer any of the questions and want to add to your answers, feel free to do that.

We have several statements that have been submitted for the record and we will include them in the record at this point.

With that, we stand in recess.
[Whereupon, at 1:06 p.m., the committee was adjourned.]
[Submissions for the record follow.]
[Additional material it being retained in the Committee files.)


Statement of Administrative Office of the U.S. Courts

EXECUTIVE SUMMARY In 1995, during consideration of the federal judiciary's annual appropriations request, Congress defunded Post-Conviction Defender Organizations (PCDOs), providing a small amount of fiscal year 1996 money for an orderly termination of the program. Only seven years earlier, Congress had authorized the federal judiciary to

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