The fol­low­ing arti­cle by Henry Weinstein appeared in the Los Angeles Times, July 28, 2005:

(DPIC Note: The Senate Judiciary Committee put off markup of the Streamlined Procedures Act, prob­a­bly until September. Also, see Letter from for­mer Attorneys General and pros­e­cu­tors oppos­ing this leg­is­la­tion.)

THE NATION
Bid to Speed Death Penalty Appeals Under Fire
Conservatives and for­mer pros­e­cu­tors are among foes of a bill, before a
Senate pan­el today, to cur­tail ​‘end­less’ delays in cas­es.

By Henry Weinstein
Times Staff Writer

The Senate Judiciary Committee will take up leg­is­la­tion today meant to
stream­line the death penal­ty appeals process — some­thing crit­ics fear could
lead to the exe­cu­tion of the wrong­ly con­vict­ed.

Opposition is mount­ing to the Streamlined Procedures Act intro­duced in the
Senate by Jon Kyl (R‑Ariz.) and in the House by Dan Lungren (R‑Gold River).
Concerns come not only from death-penal­ty oppo­nents but from indi­vid­u­als and
groups not often thought of as vocal sup­port­ers of the rights of crim­i­nal
defen­dants.

Among the crit­ics are the Rutherford Institute, a con­ser­v­a­tive legal group
that spe­cial­izes in reli­gious free­dom and antiabor­tion issues; Bob Barr, the
con­ser­v­a­tive Republican for­mer con­gress­man from Georgia; more than 50 for­mer
pros­e­cu­tors; and more than a dozen for­mer fed­er­al judges.

The leg­is­la­tion, oppo­nents say, would dra­mat­i­cal­ly restrict fed­er­al court­s’
abil­i­ty to con­sid­er habeas cor­pus peti­tions from state pris­on­ers who claim
that their con­sti­tu­tion­al rights have been vio­lat­ed or that they have
evi­dence they are inno­cent.

Habeas cor­pus is the cen­turies-old method of chal­leng­ing alleged­ly ille­gal
impris­on­ments by giv­ing inmates a day in court to assert that a seri­ous
error has been made in their case.

Kyl and Lungren intro­duced vir­tu­al­ly iden­ti­cal bills in the Senate and House
to rem­e­dy ​“end­less delays” between con­vic­tions in cap­i­tal cas­es and
exe­cu­tions.

They say that restric­tions Congress imposed in the Anti-Terrorism and
Effective Death Penalty Act of 1996 are not enough.

Kyl said the num­ber of habeas cor­pus peti­tions pend­ing in fed­er­al dis­trict
courts had increased to 23,218 in fis­cal year 2003, from 13,359 in fis­cal
year 1994, cit­ing Administrative Office of the Courts data.

The bill would impose a host of restric­tions on an inmate’s abil­i­ty to get a
fed­er­al court to hear a habeas cor­pus peti­tion.

A group of for­mer fed­er­al judges, in a let­ter of oppo­si­tion, told the Senate
Judiciary Committee that ​“there are now too many instances to ignore in
which inno­cent peo­ple were sen­tenced to prison, or even to death, and it
took years for the evi­dence of their inno­cence to come to light.“

Kyl said the bill had an excep­tion that would enable inno­cent peo­ple to
obtain relief from a wrong­ful con­vic­tion.

But the for­mer judges — includ­ing William H. Webster and William S.
Sessions, both of whom served as direc­tors of the FBI in Republican
admin­is­tra­tions — coun­tered that ​“the lan­guage of the excep­tion is so nar­row
that it will cov­er vir­tu­al­ly no one.“

The for­mer jurists also said the bill would over­turn sev­er­al recent Supreme
Court deci­sions inter­pret­ing the 1996 death penal­ty act ​“as well as sev­er­al
oth­er deci­sions of the Rehnquist court, many of which have helped to fur­ther
stream­line the sys­tem and elim­i­nate delays. It serves no one’s inter­ests to
engen­der the kind of delays that this bill will cre­ate” by pre­cip­i­tat­ing
more lit­i­ga­tion.

Moreover, the judges said, the impact of the bill would be ​“far more
sweep­ing” than death penal­ty cas­es. The restric­tions it would impose would
cov­er ​“every state crim­i­nal con­vic­tion,” includ­ing cas­es involv­ing
busi­ness­es, firearms and the envi­ron­ment.

The sweep of the mea­sure is trou­bling and unwar­rant­ed, Barr said in a let­ter
sent Wednesday to Judiciary Committee Chairman Arlen Specter (R‑Pa.).

​“I stand sec­ond to no one in believ­ing in swift and cer­tain jus­tice,” wrote
Barr, a for­mer pros­e­cu­tor and one of the authors of the 1996 law. He said he
thought the law was ​“work­ing well to restrict [habeas cor­pus] peti­tions” and
had seen ​“no evi­dence to the con­trary.”

​“As a for­mer mem­ber of Congress, I know that unfor­tu­nate­ly there are times
when polit­i­cal pres­sures lead to impru­dent deci­sions that can be destruc­tive
to basic con­sti­tu­tion­al lib­er­ties…. [This] is an exam­ple of leg­is­la­tion that
is being pressed with­out suf­fi­cient delib­er­a­tion, and with­out any real
evi­dence that it is need­ed.”

Among the for­mer pros­e­cu­tors against the bill are Ira Reiner, who served as
Los Angeles County dis­trict attor­ney from 1984 to 1992, and Gil Garcetti,
who held the posi­tion for eight years after that.

Reiner, who is a pro­po­nent of the death penal­ty and sought it dozens of
times while run­ning the dis­trict attor­ney’s office, said he strong­ly opposed
​“this ill-con­ceived bill … whose trans­par­ent pur­pose is to strip the fed­er­al
courts of their juris­dic­tion to review state crim­i­nal court pro­ceed­ings.“

He said it would ​“evis­cer­ate the role of the fed­er­al courts in ensur­ing that
inno­cent per­sons are not mis­tak­en­ly con­vict­ed of crimes and that state
courts do not send peo­ple to prison in vio­la­tion of their con­sti­tu­tion­al
rights.“

At the first Senate hear­ing on the bill, Kent Cattani of the Arizona
attor­ney gen­er­al’s office tes­ti­fied in sup­port of the mea­sure. Specter asked
him whether Congress had ​“the author­i­ty to strip the courts of juris­dic­tion
on con­sti­tu­tion­al issues.” Cattani replied, ​“Yes, I think Congress has the
author­i­ty to do so.“

At the same hear­ing, Seth P. Waxman, who was U.S. solic­i­tor gen­er­al in the
Clinton admin­is­tra­tion, described four death penal­ty cas­es in the last four
years in which the Supreme Court found major con­sti­tu­tion­al vio­la­tions
over­looked by state courts. In one instance, pros­e­cu­tors hid crit­i­cal
infor­ma­tion from the defense. In anoth­er, the Supreme Court found that
pros­e­cu­tors had improp­er­ly kept blacks off a jury. If the Kyl-Lungren bill
had been in effect, none of those cas­es would ever have been reviewed by a
fed­er­al court, Waxman said.

​“The title of this bill sug­gests that it would stream­line the pro­cess­ing of
habeas cor­pus cas­es,” Waxman said. But Waxman said he found ​“some­thing else
entire­ly: Section after sec­tion of the bill would elim­i­nate fed­er­al court
juris­dic­tion to decide fed­er­al ques­tions” in such cas­es.

Attorney Barry Scheck, co-founder of the Innocence Project, which had played
a key role in free­ing more than 100 wrong­ly con­vict­ed peo­ple — eight of whom
had been on death row — said a num­ber of those peo­ple would be in prison or
dead if the pro­posed leg­is­la­tion had been in effect.

Scheck told the Judiciary Committee that the pro­posed law turned the les­son
of those cas­es ​“on its head. It threat­ens to make what is already a
tor­tur­ous, dif­fi­cult moun­tain for the wrong­ful­ly con­vict­ed to climb into a
whol­ly impen­e­tra­ble steel wall.”

​“Finding inno­cence is a fits-and-starts kind of process,” said New York
attor­ney George Kendall, who has lit­i­gat­ed death penal­ty cas­es for more than
two decades. ​“Habeas cor­pus was nev­er sup­posed to be about inno­cence alone.
It was always about whether the state courts faith­ful­ly applied fed­er­al
con­sti­tu­tion­al law.

​“This bill turns that on its head,” insu­lat­ing state courts from any
mean­ing­ful review, he said.

Six peo­ple exon­er­at­ed as a result of fed­er­al habeas cor­pus pro­ceed­ings
attend­ed the first Senate hear­ing, includ­ing Thomas Goldstein, who was freed
last year after 24 years in prison for a wrong­ful con­vic­tion in a Long Beach
mur­der.

Goldstein’s chal­lenges to his con­vic­tion fell on deaf ears in state court.
But five fed­er­al judges in California who reviewed the case found that his
con­sti­tu­tion­al rights had been vio­lat­ed by pros­e­cu­tors who used an
unre­li­able jail­house infor­mant and by police who steered an eye­wit­ness into
incor­rect­ly iden­ti­fy­ing Goldstein.
- — - — -

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