Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. Mr. President, I ask unanimous consent that I be allowed to speak until 12:30, with the time to be charged to the Republican side. Mr. President, the…
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
Mr. President, I ask unanimous consent that I be allowed to speak until 12:30, with the time to be charged to the Republican side.
Mr. President, the hour has almost arrived. I understand that in a little less than 3 hours, we will finally be voting for the final time on the reauthorization of the PATRIOT Act. This is critical for the defense of our country, the security of our Nation.
I am pleased we have the opportunity now to approve it, and I predict it will be approved overwhelmingly. The question is, What took us so long? We could have done this at least 2 weeks ago. Indeed, we could have done it 2 months ago. Such is the process in the Senate that sometimes the wheels grind slowly.
The problem is the war on terror. Our enemy does not treat the war necessarily the same way some people in this country do. They are very flexible. They are very agile. They do not tell us what they are going to do in advance. Sometimes they are very patient and wait a long time to strike, and when they do strike, it can be with great speed and lethalness, which means that our ability to fight the terrorists has to be equally agile.
Good intelligence has a short shelf life. Yet that is basically our main weapon in the war on terror. This is not a war we fight with planes, tanks, and ships, but with good intelligence to find out where the terrorists are, who they are, what they are up to, and, if we can, find out whether we are able to stop their terrorist attacks before they occur. That takes good intelligence. It takes agility to be able to get that intelligence, cooperate among the various law enforcement and intelligence agencies.
Before September 11, several of us had provisions of law we believed were important to amend in our statutes to provide tools to fight terrorists. Little did we know how important those would soon become. Senator Feinstein and I have been ranking member and chairman of the Subcommittee on Terrorism, Technology and Homeland Security for many years, since I came to the Senate. We held a lot of hearings on the subject. We had a lot of ideas about what we wanted to propose.
Shortly after September 11, a lot of these things made their way into the PATRIOT Act which we were able to approve. Some Members said the PATRIOT Act was approved hastily. Actually, a lot of the ideas of the PATRIOT Act had been around for some time, had a lot of debate and hearings, but there did not seem to be a reason to get them passed; that is, until September 11, and then, indeed, we did act quickly. But I submit there is a difference between acting hastily and acting quickly.
Nevertheless, some of the provisions were sunsetted. Regarding things we did then and some subsequent amendments to statute, we wanted to take another look down the road to make sure we did not act too hastily. Our action today will make it clear that by reauthorizing these provisions, we intended them to be in effect. We know the terrorists have not stopped their war on terror, and therefore we dare not stop the tools to fight terrorism, many of which are embodied in the PATRIOT Act. So it is important to reauthorize these provisions and not have them expire or sunset.
There is a certain amount of pride of authorship I confess to since a lot of the provisions we are reauthorizing today are provisions which I wrote or helped to write in coauthorship with some of my colleagues. Let me mention some of these because these are important, one of which has been known as or has come to be known as the Moussaoui fix, which is named after Zacarias Moussaoui, sometimes referred to as the 20th hijacker. In the 108th Congress, Senator Schumer and I introduced the Moussaoui fix, which allows the FBI to obtain FISA warrants to monitor and search suspected lone wolf terrorists such as Zacarias Moussaoui.
Now, lone wolf terrorists exist because in today's world, you do not get a little card that says: I am a proud member of al-Qaida. It is a very loose-knit organization. Some have likened it to a franchise where all over the world there are little bands of people--cells--who would do harm to the West generally and the United States in particular and who share the same goals and ideals of al-Qaida, frequently have communication with members of al-Qaida, train in the same way, and conduct the same kinds of terrorist activities, sometimes in consultation or concert with al-Qaida. But it is not like a club, it is not like you are a member of the KGB of the Soviet Union, which is what the threat was when we wrote the FISA act.
Because the FISA act refers to foreign intelligence organizations or terrorist organizations, we found that with people such as Zacarias Moussaoui, who we could not prove was a card-carrying member of any particular terrorist group but we figured he was a terrorist and up to no good, we did not have an ability under FISA to seize and search his computers even though we had the ability to arrest him. This was 2 weeks before September 11. Had we been able to get into the computer, we might well have discovered the information we later found that could have pointed us in the direction of an attack on September 11.
Well, that is what the object of the Zacarias Moussaoui fix was: to enable us to add the lone wolf terrorist to the other situations in which a FISA warrant could be obtained. And it filled a gap in our laws that, as I said, might well have uncovered the September 11 conspiracy had it been in place at the time.
It was reported out of a unanimous Judiciary Committee and passed out of the Senate 90 to 4 in 2003. In 2004, it was added to the Intelligence Reform and Terrorism Prevention Act, with the general PATRIOT Act sunset applied to it. Like the other PATRIOT provisions, the Moussaoui fix was set to expire at the end of last year. Today, we will extend the sunset on that critical provision of law for another 4 years.
Another was the material support enhancements. In 2004, I introduced a bill that, among other things, clarified and expanded the statute prohibiting the giving of material support to a designated foreign terrorist organization. These changes helped address perceived ambiguities in the law that had led the Ninth Circuit Court of Appeals to strike down parts of it as unconstitutionally vague. The changes also expanded the law to bar giving any type of material aid whatsoever--including providing one's self--to a terrorist group.
This legislative proposal also was enacted into law later that year as part of the intelligence reform bill, and also was subjected to a sunset. Again, today, with the PATRIOT Act reauthorization conference report, we repeal that sunset. We make the 2004 material support enhancements permanent features of our law, as they should be.
Another part of the original PATRIOT Act I helped author was the so- called pen registers and trap-and-trace authority. Now, the authority for pen registers and trap and trace is critical for antiterror investigations. It has been around for years in connection with other kinds of investigations, and it obviously was an important tool to fight terrorism.
What these authorities do is allow investigators to discover what telephone numbers are being dialed into and out of a suspect's telephone. As I said, they already had this authority in connection with other kinds of crimes. It certainly made sense to have it track terrorists. An important feature here was to get one court order from a judge in one place and not have to hop all around the country wherever the telephone was used and get a separate court order in that State. That requirement made it totally useless.
So this one court warrant for trap and trace and pen registers was enacted. I am very glad to see the conference report repeals the sunset on this authority--in other words, the automatic ending of the authority--and makes permanent for antiterror investigations this pen register and trap-and-trace authority, another critical tool to fight terrorism.
For the past 2 years, I have also been a cosponsor of legislation that my colleague, Senator Feinstein, helped to coauthor on seaport security and mass transportation security. This is especially interesting in view of the debate and concern right now about seaport security with which we are all familiar.
This particular legislation increases the penalties for and, by the way, also the scope of the criminal offenses for attacks on seaports and shipping. It also consolidates and updates the laws with regard to attacks on railroads and other mass transportation facilities.
Now, these proposals also had been amended into the intelligence reform bill in 2004 by the House of Representatives but have been dropped in conference. Today these important provisions, which I helped to coauthor, are enacted into law through the conference report of the PATRIOT Act.
There is another rather interesting, rather esoteric--one of the things lawyers debate about--but an interesting and important provision of the PATRIOT Act we are going to be dealing with today. When the final draft of the PATRIOT Act reauthorization was introduced in the Judiciary Committee the night before the committee acted on it, for the first time a proposed three-part test was inserted into the bill--a test for determining whether a section 215 order is relevant to a terrorism investigation. There has been a lot of debate about these section 215 orders, but these are critical to obtain records that might help in the investigation of a potential terrorist.
Several of us expressed reservations about this three-part test and whether it would impede the use of these section 215 warrants and impede important investigations and thought it required further study.
Well, during the next weeks and months, we became persuaded essentially that this three-part test would simply either make impossible or certainly delay needed investigations and, therefore, should not be enacted. It raised more questions than it answered, complicated this investigative tool that was being used, after all, at the very preliminary stages of an investigation--not the stage at which you ought to be proving probable cause to introduce evidence into the trial.
Well, the test remains in the conference report, but with changed language. I think it is much better in its current form. The form of the test remains in the conference report, but investigators are no longer required to use that test. Instead, they are simply permitted to use that test to obtain a presumption that a 215 order is relevant to a terror investigation, which is fine.
Usually, when we create a legal presumption that a standard has been met, it is easier to satisfy the presumption than it is to satisfy the underlying legal test. I do not believe that is the case here. Relevance is a simple and well established standard of law. Indeed, it is the standard for obtaining every other kind of subpoena, including administrative subpoenas, grand jury subpoenas, and civil discovery orders.
So I cannot imagine that investigators will ever bother using the complicated three-part test in order to get a presumption when they can simply plead relevance and that will suffice for their investigation. I might be wrong, and they might find this test useful. It is there should they decide they can use it. But I am pleased to see the conference report is not impeding investigations by mandating the use of that test.
We are not betting important antiterror investigations on the issue, I guess, is another way to say it. I think it would have been clearer just to eliminate the test, but it does not--other than, in my view, cluttering up section 215 of the PATRIOT Act because it is not mandatory, I do not think it is going to cause any harm. Investigators are not going to be impeded in their investigations because of it. I think that is an important change we made.
The conference report also does something that is important for States, like my own State of Arizona, that have attempted to improve the ability to prosecute and defend against certain kinds of serious crimes. In the 1996 Antiterrorism and Effective Death Penalty Act, Congress made an offer to the States in effect saying: If you will provide qualified counsel, lawyers, in capital cases to the defendants in those cases during the stage of the case after conviction but during appeal--it is the so-called postconviction review stage of litigation-- then the Federal Government would apply a streamlined and expedited procedure to review the habeas corpus petitions that are normally filed during that period of time from the conviction in the State court.
The Federal courts would be required to abide by timelines in ruling on these cases, and they would be barred from staying Federal petitions to allow further exhaustion or broadly exempting claims from procedural default requirements on the grounds of the perceived inadequacy or lack of independence of the State's procedural rules. The bottom line is that if the defendants are represented by good counsel, by good lawyers, then they should be able to comply with the provisions of the law and not plead, in effect, they have to delay the law as they are having their appeals reviewed.
Arizona did its part to comply with this statute. It enacted a system to provide qualified counsel to capital defendants on State postconviction review. It spent a lot of money doing it. But to date, it has not received the benefits of the system. It is because the decision about whether a State is entitled to the benefits of this chapter 154 relief--including the time deadlines--is made by the same Ninth Circuit Court of Appeals that would be bound by those deadlines. And it has repeatedly refused to extend to Arizona the benefits of the 1996 law's special habeas chapter. By the way, it has also been very slow in many of these cases, and that has been a real problem.
The good thing about today's conference report is that it includes a provision that would shift the decision of whether a State is eligible for this expedited review of capital cases away from the regional courts of appeals to the U.S. Attorney General, with a review of his decision in the U.S. Circuit Court for the District of Columbia. That court hears no habeas cases; therefore, it has no conflict of interest as the other circuit courts would. This will allow the Federal Government to keep its end of the bargain that it made with the States back in 1996 and will allow States like Arizona to finally take advantage of the streamlined and expedited procedures to which it is entitled.
I will conclude in this fashion. I think that by what I have just said it is clear there are a variety of important provisions in this conference report, this PATRIOT law we are reauthorizing. In some cases we are saying this is now going to be permanent law. We do not need to come back and reauthorize it every 4 years. In other cases, we are saying there are important provisions of other laws that need to be put in the PATRIOT Act and made permanent law. And we have done that. In other cases, as I mentioned, we wrote particular provisions into the PATRIOT Act, and it is important that we reauthorize those provisions. And there were other provisions, in addition to pen registers and trap and trace that I mentioned before, as well as the material support, which were parts of the original act.
We established several crimes as part of the PATRIOT Act that would serve as predicate crimes for further investigation, and these were very important because in the early stages of an investigation into a terrorist you may not have all of the scope of the activity of this individual well in mind. You may know he has been guilty of what you think of one particular crime, but you need to be able to use that as a predicate to expand your investigation into other things he may have done.
So, for example, we establish that violations of the Federal terrorism statutes could serve as a predicate offense allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses. We establish that the felony violations of the Federal computer crimes statutes, the so-called hacking statutes, might serve as a predicate offense, allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses.
We provide for the detention, for up to 7 days, of aliens the Attorney General has reasonable grounds to believe were engaged in conduct that threatened the security of the United States or aliens who are inadmissible; that is to say, they are not supposed to be coming into the United States or are deportable from the United States on the grounds of terrorism, espionage, sabotage, or sedition.
There are a variety of other provisions that are included in the PATRIOT Act. The key thing to remember here is, as I said before, our law enforcement and intelligence officials need to have adequate tools to fight terrorism because we provide those tools when we send the military into harm's way. We have an obligation to do that. And they fight important fronts in the war on terror. But so much of this war on terror relates to intelligence gathering and law enforcement activity, investigating potential crimes of these individuals. We have to give them the tools they need to fight these terrorists.
The PATRIOT Act does that. It is one of our tools. The FISA law is another one of those tools, the Surveillance Act. The Foreign Intelligence Surveillance Act is what FISA stands for. We have activities such as the NSA surveillance that is another important tool that deals with al-Qaida terrorists who are calling into or out of a foreign country. There are other mechanisms we are using to fight the terrorists.
But one of the bedrock laws now that we use is the PATRIOT Act. That law passed not long after 9/11 because we understood this world had changed and that it was time to apply to terrorism many of the same kinds of techniques in law enforcement authorities that we already deemed very useful in investigating other kinds of crimes. Our idea was, if it is good enough to investigate money laundering or drug dealing, for example, we sure ought to use those same kinds of techniques to fight terrorists. We have done that.
Today, actually, is a very important day because many of the provisions of the PATRIOT Act go into permanent law. Others are reauthorized for 4 more years. They provide critical support to the people we want to protect us in this war on terror. I am delighted we will be adopting the PATRIOT Act conference report today. My only regret, as I said, is we could not have done it before now. But we can at least celebrate the fact that the Senate has done its duty for the American people to help make them secure in the future.
Mr. President, I rise today to comment on the USA PATRIOT Improvement and Reauthorization Act conference report. I support the conference report and, in particular, the conference report's amendments to section 215, the FISA business records provision, because those amendments confirm that investigators may use section 215 to obtain records and other tangible items that are relevant to any authorized national security investigation other than a threat assessment. The conference report appropriately balances privacy concerns and national security needs by amending the method by which investigators can obtain relevant records but not changing or otherwise limiting the scope of records that can be obtained through a section 215 order. For example, where appropriate, investigators may still obtain sensitive records such as library or bookstore, medical, or tax return records, but they must obtain very high-level sign-off internally before asking the court to order those records' production. Similarly, the conference report imposes an obligation on the Attorney General to develop minimization guidelines for the retention and dissemination of U.S. person information obtained through a section 215 order, but leaves the Department with flexibility in obtaining the information in the first instance and in structuring those minimization procedures.
My support for the conference report turns on my understanding that it codifies our intent not to limit the scope of items and records that can be obtained through section 215. This stands in contrast to the so- called ``three-part test'' that passed the Senate last year, which really did run the risk of limiting our investigators' ability to obtain records relevant to authorized national security investigations. The conference report is clear: we are continuing to provide our investigators with the tools they need. Along with two of my fellow conferees, Senators Roberts and Sessions, I sent a letter to Chairman Specter on the eve of the conference vigorously objecting to the Senate's proposed three-
part test. As the three of us expressed in that letter, we believed that requiring use of the three-part test to show relevance would have been a serious mistake. I am pleased to see that the final conference report does not mandate the use of that test. I will have that letter added to the Record following my remarks.
I support the conference report, including its amendments to section 206 of the USA PATRIOT Act, which authorizes ``roving'' wiretap orders under FISA because I believe that the amendments to section 206 do not hamper investigators' ability to use this critical tool. In this day and age of sophisticated terrorists and spies who are trained to thwart surveillance, allowing investigators to seek a wiretap that follows a specified target--rather than a particular cell phone--is critical. The conference report explicitly preserves this ability, while clarifying the level of detail necessary for investigators to obtain this type of wiretap. Similarly, I support the conference report's amendments to section 206 because they recognize that there may be some situations where it will not be practicable for investigators to return to court within 10 days of directing surveillance at a new phone or place. The conference report wisely affords the FISA Court judges discretion to extend the period of time investigators will have to keep the court apprised of how roving wiretaps are being used.
I support the conference report, and I support the amendments set out in S. 2271, because I think they set out the proper standard for judicial review of nondisclosure orders accompanying section 215 FISA business records orders and national security letters. We all recognize the need for secrecy in national security investigations--both to avoid tipping off targets in a particular case, and to avoid giving our enemies a better picture of how we conduct our investigations. Our enemies are sophisticated and devote enormous time and energy to understanding how we operate, all in service of allowing their agents to evade our investigations. The conference report recognizes the need for secrecy when the Government obtains a section 215 order from a court or serves an NSL on a business. But it also responds to concerns raised that recipients should have an explicit right to judicial review of nondisclosure orders.
The standard in the conference report is the appropriate one, both constitutionally and practically, as it recognizes that sensitive national security and diplomatic relations judgments are particularly within the Executive's expertise. The Constitution has vested these determinations with the Executive, and courts have long recognized that judges are ill-suited to be second-guessing the Executive's national security and diplomatic affairs judgments. Disclosures that seem innocuous to a judge who quite naturally must view those disclosures without being fully aware of the many other data points known to our enemies--may nonetheless be quite damaging. The conference report's standard is therefore the correct one. It will be the exceedingly rare case in which a judge will find, contrary to a certification by an executive branch official, that there is no reason to believe that the nondisclosure order should remain in place. It will be even rarer for a judge to find that one of the Senate-confirmed officials designated in the conference report has acted in bad faith.
I could not have supported the conference report or the explicit judicial review of nondisclosure orders if I thought that they would give judges the power to second-guess the informed national security and diplomatic relations judgments of our high-level executive branch officials. The conference report makes clear that judges will not have such discretion, which is why I am voting for this report.
Another provision in particular that I support is the new public reporting obligations for the FBI's use of national security letters. That reporting will allow Congress to better perform our oversight obligations without endangering national security. The reporting requirement is focused on what is the most relevant number to Congress and the public--the aggregate number of different U.S., persons about whom information is requested. The reporting requirement does not require the FBI to break down the aggregate numbers in its report by the different authorities that allowed the national security letters, which is critical to preventing our enemies from gaining too much information about the way we investigate threats to the national security. And the reporting obligation is limited to information about U.S. persons. I support this limited public reporting because I think it will provide valuable information for our public debate--but without revealing too much information about the FBI's use of this valuable tool and thus compromising its use.
I ask unanimous consent that the November 3 letter to Chairman Specter be printed in the Record.
Mr. President, I rise today to comment on section 507 of the USA PATRIOT Improvement and Reauthorization Act conference report. This section originates in a bill that I introduced earlier in this year, S. 1088, the Streamlined Procedures Act. Section 507 is based on subsections (b) through (e) of section 9 of S. 1088. My Arizona colleague, Representative Flake, took an interest in this matter and sought to offer this provision as an amendment to a court security and police-officer protection bill last November. Mr. Flake's version of the provision is printed in House Report 109-279; it made a number of improvements to the original version in section 9 of my bill. Section 507 of the present conference report reflects most of Mr. Flake's improvements, such as the simplification of the chapter 154 qualification standard, which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures, and Mr. Flake's enhanced retroactivity provisions.
Mr. Flake already has commented on section 507 in an extension of remarks, at 151 Cong. Rec. E2639-40, December 22, 2005. I will not repeat what he said there and will simply associate myself with his remarks. Instead, I would like to focus today on why section 507 is necessary.
Section 507 expands and improves the special expedited habeas-corpus procedures authorized in chapter 154 of the U.S. Code. These procedures are available to States that establish a system for providing legal representation to capital defendants on State habeas review. Chapter 154 sets strict time limits on Federal court action, bars consideration of claims that were not adjudicated in State court, and sharply curtails amendments to petitions. The benefits that chapter 154 offers to States that opt in to its standards are substantial. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts have proven resistant to chapter 154. Section 507 places the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear habeas petitions. Section 507 also makes chapter 154's deadlines more practical by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months.
As I mentioned earlier, section 507 of the present conference report is based on section 9 of the Streamlined Procedures Act. The SPA and habeas reform have been the subject of multiple hearings in both the House and Senate during this Congress. In answers to written questions following their testimony at a July 13 hearing before the Senate Judiciary Committee, Arizona prosecutors John Todd and Kent Cattani provided detailed evidence of systematic delays in Federal habeas corpus review of State capital cases. Among the information that they provided was a comprehensive study undertaken by the Arizona Attorney General's Office of all capital cases in the State. This study examined the appeals of all prisoners currently on Arizona's death row--over 100 prisoners. Mr. Todd summarized the findings in his answers to written questions:
[S]tatistical information based on Arizona's current
capital cases in Federal court, and anecdotal information
derived from Arizona's current and former capital cases
substantiate the significant problem of delay and lack of
finality for victims. The AEDPA has not solved this
problem.
There are 76 Arizona capital cases pending in Federal
court. This represents over two thirds of Arizona's pending
capital cases. Although some cases were filed within the last
few months, over half of the cases have been pending in
Federal court five years or more. Of those, thirteen cases
have been pending for seven years. Ten cases have been
pending for eight years. Five cases have been pending for
more than fifteen years.
The AEDPA was a major step in making Federal habeas review
more reliable and speedy. However, the Supreme Court's
reversals of the Ninth Circuit exemplify the unwillingness of
some court cultures to obey this Congress' directives if
there is any ambiguity in the law.
Mr. Todd also gave a summary of the extreme delays experienced by the State of Arizona on Federal habeas review:
Only one of the 63 [Arizona death-penalty] cases filed
under the AEDPA has moved from the Federal District Court to
the Ninth Circuit. That case has been in the Ninth Circuit
for over 5 years. Twenty-eight of Arizona's capital cases
have been pending in District Court for between six and eight
years.
[One Arizona death penalty case] has been on Federal habeas
review for over 19 years. Two of those cases have been on
Federal habeas review for over 18 years, one for over 16
years, another for over 14 years, still another for over 12
years. These cases alone establish a pattern of unreasonable
delay. The [Arizona Attorney General's] report shows that
these cases are not simply strange aberrations in an
otherwise smooth functioning system of habeas review.
Mr. Todd concluded: ``there is a serious problem of delay and lack of finality currently in Federal habeas review of state-court judgments, even after Congress' enactment of the AEDPA almost a decade ago. . . . Based on the attached review of the Arizona capital cases since enactment of the AEDPA, delay has not been eliminated or even reduced, rather it has been prolonged.''
Similarly, in his answers to written questions, Kent Cattani, the Chief Counsel of the Capital Litigation Section of the Arizona Attorney General's Office, reviewed the Arizona Attorney General's study of Arizona capital cases and concluded as follows: ``Federal habeas reform is necessary. After 9 years under the Anti-Terrorism and Effective Death Penalty Act of 1996 (``AEDPA''), it is clear that the Act did not eliminate or even reduce the problem of delay in the Federal habeas process.''
Interestingly, although the Judicial Conference of the United States has uniformly opposed all Federal habeas reform--it even objected in writing to SPA Section 8(a)'s requirement that circuit courts decide habeas cases within 300 days after briefing is completed--in its September 26, 2005 letter to Chairman Specter regarding the SPA, the Conference itself provides substantial evidence of a growing backlog and delays in resolution of capital habeas petitions. The September 26 letter notes the following facts: From 1998 to 2002, the number of State capital habeas cases pending in the Federal district courts increased from 446 to 721. During the same period, the percentage of State capital habeas cases pending in the Federal district courts for more than 3 years rose from 20.2 percent to 46.2 percent; in the Federal courts of appeals, the number of pending State capital habeas cases rose from 185 to 284; and the median time from filing of a notice of appeal to disposition for State capital habeas cases increased from 10 months to 15 months.
It is noteworthy that all of these increases in backlog and delay have taken place after the enactment of the AEDPA in 1996--a law that some critics of habeas reform assert has solved all of the problems with Federal habeas.
At the most recent hearing on the Streamlined Procedures Act, before the Senate Judiciary Committee on November 16, Ron Eisenberg, Deputy District Attorney for Philadelphia, summarized the problems and delays with Federal habeas review that he encounters in the course of his work. He stated:
I have served as a prosecutor for 24 years. I am the
supervisor of the Law Division of the Philadelphia District
Attorney's Office, a group of 60 lawyers. Many of those
lawyers handle regular appeals in the Pennsylvania appellate
courts. But more and more of our attorneys must devote
themselves full time to Federal habeas corpus litigation. In
the last decade, the number of lawyers employed exclusively
on habeas work has increased 400%. Despite the limits
supposedly imposed by law, the only certain limit on the
Federal habeas process as it is currently administered is the
expiration of the defendant's sentence.
But that leaves ample opportunity and motivation for
litigation, because the cases that reach Federal habeas
review involve the most dangerous criminals, who receive the
most serious sentences--not just death penalties, but non-
capital murders, rape, violent robberies and burglaries,
brutal beatings, and shootings.
Too often, discussion of the proper scope of Federal habeas
corpus review is really just a debate about the value of the
death penalty, and the justness of imprisonment and
punishment generally. To be sure, many Federal courts seem
flatly unwilling to affirm capital sentences. In
Pennsylvania, for example, almost every single contested
death sentence litigated on habeas--over 20 cases in the last
decade--has been thrown out by Federal judges; only one has
been upheld.
But the primary problem is one of process, not results. The
truth is that, whether or not they end up reversing a
conviction, Federal habeas courts drag out litigation for
years of utterly unjustifiable delay, creating exorbitant
costs for the state and endless pain for the victims.
This data and testimony confirm what many capital litigators and judges have told me is, in their view, an obvious and uncontestable fact: the problems with Federal habeas corpus are systematic, they are severe, and they and are growing worse. Yet even this information does not really tell us why this problem matters--why ordinary people, rather than just civil servants and judges, should be concerned about the functioning of the Federal habeas system. For that information, it is necessary to look at the impact of the current habeas system on the surviving victims of violent crimes. The current system and the delays that it engenders, particularly in capital cases, often are grossly cruel to these individuals. The perpetual litigation of Federal habeas cases denies the surviving family of a murder victim closure--it forces them to continually relive the crime, rather than be able to put the terrible events behind them.
Two parents of murder victims testified at hearings in this Congress about how they have been treated by the Federal habeas system. Their testimony makes a compelling case that this system is broken and in need of reform. And it highlights why we should all be concerned. What these individuals and their families--people who had already suffered so much--have experienced at the hands of the Federal courts should offend every American.
The first witness to testify was Carol Fornoff, who addressed the House Judiciary Committee's Crime Subcommittee on June 7 of last year. Mrs. Fornoff's 13-year-old daughter, Christy Ann, was murdered in 1984. Almost every Arizonan who lived in the State at the time knows the name Christy Ann Fornoff. Christy's murder was an event that shattered people's sense of security, that made them afraid to let their children play outside or go out of their sight. I remember the case vividly. And I was stunned when I learned last year that the man who killed Christy, although sentenced to death by the State of Arizona, still is litigating his conviction and sentence in Federal court. His Federal proceedings began in 1992--14 years ago. Just think about how long ago 1992 is. President Bush's father was the President at the time. Bill Clinton was the Governor of Arkansas. Saddam Hussein's invasion of Kuwait is closer in time to that date than the U.S. invasion of Iraq is to today. And yet the case of Christy's killer remains in Federal court.
Mrs. Fornoff made a powerful case for why we should find this unacceptable. She described the suffering of her family, how this decades-long litigation has denied them closure. I do not think that anyone who heard Mrs. Fornoff's testimony would assert that there are no problems with the present system. Allow me to quote the main portion of Mrs. Fornoff's statement to the House Crime Subcommittee:
My husband Roger and I are here today to tell you about our
daughter, Christy Ann Fornoff. Christy was our youngest
daughter. She was a loving child, very gentle. She often
seemed to make friends with the kids at school who weren't
so popular. She was very dear to us.
In 1984, our family was living in Tempe, Arizona, and
Christy was 13 years old. Christy and her brother Jason both
held jobs as newscarriers for the Phoenix Gazette, a local
newspaper. Roger and I believed that jobs like this would
teach our children responsibility, while also helping them
earn a little money.
After dinner on Wednesday evening, May 9, 1984, both
Christy and Jason had been invited to go jumping on
trampolines. Jason went, but Christy had just had a cast
removed from her ankle. Instead, she went to collect on
newspaper subscriptions at an apartment complex near our
house.
Christy delivered papers at this complex every day, it was
just two short blocks from our house. Nevertheless, it was
getting dusk, so I went with Christy; she rode her brother's
bike while I walked alongside with our little dog.
At the first apartment that Christy visited, I was stopped
by a neighbor who wanted to talk about our cute dog. Christy
went on to the next apartment alone, and I followed a few
minutes later. When I got there, the bike was outside, but
there was no Christy. I started calling her name, but there
was no answer. Our dog started to get nervous. After a few
minutes, I ran home, and came back with my daughter's
boyfriend. I asked the people at the apartment that Christy
had gone to if they had seen her, and they said yes, ten
minutes ago, and that she had left. I knew that Christy
wouldn't just leave her brother's bike there.
I ran home again. My husband had just arrived at home and I
told him that Christy was missing. He immediately called the
police, and then he went to the apartment complex and began
knocking on doors. Outside of one apartment, people standing
nearby told us don't bother knocking on that door, that is
the maintenance man, and he is looking for Christy. Shortly
after, the maintenance man joined Roger in the search for
Christy.
That night, police helicopters with searchlights examined
every corner of our neighborhood. Our son drove up and down
every alley in the area on his motorcycle. Christy's
newspaper-collections book was found over a fence near the
apartment complex. But no one found Christy.
Two days later, a policeman knocked at our door. Christy's
body had been discovered wrapped in a sheet, lying behind a
trash dumpster in the apartment complex. We were absolutely
devasted. We had been hoping against hope, and couldn't
believe that our beautiful daughter was dead.
Christy's body was taken to a morgue so that an autopsy
could be performed. On Sunday, which was Mother's day, we
were finally able to view Christy's body at the funeral home.
Mother's Day has never been the same for me since.
Ten days after Christy's body was found, the maintenance
man at the apartment complex--the same man who supposedly had
been looking for her the night that she disappeared--was
arrested for her murder. Christy had been sexually assaulted
and suffocated. There was blood, semen, and hair on Christy's
body that was consistent with that of the maintenance man.
Vomit on Christy's face matched vomit in the maintenance
man's closet. Fibers on Christy's body matched the carpet and
a blanket in the maintenance man's apartment. And police
found Christy's hair inside of the apartment. We knew who had
killed our daughter.
In 1985, the maintenance man was convicted of Christy's
murder and sentenced to death. The conviction was upheld in a
lengthy opinion by the Arizona Supreme Court. The killer
raised many more challenges, but his last state appeals were
finally rejected in 1992. By that time, we already felt like
the case had been going on a long time--it had been seven
years. We couldn't imagine that the killer would have any
more challenges to argue.
But in 1992, the killer filed another challenge to his
conviction in the United States District Court. That
challenge then remained in that one court for another 7
years! Finally, in November of 1999, the district court
dismissed the case. But then a few years later, the Federal
Court of Appeals for the Ninth Circuit sent the case back to
the district court for more hearings. Today, the case remains
before that same Federal district court.
It has now been over 21 years since Christy was murdered.
By this fall, the case will have been in the Federal courts
for longer than Christy was ever alive.
I cannot describe to you how painful our experience with
the court system has been. I cannot believe that just one
court took over 7 years to decide our case.
Some might ask why we can't just move on, and forget about
the killer's appeals. But it doesn't work that way. She was
our daughter, our beautiful little girl, and he took her
away. We want to know if he was properly convicted. We want
to know, will his conviction be thrown out? Will there be
another trial? I cannot imagine testifying at a trial again.
And would they even be able to convict this man again? It has
been 21 years. How many witnesses are still here, is all of
the evidence even still available? Could this man one day be
released? Could I run into him on the street, a free man--the
man who assaulted and killed our little daughter? The courts
have turned this case into an open wound for our family--a
wound that has not been allowed to heal for 21 years.
I understand that the Federal government has the right to
create such a system. It can let the Federal courts hear any
challenge to a state conviction, at any time, with no limits.
My question to you, Mr. Chairman, is why would we want such a
system? Why would we want a system that forces someone like
me to relive my daughter's murder, again and again and again?
My daughter's killer already litigated all of the challenges
to his case in the state courts. Why should we let him bring
all of the same legal claims again, for another round of
lawsuits, in the Federal courts? Why should this killer get a
second chance? My daughter never had a second chance.
I understand that people are concerned about innocent
people being behind bars, but that is not what my daughter's
killer is suing about. Right now, the issue that is being
litigated in the Federal courts is whether the trial court
made a mistake by allowing the jury to hear that he told a
prison counselor that he ``didn't mean to kill the little
Fornoff girl.'' He claims that the counselor was like his
doctor, and that the statement is private, even though he
said it in front of other prisoners. Earlier this year, a
Federal court held a hearing on whether the killer had a
right to prevent the jury from hearing about this statement.
But the statement is irrelevant. Whether or not he said it,
the evidence of his guilt--the hairs, the fibers, the bodily
fluids--is overwhelming. The
issue that the killer is suing about was already resolved
before by the Arizona Supreme Court--over 17 years ago. Yet
here we are, 21 years after my daughter died, arguing about
the same legal technicalities.
People might say that it is worth the cost to let the
killer sue over every issue like this again and again. I
don't think that it is worth the cost. When you and your
colleagues are writing laws, Mr. Chairman, please think about
people like me. Please think about the fact that every time
that there is another appeal, another ruling, another
hearing, I am forced to think about my daughter's death.
Every time, I am forced to wonder, if only Christy hadn't had
the cast on her ankle--if only she could have gone on the
trampoline that evening, she would still be alive today.
Every time that I hear a helicopter, I am terrified--I think
of the police helicopters searching for Christy on the night
that she disappeared. Every time that I hear a motorcycle, I
think of my son, searching for Christy. Every time that the
courts reopen this case, I am forced to wonder, why didn't I
follow Christy to that second apartment--why did I let that
neighbor stop me to talk? Every time, I am forced to think
about how scared my little girl must have been when she died.
I urge you, Mr. Chairman, to do what you can to fix this
system. My family and I have forgiven our daughter's
murderer. But we cannot forgive a justice system that would
treat us this way.
Another witness who testified before Congress last year on the need for Federal habeas reform is Mary Ann Hughes of Chino Hills, CA. Mrs. Hughes's son Christopher, then 11 years old, was murdered in 1983. As in the Fornoff case, the killer was captured, convicted, and sentenced to death--and is still litigating his case in Federal court today. Mrs. Hughes testified before the House Judiciary Committee's Crime Subcommittee on November 10, 2005. This is what she said:
Christopher was a beautiful little boy. He had just
completed the fifth grade at a local Catholic school. His
classmates later planted a tree in his memory at the school.
Chris swam on the swim team and dreamed of swimming for the
University of Southern California and being in the Olympics.
He loved his younger brother, and in typical brotherly
fashion would tease him one minute and be his best friend the
next. Chris' younger brother is now 28-years-old. He has
missed Chris every day since he was murdered. Our younger son
was not yet born when Chris was murdered. I was pregnant
during part of Cooper's trial with our third son. When he was
born we gave him the middle name Christopher after the
brother he never knew. Both boys have only in the last few
years been able to face what happened to their brother. As
the years have passed, we are reminded that Chris never got
to finish grammar school, go to a prom, marry, have children
of his own, or pursue his dreams.
On Saturday, June 4, 1983, Chris asked me for permission to
spend the night at the home of his friend, Josh Ryen. We
lived in what was then a very rural neighborhood. Josh was
the only boy nearby who was really close to Chris' age and so
they formed a bond. We were good friends with Josh's parents,
Doug and Peggy Ryen. The Ryens lived just up the road from
our home with their 10-year-old daughter Jessica and eight-
year-old Josh. The last time I saw Chris alive he and Josh
were riding off on their bicycles toward Josh's house. They
were excitedly waving because they were so happy I had given
Chris permission to spend that night with Josh. The only
thing Chris had to remember was to be home Sunday in time for
church. The next time I saw Chris was in a photograph on an
autopsy table during Cooper's preliminary hearing.
Unbeknownst to anyone, Cooper had been hiding in a house in
Chino Hills just 126 yards from the Ryen's home. He had
escaped two days earlier from a minimum security facility at
a nearby prison. When Cooper was arrested for burglary in Los
Angeles he used a false identity. His identity and criminal
past should have caught up with him before he was wrongly
assigned to the minimum security portion of the prison. The
prison, however, mishandled the processing of an outstanding
warrant for Cooper for escape from custody in
Pennsylvania. He was being held pending trial for the
kidnap and rape of a teenage girl who interrupted him
while he was burglarizing a home. While staying at the
hide-out house near the Ryens, Cooper had been calling
former girlfriends, trying to get them to help him get out
of the area. A manhunt was under way for Cooper, but the
rural community surrounding the prison was never notified
of the escape.
The failure of the California prison-system to protect the
surrounding community from a dangerous felon marked the
beginning of our family and community's being let down by our
government. Within a few hours of Cooper's escape, prison
officials realized who Cooper was and how dangerous he was.
Nevertheless, they still failed to alert the community that
he was at large. Our frustration and disappointment with our
government's failings has only grown since that time as
Cooper's case continues to wind its way down a seemingly
endless path through our judicial system.
The morning following the murders, I remember being mad at
Chris because he had not arrived home on time as promised so
we could attend church. Then my anger turned to worry. I sent
my husband Bill up to the Ryen home. He saw that the horses
had not been fed, and that the Ryen station wagon was gone.
Uncharacteristically, the kitchen door was locked, so my
husband walked around the house. He looked inside the sliding
glass door of the Ryen's master bedroom. He saw blood
everywhere. Peggy and Chris were lying on the ground and Josh
was lying next to them, showing signs of life but unable to
move. My husband could not open the sliding glass door, so he
ran and kicked open the kitchen door. As he went into the
master bedroom, he found 10-year-old Jessica lying on the
floor in fetal position in the doorway, dead. He saw Doug and
Peggy nude, bloodied, and lifeless. When he went to our son
Chris, he was cold to the touch. Bill then knew that
Christopher was dead.
My husband then forced himself to have enough presence of
mind to get help for Josh, who miraculously survived despite
having his throat slit from ear to ear. Josh, only eight
years old, lay next to his dead, naked mother throughout the
night, knowing from the silence and from the smell of blood
that everyone else was dead. He placed his fingers into his
throat, which kept him from bleeding to death during the 12
hours before my husband rescued him.
Everyone inside the home had been repeatedly struck by a
hatchet and attacked with a knife. Christopher had 25
identifiable wounds made by a hatchet and a knife. Many of
them were on his hands, which he must have put against his
head to protect himself from Kevin Cooper's blows. Some were
made after he was already dead. No one should know this kind
of horror. That it happened to a child makes it even worse.
The killer had lifted Jessica's nightgown and carved on her
chest after she died. The killer also helped himself to a
beer from the Ryen's refrigerator. We wondered what kind of
monster would attack a father, mother, and three children
with a hatchet, and then go have a beer. That question has
long since been answered, but 22 years later we are still
waiting for justice.
The escaped prisoner who committed this crime was caught 2 months later. He admitted that he had stayed in the house next door but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and the defendant's blood type and hair matched that found in the Ryen house. The defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991.
The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--23 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched the defendant, to a degree of certainty of 1 in 310 billion. Blood on the t-shirt matched both the defendant and one of the victims.
Mrs. Hughes went on to describe, in her November 10 testimony, the impact of this crime and the attenuated legal proceedings on her family:
``While I know that Cooper is the one who murdered my son,
I will always bear the guilt of having given Chris permission
to spend the night at the Ryen's house. I will always feel
responsible for sending my husband to find the bodies of our
son and the Ryen family. It is a guilt similar to the guilt
that Josh feels to this day because he had begged me to let
Chris spend the night. He thinks that Chris would still be
alive if he had not spent the night. Of course, Cooper is
responsible for all the pain and suffering that he inflicted
that night and the continued pain that has followed, but it
does not help stop the pain and guilt. Kevin Cooper is still
here over 22 years later--still proclaiming his innocence and
complaining about our judicial system.
As Josh explained when he finally got a chance to speak to
the Judge about how he has been affected by Cooper's crimes:
Cooper never shuts up. We continually get to hear more bogus
claims and more comments from Cooper and his attorneys. Over
the years I have learned to know when something has happened
in Cooper's never-ending legal case: the calls from the media
start up again, or, at times, the media trucks just park
in
front of our house. We have no opportunity to put this
behind us--to heal or to try to find peace--because
everything is about Cooper. Our system is so grotesquely
skewed to Cooper's benefit and seemingly incapable of
letting California carry out its judgment against him.
[The] judicial system so out of balance in favor of the
convicted that it literally enables them to victimize their
victims and their families all over again through the Federal
judicial system. We understood the rights of an accused and
that Cooper's rights took precedence over ours as he stood
trial. His trial was moved to another County because of the
publicity surrounding the horrendous crimes. I had to drive a
long distance to another County to watch the trial as it
could not take place in our County. Cooper's defense attorney
spent an entire year preparing to defend Cooper at trial.
Everything was about Cooper's rights and none of our
sensibilities or concerns could be dignified because Cooper
had to have a fair trial. We understood and we waited for
justice. In California, Cooper's appeal was automatic because
he had received the death penalty for his crimes. The appeal
took six years to conclude. We understood the need for a
thorough appeal and we waited for justice.
By 1991, Cooper had received a fair trial and his appeal
had been concluded. The California Supreme Court aptly
observed that the evidence against Cooper, both in volume and
consistency, was ``overwhelming''. Since then, we have waited
and watched as the United States Supreme Court has denied
Cooper's eight petitions for writ of certiorari and two
petitions for writ of habeas corpus, and the California
Supreme Court has denied Cooper's seven habeas corpus
petitions and three motions to reopen Cooper's appeal. The
Ninth Circuit affirmed the denial of Cooper's first Federal
habeas petition, and denied him permission to file a
successive petition in 2001, and again in 2003. But then, on
Friday night, February 6, 2004, Cooper's attorneys filed an
application with the Ninth Circuit requesting permission to
file a successive habeas petition.
A three-judge panel of the Ninth Circuit denied Cooper's
application to file a successive petition on Sunday, February
8, 2004. Cooper was scheduled to be executed at one minute
after midnight on Tuesday, February 10, 2004. On Monday,
February 9, 2004, my husband and I made the trip to Northern
California from our home in Southern California. Relatives of
the extended Ryen family flew in from all over the Country.
Josh Ryen, now 30, left for dead at the age of eight, his
entire immediate family murdered, drove hundreds of miles to
reach the prison to witness the execution of Cooper. We all
expected that finally, this case would be brought to a close.
Mrs. Hughes went on to describe, however, how on the eve of the execution, the en banc Ninth Circuit Court of Appeals sua sponte reviewed the denial of the petitioner's successive petition application and reversed the three-judge panel. The en banc decision stayed the killer's execution and permitted him to pursue a second round of Federal habeas-corpus litigation. This second round still is going on today--15 years after the California Supreme Court affirmed the conviction and sentence, and 23 years after the murders.
Section 2244(b)(3)(E) of title 28 states that ``[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.'' To us lesser lawyers, this provision might seem like it means that there shall be no en banc review of the three-judge panel's denial of the application. But the enlightened jurists of the Ninth Circuit have discovered that although subparagraph (E) bars the habeas petitioner from appealing the denial, the en banc court remains free to sua sponte grant review. Some might find it strange that Congress would have intended to bar the en banc courts of appeals from considering a case on the basis of a party's appeal and adversarial briefing, but intended to allow the same courts to hear the same case without a request for review and with no briefing. Typically, briefing is regarded as aiding a court's consideration of a case. Of course, the losing habeas petitioner typically does seek en banc review of the denial of the successive-petition application and file a brief in support of his request. I suppose that we are to trust that the en banc court of appeals does not read that brief, or that if it does so, it puts the brief out of its collective mind so that it might act ``sua sponte'' when it votes on whether to go en banc, lest its actions otherwise appear to violate subparagraph (E)'s clear command that the denial of the application is not ``appealable.''
In this case, I am prepared to believe that the judges did not read the briefs. Despite DNA evidence that linked the habeas petitioner to the murder scene to a degree of certainty of 1 in 310 billion, the en banc Ninth Circuit determined that the petitioner met section 2244's requirement that he present ``clear and convincing evidence that . . . no reasonable factfinder would have found [him] guilty of the underlying offense.'' The Ninth Circuit's theory was that the police might have planted the blood evidence. As Mrs. Hughes noted in her November 10 testimony, however:
Of course, Cooper could not explain how or why police would
plant a minute amount of blood on the t-shirt only to never
use it as evidence against him at trial. Moreover, this
evidence had been in police custody since 1984. Apparently,
these supposed rogue police officers also anticipated the
development of the Nobel Prize-winning science that would
enable Cooper to have the blood tested for DNA. Cooper also
could not explain how the police could have planted his blood
at the crime scene within a few hours of discovering the
bodies, while he was still at large.
The Ninth Circuit first granted sua sponte en banc review of the denial of a successive-petition application in the case of Thompson v. Calderon, 120 F.3d 1045, 9th Cir. 1997, a decision with other procedural irregularities so glaring that the Supreme Court did not even notice this aspect of the decision when it took it up and reversed, Calderon v. Thompson, 523 U.S. 538, 1998. The Sixth Circuit subsequently copied Thompson, thus allowing the Ninth Circuit to attribute this practice to other circuits when it again applied it in the case of the killer of Mary Ann Hughes's son. Section 8(b) of the Streamlined Procedures Act would prevent the Ninth Circuit from doing this in the future. Unfortunately, I was unable to have that provision included in this conference report. I will try again in the future.
This year, it will have been 23 years since Christopher Hughes and Doug, Peggy, and Jessica Ryen were murdered. In 2004, after the Ninth Circuit authorized another round of litigation, a local newspaper described the impact of this crime and the ensuing years of appeals on the surviving family of the victims:
For nearly 20 years, since convicted murderer Kevin Cooper
was sentenced to death for the 1983 slayings of a Chino Hills
family and their young houseguest, families of the victims
have waited silently for the day the hand of justice would
grant them peace.
For those families, the last two decades have seemed like
an eternity.
I lived through a nightmare,'' said Herbert Ryen, whose
brother Douglas Ryen was among those killed, along with
Douglas' wife Peggy, their 11-year-old daughter Jessica, and
her 10-year-old friend Christopher Hughes.
[O]n the morning of Feb. 9, [2004,] the day of Cooper's
scheduled death by lethal injection, word came down that the
9th U.S. Circuit Court of Appeals had decided to block the
execution.
[T]o the Ryen and Hughes families, the stay just hours
before Cooper's scheduled execution at San Quentin State
Prison was nearly incomprehensible. The indefinite delay has
left them in a sort of emotional limbo, questioning whether
the legal system had abandoned them.
The bottom line is that this whole issue is not about Kevin
Cooper . . . it is about the death penalty,'' said Mary Ann
Hughes, the mother of Christoper Hughes. ``We're so mad--mad
because we feel as though the courts turned their back on my
son.''
They (Court of Appeals) are holding us hostage,'' Hughes
said.
For Herbert Ryen and his wife Sue, waiting for justice has
taken an equally destructive toll on their lives. The torment
their family experienced following the murders, and the
subsequent years lost to depression, could never be replaced,
he said from his home in Arizona.
Mary Ann Hughes said the pain her family suffers is only
amplified by the seemingly continuous bombardment of
celebrities campaigning against Cooper's execution. She
wonders who will cry out in anger for the victims.
One former television star and anti-death penalty activist,
Mike Farrell of the popular series MASH, spoke of the case on
a recent news program.
``He claimed that we must feel relieved since the stay of
execution was granted,'' Hughes said. ``How can (Farrell)
have the audacity to say he knows what we are feeling?''
Farrell could not be reached for comment.
Since Christopher's death, the Hughes family has chosen to
remain out of the media spotlight. And until recently, their
efforts were successful, due largely to the support of their
surviving children, family members and a strong network of
close friends, Hughes said.
The court's decision Feb. 9 has re-opened the case, forcing
the families to re-live the nightmare they have fought so
hard to leave behind, they say.
Mary Ann Hughes is left wondering about other families who
have had loved ones taken from them, about the legal battles
they have had to endure in their own quests for justice.
She thinks of the parents of Samantha Runion, the 5-year-
old Orange County girl who was murdered in 2003, and of what
her family could face in the next 20 years.
For Bill Hughes, the anguish is intensified--he will
forever know the pain of walking into the Ryens' home the
morning after the murders, and finding his son, dead and
covered in blood near the Ryens' bedroom door. He was also
the first to discover Joshua Ryen, also drenched in blood,
clinging to life.
``It is a memory he will always have to live with,'' Mary
Ann Hughes said.
Indeed, time has been no friend to the victims' families,
as California's recent appellate court ruling has further
denied them closure, she added.
``What this decision has done to our legal system in
California is unthinkable,'' she said. ``Somewhere along the
line, the courts have got to uphold the law, and we will wait
it out until they do.'' (Sara Carter, ``Families of Murder
Victims Wait for Justice in Cooper Case,'' Inland Valley
Daily Bulletin, February 24, 2004.)
The impact of this litigation on Mary and Bill Hughes and Herbert and Sue Ryen alone makes the handling of this case indefensible. No one, however, has borne the weight of our system of Federal collateral review more heavily in this case than has the one surviving victim of the June 4, 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He had been Christopher Hughes's neighbor and best friend. As of last year, however, Mary and Bill Hughes had not seen Josh since he was airlifted by helicopter from the scene of the murders to Loma Linda University hospital. Then on April 22, 2005, Josh Ryen appeared at the latest Federal habeas corpus hearing for the man who killed his family. He is now 30 years old. Pursuant to the recently enacted Crime Victims' Rights Act, he gave a brief statement before the court. I will quote Josh Ryen's statement in its entirety:
The first time I met Kevin Cooper I was 8 years old and he
slit my throat. He hit me with a hatchet and put a hole in my
skull. He stabbed me twice, which broke my ribs and collapsed
one lung. I lived only because I stuck four fingers in my
neck to slow the bleeding, but I was too weak to move. I laid
there 11 hours looking at my mother who was right beside me.
I know now he came through the sliding glass door and
attacked my dad first. He was lying on the bed and was struck
in the dark without warning with the hatchet and knife. He
was hit many times because there is a lot of blood on the
wall on his side of the bed.
My mother screamed and Cooper came around the bed and
started hitting her. Somehow my dad was able to struggle
between the bed and the closet but Cooper bludgeoned my
father to death with the knife and hatchet, stabbing him 26
times and axing him 11. One of the blows severed his finger
and it landed in the closet.
My mother tried to get away but he caught her at the bottom
of the bed and he stabbed her 25 times and axed her 7.
All of us kids were drawn to the room by mom's screams.
Jessica was killed in the doorway with 5 ax blows and 46
stabs. I won't say how many times my best friend Chris was
stabbed and axed, not because it isn't important, but because
I don't want to hurt his family in any way, and they are
here.
After Cooper killed everyone, and thought he had killed me,
he went over to my sister and lifted her shirt and drew
things on her stomach with the knife. Then he walked down the
hallway, opened the refrigerator, and had a beer. I guess
killing so many people can make a man thirsty.
I don't want to be here. I came because I owe it to my
family, who can't speak for themselves. But by coming I am
acknowledging and validating the existence of Kevin Cooper,
who should have been blotted from the face of the earth a
long time ago. By coming here it shows that he still controls
me. I will be free, my life will start, the day Kevin Cooper
dies. I want to be rid of him, but he won't go away.
I've been trying to get away from him since I was 8 years
and I can't escape. He haunts me and follows me. For over 20
years all I've heard is Kevin Cooper this and Kevin Cooper
that. Kevin Cooper says he is innocent, Kevin Cooper says he
was framed, Kevin Cooper says DNA will clear him, Kevin
Cooper says blood was planted, Kevin Cooper says the tennis
shoes aren't his, Kevin Cooper says three guys did it, Kevin
Cooper says police planted evidence, Kevin Cooper gets
another stay from another court and sends everyone off on
another wild goose chase.
The courts say there isn't any harm when Kevin Cooper gets
another stay and another hearing. This just shows they don't
care about me, because every time he gets another delay I am
harmed and have to relive the murders all over again. Every
time Kevin Cooper opens his mouth everyone wants to know what
I think, what I have to say, how I'm feeling, and the whole
nightmare floods all over me again: the barbecue, me begging
to let Chris spend the night, me in my bed and him on the
floor beside me, my mother's screams, Chris gone, dark house,
hallway, bushy hair, everything black, mom cut to pieces
saturated in blood, the nauseating smell of blood, eleven
hours unable to move, light filtering in, Chris' father at
the window, the horror of his face, sound of the front door
splintering, my pajamas being cut off, people trying to save
me, the whap whap of the helicopter blades, shouted
questions, everything fading to black.
Every time Cooper claims he's innocent and sends people
scurrying off on another wild goose chase, I have to relive
the murders all over again. It runs like a horror movie, over
and over again and never stops because he never shuts up. He
puts PR people on national television who say outrageous
things and then the press wants to know what I think. What I
think is that I would like to be rid of Kevin Cooper. I would
like for him to go away. I would like to never hear from
Kevin Cooper again. I would like Kevin Cooper to pay for what
he did.
I dread happy times like Christmas and Thanksgiving. If I
go to a friend's house on holidays I look at all the mothers
and fathers and children and grandchildren and get sad
because I have no one. Kevin Cooper took them from me.
I get terrified when I go into any place dark, like a house
before the lights are on. I hear screams and see flashbacks
and shadows. Even with lights on I see terrible things. After
I was stabbed and axed I was too weak to move and stared at
my mother all night. I smelled this overpowering smell of
fresh blood and knew everyone had been slaughtered.
Every day when I comb my hair I feel the hole where he
buried the hatchet in my head, and when I look in the mirror
I see the scar where he cut my throat from ear to ear and I
put four fingers in it to stop the bleeding which, they say,
saved my life. Every year I lose hearing in my left ear where
he buried the knife.
Helicopters give me flashbacks of life flight and my
Incredible Hulks being cut off by paramedics. Bushy hair
reminds me of the killer. Silence reminds me of the quiet
before the screams. Cooper is everywhere. There is no escape
from him.
I feel very guilty and responsible to the Hughes family
because I begged them to let Chris spend the night. If I
hadn't done that he wouldn't have died. I apologize to them
and especially to Mr. Hughes for having to find us and see
his son cut and stabbed to death.
I thank the judge who gave my grandma custody of me because
she took good care of me and loves me very much.
I'm grateful to the ocean for giving me peace because when
I go there I know my mother and father and sister's ashes are
sprinkled there.
Kevin Cooper has movie stars and Jesse Jackson holding
rallies for him, people carrying signs, lighting candles,
saying prayers. To them and you I say:
I was 8 when he slit my throat,
It was dark and I couldn't see.
Through the night and day I laid there, trying to get up and
flee.
He killed my mother, father, sister, friend,
And started stalking me.
I try to run and flee from him but cannot get away,
While he demands petitions and claims, some fresh absurdity.
Justice has no ear for me nor cares about my plight, while
crowds pray for the killer and light candles in the
night.
To those who long for justice and love truth which sets men
free, When you pray your prayers tonight, please
remember me.
Even those who oppose capital punishment--who would like to see it abolished--should not support a system that treats the victims of violent crimes in this way. Creating a fair, efficient, and expeditious system of Federal habeas review should be a bipartisan cause. Indeed, it was President Clinton who noted after the enactment of the 1996 AEDPA reforms that ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.''
I believe that section 507 of the PATRIOT Reauthorization Act, by extending the benefits of chapter 154 to States that provide counsel to capital defendants on postconviction review, will help to achieve that goal. In Murray v. Giarratano, 492 U.S. 1, 1989, the Supreme Court held that States are not constitutionally required to provide counsel in State postconviction proceedings, even in capital cases. In AEDPA, Congress added chapter 154 to title 28 of the United States Code, offering the States an incentive to provide qualified counsel in such proceedings. Among the incentives was an expedited process, with time limits on both the district courts and the courts of appeals.
AEDPA left the decision of whether a State qualified for the incentive to the same courts that were impacted by the time limits. This has proved to be a mistake. Chapter 154 has received an extremely cramped interpretation, denying the benefits of qualification to States that do provide qualified counsel and eliminating the incentive for other States to provide counsel. In
Ashmus v. Woodford, 202 F.3d 1160, 2000, the Ninth Circuit held that California did not qualify because its competency standards were in the State's Standards of Judicial Administration rather than its Rules of Court, a hypertechnical reading of the statute. In Spears v. Stewart, 283 F.3d 992, 1018, 2001, the Ninth Circuit held that even though Arizona had established a qualifying system and even though the State court had appointed counsel under that system, the Federal court could still deny the State the benefit of qualification because of a delay in appointing counsel.
Section 507 of this bill abrogates both of these holdings and removes the qualification decision to a neutral forum. Under new section 2265, the Attorney General of the United States will decide if a State has established a qualifying mechanism, and that decision will be reviewed by the D.C. Circuit, the only Federal circuit that does not handle State-prisoner habeas cases and therefore is not impacted by the qualification decision. The requirements for certification are removed from section 2261(b) and placed in the new section 2265(a). The ``statute or rule of court'' language construed so severely by Ashmus is removed, allowing the States flexibility on how to establish the mechanism within the State's judicial structure. There is no longer any requirement, express or implied, that any particular organ of government establish the mechanism for appointing and paying counsel or providing standards of competency--States may act through their legislatures, their courts, through agencies such as judicial councils, or even through local governments.
Once a State is certified as having a qualifying mechanism, chapter 154 applies to all cases in which counsel was appointed pursuant to that mechanism, and to cases where counsel was not appointed because the defendant waived counsel, retained his own, or had the means to retain his own. ``Pursuant'' is intended to mean only that the State's qualifying mechanism was invoked to appoint counsel, not to empower the Federal courts to supervise the State courts' administration of their appointment systems. Paragraph (a)(3) of new section 2265 forbids creation of additional requirements not expressly stated in the chapter, as was done in the Spears case.
When section 507 was being finalized, I and others were presented with arguments that some mechanism should be created for ``decertifying'' a State that has opted in to chapter 154 but that allegedly has fallen out of compliance with its standards. I ultimately concluded that such a mechanism was unnecessary, and that it would likely impose substantial litigation burdens on the opt-in States that would outweigh any justification for the further review. The States are entitled to a presumption that once they have been certified as chapter-154 compliant, they will substantially maintain their counsel mechanisms. After all, to this day, both California and Arizona have kept up their postconviction counsel mechanisms and standards since the late 1980s and the mid-1990s, respectively, even though neither State has ever received any benefits under chapter 154. This history alone suggests that it is unnecessary to provide a mechanism for ``decertification'' of States that have opted in. Moreover, if such a means of post-opt-in review were created, it inevitably would be overused and abused. In my home State of Arizona, defense attorneys in the past have boycotted the 154 system. The Ninth Circuit later used the delays in appointing chapter 154 counsel stemming from this boycott as grounds for denying Arizona the benefits of chapter 154 in the Spears case. In light of this history, I thought it best to create a system of one-time certification, with no avenues to challenge or attempt to repeal the State's continuing chapter-154 eligibility. The consequences of opting in to chapter 154 should not be perpetual litigation over the State's continuing eligibility. Even if defense lawyers in Arizona do boycott the State's system again, the resultant delays in appointing counsel are unlikely to prejudice their clients, who typically want delay in the resolution of their cases. And the occasional case where such delay might prejudice a petitioner simply is not worth the cost of creating opportunities to force the State to continually litigate its chapter 154 eligibility. Therefore, under section 507, once a State is certified for chapter 154, that certification is final. There is no provision for ``decertification'' or ``compliance review'' after the State has been made subject to chapter 154.
The incentive for a State to try to satisfy chapter 154's counsel requirement is the array of procedural benefits that 154 provides to States defending capital convictions and sentences on Federal habeas. Section 2266 applies a series of deadlines for court action on chapter 154 applications: district courts will be required to rule on such applications 15 months after they are filed.
Allow me as an aside to describe some of the back history of this particular deadline. Current pre-conference-report law gives district courts only 180 days to rule on a 154 petition. This probably is not enough time for district courts to rule on these cases, even with the streamlining provided by the rest of chapter 154. Nor was this reality obscure to Congress in 1996. I worked on developing this provision in my first year in the Senate, in cooperation with the Arizona Attorney General's Office and then-California Attorney General Dan Lungren, among others. The bill's managers initially adopted a 180-day deadline as a bargaining position, but had always intended to extend this limit to 1 year. Unfortunately, at a certain point in the legislative process, other participants decided that they would object to making any change whatsoever to the AEDPA, even to correct scrivener's or grammatical errors--or to liberalize this deadline. Thus we ended up with 180 days. In order to avoid imposing impossible burdens on the district courts, I proposed extending this deadline to 15 months in the SPA, and this extension has been included in section 507. I likely would receive a cool reception from Chief Judge McNamee upon my next visit to the Phoenix Federal courthouse had section 507 given Arizona access to chapter 154 without at least somewhat liberalizing this particular deadline.
Other relevant deadlines imposed by section 2263 are that the court of appeals must rule on a case 120 days after briefing has been completed. That court also must rule on a petition for rehearing and suggestion for rehearing en banc within 30 days of the filing of the petition and any reply. And if the court grants rehearing or goes en banc, it must decide the case within 120 days of doing so.
These deadlines are created by chapter 154 for a reason. In too many cases, Federal courts' resolution of capital habeas petitions has been unreasonably slow. In the Fornoff case, for example, the petition remained before the Federal district court from 1992 to 1999, and that court did not even hold an evidentiary hearing in the case during that time. And this is far from the most extreme example of habeas delay. At the end of her written testimony before the House Crime Subcommittee, Mrs. Fornoff included several examples of other cases involving habeas petitioners who had murdered children and whose Federal habeas proceedings have been unconscionably delayed. All of these examples involved delays in the district courts much longer than the 7-year delay in the case of the man who killed Christy Ann Fornoff: the several cases that Mrs. Fornoff described had remained before one Federal district court for periods of 10 years, 12 years, 13 years, and in one case, for 15 years. I quote the portion of Mrs. Fornoff's testimony describing these cases:
Benjamin Brenneman [was] 12 years old [when he was killed
in] 1981. This case is surprisingly similar to my daughter's
case. Benjamin also was a newspaper carrier, and also was
kidnaped, sexually assaulted, and killed while delivering
newspapers at an apartment complex. Benjamin's killer tied
him up in a way that strangled him when he moved. Police
began by questioning a man in the building who was a prior
sex offender. They found Benjamin's special orthopedic
sandals in his apartment. When they interviewed him, he
admitted that he kidnaped Benjamin, but claimed that ``he was
alive when I left him.'' Police found Benjamin's body in a
nearby rural area the next day. (More information about the
case is available in the court opinion for the State appeal,
People v. Thompson, 785 P.2d 857.)
Benjamin's killer was convicted and sentenced to death.
After the State courts finished their review of the case, the
killer filed a habeas corpus petition in the Federal District
Court in 1990. Today, 15 years later, the
case is still before that same court. In 15 years, the
district court still has not ruled on the case! To put the
matter in perspective, so far, and with no end in sight, the
litigation before that one district court has outlived
Benjamin by three years. This is simply unconscionable.
Michelle and Melissa Davis [were] ages 7 and 2 [when they
were murdered in] 1982. An ex-boyfriend of the sister of
Kathy Davis took revenge on the sister for breaking off their
relationship by killing Kathy's husband and her two young
daughters, Michelle and Melissa. The killer confessed to the
crime. The State courts finished their review of the case in
1991. (People v. Deere, 808 P.2d 1181.) The next year, the
defendant went to the Federal District Court. He remained
there for the rest of the decade, until 2001. When he lost
there, he appealed, and in 2003, the Federal Court of Appeals
for the Ninth Circuit sent the case back to the district
court for another hearing. Today, 14 years after State
appeals were completed, and 23 years after Michelle and
Melissa were taken from their mother, the case remains before
the same district court.
Vanessa Iberri [was] 12 years old [when she was killed in]
1981. Vanessa and her friend Kelly, also 12 years old, were
both shot in the head while walking through a campground in
1981. Kelly survived, but Vanessa did not. The killer did not
dispute that he shot the two girls. (The case is described in
People v. Edwards, 819 P.2d 436.) The State courts finished
their review of the case in 1991--already a long time. The
killer then went to Federal court in 1993. The Federal
District Court finally held an evidentiary hearing in
December 2004, and dismissed the case in March of this year.
Just now, 12 years after the case entered the Federal courts,
and 24 years after the murders occurred, the appeal to the
Federal Court of Appeals is just beginning.
Michelle Melander [was] 5 months old [when she was murdered
in] 1981. Michelle, who was just a five-month-old baby, and
her brother Michael, then 5 years old, were kidnaped in
Parker, Arizona, in July 1981. The killer dropped off Michael
along the road. Michelle's body was discovered six days later
at a garbage dump several miles down the same road. She had
been severely beaten and sexually mutilated. The State court
opinion describes the many injuries that this helpless baby
suffered. The man who committed this horrific crime later
attempted to kidnap and rape a 10-year-old girl.
State courts finished their review of his case in 1991.
(People v. Pensinger, 805 P.2d 899.) The case then went to
Federal District Court in 1992. The defendant raised new
claims that he had never argued in state court, so the
Federal court sent the case back to state court. Five years
later, the case returned to Federal court. Today, the case
remains before the same Federal District Court where the
Federal appeals began in 1992. Baby Michelle would be 24
years old now if she had lived, and there is no end in
sight for her killer's appeals.
Other examples of extreme delays on Federal habeas have been provided to me by State prosecutors. Clarence Ray Allen, who was executed by the State of California earlier this year, had begun his Federal habeas proceedings in 1988--they lasted for over 17 years. Lawrence Bittaker was convicted of four murders, four kidnappings, and nine rapes by the State of California in 1981. He filed a habeas petition in the Federal district court in 1991. That petition still is pending before the same Federal district court today. Alejandro Ruiz was convicted and sentenced to death for three murders in 1980. He initiated Federal habeas proceedings in 1989. Those proceedings still are pending before the same Federal district court today.
I do not mean to single out the Federal district courts for criticism. Inexplicable delays in Federal habeas review of State convictions appear throughout the Federal system. Section 2263's deadlines for issuing court-of-appeals decisions and resolving appellate rehearing petitions also are manifestly necessary. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case after briefing was finished--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. Section 2263 would have sharply reduced these delays.
Chapter 154 also creates uniform, clear rules for addressing defaulted and unexhausted claims. It bars all review of any claim that has not been addressed on the merits when the Federal petition is filed, unless the claim meets one of three narrow exceptions. Section 2264, by not extending the chapter 153 exhaustion requirement to chapter 154, allows Federal courts to treat defaulted and unexhausted claims the same way, rather than distinguishing between them and only dismissing the former unless they meet an exception, but returning the latter to State court for further exhaustion. Chapter 154 eliminates the need to ever send a claim to State court for further exhaustion.
As those familiar with the history of chapter 154 are aware, the chapter has its origins in the 1989 Powell Committee Report. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal, August 23, 1989. Then-Chief Justice Rehnquist had appointed former Justice Lewis Powell to chair this committee, which was charged with studying problems with Federal habeas corpus review of capital cases. The report identified a lack of finality and unnecessary delays in Federal collateral review of State capital cases, and recommended specific reforms. With a few significant changes, such as a more restrictive standard for holding evidentiary hearings and accommodation of the rule of Teague v. Lane, not to mention the changes that are about to be made by section 507, the Powell Committee Report's recommendations are what is now chapter 154. The Powell Report is thus a very useful guide to understanding chapter 154.
The Powell Committee Report explains, for example, why section 2264 eliminates the exhaustion rule and treats unexhausted claims the same way as defaulted claims. As the Report notes:
The Committee identified serious problems with the present
system of collateral review. These may be broadly
characterized under the heading of unnecessary delay and
repetition. The lack of coordination between the Federal and
state legal systems often results in inefficient and
unnecessary steps in the course of litigation. Prisoners, for
example, often spend significant time moving back and forth
between the Federal and state systems in the process of
exhausting state remedies.
The Powell Committee Report then describes its proposed approach to unexhausted claims:
Federal habeas proceedings under the proposal will
encompass only claims that have been exhausted in state
court. With the counsel provided by the statute, there should
be no excuse for failure to raise claims in state court. The
statute departs from current statutory exhaustion practice by
allowing for immediate presentation of new claims in Federal
court in extraordinary circumstances.
The Powell Committee Report further elaborates on this change to the exhaustion requirement in its comment following the presentation of the language that became section 2264:
If a petitioner asserts a claim not previously presented to
the state courts, the district court can consider the claim
only if one of three exceptions to the general rule listed in
[section 2264(a)] is applicable. . . .
As far as new or ``unexhausted'' claims are concerned,
section [2264] represents a change in the exhaustion doctrine
as articulated in Rose v. Lundy, 455 U.S. 509 (1982). Section
[2264] bars such claims from consideration unless one of the
[subsection (a)] exceptions is applicable. The prisoner
cannot return to state court to exhaust even if he would like
to do so. On the other hand, if a [subsection (a)] exception
is applicable, the district court is directed to conduct an
evidentiary hearing [note that this aspect of the Powell
Committee recommendation is superseded by section 2254(e)]
and to rule on the new claim without first exhausting state
remedies as Rose v. Lundy now requires. Because of the
existence of state procedural default rules, exhaustion is
futile in the great majority of cases. It serves the state
interest of comity in theory, but in practice it results in
delay and undermines the state interest in the finality of
its criminal convictions. The Committee believes that the
States would prefer to see post-conviction litigation go
forward in capital cases, even if that entails a
minor subordination of their interest in comity as it is
expressed in the exhaustion doctrine.
Section 2264 implemented the Powell Committee's approach by limiting Federal habeas review under chapter 154 to ``claims that have been raised and decided on merits in the State courts,'' and, in subsection (b), by declining to extend the exhaustion principles of section 2254(b) and (c) to chapter 154. This system shifts the focus away from and eliminates the need to exhaust State remedies for every claim. Section 2264 does not require exhaustion, but, rather, adjudication on the merits in State court or satisfaction of one of subsection (a)'s exceptions. If an unexhausted or otherwise not-adjudicated-on-the- merits claim can meet
one of those subsection (a) exceptions, then it can go forward, because the exhaustion requirement does not apply. And in any event, even if a chapter 154 prisoner, for whatever reason, still wanted to exhaust State remedies for a new claim after he has filed his Federal petition, he would not be able to do so and then return to Federal court: unlike chapter 153, chapter 154 sharply curtails amendments to petitions and thus would make it all but impossible to amend the newly exhausted claim back into the Federal petition. Under chapter 153's stay-and-abey regime, ``a district court may, in its discretion, allow a petitioner to amend a mixed petition by deleting the unexhausted claims, hold the exhausted petition claims in abeyance until the unexhausted claims are exhausted, and then allow the petitioner to amend the stayed petition to add the now-exhausted claims.'' James v. Pliler, 269 F.3d 1124, 9th Cir. 2001. As the courts have explained, chapter-153 habeas petitioners are permitted to ``stay and abey'' and then come back to Federal court because chapter 153 petitions are subject to the relatively liberal amendment standards of Federal Rule of Civil Procedure 15. See Anthony v. Cambra, 263 F.3d 568, 576-578 (9th Cir. 2000). This system would not be possible under chapter 154's section 2266(b)(3)(B), however. That subparagraph would bar the post-exhaustion amendment that restores the newly exhausted claims unless the amendment could meet the exacting standards of the successive-petition bar.
Instead of staying and abeying and further exhausting, the chapter 154 petitioner will go forward: his claims in the Federal petition will have either been raised and adjudicated on the merits in State court, they will satisfy one of the section 2264(a) exceptions, or they will be dismissed, and Federal adjudication of the merits of the claims that remain before the court will commence immediately. This streamlined approach is what makes chapter 154's deadlines for district court adjudication possible. Obviously, if applicants were expected to use the stay-and-abeyance system, and proceedings were put on hold so that another round of State-court review could be completed, district courts would not be able to resolve chapter 154 petitions within 15-month limit, much less the 180 days required prior to 2006, that is imposed by section 2266.
Section 2264's abolition of stay-and-abey would have made a real difference in some of the cases that I have described. For example, in the case of the man who killed Mary Ann Hughes's son, eliminating the need to return to State court to exhaust new claims would have reduced the delay in the Federal proceedings by nearly 3 years. And in the case of Michelle Melander, the baby girl who was killed in 1981 whose case is described in Carol Fornoff's testimony, the section 2264 system would have eliminated 5 years of delay from the ongoing Federal proceedings in that case.
By requiring that chapter 154 courts only consider claims adjudicated on the merits in the State courts, and limiting the exceptions to that rule to those enumerated in section 2264(a), chapter 154 also effectively eliminates use of several other exceptions to the procedural-default doctrine that I believe have proven problematic. The chapter 153 procedural-default doctrine derives from the Supreme Court's own rules for allowing review of a State court judgment when respondent asserts the presence of an adequate and independent State bar to review of the Federal question. These exceptions are numerous, complex, and in some cases they are overly broad and simply do not provide an adequate justification for ignoring State procedural rules. It generally is not a significant burden on the States that the U.S. Supreme Court has granted itself such broad and amorphous authority to override State procedural requirements. The Supreme Court only decides a limited number of cases every year. But on Federal habeas, where every State criminal conviction effectively is subject to ``appeal of right'' in Federal court, application of the full panoply of the U.S. Supreme Court's exceptions to the adequate-and-independent State grounds rule has become burdensome and unwieldy.
One exception to the adequate-and-independent State grounds doctrine that has proved particularly problematic in the habeas context is the rule that a State procedural bar is not adequate to preclude further Federal review if the procedural requirement is ``inconsistently applied'' by the State courts. Viewed literally and without regard to the policies underlying the procedural default doctrine, the ``inconsistently applied'' standard can have a disturbingly broad sweep. This standard can be understood to void any State procedural rule that has been altered in any way or that is not strictly enforced in absolutely every case.
Unfortunately, some lower Federal courts have adopted this draconian interpretation. For example, the Ninth Circuit has held that if a State's highest court clarifies a State procedural rule or reconciles competing interpretations of that rule, then that rule was ``inconsistently applied'' prior to such clarification. As a result, the Ninth Circuit deems the State rule ``inadequate'' to be enforced on Federal habeas review prior to that point.
Another problematic area of chapter-153 procedural-default jurisprudence is particular Federal courts' interpretation of the ``independence'' requirement. A State procedural decision cannot serve as a bar to further review on the merits if it is not truly procedural--i.e., if it is in reality a decision on the merits of the Federal claim. Many State courts have incorporated into their procedural rules--particularly their deadlines for filing claims--an ``ends of justice,'' ``plain error,'' or ``manifest injustice'' exception that allows State courts to hear the occasional egregious but untimely or otherwise improper claim. Presumably, in applying such an exception, these State courts perform at least a cursory review of the merits of every petition, even those that clearly are untimely. Technically, because these State courts conduct such review, their deadlines are not purely ``procedural''--they involve some review, however fleeting, of the merits--and therefore these deadlines are not ``adequate'' for habeas purposes. The Ninth Circuit has adopted this rather extreme interpretation of the adequacy requirement.
It is difficult to understate the perverse consequences of the more extreme interpretations of the exceptions to the chapter-153 procedural default doctrine. By punishing State courts for ever departing from or even clarifying their procedural rules, or for exercising discretion to hear egregious cases, these interpretations deter State courts from making the kind of commonsense decisions that are essential to preventing a miscarriage of justice. No system of procedure will ever be perfect; every system will always require some exceptions in order to operate fairly and efficiently. Yet under some Federal courts' interpretations of procedural default, unless the State court adopts a zero-tolerance approach to all untimely claims, no matter how worthy of an exception, the State procedural rule is at risk of being voided for all Federal habeas cases.
In Arizona, litigants have seen the inevitable consequences of the Ninth Circuit's no-good-deed-goes-unpunished rule: when liberality towards criminal defendants is held against the State on Federal habeas, the State will outlaw such liberality. In his August 19, 2005, answers to written questions submitted to him by Senator Leahy, Arizona prosecutor John Todd described the effect of the Ninth Circuit's application of an extreme ``independence'' requirement:
as a result of Federal court rulings, the Arizona Legislature
repealed the requirement that all criminal cases be reviewed
by the state appellate courts for fundamental error. When an
appellate court in Arizona reviewed the entire record for
fundamental error, it did not matter that the defendant
procedurally defaulted the issue. If the error were serious
enough, even if it was only an error of state law, a
defendant would receive relief in state court through this
fundamental error review. Fearing that the Ninth Circuit's
decision in Beam v. Paskett, 3 F.3d 1301, 1305 (9th Cir.
1993), would open Arizona criminal cases to endless
litigation, the Arizona Legislature repealed Ariz. Rev. Stat.
Ann. Sec. 13-4035 in 1995.
This is not a result that anyone should want. States should not be discouraged from affording broad review to a prisoner's claims in State court or exercising flexibility in their application of procedural rules. Yet in the Ninth Circuit, State executives would be ill advised to adopt any procedural rule that affords courts any discretion
or includes any plain-error type exceptions.
The Ninth Circuit has accounted for a disproportionate share of all Federal court of appeals decisions identifying exceptions to the chapter-153 procedural default doctrine, and has issued several particularly extreme interpretations of the doctrine. The States in that circuit effectively are subject to a different habeas regime. The Ninth Circuit has now voided State procedural rules in six of the States under its jurisdiction. It has found State procedures either inadequate or insufficiently independent to limit Federal review in California, Oregon, Arizona, Washington, Idaho, and Nevada.
Section 2264 eliminates these problems. Rather than incorporating the procedural-default doctrine and all of its baggage, it starts fresh; it bars all claims not raised and decided on the merits unless one of three narrow exceptions applies. It does not matter under chapter 154 that a Federal court thinks that the State's rules are not ``adequate'' or are not sufficiently ``independent,'' because the adequacy and independence of the State rule no longer are the basis for barring review of the claim in Federal court. Under chapter 154, that basis will be section 2264, which employs its own standard and exceptions. And under that section, no longer will the labyrinthine body of caselaw governing the Supreme Court's certiorari jurisdiction over cases decided on State-law grounds be applied to every State capital conviction on Federal collateral review.
Section 2264 also eliminates the overused ``ineffective assistance gateway'' that is a frequent feature of chapter 153 litigation. Under chapter 153, litigants often seek to recast claims that they know are defaulted as claims of ineffective assistance of counsel. They argue that the default should be excused because State trial or appellate counsel was ineffective. Chapter 154 does not include this exception. If a claim of ineffective assistance of trial or appellate counsel itself was raised and decided on the merits in State court, that same claim can be raised in Federal court. But otherwise, chapter 154 charges petitioners with the acts of their attorneys. The whole point of chapter 154 is to persuade States to establish mechanisms for providing defendants with qualified postconviction counsel. If a State has opted in to chapter 154, the petitioner presumptively received qualified counsel at all stages of his State proceedings, and opportunities to litigate issues of counsel competency should be scaled back. If the factual predicate of a claim could have been discovered through the exercise of due diligence, then per paragraph (3) of section 2264(a), regardless of what the attorney did or did not do, that claim does not qualify for an exception to the main rule of 2264(a) and it cannot be raised in Federal court.
It also bears mention that section 507 includes a retroactivity provision that my Arizona colleague, Congressman Flake, thought particularly important. New section 2265(a)(2) provides that the date that a State established the mechanism by which it qualifies for chapter 154 ``shall be the effective date of the certification under this subsection.'' This was intended to ensure that if a State established a mechanism for providing qualified counsel to capital defendants on postconviction review prior to the formal designation of a State as chapter-154 eligible--or even prior to the enactment of chapter 154--then all capital defendants who received counsel after the establishment of that mechanism shall be subject to chapter 154, even if they filed a Federal petition before the State is certified as chapter-154 eligible.
I had originally thought this provision sufficient to ensure that a State would receive the full benefits of chapter 154 even for Federal petitions filed before the State is certified as chapter-154 compliant. But questions of retroactivity often prove more complicated than they first appear. Representative Flake raised with me the question of whether even if a Federal petition filed precertification is deemed subject to chapter 154, Federal courts could still find that the procedural benefits of chapter 154 only apply to that case on a going- forward basis. In other words, the effective-date provision guarantees that even a prefiling petition is now governed by chapter 154, but chapter 154's procedural restrictions might be construed to not apply to what is already in that petition. For States such as Arizona, this would mean--assuming, of course, that I am correct in predicting that the U.S. Attorney General will find Arizona 154-eligible--that section 507 does not completely undo the damage done by the Spears case. It is possible, for example, that in Spears itself or in subsequent cases that should have been subject to chapter 154, additional claims have been amended into the petition that would not satisfy 2266(b)(3)(B), or unexhausted claims already may have been returned to State court for further exhaustion and the Federal petition stayed.
Given that stay-and-abey sometimes adds 5 years to the time that it takes to address a Federal petition, Mr. Flake and I decided that it should be made clear that the whole petition would be subject to chapter 154, not just new claims and amendments added after the State is certified as 154 eligible. To that end, subsection (d) was inserted into the middle of section 507 to ensure that the 154 changes-- including the effective-date provision--would operate against pending cases. In effect, this provision guarantees the even for a pending case, the effective date provision applies retroactively and the case is regarded as always having been subject to chapter 154. Thus once a State is certified as 154-eligible and a particular petition falls within that chapter's sweep, the courts should review the whole petition and treat it as if chapter 154 had been applicable since before the petition was filed. Claims added via post-answer amendments should be reviewed for consistency with section 2266(b)(3)(B). If they do not qualify, they should be struck, just as they would have been if the petition had been governed by chapter 154 at the time when the amendment was filed. And most importantly, no unexhausted claim in a chapter-154 petition may be permitted to serve as a basis for ``stay and abey.'' Either that claim will satisfy one of the 2264(a) exceptions, and review of that claim and ``raised and decided'' claims in the petition will go forward immediately, or the claim will not meet the exception, it will be dismissed, and review of the rest of the proper claims in that petition will go forward immediately. In either event, review of all Federal petitions made subject to chapter 154 will go forward immediately, though the petitioner may, of course, continue to simultaneously pursue State review of the unexhausted claim, and the chapter 154 time deadlines will start running. Per paragraph (d)(2), that deadline does not run until section 507 is enacted with regard to a particular State--meaning that it does not run until the State is certified as chapter-154 eligible pursuant to section 507. Under section 507, once a petition is made subject to chapter 154, it can no longer be held in abeyance so that the petitioner can pursue State exhaustion of unexhausted claims.
Finally, I would like to thank those individuals who have been important to the enactment of section 507. This group includes Mike O'Neill and Brett Tolman of Chairman Specter's staff, Mike Volkov of Chairman Sensenbrenner's staff, and Brian Clifford of Congressman Flake's staff. I also thank Kent Scheidegger of the Criminal Justice Legal Foundation, who came up with the idea that became section 507. Finally, I also thank Chairman Specter, who was willing to accommodate me on a matter of importance to prosecutors and crime victims in the State of Arizona by including section 507 in this conference report.
I suggest the absence of a quorum.