> > Statement of Senator Russ Feingold

> >

> > June 6, 2000

> >

> > Mr. President, the Federal Government has not executed a

> > person in the name of people of the United States of America since

> > 1963. For 37 years, we as a people have not taken that fateful,

> > irreversible step. I rise today because all that is apparently

> > about to change.

> >

> > Since January, I have come to the Senate floor several

> > times to urge my Colleagues to support a moratorium on executions

> > and a review of the administration of capital punishment. Mr.

> > President, the need for that moratorium has now become more urgent.

> >

> > During the Senate recess just ended, a Federal judge in

> > Texas set a date for the execution of Juan Raul Garza. In only

> > two months, on August 5, he could become the first prisoner that

> > the Federal Government has put to death since 1963.

> >

> > In the early hours of a Saturday morning, when most

> > Americans will be sleeping, Federal authorities will strap Mr.

> > Garza to a gurney at a new Federal facility in Terre Haute,

> > Indiana. They will put the needle in his vein. And they will

> > deliver an injection that will kill him.

> >

> > Mr. President, I rise today to invite my colleagues to

> > consider the wisdom of this action.

> >

> > More and more Americans, including prosecutors, police,

> > and those fighting on the front lines of the battle against crime,

> > are rethinking the fairness, the efficacy, and the freedom from

> > error of the death penalty. Senator Leahy, a former federal

> > prosecutor, has introduced the Innocence Protection Act, of which

> > I am proud to be a cosponsor. Congressman Delahunt and

> > Congressman LaHood have introduced the same bill in the House.

> > Congressman Delahunt, also a former prosecutor, is concerned that

> > our current system of administering the death penalty is far from

> > just. He has said: "If you spent 20 years in the criminal

> > justice system, you would be very concerned about what goes on."

> >

> > In my own home state of Wisconsin, at least eleven active

> > and former state and Federal prosecutors have said that executions

> > do not deter crime and could result in executing the innocent.

> > Michael McCann, the well-respected District Attorney of Milwaukee

> > County, has said that prosecution is a human enterprise, bound to

> > have mistakes.

> >

> > Mr. President, police * the people on the front lines of

> > the battle against crime * are coming out against the death

> > penalty. They are finding that it is bad for law enforcement.

> > Recently, when police chiefs were asked about the death penalty,

> > they said that it was counterproductive. Capital cases are

> > incredibly resource-intensive. They do not yield a reduction in

> > crime proportional to other, more moderate law-enforcement

> > activities.

> >

> > A former police chief of Madison, Wisconsin, for example,

> > has said that he fears that the death penalty would make police

> > officers' jobs more dangerous, not less so. He expressed concern

> > that a suspect's incentive to surrender peacefully is diminished

> > when the government has plans to execute.

> >

> > Mr. President, ours is a system of justice founded on

> > fairness and due process. The Framers of our democracy had a

> > healthy distrust for the power of the state when arrayed against

> > the individual. Many of the lawyers in the early United States of

> > America had on their shelf a copy of William Blackstone's

> > Commentaries on the Laws of England, where it is written: "For the

> > law holds, that it is better that ten guilty persons escape, than

> > that one innocent suffer." And Benjamin Franklin wrote, "That it

> > is better 100 guilty Persons should escape than that one innocent

> > Person should suffer . . . ."

> >

> > Our Constitution and Bill of Rights reflect this concern

> > for the protection of the individual against the might of the

> > state. The fourth amendment protects: "The right of the people to

> > be secure in their persons, houses, papers, and effects, against

> > unreasonable searches and seizures . . . ." The fifth amendment

> > protects against being "deprived of life, liberty, or property,

> > without due process of law . . . ." The sixth amendment

> > guarantees that "the accused shall enjoy the right . . . to have

> > the assistance of counsel for his defense." And the eighth

> > amendment prohibits "cruel and unusual punishments."

> >

> > Mr. President, as you well know, our system of government

> > is deeply grounded in the defense of the individual against the

> > power of the government. Our Nation has a proud tradition of

> > safeguarding the rights of its citizens.

> >

> > But more and more, we are finding that when a person's

> > very life is at stake, our system of justice is failing to live up

> > to the standards that the American people demand and expect. More

> > and more, Americans are finding reason to believe that we have a

> > justice system that can, and does, make mistakes.

> >

> > Americans' sense of justice demands that if new evidence

> > becomes available that could shed light on the guilt or innocence

> > of a defendant, then the defendant should be given the opportunity

> > to present it. Unfortunately, apparently, the people of New York

> > and Illinois are the only ones who understand this. They have

> > enacted laws allowing convicted offenders access to the biological

> > evidence used at trial and modern DNA testing.

> >

> > If you are on death row in a state other than Illinois or

> > New York, you might be able to show a court evidence of your guilt

> > or innocence based on new DNA tests. But Mr. President, your

> > ability to do so rests on whether you're lucky enough to get a

> > prosecutor to agree to the test or convince a court that it should

> > be done. Or, as we have seen very recently, your ability to show

> > your innocence may rest with the decision of the governor. And

> > that raises the risk of a political decision, not necessarily one

> > that is based solely on fairness or justice.

> >

> > Mr. President, I am not surprised that both Texas Governor

> > George Bush and Virginia Governor James Gilmore are no longer

> > confident that every prisoner on death row in their states is

> > guilty and has had full access to the courts. Allowing death row

> > inmates the benefit of a modern DNA test is the fair and just

> > thing to do. But scores of other death row inmates, in Texas, in

> > Virginia, and around the country, may also have evidence

> > exonerating them. They may have DNA evidence. Or they may have

> > other exonerating evidence. We must ensure that all inmates with

> > meritorious claims of innocence have their day in court. But

> > among problems in our criminal justice system, the lack of full

> > access to DNA testing is unfortunately just the tip of the iceberg.

> >

> > Americans' sense of justice demands fair representation

> > and adequate counsel. In the landmark 1963 case of Gideon v.

> > Wainwright, the Supreme Court held that "in our adversary system

> > of criminal justice, any person haled into court, who is too poor

> > to hire a lawyer, cannot be assured a fair trial unless counsel is

> > provided for him." The Court in Gideon wrote:

> >

> > "From the very beginning, our state and national

> > constitutions and laws have laid great emphasis on procedural and

> > substantive safeguards designed to assure fair trials before

> > impartial tribunals in which every defendant stands equal before

> > the law. This noble ideal cannot be realized if the poor man

> > charged with crime has to face his accusers without a lawyer to

> > assist him."

> >

> > And, in cases since then, for example the 1988 case of

> > McCoy v. Court of Appeals, the Supreme Court has ruled that: "It

> > is . . . settled law that an indigent defendant has the same right

> > to effective representation by an active advocate as a defendant

> > who can afford to retain counsel of his or her choice."

> >

> > But, Mr. President, more and more, we are finding counsel

> > that fail the standard of adequacy. Drunk lawyers. Sleeping

> > lawyers. Lawyers who never cross-examined. Lawyers whose first

> > trial is a trial where the client's life is on the line. Lawyers

> > who have been subsequently disbarred.

> >

> > We would never allow a podiatrist to perform heart

> > surgery. And we would never allow a surgeon to perform surgery

> > while drunk, or to fall asleep during surgery. But courts, over

> > and over again, have upheld convictions where the defendants'

> > lawyers were not qualified to represent them, slept through trial,

> > or were drunk in court.

> >

> > Take the case of the lawyer Joe Cannon. In 1979, one Mr.

> > Carl Johnson was convicted of murder and sent to death row by a

> > Texas state court. During trial, his lead counsel, Joe Cannon,

> > was often asleep. Cannon's co-counsel, Philip Scardino, was two

> > years out of law school and recalls the whole experience as

> > "frightening." He said, "All I could do was nudge him sometimes

> > and try to wake him up." Johnson's appellate attorney, David Dow,

> > said the trial transcript gives the impression that there was no

> > one in the courtroom defending Johnson. It "goes on for pages

> > and pages, and there is not a whisper from anyone representing

> > him." Mr. Johnson was executed in 1995, the 12th execution under

> > Governor Bush's watch.

> >

> > Now as "frightening" as this sounds, the same attorney

> > continued to work capital cases.

> >

> > Like the majority of inmates on Texas' death row, Calvin

> > Burdine could not afford an attorney, so the court paid a lawyer

> > to represent him, and that lawyer again was Joe Cannon. Five

> > years after Johnson's trial, and this time without co-counsel,

> > Cannon represented Burdine, and again slept through crucial

> > moments of the trial. The clerk for the trial judge said Cannon

> > "was asleep for long periods of time during the questioning of

> > witnesses." Three jurors noted he did most of his nodding off in

> > the afternoon, following lunch. Burdine's appellate attorneys

> > contend that highly incriminating hearsay testimony was introduced

> > and reached the jury because the attorney was sleeping. In 1995,

> > the Texas Court of Criminal Appeals rejected his claim of

> > ineffective assistance. Burdine's case is now before the U.S.

> > Court of Appeals for the Fifth Circuit.

> >

> > As Texas State Senator Rodney Ellis said of the Burdine

> > case on ABC's This Week this past Sunday, "That is a national

> > embarrassment." Incredulously, Senator Ellis lamented: "[T]he

> > Texas Court of Criminal Appeals ruled apparently that you can be

> > Rip Van Winkle and still be a pretty good attorney."

> >

> > Two years after his death, lawyer Joe Cannon remains a

> > courthouse legend. In a span of about 10 years, twelve of his

> > indigent clients went to death row.

> >

> > Americans' sense of justice demands that the poor, as well

> > as the rich, should get their day in court. Even death penalty

> > supporters like Reverend Pat Robertson recognize that this

> > ultimate punishment appears reserved for the poor.

> >

> > Mr. President, the machinery of death is badly broken.

> > Since the 1970s, 87 people sitting on death row were later proven

> > innocent. That means that for every seven executions, we've found

> > one person innocent. But remember, this is after they were on

> > death row. Eight of the 87 people later proven innocent relied on

> > modern DNA testing to prove their innocence. But access to DNA

> > testing plainly tells only a small part of the story of the

> > mistakes in our criminal justice system. The remaining 79

> > innocent people gained their release based on other kinds of

> > evidence * evidence like recanted witness testimony.

> >

> > Sometimes, it is evidence that an ineffective attorney

> > fails to introduce at trial. Take the case of Gregory Wilhoit.

> > In 1987, an Oklahoma court sentenced Wilhoit to die for the murder

> > of his estranged wife. The key evidence for the prosecution was

> > expert testimony that a bite mark on the victim matched Wilhoit's.

> > The defense never called an expert to challenge the prosecution's

> > dental expert. The court of appeals granted a new trial,

> > recognizing that Wilhoit had ineffective legal representation.

> > The appellate court noted that his counsel was "suffering from

> > alcohol dependence and abuse, and brain damage during his

> > representation." Wilhoit describes his former attorney as "a

> > drunk" and recalls several occasions when the attorney threw up in

> > the judge's chambers. After spending six years on death row,

> > Wilhoit was exonerated after 11 experts -- 11 experts -- testified

> > that the teeth marks did not match.

> >

> > Mr. President, I hate to say it, but this is the worst of

> > government gone amok. People understand that the government can

> > make mistakes in other areas. They can only expect as much here.

> > Columnist George Will recently wrote that conservatives,

> > especially, should be concerned. George Will wrote: "Capital

> > punishment, like the rest of the criminal justice system, is a

> > government program, so skepticism is in order."

> >

> > When we do not exercise that skepticism, when we rush to

> > execute with ever growing speed, we contribute to, rather than

> > detract from, a culture of violence. It deprives us of the

> > greatness that is America. We are better than this.

> >

> > And so, Mr. President, the time has come to pause. That

> > is why today, in the light of the scheduling of the first Federal

> > execution in almost 40 years, and in light of the growing

> > awareness that there are fundamental flaws in our system of

> > justice, I urge my Colleagues to join me in the National Death

> > Penalty Moratorium Act, which I introduced along with Senators

> > Levin and Wellstone.

> >

> > This bill is a common sense, modest proposal. It merely

> > calls a temporary halt to executions while a national, blue ribbon

> > commission thoroughly examines the administration of capital

> > punishment. The bill simply calls for a pause and a study. That

> > is not too much to ask, when the lives of innocent people hang in

> > the balance.

> >

> > Mr. President, when an airplane careens off a runway, the

> > Federal government steps in to review what went wrong. This

> > Nation's system of capital punishment has veered seriously

> > off-course. It is now clear that it is replete with errors.

> >

> > The time has come to pause and study what is wrong. The

> > time has come to pause and ensure that our system is fair and just.

> >

> > Our American tradition of fairness and due process demands

> > it. Reverence for our democracy's protection of the individual

> > against the state compels as much. The American people's love of

> > justice deserves no less.

> >

> > Mr. President, I yield the floor.

> >