Topic: Death Row - Innocent People Sentenced to Death
Senator: Feingold
Date: SEPTEMBER 14, 2005
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FEINGOLD: I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue. But, Judge Roberts, as Senator Leahy mentioned earlier, when you came before the committee a couple of years ago we discussed the fact that more than 100 people on death row have been exonerated and released, and in fact I believe the number is now 121 people who we know were sentenced to die for crimes they did not commit.
I want to follow up on the work that Senators Durbin and Leahy have done in discussing with you the Herrera case. I do differ with your characterization of the case. The solicitor general brief that you signed presented the issue as whether the Constitution, quote, "requires that a prisoner have the right to seek judicial review of a claim of newly discovered evidence," unquote. That is, the question was not how strong the evidence of innocence must be, as you seemed to be suggesting earlier, but whether the Constitution requires that there be some avenue (inaudible) presenting evidence of innocence in federal court. Your brief argued that it does not.
Now, that brief also, as you know, contained a footnote that I'm going to ask you to comment on. It said, quote, "There is no reason to fear that there is a significant risk that an innocent person will be executed under procedures that the states have in place. The direct review and collateral procedures that the federal government and the states have in place are more than ample to separate the guilty from the innocent." And yesterday you talked about the possible effect of DNA evidence on the legal framework in this type of case.
In light of the many cases of innocent people ending up on death row that have come to light in the past decade, and aside from what was the ultimate issue at stake in that case, do you still agree with your statement from the government's Herrera brief?
ROBERTS: Well, that was the administration position at the time. It was one that the Supreme Court agreed with; 6-3 I think was the ruling.
I know Justice O'Connor was in the majority.
The issue -- and again, there was obviously argument at the time about what the issue really was in Herrera. And I thought it was quite inaccurate to view it as a case involving the question of whether actual innocence could be presented. Because it was a claim of newly discovered evidence. And it was a claim that somebody who just died was actually the murderer.
At the end of exhaustive appeals to the state system, exhaustive collateral review through the state system, exhaustive collateral review through the federal system, is there an obligation to decide at that point that a new claim that somebody else committed the crime...
FEINGOLD: I'm just running out of time and wonder if you'd just still stand by the statement, if you could just say yes or no.
ROBERTS: Well, that was the administration position that was presented.
FEINGOLD: All right, let me try to be quick on it. I'd like to know whether you think there's a risk that innocent people may be sentenced to death in today's criminal justice system.
I must say, Judge, Supreme Court justices do have the power of life and death in these matters.
ROBERTS: Senator, I think there is always a risk, in any enterprise that is a human enterprise, like the legal system. Obviously, the objective of the provision of the rights to a criminal defendant in trial, the provision of collateral review at the state level, the provision of collateral review at the federal level, the availability of, as you suggested, clemency, all of that is designed to ensure that the risk is as low as possible.
There are issues that are going to be presented about the availability of DNA evidence which may or may not help reduce the risk even further.
There's always a risk.
And obviously when you're dealing with something like capital punishment, the risk is something that has to be taken extremely seriously, at every stage of the process.
As we talked about more than two years ago at the prior hearing, I think the most effective way of minimizing that risk is to ensure that people facing that sanction have the best counsel available at every stage.
As you know from looking at this problem, the issue that comes up are questions that weren't raised that should have been raised if the person had a more capable lawyer. Avenues that weren't pursued that should have been pursued, if that lawyer had the resources.
And that's where I think the risk of wrongful conviction is going to be most effectively addressed, ensuring the availability of competent counsel at every stage of the proceeding.
FEINGOLD: Thank you, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Feingold.
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