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Ashcroft Hearing: Rep. Hulshof Testifies on Behalf of Attorney General Nominee

Aired January 18, 2001 - 12:31 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(JOINED IN PROGRESS)

REP. KENNETH HULSHOF (R), MISSOURI: ... of articulating a position on Judge Ronnie White. But what I am here to say, as you all have debated and as I've watched with fascination, Senator Ashcroft was here telling the Senate, as he did on the Senate floor to his colleagues, that it wasn't for any other reason -- certainly not for racial reasons, as we've heard -- that led to his decision to vote against the confirmation of Judge Ronnie White.

And it wasn't even this one single case, Mr. Chairman, you and I have been chatting about. It was, in John Ashcroft's mind, a pattern or series of cases.

SEN. PATRICK LEAHY (D-VT), JUDICIARY CHAIRMAN: Well, then maybe I should ask you -- and I don't think it's fair either to you or to Senator Ashcroft for you to go in his mind -- but would you characterize Judge White's record as being either pro-criminal or having a bend toward criminal activity.

HULSHOF: Again, I'm not ducking your question. As a member of good-standing in the Missouri bar, I want to be very cautious about making any statements about a judge. And, clearly, as a member of the other body who has no authority to vote to confirm or not to confirm any person that's nominated, I appreciate your question, Mr. Chairman, but I hesitate to make a personal assessment of Judge Ronnie White.

LEAHY: I understand.

Senator Hatch?

SEN. ORRIN HATCH (R), UTAH: I want to thank both of you for coming. J.C., you're one of my heroes. And, frankly, everybody here knows what a fine man you are and what a good example you are to everybody. I appreciate your testimony here today and your support for Senator Ashcroft.

Mr. Hulshof, let me just say this: Sheriff Jones, we appreciate you being here today. We know how deeply you feel and your firsthand account of what happened and why you opposed Judge White will be made part of the record.

And I also want to thank you for reminding us of an important point that I'm afraid some of us often overlook. That is, the decisions made by judgments in this country can have a profound impact on the lives of our local citizens and law enforcement personnel. And for that reason, we should listen carefully to the views people, like yourself, express.

In particular, Congressman Hulshof, I have a lot of admiration for you and for the life that you've lived and the work you've done as a prosecutor, as an attorney. You've been in the big time, as far as death penalty cases are concerned. And I think the knowledge you bring to Congress is very important. And, I, for one, will want to get even better acquainted than we are now. And I know it's not easy for you to testify here today, but it is important that you do.

Earlier today, Congressman Hulshof, we heard testimony from Judge White. And I happen to be very impressed with Judge White; I was when I conducted the hearing. So my opinion of Judge White was a good one.

But let me just say this, there's room for two sides on this issue. I'm not going to condemn my Democratic colleagues for their very sincere vote for Judge White. Nor am I going to condemn my Republican colleagues for their very sincere vote against him. There were some pretty crass comments made at the time, but I think there's room here to go either way, as much as I like Judge White, and I do.

We heard testimony from Judge White earlier today that his dissent in the Johnson case was based on settled Supreme Court case law, as stated in the Strickland case.

Are you familiar with that case?

HULSHOF: Yes, sir, I am.

HATCH: Now, you are an expert, experienced death penalty litigator, and an expert in case law. Would you be kind enough to explain, for the benefit of all of us here on the committee, the law and its relationship to effective assistance of counsel and how all of the other justices disagreed with Judge White's interpretation of the law in the Johnson case?

I'd like you to explain what the law is and talk about that and exactly -- I'd like you to explain, if you care to -- what would have been the effect on law enforcement in Missouri and victims' rights. Some of the most compelling testimony we've had, testimony on this, has been on victims' rights. I appreciated that, but what would have been the effect on law enforcement of victims' rights if the Missouri Supreme Court had held in the Johnson case -- and other cases, perhaps -- the way Judge White would have liked the court to have decided in that case?

I don't mean to put you on the spot, but I think that question has to be answered.

HULSHOF: Senator, I appreciate your kind words, and I will attempt to answer the questions as you put them to me and do that as expeditiously as I can. I think it goes back to the senator from my neighboring state of Illinois, as I listened to a colloquy yesterday, about is -- I think the question -- forgive me for paraphrasing. I don't have your transcript, Senator Durbin, but is an error committed by a trial lawyer sufficient in and off itself -- I am paraphrasing what you've said -- but is an error committed by the criminal defense attorney in and off itself sufficient to overturn a sentence or a conviction.

And the United States Supreme Court case law, which our state supreme court is deemed to follow, says it's not, that simply an error committed by defense counsel is insufficient because essentially there are errors committed in -- whether death penalty cases or even in a felonious stealing case...

HATCH: Was that the rule of law that should've been applied in this case?

HULSHOF: It was not the rule of law that should've been applied. And I think that the majority opinion in the Johnson case adequately and accurately described what that standard is -- is that: Is it, as a result of any error by a defendant's counsel, that created a reasonable likelihood or probability that the outcome of the case would have been different but for the error.

And so I think, again, the majority opinion in the Johnson case correctly stated the law. I see the red light is on, and let me undertake...

HATCH: You can continue to answer. I'll ask my colleague to just give me a few more minutes.

LEAHY: Of course.

HULSHOF: Let me, if I could, try to answer the second part of your question as for the effective law enforcement. And I really -- to this distinguished panel -- the numbers that have been talked about as far as the number of affirmations or the number of dissents, I really don't know. I've not done that research, and I'm sure that those numbers are accurate.

But it's a little bit -- I think, it's troubling for me, again, as going back to my former days as someone who toiled in the courtrooms around our state. It's troubling to try to negotiate or talk about these terms as far as statistics. I think the further that I, personally, get away those days when I stood this far away from a box -- a jury box -- where 12 ordinary citizens were asked by the prosecution to do extraordinary things.

I think the further I get away from that experience, perhaps the more I forget about how extremely difficult those cases are. They're physically demanding, emotionally draining -- not just for the litigants but for the jurors that we put in those positions and for the defendant's family and certainly for the victim's family.

And the point I hope to make, Senator Hatch, is that any time that there is a reversal or any time an esteemed jurist writes a dissent, it is -- in a reversal case of a reversal, it is, at least, the opportunity that that convicted killer can be free.

Or in the case of a dissent, it is a message to law enforcement, it's a message to victims like Sheriff Kenny Jones, that perhaps their sacrifice has been somewhat in vain. And so, clearly, again, I see that I'm probably teetering all in the line. This is not any comment on Judge White, per se, but I answer that question in the larger context to which you gave it.

HATCH: Thank you very much.

LEAHY: The senior senator from New York.

SEN. CHARLES SCHUMER (D), NEW YORK: Thank you, Mr. Chairman, and I want to thank both of our witnesses for taking their time in being here, and I also want to convey my respects and sadness to Sheriff Jones for his loss, as well as to Ms. Campbell for her loss. I'm sorry, we had another hearing, and I couldn't be here for your testimony or those of the others, on energy. As somebody who has been with families who have had losses in these horrible kinds of incidents, my heart goes out to both of you.

I'd like to just focus a little bit, Representative Hulshof, in terms of this specific issue which troubles me, because the only thing, as I understand it, that Judge White did in this case was to say as a legal matter he believed that the defendant had received ineffective assistance of counsel with regard to his insanity defense, and there's a debate about that, which we have heard. And that's a fair debate.

JEANNE MESERVE, CNN ANCHOR: We're going to interrupt the hearing briefly just to tell you that the Senate Foreign Relations Committee has just voted to approve Colin Powell as the next secretary of state. That confirmation now moves forward to the full Senate.

We go now back to the John Ashcroft hearings.

(JOINED IN PROGRESS)

SCHUMER: And at the end of his opinion he said, "This is a very hard case." If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. That doesn't indicate somebody to me who is pro-criminal or, even on that instance, quote, "soft on crime." I mean, I've been, in my state, one of the people who's pushed for tougher laws, whether it be capital punishment or ending parole or things like that.

But when somebody, a judge, or somebody else who's talking about a fair trial, I don't think fair trial ever enters into what side one is one. There is a balance between societal rights and individual rights, but all of us would agree both play a role.

So I would just like to ask, Representative Hulshof, would you say that any candidate to judge should be rejected because, as a legal matter, he'd written an opinion questioning the effectiveness of counsel? That's what I don't understand. I've come across people on the bench who I would characterize as soft on crime. I don't think a decision saying that there was ineffective counsel, whether it be right or wrong -- that's not what we're debating here, in my judgment anyway -- entitles you to say that somebody is pro-criminal or whatever the other expression that Senator Ashcroft used on the floor of the Senate. Could you comment on that?

HULSHOF: I'd be happy to, Senator Schumer. Let me say, also, I appreciated the two years that we had to serve together in the United States House.

Let me just even take a little further -- Judge White's dissent went further and this is where -- I can't speak for John Ashcroft, but as a prosecutor, here is the language that I find particularly troubling. It's the sentence just where you stopped.

"But the question of what," and I'm quoting from State v. Johnson at page 16, "But the question of what Mr. Johnson's mental status was on the night is not susceptible of easy answers. While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness."

Now it's my understanding and with all due respect to Judge White, but the role of an appellate court is not to substitute the judgment of the court for that of the jury. And, particularly as, Senator Schumer, you or I as lay persons might say that going from a law-abiding citizen to a multiple cop-killer is madness or something akin to madness, that is not the legal definition of what constitutes a mental disease in our state.

But, putting that aside, I think you asked another good -- and I'll just be very candid with you -- I personally do not believe that a single dissent is sufficient to disqualify any federal jurist and I know I'm going out on a limb, because I am not a member of this body.

SCHUMER: But, you know, that's a fair standard. I mean, if we were to use a single -- take a single thing that Senator Ashcroft did and just saw the world through that prism, we wouldn't be being fair to him.

HULSHOF: But, if I could be permitted to follow, just as I don't believe a jurist should be disqualified over one single dissent, neither does John Ashcroft. As he described for this panel over the last couple of days, a series of cases, in fact, as he talked about on the floor of the United States Senate during this confirmation process, a number of cases.

And, Senator Schumer, just as you have said that we can have and reasonable minds can differ on whether this dissent was right or wrong, but clearly I also believe in John Ashcroft's defense that reasonable minds could have disagreed over whether or not Judge White was fit to be a jurist on the federal bench for the rest of his life. And that's the point.

Again, I am so deeply troubled and somewhat offended by some of the statements regarding John Ashcroft's vote against Ronnie White being racially motivated. The record seems to be clear. And you all have been discussing that because of in John Ashcroft's opinion, this series of cases by a single judge as that reflected on his fitness for office. And I think as John Ashcroft said on the floor, on October the 5th if I'm not mistaken, "whether we as a Senate should sanction the life appointment to the responsibility of a district court judge for one who has earned a vote of no confidence from so many in the law enforcement community in the state in which he resides."

And reasonable minds can differ on that, but clearly the fact that we are discussing those decisions and those qualifications has absolutely nothing to do with race. And so, that's the point of my...

SCHUMER: Let me -- Mr. Chairman?

I was going to follow-up with a question, but if people are in a hurry, I do not have to do that. I'll defer. Go ahead. Is Senator Specter...

LEAHY: Senator Specter is concerned that you had gone over. You had gone over the last time. And he went over earlier this morning. But if you want to refrain and go back...

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Well, not wait a minute, Mr. Chairman.

That red light's been on on the other side, including you, for a very protracted period of time.

LEAHY: Two minutes and 21 seconds.

SPECTER: And when I was questioning Judge White, I was cut off. And I just asked you a question, if the red light applies only on this side of the table? That's my question.

SCHUMER: I have no further questions, Mr. Chairman.

LEAHY: I think the record will show that both sides have gone way over their time and that the chair has given a great deal of time to both sides; did not run the red light on either of the two witnesses, both Republican congressmen speaking on behalf of Senator Ashcroft; did run the red light on a number of people who spoke against him, so.

LEAHY: Senator Thurmond?

SEN. STROM THURMOND (R), SOUTH CAROLINA: Thank you.

Congressman Watts and Congressman Hulshof, I greatly appreciate your appearance today on behalf of Senator Ashcroft. Your testimony is very important and beneficial to him, and we thank you.

I also want to thank Sheriff Jones -- Sheriff, hold up your hand, thank you -- for being here. Your dedication and interest should be commended. I have the greatest respect for victims of crime. Crime is a terrible harm to our society, and society must be tough on crime. I thank you. LEAHY: Is that it?

Now, there's an example of how to stay within the time.

(LAUGHTER)

The distinguished senior senator from Illinois, Senator Durbin.

SEN. RICHARD DURBIN (D), ILLINOIS: Thank you very much, Mr. Chairman. Congressman Watts and Congressman Hulshof, thank you for joining us today.

I want to say at the outset that, like John Ashcroft and I believe yourself, Congressman Hulshof, I support the death penalty and I voted for the death penalty. That is not the issue here.

When I read the Johnson case, this horrific, murderous rampage this man went on destroying innocent lives, including the lives of law enforcement, I can tell you that I feel sympathy for Sheriff Jones and all the families involved in this. There's no question about that.

I come virtually to the same conclusion that Justice White did. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, he assuredly deserved the death sentence he was given. But I have to disagree with one of the points that you've made, Congressman. For you to characterize Johnson's defense as a dream team...

MESERVE: And we're going to break away from the hearings briefly to bring you another piece of news.

(INTERRUPTED BY COVERAGE OF BREAKING NEWS)

MESERVE: Back to the John Ashcroft hearings.

(JOINED IN PROGRESS)

DURBIN: ... novel, the post-traumatic stress syndrome, and then proceed to argue that before the jury. And he used as evidence of that the so-called perimeter, which was around the defendant's house, and the fact that the tires on his truck were flat, to say this reminded the defended that he was back in Vietnam and he broke and he did these terrible things.

This dream team defense counsel had failed to interview two state troopers in a death case, who were on the endorsed witness list. And in failing to interview these two state troopers, this defense dream team didn't realize the perimeter had not been created by the defendant but by the police. And the air was let out of the truck tires by the police, as well. His entire defense disintegrated in front of him.

From the prosecution point of view, you were in a pretty strong position if the facts come out, as they were in this case. And his entire defense disappeared. I raise a question about your defense dream team's competence that they would not interview two state troopers on the endorsed witness list, who clearly would have given them information to rebut their entire defense. They got right smack dab in the middle of the trial and it disintegrated in front of him. Justice White says, based on this, he doesn't think they did a good job as defense attorneys.

Well, I want to tell you this, if I had somebody important to me in my family who needed a defense attorney, I wouldn't be calling this dream team. And I don't believe John Ashcroft, if he becomes attorney general, would hire this defense dream team in the Department of Justice. At least I hope he would not.

Justice White sat here this morning and said what he said repeatedly, he didn't believe James Johnson should be released. All he believed is that he was entitled to a fair trial and that the counsel he was given did not give him a fair trial.

How this comes together is this: You have a man who has devoted his life to the law, fought his way to complete law school, to be the attorney for the city of St. Louis, representing the police department, the first African-American to the Missouri Appellate Court, the first African-American to the Missouri Supreme Court, a lifetime of hard work and commitment to law who reaches this opportunity to become a federal district court judge, and he is rejected after 27 months dangling before this committee on the basis of three court cases, the DaMass (ph) case, which was cited by Senator Ashcroft, in which Justice White's opinion was confirmed by the Supreme Court as the appropriate standard, the Kinder case, where days before a trial a judge made -- not just insensitive statements but racist statements -- and the question was raised as to his bias, and the Johnson case.

And I just have to say to you, Congressman, to have a man's entire legal career tossed aside, to have him characterized as pro- criminal, to ignore the clear statistics of his support for death penalty cases over and over again, raises a question in my mind as to whether or not he was treated fairly.

I'd like to give you a chance to respond.

HULSHOF: I appreciate that. It's interesting -- if I could -- I find myself in an unusual position, Senator Durbin, in that, as a tenure career prosecutor, that I'm defending defense counsel, the same individuals that, you know, you're adversaries against in the courtroom.

But let me put a couple of other facts out there because, as you stated -- again, not taking notes from your statement -- coming up with this extraordinary defense about this post-traumatic stress or, as lay people call, the Vietnam flashback syndrome.

When Mr. Johnson was arrested, he gave a detailed confession and made reference to his service in Vietnam. When the hostage negotiator was trying to negotiate over the telephone before Mr. Johnson was apprehended -- he had taken an 82-year-old woman, allowed her to leave -- she informed law enforcements that the man you're looking for is in my house. And so the helicopters come in, and they surround the house, and an experienced hostage negotiator on a bullhorn says, pick up the phone. And then they commence a couple of hours of conversation on the telephone which was recorded.

And during the course of that conversation, the defendant, James Johnson, was telling this highway patrol negotiator that: I'm the only one left from my platoon; my platoon leader has been killed. He even mentioned the name Sargent Kali (ph) or Lieutenant Kali (ph) -- which of course if you follow Vietnam history, as this -- by the way -- highway patrol negotiator knew that Lieutenant Kali (ph) probably was a little older than Mr. Johnson. And so he was beginning to suspect that maybe Johnson was trying to conjure up his own defense.

But there were strong references during this back and forth, during the hostage negotiation time where the defendant Johnson was lacing his comments with gooks and other terminology that are consistent with those who had experience in Vietnam.

Not only that -- regarding the competency of counsel, they brought in three of the most nationally acclaimed experts on Post Traumatic Disorder. In fact, Dr. John Wilson (ph) -- it's in the record -- who I had a very difficult time on cross examination with, who is known by some as the father of post-traumatic stress disorder, who wrote the diagnostic and statistical manual on PTSD, was one of their witnesses. And they had this group of experts, renowned around the country.

And so, again, reasonable minds can disagree over effective representation. But I can tell you, having been on the other side of this case in the courtroom, having to battle every day these exceptionally skilled attorneys, I believe that his representation was extremely adequate as far as assistance of counsel that the law requires.

DURBIN: If you will spare me one closing sentence -- if reasonable minds can disagree, can you understand how one justice on the Supreme Court might dissent in this case and not be pro-criminal and not be soft on the death penalty and have his entire legal career besmirched by those comments on the floor of the United States Senate.

LEAHY: Both of us agree, go ahead with your answer.

HULSHOF: If, Senator, you will also agree that during the confirmation process of Judge Ronnie White that reasonable minds could agree or disagree as to his fitness to be elevated to the bench. Again, I offer no opinion to that. But John Ashcroft, who you all are scrutinizing, just as his record is appropriately before you and the American people as to whether he is fit to be the attorney general of these United States, he took that same measure seriously his role then of advise and consent as he scrutinized the record of another jurist from his home state, who had raised the concerns of some in law enforcement, as to his fitness for the bench.

And I think there was reasonable disagreement there, as well.

DURBIN: Thank you.

LEAHY: With that, we'll go to the senior senator from Pennsylvania.

SPECTER: Thank you.

Congressman Hulshof, Senator Durbin, I think you've both claimed very reasonable arguments. And the question which comes to my mind is, what impact does all of this have on the qualification of Senator Ashcroft to serve as attorney general?

I think it is very important to focus on the testimony which Judge White gave, and the centerpiece was the opportunity for him to clear the record and to clear his name on what he considered to have been an improper handling of this matter, where his record was not accurately stated. And I think he had that opportunity today. But he did not say John Ashcroft should not be confirmed as attorney general, and he did not say or question Senator Ashcroft's motivations as being political. That accusation has been made on this side of the table.

But as to what the witness said, he did not make that point. And I pressed him on it, with great respect for his record. And I do believe that the Senate ought to change procedures, and we may handle confirmations which are successful without going into great detail by senators personally, although staff and FBI and bar association and Justice Department does it, so that he had his chance to say his side of it.

But the question -- and you've already answered this in a wide variety of ways, as to the good faith of John Ashcroft and the judgment which he made, do you have any doubt -- this is repetitious, but one more time -- that there was an ample basis for the good faith judgment of Senator Bond and Senator Ashcroft in coming to the conclusions which they did as to Judge White's confirmation?

HULSHOF: I appreciate the question. There is no question in my mind knowing John as I do, from as many years as a public servant in Missouri, elected twice as attorney general, twice as governor, once as United States senator, that he is a man of high integrity and character. And you probably know that as well as, or better than I, having worked along side your former colleague. And so, as he has answered many questions over his reasons for opposing the nomination of Judge White to the federal bench, I...

SPECTER: Without taking too much more time.

HULSHOF: I think that the fact that there are now individuals trying to target him with slurs, I think it is intolerable.

SPECTER: Well, this has been the most heated confirmation process that I have seen. I'm in now my 21st year of serving on this committee and the confirmation process as to Judge Bork was no picnic and the confirmation as to Justice Thomas was no picnic and the confirmation process as to Chief Justice Rehnquist was pretty heated and we've had a great many controversial proceedings. But the kind of charges which have come from this side of the table on John Ashcroft being political, as to Judge White, it has to be emphasized didn't come from Judge White, didn't come from the witness. And there have been threats of filibuster, and if John Ashcroft is as bad as the witnesses on this side of the table have characterized him, as bad as the senators have characterized him, if he's that bad, they know how to stop him.

But it really isn't all that bad because when you strip down the issue we've been on for hours now as to Judge White, Judge White should have been treated differently by the Senate and there may have been some excessive statements made. But when you boil down Judge White's testimony, he does not say John Ashcroft should not be confirmed and he does not say that John Ashcroft acted out of a political motive or out of a biased motive.

My red light just went on. Thank you.

LEAHY: If the senator wants to finish his question, feel free.

I'll go to Senator Kyl. Not hearing an answer, I assume you don't want to.

Go ahead, Senator Kyl.

SEN. JON KYL (R), ARIZONA: Thank you. Mr. Chairman, I would like to submit for the record a series of endorsements by various law enforcement organizations for Senator Ashcroft's confirmation, for the record.

Secondly, I want to commend Sheriff Jones for being here under these circumstances, and I look forward to reading your testimony, sir. In particular, I hope that my colleagues read that part of the testimony which makes it clear that it was you who asked Senator Ashcroft to oppose the nomination, not the other way around. And it was you who initiated the petition drive of law enforcement officials in opposition or, at least, in semi-opposition to Ronnie White's nomination to the federal district bench.

Representative Watts, as always, you are willing to sacrifice your time for others for what you believe is right. I thought your testimony was powerful. I've got to get that video for my grandkids.

And Representative Hulshof, I appreciate your fine legal analysis. Because so much of this hearing did revolve around this particular case, I think your expertise has been very useful to the committee. The bottom line here is that this was a very skilled group of lawyers who were hired to defend a case that, frankly, was indefensible. And I will also submit for the record the actual finding of the judge and the findings of fact and conclusions of law that the team that you characterized as the "dream team," to quote the court, was highly skilled and well-prepared for the case. It was not a matter of inadequacy of counsel. It was a matter of a case that, frankly, couldn't be defended. Clarence Darrow couldn't have gotten this guy off.

MESERVE: We're going to break away momentarily, at least, from the Senate Judiciary Committee. They have been hearing testimony on the nomination of John Ashcroft to be the next attorney general. A member of Congress, Kenny Hulshof of Missouri, has been testifying. The subject: John Ashcroft's opposition to the nomination of Ronnie White to the federal bench, and the specifics of one case in which Ashcroft disagreed with Ronnie White's ruling.

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