Leading off this week's edition are two interesting new "breakthroughs" in developing areas of the law. Twists on claims of innocence & international law are the hot issues of the week.

In Valdez v. Oklahoma, the Oklahoma Court of Criminal Appeals granted relief on a successor post-conviction motion. The issue raised to the court concerned the Vienna Convention's guarantees relating to the right of consul for foreign nationals accused of crimes. The Court denied relief on the international law claim as presented but held trial counsel was ineffective for not seeking assistance from his client's consulate. Valdez is believed to be the first appellate opinion granting relief on issues touching upon the Vienna Convention.

A federal district court in the Southern District of New York held last Thursday in United States v. Quinones that he was ready to declare the federal death penalty unconstitutional unless the government can quickly explain why so many condemned inmates turn out to be innocent. Although noted in last week's edition the opinion was not widely available until after that edition was sent to the list. The opinion's unique holding renders it hot. The motion by counsel in Quinones is the "Focus" topic of the week.

Three other cases saw favorable outcomes in capital or potentially capital cases. The Seventh Circuit in Wright v. Walls vacated a death sentence where sentencing judge erred by not considering mitigating evidence related to appellant's traumatic childhood. The Ninth Circuit in Visciotti v. Woodford vacated petitioner's sentence on the basis of counsel's ineffectiveness including, most notably, trial counsel's concession of several potential mitigating factors while providing the jurors essentially no reason not to impose the death penalty. Finally, in a case with clear capital implications, the Tennessee Court of Criminal Appeals held in Tennessee v. Hagerty that the accused's request for experts to develop a "battered woman syndrome defense" granted.

In South Carolina Richard Johnson has been denied clemency. Johnson's case is notable as the evidence of actual innocence is substantial. In 2000, the state Supreme Court ruled that one of Johnson's co-defendants was not credible when she recanted her testimony given at Mr. Johnson's trial and said she killed state trooper Bruce Smalls. Former state chief justice, Ernest Finney was not part of that 3-2 vote, but he said the razor-thin margin wasn't enough to "justify the imposition of the ultimate punishment." "When the court divides three to two on the question of whether a man on death row is actually guilty of committing the crime, I believe clemency is warranted," Finney wrote in seeking clemency for Mr. Johnson.

In other news of the week, the Alabama has finally abolished the electric chair. Polls in New York and Illinois show support for the alternative of life without parole and moratorium (respectively) beating out execution as the preference of the majority of those polled. The San Jose Mercury News found after an in-depth study of the 72 cases reversed by state and federal courts since 1987 and 150 appeals now pending in the federal courts that the problems endemic to states known for spending less on capital cases, such as Texas and Alabama, are endemic in California cases.

Several have asked where they can go to find out more information on a given client's press coverage or the press coverage of a given inmate on death row. Other than the Nexis database, the best national archive of such stories and discussion of events can be found at the Abolish list archives. That information can be found by point your browser to http://maelstrom.stjohns.edu/archives/abolish.html (to search by date) or http://maelstrom.stjohns.edu/CGI/wa.exe?S1=abolish

(to search by term).

Finally on a technical note, the site will be changing names. The website will be moving to CapitalDefenseWeekly.com starting May 8, 2002. Coramnobis.com will be continued to be maintained through early June. My apologies for the ongoing problems with server and email problems at coramnobis.com.

Execution Information

Since the last edition the following have been executed:

The following executions dares are considered serious:*

HOT LIST

Valdez v. State, 2002 OK CR 20, __ P.3d __ (05/01/2002) Relief granted for failing to inform client of his right to consulate assistance and failure to contact client's embassy.

¶12 Petitioner submits this Court should entertain this subsequent application for post-conviction relief on the ground that the legal basis for relief was previously unavailable. The legal basis upon which Petitioner relies is a June 27th, 2001, decision of the International Court of Justice (hereafter "ICJ") in F.R.G. v. United States, 2001 ICJ 104 (hereafter LaGrand).

¶13 The LaGrand case arose after the State of Arizona arrested, tried, and convicted two German nationals, the LaGrand brothers, without giving them notice of their rights under Article 36 of the Vienna Convention. The brothers did not assert their right to contact and obtain consular assistance until after their convictions and sentences were affirmed in state appellate proceedings. The Ninth Circuit affirmed the federal district court's denial of habeas corpus relief on the claim relating to the Article 36 Convention violation on grounds of procedural default. LaGrand v. Stewart, 133 F.3d 1253, 1259 (9th Cir.1998), cert. denied, 525 U.S. 971, 191 S.Ct. 422, 142 L.Ed.2d 343 (1998). It was not until after the Ninth Circuit's decision that the LaGrand brothers were formally notified of their rights to consular access. Even though the Government of Germany attempted to intervene and provisional orders were issued by the ICJ, the brothers were still executed.

¶14 In LaGrand, the ICJ found the United States, through the State of Arizona, had violated Article 36 of the Vienna Convention. It held this breach not only violated the rights of Germany under the treaty, but also violated the individual rights of the LaGrand brothers. F.R.G. v. United States, 2001 ICJ 104, ¶ 77 ("Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person.") ICJ held prejudice need not be shown to a show a violation of Article 36 of the Convention. Id. at ¶ 74.

¶15 The ICJ also held the application of the rule of "procedural default" cannot be applied by the states individually or by the United States to prevent review of an Article 36 violation. Id. at ¶¶ 90-91. Specifically, the ICJ noted with reference to the LaGrands, that although the federal courts examined the claim of ineffective counsel, the procedural default rule "prevented them from attaching any legal significance to the fact, inter alia, that the violations of ... Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention." Id. at ¶ 91. Accordingly, the rule of procedural default, in the LaGrand case, prevented "the full effect from being given to the purposes for which the rights accorded under this article are intended." Id.

¶16 Petitioner submits this Court must follow the decision of the ICJ in LaGrand and provide relief to Petitioner on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention. Petitioner advances several reasons in support of this proposition. First, because the United States signed and ratified the Optional Protocol to the Vienna Convention as well as the U.N. Charter acknowledging compliance with the decisions of the ICJ, it is bound by the ICJ's rulings concerning interpretation or application of the Convention.19 Second, principles of stare decisis require this Court to follow the ruling in LaGrand. Third, the doctrine of issue preclusion also makes the decision in LaGrand binding on the United States, because the United States fully developed, defended and argued its position in LaGrand, and knew it would be bound by the ICJ's decision.20 Fourth, under the rule of pacta sunt servanda, the United States is bound to follow the law of the treaties. Fifth, to apply the holding of the ICJ to some foreign nationals and not to others would violate the equal protection clause of the U.S. Constitution.21 Sixth, denying LaGrand's interpretation of Article 36 rights to Mr. Valdez because he is not German would create a non-uniform result contrary to the foreign relations law policy designed to achieve uniformity of result despite different legal systems.22

¶17 Finally, Petitioner submits the State of Oklahoma is bound by the law of treaties to the same extent as the United States. U.S.Const., art. VI, § 2; Okla.Const.art.I, § 1. In its Amicus brief, the Government of Mexico also contends the State of Oklahoma cannot advance its doctrine of procedural default to preclude review of Valdez' claims because application of the doctrine would violate the Supremacy Clause. In LaGrand, the ICJ ruled the application of the rule of procedural default effectively prevented "full effect from being given to the purposes for which the rights accorded under this article [Article 36] are intended." LaGrand, 2001 ICJ 104, ¶ 91. In this case, application of the rule of procedural default would preclude this Court's ability to review and consider the merits of Valdez' claims, and Petitioner and the Government of Mexico submit the doctrine must give way to give full effect to the purposes of Article 36 of the Convention.

¶18 The State of Oklahoma argues LaGrand is not binding on this Court. While acknowledging federal statutes and treaties are the supreme law of the land, U.S.Const., Art. IV, § 2, the State also argues the Supremacy clause does not convert violations of treaty provisions into violations of constitutional rights. The State of Oklahoma insists Petitioner has procedurally defaulted this claim because it is not based upon new law, and this Court, under the limited review afforded under Oklahoma's Capital Post-Conviction Act, is not entitled to grant relief on that basis.

¶19 The 1995 Amendments to the Capital Post-Conviction Procedure Act greatly circumscribed this Court's power to apply intervening changes in the law to post-conviction applicants. See e.g. Walker v. State, 1997 OK CR 3, 31, f. 42, 933 P.2d 327, 337-338, f. 42, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Now under the Act, for an alleged intervening change in the law to constitute sufficient reason for raising a claim in a subsequent proceeding to secure relief, a petitioner must show the intervening change in the law was unavailable at the time of his direct appeal or his original application. 22. O.S. 2001, § 1089 (D)(9). This Petitioner cannot do.

¶20 In Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), the Supreme Court held Breard had procedurally defaulted his claim to a violation of Article 36 of the Vienna Convention when he did not raise the claim in state court proceedings below. In reaching this decision, the Court explained that while giving

respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such, it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.

523 U.S. at 375, 118 S.Ct. at 1354; see also Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988). The Supreme Court noted the language of the Convention which provides the rights expressed in the Convention "shall be exercised in conformity with the laws and regulations of the receiving State" provided that the laws of the receiving State "must enable the full effect to be given to the purposes for which the rights accorded under this Article are intended." Article 2, 21 U.S.T. at 101. The Supreme Court also recognized the rule of procedural default applies to violations of the U.S. Constitution as well. Breard, id., 523 U.S. at 376, 118 S.Ct. at 1355.

¶21 The State of Oklahoma submits, and we agree, that the legal basis for his claim was available to him from the time of his arrest, and consequently at the time of his first post-conviction application. In fact, other defendants in Oklahoma have raised claims relating to violation of the consular notification provisions of the Vienna Conviction and Petitioner has not advanced a reasonable explanation for his failure to previously assert the violation. See Flores v. State, 1999 OK CR 52, 994 P.2d 782; Martinez v. State, 1999 OK CR 33, 984 P.2d 813; Al-Mosawi v. State, 1998 OK CR 18, 956 P.2d 906. Therefore, the basis of Petitioner's claim - that his rights were violated when Oklahoma did not notify him of his right to consular notification under the Convention -- could have reasonably been formulated prior to the ICJ decision in LaGrand.

¶22 Further, LaGrand is not a "new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state." 22 O.S. 2001, § 1089(D)(9). Only that portion of LaGrand which pronounced the Convention confers "individual rights" and which addressed our doctrine of procedural default is arguably new "law." Whether the Convention creates individual rights has been raised in numerous courts across the country for years, and could reasonably have been formulated prior to the ICJ decision in LaGrand. Whether the treaty creates individually enforceable rights or not, the United States Supreme Court in Breard specifically rejected the contention that the doctrine of procedural default was not applicable to provisions of the Vienna Convention and until such time as the supreme arbiter of the law of the United States changes its ruling, its decision in Breard controls this issue. Petitioner cannot be afforded review under our statutes on the ground that the ICJ's interpretation of the Convention in LaGrand constitutes a new rule of constitutional law.

¶23 Accordingly, we are not persuaded by Petitioner's claim that rules of procedural default may not be applied to claims arising from a violation of Article 36 of the Vienna Convention. The legal basis for the claim is not new and was available at the time of Petitioner's first Application for Post-conviction Relief regardless of the ICJ's decision in LaGrand. For this Court to decide the ICJ's ruling overrules a binding decision of the United States Supreme Court and affords a judicial remedy to an individual for a violation of the Convention would interfere with the nation's foreign affairs and run afoul of the U.S. Constitution.

¶24 For these reasons, this Court cannot reach the merits of Petitioner's subsequent Application for Post-Conviction Relief on the ground that the legal basis for relief was previously unavailable. However, despite the parties' statements the contrary, we believe this Court should review this subsequent Application for Post-Conviction Relief on the ground that it would appear no factual basis of the Petitioner's prior medical problems was ascertained by prior trial or appellate counsel before the filing of Petitioner's prior appeals. 22 O.S.Supp.1998, § 1089(D)(9).

¶25 Petitioner was charged with murder in 1989. He had court-appointed counsel. His court-appointed counsel was inexperienced in capital cases; in fact, Petitioner's case was his counsel's first capital case.23 Petitioner's trial counsel did not have the financial resources available to properly investigate Petitioner's childhood, social history or other aspects of his life. While arguments can be made that trial counsel could have requested funds to hire expert witnesses, it is evident that trial counsel's inexperience in capital litigation caused him to believe such funds were unavailable. We cannot ignore the significance and importance of the factual evidence discovered with the assistance of the Mexican Consulate. It is evident from the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing.

¶26 While we have no doubt the evidence discovered with the assistance of the Mexican Consulate could have been discovered earlier, under the unique circumstances of this case, it is plain that the evidence was not discovered due to trial counsel's inexperience and ineffectiveness.24 Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction . . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 466 U.S. at 687, 104 S.Ct. at 2064.

¶27 Although this Court has addressed claims relating to trial counsel's effectiveness in his prior appeals, in those appeals, this Court was not presented with a claim that trial court failed to discover evidence relating to Petitioner's social, mental, and health history. This Court was not presented with a claim that trial counsel did not inform Petitioner he could have obtained financial, legal and investigative assistance from his consulate. We believe trial counsel, as well as representatives of the State who had contact with Petitioner prior to trial and knew he was a citizen of Mexico, failed in their duties to inform Petitioner of his right to contact his consulate. In hindsight, and so many years following Petitioner's conviction and direct appeal, it is difficult to assess the effect consular assistance, a thorough background investigation and adequate legal representation would have had. However, this Court cannot have confidence in the jury's sentencing determination and affirm its assessment of a death sentence where the jury was not presented with very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime. Absent the presentation of this evidence, we find there is a reasonable probability that the sentencer might "have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

¶28 By our ruling today, this Court exercises its power to grant relief when an error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. 20 O.S. 2001, § 3001.1.25 Accordingly, we hereby GRANT Petitioner's Subsequent Application for Post-Conviction Relief, and REMAND this case to the District Court of Grady County for RESENTENCING.

United States v. Quinones, --- F.Supp. (SDNY 4/25/2002) Trial court holds that the federal death penalty will be held unconstitutional unless the government can quickly explain why so many condemned inmates turn out to be innocent.

The Federal Death Penalty Act, 18 U.S.C. §§ 3591 - 3598, serves deterrent and retributive functions, or so Congress could reasonably have concluded when it passed the Act in 1994. But despite the important goals, and undoubted popularity, of this federal act and similar state statutes, legislatures and courts have always been queasy about the possibility that an innocent person, mistakenly convicted and sentenced to death under such a statute, might be executed before he could vindicate his innocence--an event difficult to square with basic constitutional guarantees, let alone simple justice. As Justice O'Connor, concurring along with Justice Kennedy in Herrera v. Collins, 506 U.S. 390 (1993) , stated: "I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed--'contrary to contemporary standards of decency,' 'shocking to the conscience,' or offensive to a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'--the execution of a legally and factually innocent person would be a constitutionally intolerable event." Id. at 870 (citations omitted).

To the majority in Herrera, however, as to most judges and legislators at the time (1993), the possibility that an innocent person might be executed pursuant to a death penalty statute seemed remote. Thus, Chief Justice Rehnquist, writing for the Court in Herrera, discounted as potentially unreliable a study that had concluded that 23 innocent persons were executed in the United States between 1900 and 1987. See Herrera, 506 U.S. at 868, n.15. While recognizing that no system of justice is infallible, the majority in Herrera implicitly assumed that the high standard of proof and numerous procedural protections required in criminal cases, coupled with judicial review, post-conviction remedies, and, when all else failed, the possibility of executive clemency, rendered it highly unlikely that an executed person would subsequently be discovered to be innocent.

That assumption no longer seems tenable. In just the few years since Herrera, evidence has emerged that clearly indicates that, despite all the aforementioned safeguards, innocent people--mostly of color--are convicted of capital crimes they never committed, their convictions affirmed, and their collateral remedies denied, with a frequency far greater than previously supposed.

Most striking are the results obtained through the use of post-conviction testing with deoxyribonucleic acid ("DNA"). Although DNA testing is of remarkably high reliability, [FN1] its value as a forensic tool in criminal investigations was not demonstrated until 1985 [FN2] and its use in re- evaluating prior convictions was only beginning at the time Herrera was decided in 1993. [FN3] Yet in just the few years since then, DNA testing has established the factual innocence of no fewer than 12 inmates on death row, some of whom came within days of being executed and all of whom have now been released. [FN4] This alone strongly suggests that more than a few people have been executed in recent decades whose innocence, otherwise unapparent to either the executive or judicial branches, would have been conclusively established by DNA testing if it had been available in their cases.

The problem, however, goes well beyond the issue of the availability of DNA testing. Indeed, the success of DNA testing in uncovering the innocence of death row defendants has itself helped spark reinvestigation of numerous other capital cases as to which DNA testing is unavailable or irrelevant but as to which other techniques can be applied. Partly as a result, in just the past decade, at least 20 additional defendants who had been duly convicted of capital crimes and were facing execution have been exonerated and released. [FN5] Again, the inference is unmistakable that numerous innocent people have been executed whose innocence might otherwise have been similarly established, whether by newly-developed scientific techniques, newly-discovered evidence, or simply renewed attention to their cases.

Moreover, even the frequency of these recent exonerations resulting from DNA testing and from fresh attention to neglected cases hardly captures either the magnitude of the problem or how little it was recognized until recently. It was not until the year 2000, for example, that Professor James S. Liebman and his colleagues at Columbia Law School released the results of the first comprehensive study ever undertaken of modern American capital appeals (4,578 appeals between 1973 and 1995). That study, though based only on those errors judicially identified on appeal, concluded that "the overall rate of prejudicial error in the American capital punishment system" is a remarkable 68%. James S. Liebman, et al., A Broken System: Error Rates in Capital Cases (2000) at ii. No system so "persistently and systematically fraught with error," id., can warrant the kind of reliance that would justify removing the possibility of future exoneration by imposing death.

Just as there is typically no statute of limitations for first-degree murder-- for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time--so too one may ask whether it is tolerable to put a time limit on when someone wrongly convicted of murder must prove his innocence or face extinction. In constitutional terms, the issue is whether--now that we know the fallibility of our system in capital cases--capital punishment is unconstitutional because it creates an undue risk that a meaningful number of innocent persons, by being put to death before the emergence of the techniques or evidence that will establish their innocence, are thereby effectively deprived of the opportunity to prove their innocence-- and thus deprived of the process that is reasonably due them in these circumstances under the Fifth Amendment. [FN6]

In the instant case, the Government has announced its unalterable intention to seek the death penalty with respect to defendants Alan Quinones and Diego Rodriguez, the only two of the eight defendants originally named in this narcotics/murder case who have not pled guilty to the underlying charges. Trial of those charges, and, if the defendants are convicted, of the Government's request for imposition of the death penalty, is scheduled to begin September 2, 2002. Meanwhile, the two deatheligible defendants have moved to have the death penalty aspects dismissed from the case, on the ground, inter alia, that the federal death penalty statute is, for the aforementioned reasons, unconstitutional. [FN7] The Government does not contest the defendants' standing to make this motion at this time, and, indeed, it could not, for as presumptively innocent persons whose death the Government has committed to seek immediately upon their conviction of the capital offenses here alleged, the defendants are already directly affected by the death-penalty potential in every aspect of their defense.

On the merits, the Government concedes that "research has not uncovered a case addressing the precise point" here raised, i.e., "whether the death penalty violate[s] due process, and is therefore unconstitutional, because, by its very nature, it cuts off a defendant's ability to establish his actual innocence." Govt. letter brief dated March 29, 2002 at 1. [FN8] The Government asserts, however, that the thrust of defendants' argument is contrary to the positions taken by the Supreme Court in Herrera, supra, where the Court affirmed the denial of petitioner's second petition for habeas relief in which he alleged that his pending execution in the face of new evidence of his alleged innocence would violate the Eighth and Fourteenth Amendments.

This Court is not persuaded that Herrera provides the guidance necessary to resolve the instant issue. Unlike the presumptively innocent federal defendants bringing the present motion, Herrera involved a state-convicted defendant seeking a second habeas review whose proof of "actual innocence" was tenuous on its face--a factor that weighed heavily in the view of two of the justices (O'Connor and Kennedy) who made up the five-justice majority. (O'Connor, joined by Kennedy, concurring)("Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word.").

Moreover, while Chief Justice Rehnquist, writing for the Court, at one point states that "our habeas jurisprudence makes clear that a claim of 'actual innocence' is not itself a constitutional claim," id. at 404, this is plainly dictum, for elsewhere he states that "[w]e may assume, for the sake of argument, in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional ...," id. at 417. As with the concurring justices, however, the Chief Justice found that Herrera's own "showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist." Id. at 418-19.

Ironically, it was only a year or so after Herrera was decided that the new availability of DNA testing began to supply the kind of "truly persuasive demonstration" of actual innocence to which Chief Justice Rehnquist had hypothetical alluded. Thus, not only did Herrera not reach the issue here presented, but also it was premised on a series of factual assumptions about the unlikelihood that proof of actual innocence would emerge long after conviction that no longer seem sustainable. More generally, as already discussed, it implicitly premised a degree of unlikelihood of wrongful capital convictions that no longer seems tenable. [FN9]

FN9. As the Government notes, Chief Justice Rehnquist's opinion for the Court, while acknowledging the fallibility of any fact-finding system, takes solace not only in the putative unlikelihood of frequent mistakes but also in the availability of executive clemency when all legal remedies are exhausted. In the Chief Justice's view, "Clemency ... is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Herrera, 506 at 411-12. But subsequent studies show that there has been a precipitous decline in the number of clemencies granted in recent years. As summarized by Professor Banner: "The most noticeable [change in recent years] was the sudden decline of clemency. For centuries governors commuted death sentences in significant numbers. That pattern continued for the first two-thirds of the twentieth century ... [but] dropped close to zero under the new sentencing schemes [enacted after 1972]." Banner, supra, at 291. This is hardly surprising in an age when "law and order" is a political issue, for the executive branch, far more than the judiciary, is inherently sensitive to political pressure. In any event, clemency has no real relevance to the issue now before this Court, for it would be unusual for an executive to stay an execution simply because proof of innocence might thereafter develop; yet it is this very real possibility, as demonstrated by the emergence of DNA testing, that creates the constitutional problem here addressed.

The issue--not addressed by Herrera or, so far as appears, anywhere else-- boils down to this. We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency. Fortunately, as DNA testing illustrates, scientific developments and other innovative measures (including some not yet even known) may enable us not only to prevent future mistakes but also to rectify past ones by releasing wrongfully-convicted persons--but only if such persons are still alive to be released. If, instead, we sanction execution, with full recognition that the probable result will be the state-sponsored death of a meaningful number of innocent people, have we not thereby deprived these people of the process that is their due? Unless we accept--as seemingly a majority of the Supreme Court in Herrera was unwilling to accept--that considerations of deterrence and retribution can constitutionally justify the knowing execution of innocent persons, the answer must be that the federal death penalty statute is unconstitutional.

Consequently, if the Court were compelled to decide the issue today, it would, for the foregoing reasons, grant the defendants' motion to dismiss all death penalty aspects of this case on the ground that the federal death penalty statute is unconstitutional. But prudence dictates that in a matter of such importance, the Court should give the Government--which only now has the benefit of the Court's views on this issue--one last opportunity to be heard before a final determination is reached. Accordingly, the Government, if it chooses, may submit an additional brief on the aforementioned issue by no later than May 15, to which defendants may respond by no later than May 31, following which the Court will render a final determination. Alternatively, if the Government prefers to treat this as a final order granting defendants' motion and proceed directly to appeal (assuming such is available), it should so notify the Court, in writing, by no later than May 1, so that a final order may be entered.

SUPREME COURT

CAPITAL CASES (Favorable Disposition)

Wright v. Walls, 2002 U.S. App. LEXIS 7485 (7th Cir 04/24/2002) Death sentence properly vacated where sentencing judge erred by not considering mitigating evidence related to appellant's traumatic childhood.

Visciotti v. Woodford, 2002 U.S. App. LEXIS 7489 (9th Cir 04/24/2002) Relief granted on penalty phase issues on: in light of the abundant mitigating evidence that trial counsel failed to introduce, trial counsel’s inaccurate portrayal of Visciotti as the one “bad seed” in his family, trial counsel’s absolute failure to counter the prosecution’s case in aggravation, and, perhaps most importantly as to prejudice, trial counsel’s closing argument, which conceded several potential mitigating factors while providing the jurors essentially no reason not to impose the death penalty.

Tennessee v. Hagerty, 2002 Tenn. Crim. App. LEXIS 364 (Tenn Crim App. 04/22/2002) Accused's request for experts to develop "battered woman syndrome defense" granted. (Note: The decision is unclear whether this is or is nt a capital case, however, the implication for capital cases is clear.)

CAPITAL CASES (Unfavorable Disposition)

Stevenson v. Texas, 2002 Tex. Crim. App. LEXIS 86 (Tx Crim App 04/24/2002 - No. 73,963) An IQ of 68 and mental illness do not support a finding of mental retardation, and appellant's capital sentence will not be overturned.

Hocker v. Alabama, 2002 Ala. Crim. App. LEXIS 99 (Ala Crim App 04/ /2002) Trial court did not err by not changing venue, in finding no Batson error, in admitting into evidence that part of his alleged statementsm in refusing to give requested jury instruction on circumstantial evidence, in its instructions on penalty phase burden, instructions on heinous attrocious and cruel, as well as its weighing mitigators versus aggravators.

OTHER NOTABLE CASES

USA v. Gomes, No. 01-1143(2nd Cir 4/24/2002)Order permitting involuntary medication reversed. In medicating an accused into competency for fitness to stand trial, a court must closely monitor the process to comply with Riggins v. Nevada.

Stapleton v. Wolfe, No. 01-3184 (6th Cir 04/22/2002) Writ issued as trial court erred in admitting the statements of a non-testifying accomplice's testimony and because the statements carried no indicia of reliability.

Calvert v. Wilson, No. 00-3713 (6th Cir 04/24/2002) Trial court's admision into evidence of an accomplice's tape-recorded confession violated petitioner's Sixth Amendment rights under the Confrontation Clause.

Melendez v. Pliler, No. 01-55272 (9th Cir 04/24/2002) District court on remand to consider admission of a co-defendant's partially redacted statement, which implicated appellant in a murder. State appellate court’s conclusion that his Sixth Amendment claim was waived was not based on a “clear, consistently applied, and well-established” principle of state law

Johnson v. Champion, No. 01-6183 (10th Cir 04/26/2002) Appellate ineffectiveness claims not procedurally barred where issue was previously presented.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

A federal district court held last Thursday in United States v. Quinones that he was ready to declare the federal death penalty unconstitutional unless the government can quickly explain why so many condemned inmates turn out to be innocent. Although noted in last week's edition the opinion was not widely available until after that edition was sent to the list. The motion by counsel in Quinones is the "Focus" topic of the week.

The Documented Failure of the Modern Death Penalty to Avoid Death Sentences for the Factually and Legally Innocent Demands an Order Barring the Death Penalty in This Case.

There have been 233 citizens targeted thus far (that we know of) for a capital prosecution after extensive review by United States Attorneys, the Attorney General's Capital Case Review Committee and the Attorney General of the United States. It now appears that at least two of these individuals, approved by the Attorney General for a capital prosecution, were falsely accused of the capital homicide(s). United States v. Reginald Brown (E.D. MI CR No. 92-81127) and United States v. Antonio McKelton (E.D. MI CR No. 98-80348). Another 5 federal capital defendants - targeted by the Attorney General for a capital prosecution - have been acquitted. United States v. Mack, et al. (S.D. FL CR No. 93-252-CR-UUB) and United States v. Jacobo, et al. (C.D. CA CR No. 99-83-(A)-DT). This means that 3.5% of persons the Attorney General attempted to execute may have been factually or legally innocent. (1) There may be questions regarding the involvement of other "authorized" federal capital defendants in the charged homicides, as opposed to other related criminal activity. For example, Oliver Green only received a 15 year sentence. William Brown only received 10 years and Tony Chatfield was only sentenced to 12 ½ years. United States v. Oliver Brown and William Green (E.D. La. No. 92-468); United States v. Tony Chatfield (M.D. Ga. No. 92-82MAC-WDO). Other potential federal capital defendants were found to be innocent before the Attorney General decided on the death penalty (2) or were acquitted after the Attorney General declined to order a death penalty trial. (3)

There is a growing awareness of an unacceptable high rate of wrongful convictions (4) in murder cases. A highly-publicized 1997 report notes that at least 69 persons have been released from death row since 1973 after evidence of their innocence emerged. Richard C. Dieter, Innocence And The Death Penalty: The Increasing Danger of Executing the Innocent, July 1997 (sequel to a 1993 Staff Report of the Subcommittee on Civil and Constitutional Rights, Judiciary Committee, United States House Of Representatives); see also M. Radelet, H. Bedau, C. Putnam, In Spite Of Innocence, at 17 (Northwestern University Press 1992) (recording more than 400 cases of innocent persons convicted of capital or potential capital crimes in this country since 1900). The report concludes that "[t]he current emphasis on faster executions, less resources for the defense, and an expansion in the number of death cases means that the execution of innocent people is inevitable." (Dieter, supra, at 27.) Bedau and Radelet, "Miscarriages of Justice in Potentially Capital Cases," 40 Stan.L.Rev. 21 (1987) (more than 350 innocent people convicted in the United States since 1900 of potentially capital crimes; 23 were actually executed). See generally Edwin M. Borchard, Convicting the Innocent, Errors of Criminal Justice (1932); Jerome Frank & Barbara Frank, Not Guilty (1957); Edward D. Radin, The Innocents (1964); Samuel R. Gross, "Loss of Innocence: Eyewitness Identification and Proof of Guilty," 16 J. Legal Stud. 395 (1987); Arye Rattner, "Convicted But Innocent: Wrongful Conviction and the Criminal Justice System," 12 Law & Hum. Behav. 203 (1988); C. Ronald Huff, et al., Convicted But Innocent: Wrongful Conviction and Public Policy (1996).

On July 2, 2001, in Minneapolis, Supreme Court Justice Sandra Day O'Connor said that there are "serious questions" about whether the death penalty is being fairly administered in the United States. "If statistics are any indication, the system may well be allowing some innocent defendants to be executed," Justice O'Connor said in a speech to the Minnesota Women Lawyers group. Minneapolis Star Tribune (July 3, 2001).

Illinois has exonerated 13 death row inmates since 1977, one more than the state executed.

Innocent Anthony Porter came within 48 hours of being executed. ("Fixing the Death Penalty", Chicago Tribune, December 29, 2000, at p. 22N). (5) L.B. Bienen, "The Quality of Justice in Capital Cases: Illinois as a Case Study," 61 Law & Contemp. Probs. 193 at 213, n. 103 (1998). "The findings reveal a system so plagued by unprofessionalism, imprecision and bias that they have rendered the state's ultimate form of punishment its least credible." Ken Armstrong and Steve Mills, "Death Row Justice Derailed: First of a Five-Part Series", Chicago Tribune at C1 (November 14, 1999). Illinois Governor Ryan said: "I have grave concerns about our state's shameful record of convicting innocent people and putting them on death row." He remarked that he could not support a system that has come "so close to the ultimate nightmare, the state's taking of innocent life." Illinois Governor Ryan's Press Release (January 31, 2000). So, he declared a moratorium which continues to this day. (6)

In United States v. Burns, 151 C.C.C. (3) 97; 2001 C.C.C. Lexis 10, affirming 116 C.C.C. (3d) 524, the Supreme Court of Canada directed the Minister of Justice to seek the assurances "described in art. 6 as a condition of [extradition] surrender" of a potential capital defendant that the death penalty would not be sought. The Court stated:

In the absence of exceptional circumstances, [such] assurances in death penalty cases are always constitutionally required. The role of retribution and deterrence in society, and the view that capital punishment is inconsistent with the sanctity of human life, are embedded in the basic tenets of our legal system ...

151 C.C.C. (3) at 99.

The death penalty has been rejected as an acceptable component of criminal justice in Canada, in part, because it "is final and irreversible."

A fourth factor that weighed against extradition without assurances was the growing awareness of the rate of wrongful convictions in murder cases. ... The recent and continuing disclosures of wrongful convictions for murder in Canada, the United States and the United Kingdom reflected the fallibility of the legal system, despite its elaborate safeguards for the protection of the innocent.

****

Despite the best efforts of all concerned, the judicial system is and will remain fallible and reversible whereas the death penalty will forever remain final and irreversible.

Id. at 100.

The Supreme Court of Canada went on to explain:

Legal systems have to live with the possibility of error. The unique feature of capital punishment is that it puts beyond recall the possibility of correction. In recent years, aided by the advances in the forensic sciences, including DNA testing, the courts and governments in this country and elsewhere have come to acknowledge a number of instances of wrongful convictions for murder despite all of the careful safeguards put in place for the protection of the innocent.

Id. at 106.

The concerns raised by Canada's Supreme Court:

...bear on the protection of the innocent, the avoidance of miscarriages of justice, and the rectification of miscarriages of justice where they are found to exist. These considerations are central to the preoccupation of the courts, and directly engage the responsibility of judges "as guardian[s] of the justice system". We regard the present controversy in Canada and the United States over possible miscarriages of justice in murder convictions ... as engaging the special responsibility of the judiciary for the protection of the innocent. (Emphasis added).

Id. at 130.

Clearly, the demand that the government fix the arbitrariness and capriciousness of death sentencing has not been realized. Instead, Justice White's cynical premonition in his concurrence in Gregg v. Georgia, 428 U.S. 153, 226 (1976), to the effect that "[m]istakes will be made and discriminations will occur which will be difficult to explain," has come true. White, joined by Rehnquist and then Chief Justice Burger, did not give unqualified support for the death penalty. Rather, he declined to question the capital sentencing statute in issue at that time. A quarter of a century later, the inability of the capital sentencing system to operate in a fundamentally accurate and rational manner is now clear.

Twenty-five years later we have seen close to one hundred innocents released from death rows across the nation. The fallibility of the government's death machinery is no longer a matter of mere assertion or speculation, it is a proven fact. Today, a quarter of a century after Gregg was decided, it is Justice Brennan's dissenting admonition which rings most true:

Justice of this kind is obviously no less shocking than the crime itself, and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first. Gregg, 428 U.S. at 231, n. 6, quoting A. Camus, Reflections on the Guillotine 5-6 (Fredjof-Karla Pub. 1960).

In 1996, a study of the wrongful conviction of innocents was published by the United States Department of Justice. The "Convicted by Juries, Exonerated by Science" study includes commentary by Barry Scheck and Peter Neufeld citing data collected by the FBI to the effect that between 1989 and 1996, of the roughly 10,000 sexual assault cases, DNA testing ruled out the person arrested as the perpetrator, in approximately 25% of the cases. The fact that these wrongful arrest percentages remained constant for the seven years for which data was collected by the FBI, and the fact that the NIJ's informal survey of private laboratories reveals a strikingly similar 26 percent exclusion rate, strongly suggests that post-arrest and post-conviction DNA exonerations are tied to some strong underlying systemic problems that generate erroneous accusations and convictions. The ranks of the wrongly convicted continue to swell. The magnitude of the problem, which DNA testing can only partially illuminate, is much greater than anyone would ever have believed. So, what is the cause of this epidemic? The leading causes of wrongful convictions are:

1. Mistaken eyewitness identification;

2. Coerced confessions;

3. Unreliable forensic work;

4. False testimony by jailhouse informants and other cooperating government witnesses;

5. Law enforcement and/or prosecutorial misconduct; and/or

6. Ineffective representation by counsel.

A majority of the Court in Herrera v. Collins, 506 U.S. 390, 417 (1993), indicated (or at least left open the proposition) that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional." In concurrence, Justices O'Connor and Kennedy "agree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution." 506 U.S. at 419. "The execution of a legally and factually innocent person would be a constitutionally intolerable event." Id. In dissent, Justices Blackmun, Souter and Stevens said that executing the innocent would violate the Eighth and Fourteenth Amendments. Nothing could be more contrary to contemporary "standards of decency." 506 U.S. at 430 (emphasis added).

Innocent people who are executed are being prevented by the government from being able to litigate their constitutional claim of innocence, certainly in cases where the evidence of innocence could not have been found until after the defendant is executed. A punishment that prevents a defendant from litigating a constitutional violation, just by the nature of the punishment, violates the Fifth and Eighth Amendments. ("No person shall be ... deprived of life ... without due process of law.") By way of analogy, if a judge sentenced a dangerous defendant to solitary confinement and ruled that the defendant could not return to court for any proceedings ever, that would violate the constitution. If a state were to execute a defendant immediately after the direct appeal, before there was time for any federal review, that would violate the constitution. Therefore, a punishment that prevents some people from being able to litigate constitutional claims of innocence (because they are killed before the evidence is discovered) is a cruel and unusual punishment and violates due process. See S v. Makwamyane v. Mchunur, 1995 SACLR Lexis 218, 281-282 (Constitutional Court of South Africa 1995) (Mahomed concurring):

In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by Chapter 3 of the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence, makes any reparation or correction impossible, if subsequent events establish as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death).

As a matter of simple justice, due process requires the abolition of the death penalty. A quarter of a century of capital jurisprudence documents that lethal mistakes are an inevitable concomitant of execution as punishment. A sentence of life without parole eliminates the likelihood of killing an innocent person. When it comes to government killing, the constitution simply requires infallibility, which doesn't exist. "The death penalty relies on complex interactions of human systems, any one of which can fail in any given case ... [T]he incident shows once again the likelihood of error and caprice. To have a death penalty means, in practical terms, accepting that mistakes will be made and that they will be, at least in some cases, discovered too late." (Washington Post editorial, 5/12/01)

The Death Penalty Information Center now lists 98 human beings who were wrongly sentenced to die and have now been exonerated. www.deathpenaltyinfo.org/innoc.html. When 98 innocent human beings came this close to being murdered by the government, the only cure that meets the rigorous standard of due process is judicial abolition of the death penalty. (7) This court should bar the death penalty as a punishment in this case.

OTHER NEWS

The Death Penalty Information Center reports:

Illinois Poll Reveals Support for Moratorium

An April Zogby International poll of likely voters in Illinois found that 64% of respondents support Governor George Ryan's current moratorium on executions. The poll also found that 59% of those questioned agree with limiting the number of crimes that are punishable by death, a recommendation recently made by the Illinois Commission on Capital Punishment. In its April report, the Governor-appointed Commission recommended reducing the number of factors that make a crime eligible for a death sentence from 20 to 5. (St. Louis Post-Dispatch, April 29, 2002). See also, Illinois Commission on Capital Punishment and Public Opinion

Former Texas Prosecutor Calls for Re-Trial

Former Texas prosecutor Lorraine Parker has signed an affidavit calling for a new trial for Anibal Garcia Rousseau, whom she helped send to death row for a 1988 murder. One month after Rousseau was convicted and sentenced to death, a Houston Police Department firearms specialist determined that the weapon used in Rousseau's trial was not the gun used to kill the victim. However, this crucial evidence was withheld by prosecutors and only later discovered in a case file. "It bothers me tremendously. I'm terribly afraid that the wrong guy is in jail," said Parker, who believes that the ballistic tests should have spurred further investigation into the murder. (Houston Chronicle, April 21, 2002) See also Innocence.

South Carolina Execution Nears Even Though Another Has Confessed

Robert Charles Johnson is scheduled for execution in South Carolina on Friday, May 3, despite the fact that another person, Connie Hess, has said that she committed the murder for which Johnson was sentenced to death. A video describing Johnson's case and a copy of his clemency petition are available at http://www.sceja.org/ .

Study Finds Serious Problems With California's Death Penalty

In a comprehensive review of hundreds of death penalty cases in California, the San Jose Mercury News found that the state's capital punishment system has many of the same problems that have created concern about the death penalty across the nation. The News examined 72 cases reversed by state and federal courts since 1987 and 150 appeals now pending in the federal courts. In a series of articles, the News released its findings, including:

California typically spends much more money on capital cases than most states, but the dozens of death sentences reversed since 1987 involved trials marred by the same types of problems found in states known for spending less on capital cases, such as Texas and Alabama. These include lawyers who put on perfunctory defenses, prosecutors who concealed evidence, and mistake-prone trial judges.

California has not taken corrective actions that other states have. It has not set minimum statewide standards for the qualifications of defense lawyers appointed to death-penalty trials. The result has been an inconsistent county-by-county system of appointing lawyers.

Defendants who do win a reprieve on appeal are frequently not sentenced to death when resentenced with a fairer process. Fewer than a third of those whose sentences have been overturned have received the death penalty the second time through the system.

California's Supreme Court is in greater conflict with federal courts than any other state's. The state court, one of the most conservative in the nation, reverses 10 percent of death sentences, one of the lowest rates in the country. Federal courts have reversed 62 percent of the sentences affirmed by the California court, the highest rate nationally.

Some long-time supporters of capital punishment are asking whether it should be abandoned: "The whole thing is a mess,'' said former state Supreme Court Justice Edward Panelli, a conservative who voted to affirm most death sentences he reviewed. "It wouldn't hurt me at all if they just changed the law.'' California currently has the largest death row in the country, with more than 600 inmates, but has carried out only 10 executions since the death penalty was reinstated. (Mercury News, 4/13/02) Read the series . See also, studies on the death penalty .

Wall Street Journal Op-ed Urges "Repeal or Repair" for Capital Punishment

Attorney and author Scott Turow recently commented on his experience as a member of the Illinois Commission on Capital Punishment. In an op-ed in the Wall Street Journal, Turow emphasized the unanimous conclusion of the Commission that the system was in dramatic need of reform:

Capital punishment has been one of the most notorious train wrecks of American politics.

. . .

According to the Death Penalty Information Center, the 100th innocent person was released earlier this year from death row, raising questions about how many innocents have already been executed, while the surviving family members of murder victims often find the wait from trial to execution, averaging 11.5 years in 2000, an insulting protraction of their grieving.

[I] served as one of the 14 members of the commission [appointed by Gov. Ryan in Illinois to address the problems in that state], which delivered its report last week. I believe some aspects of our experience may help make the national debate less heated and more focused.

Our report contained 85 specific recommendations directed to every stage of the criminal process, from police investigation through clemency proceedings. . . .

Before the arguments about the wisdom of specific recommendations gather steam in Illinois and elsewhere, I wanted to focus on one important aspect of the report that may be overlooked. More than 85% of the recommendations we made were unanimous.

This was no small achievement, given the diversity of opinion in the group. The governor appointed, among others, a former U.S. senator, the general counsel to the Chicago Police Department, the current head of the Illinois State Attorneys organization, the public defender in Chicago, a past president of the local bar association and the son of a murder victim.

[N]ine of the 14 members of the commission were present or former prosecutors. . . . [W]hether we supported or opposed the death penalty, we were all able to agree that the capital punishment system as it stood was in need of dramatic reform.

(Wall Street Journal, 4/24/02) Read the article . See also, Illinois Commission Report .

Alabama Halts Mandatory Electrocutions

Legislation that changes the primary method of execution in Alabama from the electric chair to lethal injection was signed by Governor Donald Siegelman on April 25. As of July 1, 2002, lethal injection will be used as the method of execution unless an inmate requests the electric chair. Nebraska is now the only state in the country to use electrocution as its sole means of execution. (New York Times, 4/26/02 and Associated Press, 4/26/02) See also, Methods of Execution .

Voters in New York's Capital Favor Life Without Parole as Alternative to the Death Penalty

In March, Zogby International surveyed registered voters in Albany County, the seat of the location of New York's capital. The poll found that 55% of respondents support capital punishment in cases where people are convicted of murder, while 42% oppose it. When offered the alternative of sentencing convicted murderers to life in prison with absolutely no chance of being released on parole, 67% said they prefered this alternative; 27% preferred the death penalty. (Zogby International, 3/25/02). See also, Public Opinion.

Judge Questions the Constitutionality of Federal Death Penalty

U.S. District Judge Jed S. Rakoff said he was ready to declare the federal death penalty unconstitutional on the ground that innocent people are being sentenced to death "with a frequency far greater than previously supposed." In an order regarding the death penalty eligibility of two men facing capital charges, Rakoff wrote: "If the court were compelled to decide the issue today, it would . . . grant the defendants' motion to dismiss all death penalty aspects of this case on the ground that the federal death penalty statute is unconstitutional." Rakoff is giving federal prosecutors an opportunity to present arguments on the subject before he issues his final ruling in late May. (Associated Press, 4/25/02) See also, Innocence and the Federal Death Penalty .

Inmate Facing Execution May Be Innocent

A recent editorial in the St. Louis Post-Dispatch urged clemency for a Missouri death row inmate who may be innocent:

Gov. Bob Holden has on his desk a pardon application from one of several Missouri death row inmates who have strong cases of wrongful conviction. He is Joseph Amrine, who has spent 16 years on death row for a prison murder. All of the key evidence against him has been refuted or recanted. Yet Amrine's date with the executioner is approaching.

Amrine's case illustrates the same serious flaws that led to the wrongful convictions of 13 men in Illinois: no physical evidence; self-interested witnesses; alleged misconduct by investigators; poor defense lawyer and an appeals process stacked against defendants.

. . .

Mr. Holden should spare Amrine's life and order a inquiry into other cases of wrongful conviction on death row. Then he should go one further step -- the courageous step Gov. George Ryan took -- and suspend the death penalty while a commission studies the system's failures.

(St. Louis Post-Dispatch, editorial, 4/23/02). Amrine was convicted on the testimony of three other inmates, one of whom was first suspected of the killing. When questioned about the murder, all three inmates gave different accounts of what happened. In addition, all three have since retracted their testimony, saying they gave it only under heavy pressure from prison authorities in exchange for easier living conditions and eventual parole. (Independent.co.uk, 4/13/02). See also, Innocence and the Death Penalty .

OTHER RESOURCES:

If you have found this e-zine useful you might want to visit: www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).

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CITATION

This edition may be cited as:

Capital Defense Weekly, Volume V, Issue 15 (http://coramnobis.com/CDW/archives/020429.htm).