Three cases are hot listed this week. Two cases are noted as win, one as a loss. The Focus section this week is the annual guide to death penalty defense resources on the webs, including several great caches of motions and briefs guaranteed to improve your motion practice.

InBuell v. Mitchell, the Sixth Circuit has denied relief on claims relating to the conformity of the Ohio sentencing statute with international human rights norms. A very conservative Sixth Circuit panel holds that human rights treaties are, in effect, nonjusticiable. Remedies for a violation of international human rights treaty protection, if any, is to be found in the legislative and executive branches.

InVan Tran v. Statethe Tennessee Supreme Court has held that both the state and federal constitution forbid the execution of the mentally retarded. Adopting the Teague standard without discussion, the Court also notes that the holding "warrants retroactive application to cases on collateral review."

In the final "hot list case,"Tennessee v. Godsey, the Tennessee Supreme Court has found that capital punishment is disproportionate in a murder case involving both a child victim and child abuse.

Note thatBuellandVan Tranwould normally appear in next week's edition, however, in light of the potential gravity of both opinions they were advanced to this week. Note too my apologies, and advanced apologies, for the continuing level of typos and other errors that comes from rushing the weekly out each week.

Since the last edition there has been one domestic execution.

30 John Hardy Rose North Carolina

4 Lois Nadean Smith Oklahoma---female

6 Sahib Al-Mosawi Oklahoma

6 David Dunster Nebraska--volunteer

The following are the remaining scheduled executions considered likely for December:

12 Vincent Cooks Texas

HOT LIST CASES

Buell v. Mitchell, 2001 U.S. App. LEXIS 2591 (6th Cir 12/4/2001) Relief denied, most notably, on the applicability of international human rights norms to domestic American law.

The prohibition of the death penalty is not so extensive and virtually uniform among the nations of the world that it is a customary international norm. This is confirmed by the fact that large numbers of countries in the world retain the death penalty. See Wills v. Texas, 511 U.S. 1097, 1100 n.2, 128 L. Ed. 2d 488, 114 S. Ct. 1867 (1994) (Blackmun, J., dissenting) (recognizing that over seventy nations retained the death penalty as of then); Short, supra page 49, at 744-45 (indicating that as of December 1995, ninety countries retained full use of the death penalty, while as of the end of 1997, only sixty-one countries, or approximately thirty-two percent of countries, had completely abolished use of the death penalty); William A. Schabas, International Law and the Abolition of the Death Penalty, 55 Wash. & Lee L. Rev. 797, 799, 845 (1998) [*97] (citing 1998 United Nations report that 102 states have abolished the death penalty while ninety retain it and 1997 Amnesty International figures that ninety-nine states have abolished the death penalty in law or in practice, while ninety-four nations retain it). Indeed, it is impossible to conclude that the international community as a whole recognizes the prohibition of the death penalty, when as of 2001, 147 states were parties to the International Covenant, which specifically recognizes the existence of the death penalty. Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the Principal International Human Rights Treaties (June 14, 2001), at http://www.unhchr.ch/pdf/report.pdf.

There is no indication that the countries that have abolished the death penalty have done so out of a sense of legal obligation, rather than for moral, political, or other reasons. Moreover, since the abolition of the death penalty is not a customary norm of international law, it cannot have risen to the level that the international community as a whole recognizes it as jus cogens, or a norm from which no derogation is permitted. Therefore, [*98] we cannot conclude that the abolition of the death penalty is a customary norm of international law or that it has risen to the higher status of jus cogens.

Even if we were to conclude that the abolition of the death penalty was a customary norm of international law or rose to the higher level of being a peremptory norm or jus cogens, we do not believe that this would be a sufficient basis for our court to invalidate Ohio's death penalty statute.

In White v. Paulsen, 997 F. Supp. 1380, 1383-85 (E.D. Wash. 1998), the district court, analogizing to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 392, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), stated that "federal courts have the authority to imply the existence of a private right of action for violations of jus cogens norms of international law." Id. at 1383. While the court recognized this authority, it went on to state, "whether a federal court should imply the existence of such a remedy in the context of a particular case is a different question." Id. at 1384. In declining to imply the existence of a private right of action, [*99] the court expressly noted that it was "being asked to address a matter that is principally entrusted by the federal constitution to Congress or the Executive." Id. at 1385. The court stated that "the determination of what international obligations the United States chooses to recognize or enforce is an area that has been recognized as entrusted principally to the Legislative and Executive branches of the federal government." Ibid.; see also Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244 (C.D. Cal. 1999), rev'd on other grounds, 251 F.3d 1230 (9th Cir. 2001) ("This Court is also hesitant to interfere in an area that is traditionally entrusted to the legislative and executive branches. It is these two branches which must interpret what international obligations the United States will undertake and how to implement them domestically.").

Courts that have determined that private rights of actions exist under customary norms of international law have done so where acts were committed on a foreign citizen or acts were committed by a foreign government or government official. See Hawkins, 33 F. Supp. 2d at 1255 [*100] (citing cases). "There is no reported case of a court in the United States recognizing a cause of action under jus cogens norms of international law for acts committed by United States government officials against a citizen of the United States." Ibid; see also Gordon A. Christenson, Federal Courts and World Civil Society, 6 J. Transnat'l L & Pol'y 405, 485 (1997) ("No U.S. court has invoked the international prohibition against official torture as a peremptory or jus cogens norm to justify a cause of action by itself, except by possible dictum. In fact, courts in the United States have uniformly rejected application of an asserted jus cogens norm as the sole basis for a cause of action."). Christenson further notes that "while some language in several decisions of courts of appeal states that U.S. courts have recognized the concept of jus cogens as part of U.S. law, not a single case has been decided on that basis alone without having been overturned." Ibid. (citing Princz v. F.R.G., 307 U.S. App. D.C. 102, 26 F.3d 1166 (D.C. Cir. 1994) (reversing district court's reliance on jus cogens in claim [*101] of American citizen and Holocaust survivor who sued the Federal Republic of Germany for damages based on having been a prisoner in Nazi concentration camps)).

We believe that the same logic applies in this case, though Buell, a United States citizen, is not asserting a private right of action, but instead is using international law as a defense against actions taken by Ohio's government that comply fully with the United States Constitution. He is attempting to interpose customary international law as a defense against "acts committed by . . . government officials against a citizen of the United States." Hawkins, 33 F. Supp. 2d at 1255. If anything, the standards for implying a civil private right of action under international law should be less than those for using international law as a defense against otherwise lawful government action under the Constitution. See Christenson, supra, at 491 (1997) (stating that "especially inventive, but going nowhere, [is] the recent claim[] that . . . peremptory norms place limits upon certain constitutional powers granted under the Constitution" and noting that the claim is "misguided in international [*102] law").

We note that courts have rejected the application of international law in the context of the execution of juvenile offenders, where a seemingly stronger argument might exist for the use of international law to prevent such actions. See Connie de la Vega & Jennifer Fiore, The Supreme Court of the United States has been Called upon to Determine the Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada, 21 Whittier L. Rev. 215, 225-29 (1999); Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1311, 1336 (1993); David Weissbrodt, Execution of Juvenile Offenders by the United States Violates International Human Rights Law, 3 Am. U. J. Int'l L. & Pol'y 339, 367-69 (1988); Joan F. Hartman, "Unusual" Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty, 52 U. Cin. L. Rev. 655, 691-95, 699 (1983).

In Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989), [*103] the Supreme Court stated that, we discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age." Id. at 380. As a result, the Court held that "such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment." Ibid. The dissent noted that over half of the nations that retained the death penalty at the time prohibited the execution of juveniles and that some of the other nations had ratified international treaties that prohibited the execution of juveniles. Id. at 389 (Brennan, J., dissenting). The dissent concluded that, "within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved." Id. at 390. Although the plurality opinion did not specifically address this argument, it rejected it in holding that the execution of juveniles was constitutional and in noting that "no modern societal consensus" forbids the imposition of death penalty individuals as young as sixteen. Subsequent courts have relied on Stanford [*104] in rejecting attacks on the juvenile death penalty as a violation of international agreements (particularly the International Covenant) and customary norms of international law. See Ex parte Pressley, 770 So. 2d 143, 148-49 (Ala.), cert. denied, 531 U.S. 931, 121 S. Ct. 313, 148 L. Ed. 2d 251 (2000); Domingues v. Nevada, 114 Nev. 783, 961 P.2d 1279, 1280 (Nev. 1998), cert. denied, 528 U.S. 963, 145 L. Ed. 2d 309, 120 S. Ct. 396 (1999).

Courts have made clear that "international law does not require any particular reaction to violations of law . . . . Whether and how the United States wishes to react to such violations are domestic questions." Estate of Ferdinand Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994) (quoting Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 779 (D.C. Cir. 1984) (Edwards, J., concurring)). We believe that in the context of this case, where customary international law is being used as a defense against an otherwise constitutional action, the reaction to any violation of customary international law is a domestic question that must [*105] be answered by the executive and legislative branches. We hold that the determination of whether customary international law prevents a State from carrying out the death penalty, when the State otherwise is acting in full compliance with the Constitution, is a question that is reserved to the executive and legislative branches of the United States government, as it their constitutional role to determine the extent of this country's international obligations and how best to carry them out. n10

Van Tran v. State, No. W2000-00739-SC-R11-PD (Tenn. 12/04/2001) Tennessee Supreme Court holds execution of the retarded violates both the federal and state constitutional norms. Adopting the Teague standard without discussion, the Court also notes that the holding "warrants retroactive application to cases on collateral review." A must read opinion.

In reaching our conclusion, we wish to separately address the arguments that executing the mentally retarded is not cruel and unusual punishment because mental retardation may be considered by the jury as mitigating evidence and because some mentally retarded individuals may rely upon the defense of insanity. There is little in either alternative that offers reasonable safeguards to the mentally retarded or addresses the concerns outlined in this opinion.

For instance, the jury's consideration of mental retardation as a mitigating factor is by itself insufficient to address the concerns protected under the Eighth Amendment or article I, § 16. In such circumstances, evidence of mental retardation would only be weighed in conjunction with one or more aggravating circumstances, such as the heinousness of the crime or a defendant's prior record. In our opinion, the weighing process would not sufficiently isolate the consideration given to the issue of mental retardation and would not provide reasonable assurance that an individualized decision will be made as to whether the death penalty was appropriate punishment for a particular mentally retarded offender. See Penry v. Lynaugh, 492 U.S. at 347, 109 S. Ct. at 2962 (Brennan J., concurring and dissenting) ("Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence . . . ."). In sum, the limitations and impairments associated with mental retardation warrant more consideration than simply allowing the evidence to be weighed in the mix of aggravating and mitigating circumstances. Indeed, the Tennessee legislature obviously shared this view in the passage of Tenn. Code Ann. § 39-13-203, which prohibits imposition of a death sentence upon persons found to be mentally retarded; otherwise, it simply could have listed evidence of mental retardation as among the mitigating factors in Tenn. Code Ann. § 39-13-204(j), the first degree murder death penalty statute.

Likewise, the State's assertion that some mentally retarded persons may rely upon the defense of insanity offers little protection with regard to capital sentencing. The defense of insanity is a complete defense to criminal charges only where a defendant meets the substantial burden of proving that he or she was unable to appreciate the nature or wrongfulness of his or her acts due to a severe mental illness or defect. See Tenn. Code Ann. § 39-11-501 (1997). The relevant issue in this case, however, is not whether a mentally retarded individual may be held responsible for a criminal offense, but whether that individual may be executed as a punishment for the offense. The State, as well as the dissent, would nonetheless conclude that only a mentally retarded person who establishes a complete defense to the charged offense may be exempt from the death penalty.

Moreover, placing such a burden on the mentally retarded fails to distinguish mental retardation from mental illness. Although a mentally retarded person may also have a mental illness, the two issues are not one and the same. See Putting the Mentally Retarded Criminal Defendant to Death, 52 Ala. L. Rev. at 915. Mental retardation, by definition, is accompanied by serious limitations on intelligence and adaptive behavior; mental illness is not. Mental retardation, by definition, must also manifest by age 18; mental illness may or may not. Id. Finally, mental retardation does not equate to legal insanity, nor does it necessarily make the defense of legal insanity any easier to establish. It also bears noting that the complete defense of insanity is asserted in perhaps as few as one percent of all felony cases and is successful in even fewer. See Jodie English, The Light Between Twilight and Dusk: Federal Criminal Law and the Volitional Insanity Defense, 40 Hastings L.J. 1, 9 (1988) ("Contrary to public opinion, . . . the insanity defense is infrequently raised and even less frequently successful."). Accordingly, what the State posits as a safeguard for mentally retarded individuals is in reality no safeguard at all.

***

We conclude that there is compelling evidence that the execution of mentally retarded individuals violates the evolving standards of decency that mark the progress of a maturing society both nationally and in the State of Tennessee. We also have determined that the execution of any mentally retarded individual, who by definition, has significantly subaverage intelligence functioning and deficits in adaptive behavior, is grossly disproportionate, and serves no valid penological purpose. We therefore conclude that the execution of a mentally retarded individual violates the Eighth Amendment to the United States Constitution and article I, § 16 of the Tennessee Constitution.

Tennessee v. Godsey, 2001 Tenn. LEXIS 809 (11/29/2001) Death penalty disproportionate despite conviction for child murder and child rape.

The State identifies two cases in which the death penalty [*71] has been imposed, State v. Keen, 31S.W.3d 196 (Tenn. 2000) and State v. Torres, No. E1999-00866-CCA-R3-DD, 2001 WL 245137 (Tenn. Crim. App., March 13, 2001), and argues that these cases support its assertion that the Court of Criminal Appeals erred in finding the death sentence in this case disproportionate. The State argues that the question in determining whether a sentence is disproportionate should be "whether, viewing the entire record, the decision of the jury was based in reason as opposed to whim or prejudice." According to the State, if the sentence "is not unreasonable it cannot be deemed aberrant, arbitrary, or capricious."

The defendant responds that the appropriate inquiry in determining whether the sentence is disproportionate is whether the case is "plainly lacking in circumstances consistent with those in which the death penalty has been imposed. . . ." Bland, 958 S.W.2d at 665. According to the defendant, the two cases the State relies upon are not similar to the instant case and, in fact, support the Court of Criminal Appeals' conclusion that the sentence in this case is disproportionate. In addition, the defendant asserts that [*72] every other capital case in this state involving a child victim is much more aggravated than the killing in the instant case.

Initially we note that reviewing the record in each case in isolation, as the State suggests, is not the appropriate analysis when conducting comparative proportionality review. The defendant is correct. The relevant inquiry for comparative proportionality review is whether this case, taken as a whole, is plainly lacking in circumstances consistent with those in cases where the death penalty has been imposed. Bland, 958 S.W.2d at 665. To determine whether this case can be said to be plainly lacking in circumstances consistent with those in which the death penalty has been imposed, we will now consider prior capital cases in which the defendant was convicted of murdering a child victim, including those cases relied upon by the State and the defendant.

In Torres, the jury applied two aggravating circumstances: (1) "the victim was less than twelve years of age, and the defendant was eighteen years of age or older;" and (2) "the murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond [*73] that necessary to produce death." Tenn. Code Ann. § 39-13-204(i)(1) & (5). As stated in the decision of the Court of Criminal Appeals, the evidence in Torres showed that the twenty- five-year-old defendant was the father of the fifteen-month-old male victim and was caring for the victim on the day of the murder while the child's mother was at work. When the child awoke from a nap and would not stop crying, the defendant struck the child a minimum of five times in the head and abdomen with extreme force. According to Torres' own statement, the child was conscious during and after the abuse and appeared to be in pain. The child had severe internal injuries including hemorrhaging in his brain and in his abdomen, indicating extreme force. In addition, some of the medical experts testified that the victim had marks indicating prior abuse, such as cigarette burns, bite marks, and suspicious scarring around the child's anal area. The defendant did not call for emergency assistance right away; instead he called the child's mother and awaited her arrival. While he waited, the victim stopped breathing, yet the defendant still did not call for emergency assistance. [*74] The child's mother called 911 upon her arrival. The defendant refused to provide medical information concerning the victim to nurses at the emergency room, and according to witnesses, appeared unconcerned about his son. The defendant demonstrated little or no remorse for the offense and in a statement to police, blamed the victim's mother for spoiling him and encouraging him to cry. Torres' amenability to rehabilitation was called into question by the testimony of a fellow inmate who stated that Torres had indicated he was participating in a Legal Lives Program to "juke [i.e., mislead] the people, whoever was charging him." Also, proof offered at the sentencing hearing by Torres indicated that at about age fifteen, he had pled guilty to sexually abusing his five-year-old step-brother.

* * *

Having reviewed these similar capital cases involving child victims, n23 we next consider the record in this case in light of the factors adopted in Bland. The record reveals that the twenty-two-year-old defendant reacted angrily and unexpectedly when the seven-month-old victim would not stop crying. The defendant threw the victim, inflicting serious and ultimately fatal injuries. The episode occurred in the home the defendant shared with the victim, and the assault had [*81] a total duration of only moments. The defendant's conduct certainly was not the result of adequate provocation or justification. Indeed the victim was helpless against the attack. However, there is no evidence to show that the violent acts were premeditated. In fact, the evidence indicates that the defendant's behavior was entirely unexpected and highly unusual. The defendant had no history of abusing the victim. The defendant had been responsible for caring for the victim for several hours in the evening while the victim's mother worked, and the evidence indicated he had treated the victim kindly and with affection, as if the victim were his own child. The defendant had no prior record of felony convictions, although he had prior misdemeanor convictions for joyriding, driving under the influence, and driving on a revoked license. The defendant did not immediately seek assistance for the victim, but the evidence offered at trial indicated that the victim's injuries would not have been immediately apparent, as there were no external injuries. The defendant cooperated with the authorities during the investigation, allowing them access to the apartment without a search warrant, and turning [*82] over to them the crib sheet and blanket as well as his own t-shirt. Although the defendant was not immediately forthcoming with police, he eventually admitted his actions. Disinterested witnesses consistently testified that the defendant appeared genuinely remorseful for the victim's injuries and his eventual death. The defendant offered evidence to suggest that he had been a dependable and capable worker and that he had above average intelligence. Overall, the record suggests an amenability to rehabilitation.

The defendant is the only person in Tennessee to receive a death sentence based solely on the (i)(1) aggravating circumstance, the victim was less than twelve years of age. With respect to mitigation, the defendant offered a great deal of proof, previously summarized herein, about his unstable childhood in a poor, dysfunctional family; indeed, the trial court instructed the jury as to seventeen mitigating circumstances raised by the evidence offered.

Unlike this case, in each of the prior capital cases the jury found that the murder was especially heinous, atrocious, or cruel in that it involved torture or depravity of mind or serious physical abuse beyond that necessary to produce death. Also, unlike the present case, in each of these prior cases, there was some evidence of sexual abuse. In only one prior case, Middlebrooks, was the jury's sentence of death based upon a single aggravating circumstance, and the evidence to support that aggravating circumstance, evidence of severe and protracted torture, was so clear that to say it was overwhelming is an understatement. Of these prior cases, Torres is most similar to the present case, yet, there are several significant distinctions. [*84] n24 Unlike Torres, the evidence in this case indicates that the fatal injuries were consistent with a single act of violence that occurred in a matter of minutes. Although, like Torres, Godsey did not call for emergency assistance immediately, the medical testimony in this case indicates that the victim sustained no apparent external injuries, so it is not clear that Godsey realized the extent of the victim's injuries. When Godsey discovered the victim was not breathing, he immediately alerted the victim's mother, attempted to perform CPR, and called 911. Torres did not immediately call 911, nor did he call when he realized the victim was not breathing. Also unlike Torres, and other capital cases involving child victims, the evidence in this case does not establish torture or serious physical abuse beyond that necessary to produce death. Significantly, there is also no evidence in this case to indicate that the defendant had a prior history of abusive behavior toward the victim or other children. To the contrary, the proof indicated that the defendant had treated the victim well, caring for him and providing for him as if he were his own son. Moreover, unlike Torres, the [*85] medical experts agreed that there was no evidence to indicate prior abuse in this case. Also unlike Torres, according to disinterested witnesses, Godsey demonstrated genuine remorse for the victim at the hospital, both upon arrival and upon learning of the victim's death. In addition, the record in this case indicates that Godsey cooperated with the police in providing access to the apartment and in providing physical evidence. Finally, as the Court of Criminal Appeals observed, the record in this case indicates that Godsey is a reliable worker, who has above average intelligence, and is generally amenable to rehabilitation.

Having reviewed and compared this case to prior similar cases in which a sentence of death has been imposed, we conclude that the Court of Criminal Appeals correctly held that the sentence of death in this case is disproportionate. . . .

All first degree murders are horrible, and they are particularly tragic, where, as here, the victim is an innocent, defenseless infant. Yet, our statutory duty in conducting comparative proportionality review is to identify and invalidate aberrant death sentences. Having considered the record in this case in comparison to the circumstances of [*90] similar cases, we are of the opinion that, taken as a whole, this case is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed. In fact, the circumstances of this case are substantially less egregious, overall, than the circumstances of similar cases in which a sentence less than death has been imposed. Accordingly, we agree with the Court of Criminal Appeals that the sentence of death imposed in this case is disproportionate to the penalty imposed in similar cases. We therefore affirm the decision of the Court of Criminal Appeals modifying the sentence for the defendant's first degree murder conviction to life imprisonment without the possibility of parole. See Tenn. Code Ann. § 39-13-206(d).

SUPREME COURT CASES & NEWS

No cases noted

POSITIVE CAPITAL CASE RESULTS

Martin v. Alabama, 2001 Ala. Crim. App. LEXIS 298 (Ala. Crim. App. 11/30/2001) Suppression of evidence leads to new trial order. (not available on the web)

James Martin's capital-murder conviction and death sentence followed a trial proceeding in which the prosecution failed to disclose, not just one, but several pieces of material evidence. The cumulative effect of these numerous nondisclosures was so serious that we are compelled to find that there is a reasonable probability that disclosure of the suppressed evidence would have produced a different result at Martin's trial. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995). The verdict here was so tainted by the prosecutorial nondisclosure of material evidence that it is not "worthy of confidence." Martin was not convicted or sentenced in accordance with fundamental due process.

Kemp v. Arkansas, 2001 Ark. LEXIS 649 (11/29/2001) Remand ordered in postconviction as "the trial court's findings of fact are quite general, and the two conclusions of law are not sufficient under our rule."

CAPITAL CASES - RELIEF DENIED

Louisiana v. Deal, 2001 La. LEXIS 3106 (LA 11/28/2001) Relief denied on claims relating to sufficiency of evidence, expert witness's conclusions as to ultimate facts, and proportionality

Burch v. Corcoran,2001 U.S. App. LEXIS 25329 (4th Cir 11/28/2001) Relief denied on claims: (1) that the sentencing provisions of Maryland's death penalty statute are unconstitutional; (2) that the submission of a single Verdict Form to Burch's sentencing jury violated his due process rights; (3) that he received ineffective assistance of counsel at trial; and (4) that a juror's reading from a Bible during the jury's sentencing deliberations violated his constitutional rights.

Jasper v. Texas, 2001 Tex. Crim. App. LEXIS 118 (Tex. Crim. App. LEXIS 11/28/2001) Relief denied on appellants five (5) claims on appeal, including sufficiency of the evidence, spousal privilege in a common law marriage, and juror qualifications.

Landigran v. Stewart, 2001 U.S. App. LEXIS 25301 (9th Cir 11/28/2001) Relief denied on penalty phase ineffective assistance of counsel relating to failure to present evidence of a "genetic predisposition" to commit murder and other acts of violence as that evidence alone would not have swayed sentencing in light of Landigran's prior history of murder and attempted murder.

Frederick v. State, 2001 OK CR 34 (Okla.Crim.App. 11/21/2001) Relief denied on claims including competency to stand trial, life/death qualifications, evidentiary issues relating to use of prior trials testimony, exclusion of evidence, voluntary intoxication instructions, homicide causation and corpus delicti, guilt & penalty phase closings phase instructions, and ineffective assistance of counsel.

OTHER NOTABLE CASES

Bennett v. Mueller, No. 00-56199 (9th Cir. 11/29/2001) "[T]he California Supreme Court's denial of Bennett's petition "on the merits and for lack of diligence" constituted an independent and adequate state ground so as to render his habeas petition procedurally defaulted."

Clark v. Caspari,No. 00-1844 (8th Cir. 11/28/2001) "The show-up procedures used in this case were suggestive, and there are several reasons to question the reliability of the identifications. Nevertheless . . . we affirm."

Fuller v. Gorczyk, No. 00-2430 (2d Cir. 11/27/2001) As trial counsel " supported the relevance of [the excluded] evidence on several other grounds and not on the theory he now advances, we cannot find that the trial judge made an "unreasonable application" of the Confrontation Clause in failing to guess a theory of relevance that was not argued. See Williams v. Taylor, 529 U.S. 362, 409, 413 (2000)."

Haynes v. Cain, No. 00-31012 (5th Cir. 11/27/2001) "By asking the jury to find their client guilty of those felonies in their opening statement, counsel inappropriately lessened the prosecution's burden in leading the jury to make the inference he intentionally caused the victim's death." "This is not a case of a defendant simply wanting to direct his defense; it is a case of a defendant staunchly maintaining his innocence to felonies that are the primary foundation of the prosecution's case, and from which spring the inferences necessary for the jury to find guilt of the greater charge. . . Absent the requisite partisan advocacy on such an integral aspect of the prosecution's case we cannot say that Haynes received the constitutionally mandated fair trial."

Thompson v. Nixon, No. 97-2571EM (8th Cir. 11/27/2001) "The statute, 28 U.S.C. § 2244(b)(1), is worded in an uncompromising fashion. If a claim was presented in a previous habeas application, it "shall be dismissed." This limitation is binding on all lower federal courts. It would not apply to an application for collateral relief in the Missouri state courts, nor would it apply to a so-called "original" habeas proceeding in the Supreme Court of the United States, but it does indisputably apply to us. Does the handing down of the Fiore decision, and Thompson's present reliance on it, make his claim a new one, as opposed to one presented in a previous petition? We think not. Fiore simply provides a new argument (the merits of which we need not explore) in support of the same due-process claim that has been presented twice before."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

Lambert v. Blackwell, No. 01-2511 (E.D.Pa. 11/21/2001) Reinstatement of earlier decision (subsequently vacated for lack of exhaustion) appropriate as petitioner has exhausted her state law remedies in light of the state supreme court's explicit waiver of discretionary review where discretionary review would only be sought for exhaustion purposes.

FOCUS

The "information revolution" of the past half-decade has lead to a dramatic rise in the availability and quality of information accessible to any practitioner in a capital case. At one point in the not too distant past it would have been possible to catalog the entire of the death penalty and criminal defense litigation websites into a list of less than 50 sites, today that list is over 1000 and growing. The web has inalterably lead to a rise in the standard of what it means to be a competent counsel in a criminal case, nonetheless a capital one. Here is my pick of the sites that are responsible for the rise in the standard of care, as well as some tips and tricks some of the best legal web tools available for little or no money on the web.

Federal Death Penalty Defense:

CapDefNet.org- The HAT/FDPRC site saves lives & saves value hours of labor. CapDefNet.org is one of the three must visit sites on the net for every death penalty lawyer (LIDB.com & Probono.net being the other two). From a large collection of well written direct appellate briefs in the federal system, to case law updates, and guides to various areas of the criminal law this site is invaluable.

Death Penalty Litigation General:

Probono.net- The American Bar Association in conjunction with the Association of the Bar of the County of New York offers the broadest range of varying state and federal materials on any one site. Password access is required, but readily given.

Legal research:

Findlaw.com- Findlaw is singularly the best tool for the practice of law on the web. While other sites, such as Probono.net and CapDefNet.org, provide better death penalty materials, Findlaw is a must visit site for its content rich sections on commentary and the Supreme Court.

Lexisone.com- Free legal research for appellate courts from around the nation, 1995-forward, with an instinctive website layout. A guide to legal sites on the web are also offered. This site and Versuslaw provide the backbone for the legal research for doing the weekly.

Versuslaw.com- For well under 10$/month versuslaw offers a legal research database from 1900-forward. The only problems with the site I have noted, however, are that there are no internal page numbers offered and its method of citation is, to be charitable, unique.

Supreme Court Materials:

Findlaw.com Supreme Court Center- The Center contains certs granted, issues in pending cases, briefsand other materials, many of which I have not been able to locate on Westlaw & Lexis.

Briefs:

Louisiana Indigent Defense Board- The largest single collection of pretrial motions for capital cases on the web with the Louisiana Capital Defense manual. Another great site to visit.

Tennessee Capital Case Information (http://www.tsc.state.tn.us) The Tennessee Supreme Court has created a special section on its site for the capital cases in which a "serious" execution has been set at least once. The Philip Workman stay materials are also included on the site and are a must read for anyone preparing to fight for a stay following exhaustion of all normal means of appeal.

Florida Supreme Court Briefs( http://www.law.fsu.edu/library/flsupct/index.html) All briefs since 1998 are available on the net including innumerable briefs from capital cases. The relative high quality of legal counsel in Florida's death cases make these briefs especially appealing. The downside is that there is no readily searchable but rather filed by docket number. When I am looking for a brief on point I generally use a legal research database (Westlaw, Lexis, or Versuslaw) to find a Florida Supreme Court case that has mentioned the issue I want, get the docket number, and then simply go download the brief. Note the briefs are in PDF format.

Federal Public Defender for the District of Columbia ( www.dcfpd.org) The best collection of motionsand briefsfor noncapital cases on the web. An invaluable tool for litigation and a must try site. Good navigation & excellent quality. Training & CLEopportunities catalogued.

Briefreporter.com- A pay site that deserves some mention. Although the prices for briefs are excessively high, the site contains a good search engine for searching their database and a nice selection of death penalty briefs (although Florida, noted above, is highly over represented.

Resources from State/Regional Sites:

Equal Justice Initiative of Alabama (www.eji.org) EJI's work on the web is no less impressive than their work in the court room. The site offers a good overview of their work and the materials available off-line from them.

Illinois State Appellate Defender(state.il.us/defender/dpenalty.html) The ISAD site is the "go to" site for the Seventh Circuit on death Penry questions. Included on the site are state & federal court opinions, relief grants by the state supreme court, summary of issues before the state supreme court and the Seventh Circuit, as well as a catalog of their off line information.

Louisiana Indigent Defense Board(www.lidb.com)- The largest single collection of pretrial motions for capital cases on the web with the Louisiana Capital Defense manual. Another great site to visit.

Missouri Public Interest Litigation Clinic(www.pilc.net) PILC's website offers a good collection of post-conviction motions and pleadings, including materials, such as clemency petitions, that simply cant; be found anywhere else.

New York State Defender Association(www.nysda.org) NYSDA offers the best criminal defense and death penalty litigation in the northeast. The Hot Topicslist is the best of its sort on the net and is among the leading post-9/11 sites for defense of those "rounded up" since the terrorist attacks.

Kentucky Department of Public Advocacy(dpa.state.ky.us) The DPA site offers several unique contributions. Most notably is DPA's periodical the Advocate, the Preservation Manual& the Kentucky Evidence Manual. Although aimed at Kentucky practitioners. the applicability of the materials presented, especially the Preservation Manual, is well worth an examination.

Texas Defender Service(www.texasdefender.org) A must for Texas lawyers (or anyone involved in the fight in Texas), the TDS site offers one of the few Directory of Expert Witness Websites around, as well as their now famous report "Texas Defender Service Report - A State of Denial: Texas Justice and the Death Penalty"

Southern Center for Human Rights(SCHR.org) -- One of the best legal websites on the net from one of the most important nonprofits in the country. A good selection of articles written by Stephen Bright as well as useful general information on the death penalty. SCHR also has a "contact" list for legal resources and activists around the nation that is second to none.

Death Penalty Manuals:

Louisiana(lidb.com) Louisiana Indigent Defense Boardm's manual, slightly dated, much of the information contained

Virginia( http://law.wlu.edu/clinical/vccc/cdp.html) Although slightly dated, the Virginia Capital Case Clearinghouse's trial manual is online. The current manual is available by contacting VCCC off-line.

Federal Caselaw & Habeas Guides:

Capdefnet.org(see above)

Probono.net(see above)

Findlaw.comTodd Maybrown's Federal Habeas Corpus Review: A Brief Overviewand The New Habeas Act Checklistoffers a good overview for those new to the field of post-conviction litigation of habeas corpus jurisprudence, especially, post - AEDPA litigation.

Defense Penalty Information:

Death Penalty Information Center(www.deathpenaltyinfo.org) The first site to click to for information about the death penalty. Dick Dieter and his staff have made the website the crown jewel of abolition on the web. The site also contains the a good selection of recent law review article titles.

Legal Press and Commentary:

National Law Journal(www.law.com) The electronic version of the nation's largest circulation legal newspaper. The online version offers email updates of the daily edition & a good searchable archive of prior stories.

Findlaw.com Newsand Commentaryfrom around the globe including numerous cutting edge examinations of developing case law.

Jurist: Legal Education Network( http://jurist.law.pitt.edu/)Academia from around the country writing and debating about issues impacting the procession.

Information Gathering Tools:

Deja.com Recently bought by Google.com, Deja tracks all posting to usenet groups. The site provides a quick source for impeachment evidence, basic information, and even basic research into non-legal areas that members of a defense team may be unfamiliar.

Northernlight.com-- The site offers two different types of search results, free and fee. The fee side offers a search engine that seems to get results that other sites don't. The fee side, however, offers an interesting collection of professional periodicals, peer review journals & law reviews that simply cant be found anywhere else under one roof, including, at least in my experience, Nexis.

Other Tools & Sites of Note:

Discussion lists -- A discussion list for legal professionals involved with capital litigation can be found at capitaldedfense@yahoogroups.com. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. Subscribe: capitaldefense-subscribe@onelist.com

National Association of Criminal Defense Lawyers(www.nacdl.org)-- The names says it all. The onsite death penalty materials are not as numerous and/or well put together as they could be, however, a solid site overall.

National Association Of Federal Defenders (federaldefenders.com) NAFD has summarized the many of the various reversible error lists from around the country at http://www.federaldefenders.org/revr_errors_2000.pdf

Citizen United for Alternatives to the Death Penalty(www.cuadp.org) -- This site, as well as the related Abolition Action Committee, offer the best listing of ongoing anti-death penalty events in the nation. The CUADP and the AAC (through Abe Bonowitz and others) also provide an invaluable resource for attorneys wishing to get in contact with grassroots activists around the country.

National Coalition Against the Death Penalty(www.ncadp.org) -- The site of the nation's largest anti-death penalty groups offers some solid in depth resources on upcoming executions, as well as good information on ongoing legislative drives around the nation.

Canadian Coalition to Abolish the Death Penalty(www.ccadp.org)-- This site is the most information packed site on death row inmates, clemency campaigns and claims of innocence on the web. Although the not the easiest site on the web to navigate, it is a must see for activist, and lawyers should visit it to find out [1] what information it lists on their clients, and [2] to see how a web campaign for the client's life can be put together. Like the CUADP listed above, CCADP is run on a shoestring budget with impact well beyond its relatively meager economic resources.

Clark County Indiana Prosecutor(www.clarkprosecutor.org) -- No discussion of death penalty resources on the web would be complete without discussing the enormous list of materials catalogued by the site. They may be on the wrong side of the issue but they are an invaluable catalog of resources.

The Other Side of the Wall(www.prisonwall.org), A must for California practitioners, Arnold Erickson's site is one of the oldest criminal defense website on the net, and the oldest active site dealing with issues of postconviction that I am aware. In quality and endurance, Mr. Erickson is s true pioneer.

Equal Justice USA (www.quixote.org/ej/) A good collection of materials relating to moratoria, execution of innocents, and the case of Mumia Abu Jamal.

Campaign for Criminal Justice Reform's (justice.policy.net/) The first source to turn to for back round information on the national political discussion on the death penalty. CCJR is the home for the Liebman study on error in capital cases, and numerous other articles.

Sites That Have Disappeared:

Two sites that lead to the legal revolution noted above have disappeared, perhaps before many got a chance to view them. Randy Wheeler's "Criminal Defense Links," since taken over by the Kentucky Department of Public Advocacy, remains the standard which all other criminal defense sites on the web must measure up to. Likewise www.abolition-now.com provided an incredible mix of lawyers and activists in one place that provided an outstanding combination of energy, information and interaction that has not been matched since.

ERRATA

TheDeath Penalty Information Centerreports:

Florida Death Row Inmate's Conviction Overturned

A Florida judge has ruled that death row inmate Juan Melendez deserves a new trial because prosecutors withheld evidence that may have changed the outcome of his trial. "Without knowledge of and access to the suppressed evidence, the defendant did not receive a fair trial," wrote Circuit Judge Barbara Fleischer. In the opinion, Fleischer pointed out that there was no physical evidence against Melendez. "The [withheld] evidence . . . helps substantiate the defense theory that someone other than the defendant committed the homicide," wrote the judge. (Associated Press, 12/5/01). Florida leads the country in the number of people exonerated and freed from death row. See also, innocence and the death penalty.

NEW RESOURCES: NAACP Legal Defense & Education Fund's "Death Row USA"

The latest edition of Death Row USA shows that the number of inmates is now at 3,709. This marks the second time this year that Death Row USA has reported a decline in the death row population. The report also provides a state-by-state breakdown by race and gender, a list of prisoners on death row by state, the executions in each state, and a summary of pending U.S. Supreme Court cases. Death Row USA is now available from DPIC as a pdf document (requires the free program Adobe Acrobat).

DNA Exonerates Four Illinois Inmates

The Cook County state's attorney's office is dropping charges against four Illinois men, Calvin Ollins, Larry Ollins, Omar Saunders, and Marcellius Bradford, after recent DNA tests cleared them of a 1986 rape and murder. The four were convicted as teenagers and three of them were serving life sentences. The fourth man, Bradford, was convicted on a lesser charge after he confessed and served 6 years in prison.

Defense attorneys argued that his confession was coerced. The tests were initiated after a DNA expert challenged the work and testimony of Chicago crime lab analyst Pamela Fish. The cases Fish worked on are currently under investigation by the state. (New York Times, 12/5/01) See also, innocence and the death penalty.

Tennessee Supreme Court Finds Execution of Mentally Retarded Unconstitutional

The Tennessee Supreme Court ruled that executing individuals with mental retardation is cruel and unusual punishment prohibited by both the Tennessee and U.S. Constitutions. ''We conclude that there is compelling evidence that the execution of mentally retarded individuals violates the evolving standards of decency that mark the progress of a maturing society both nationally and in the state,'' wrote Justice Riley Anderson in the majority opinion. In addition, the court held, ''We also have determined that the execution of any mentally retarded individuals, who by definition have significantly sub-average intelligence functioning and deficits in adaptive behavior, is grossly disproportionate and serves no valid penological purpose.''

Although the state passed a law to prohibit such executions in 1990, the statute did not apply retroactively. (Associated Press, 12/4/01) The U.S. Supreme Court will address the constitutionality of executing those with mental retardation this term. See also, mental retardation and the death penalty.

Alabama Death Row Inmate's Conviction Overturned

An appeals court in Alabama has ruled that death row inmate James Lewis Martin Jr. is entitled to a new trial because prosecutors withheld exculpatory evidence. "The verdict here was so tainted by the prosecutorial nondisclosure of material evidence that it was not 'worthy of confidence.' Martin was not convicted or sentenced in accordance with fundamental due process," wrote Judge Sue Bell Cobb. Among the key pieces of evidence withheld from Martin's attorneys were the fact that a key witness gave a statement under hypnosis and that another witness identified a different person in a police lineup. In 1990, Martin came within three days of execution before the Alabama Supreme Court granted a stay to allow him to pursue additional appeals. (Associated Press, 12/3/01) See also, Innocence and the death penalty.

Virginia Death Row Inmate Challenges State's Destruction of Evidence

Virginia death row inmate Robin Lovitt is challenging his conviction because an official at the Arlington County Circuit Court clerk's office destroyed evidence in Lovitt's case. Over the objections of subordinates, the Chief Deputy Clerk destroyed all of the evidence in the case, including the murder weapon, because it was taking up needed space. Lovitt maintains that he is innocent of a March 2000 murder and robbery of a pool hall employee, and contends that the evidence that was destroyed included DNA materials that, if tested, could exonerate him. (Richmond Times-Dispatch, 12/2/01) See also, Innocence and the death penalty.

Innocence Cases Prompt New Line-up Procedures in New Jersey

New Jersey became the first state in the country to implement new police line-up procedures. Attorney General John J. Framer, Jr. mandated the changes because of the growing number of wrongly convicted inmates who have been exonerated by DNA evidence. In an effort to reduce the number of mistaken identifications, which studies show is the leading cause of wrongful convictions, the new procedures recommend that suspects be viewed sequentially, not together, and that the viewing be conducted by someone who does not know who the real suspect is. "We're getting a few less identifications, but the ones we are getting are of much better quality," said Kathryn Flicker, director of New Jersey's division of criminal justice. (ABA Journal, December 2001) See also, innocence and the death penalty.

NEW RESOURCES: "No return to execution - The US death penalty as a barrier to extradition"

This new report by Amnesty International examines the practice of foreign governments which refuse to extradite suspects to the U.S. without first obtaining assurances that the death penalty will not be sought or imposed. (Amnesty International, AMR 51/171/2001) Read the report. See also, International Death Penalty and Forum on Capital Punishment and Responses to Events of September 11.

N. Carolina Executes Inmate Despite Inadequate Representation

John Hardy Rose was executed on November 30. At trial Rose was represented by twoattorneys: one, Jay Coward, who was only a few years out of law school and had never defended a murder case, much less a capital case, and the other, Marcellus Buchanan, who: had never defended a capital case and was a career prosecutorwas found to have engaged in misconduct as a prosecutor. Buchanan also hid exculpatory evidence and threatened alibi witnesses during his tenure as a prosecutorhad a daughter who worked in the DA's office and signed Rose's indictmentIn addition, Mr. Rose's legal team did not use a mental health expert and never informed the jury about Mr. Rose's extensive childhood sexual abuse. North Carolina Governor Mike Easley has yet to decide whether or not to grant clemency to Rose. (Carolina Justice Policy Center, press release, 11/26/01) For more information about the Rose case, see the press release by the Office of the Appellate Defender and the Center for Death Penalty Litigation. See also DPIC Press Release regarding other N.C. cases.

NEW VOICES: Conservative Columnist William Safire on military tribunals, especially in capital cases:

"The [Uniform Code of Military Justice] demands a public trial, proof beyond reasonable doubt, an accused's voice in the selection of juries and right to choose counsel, unanimity in death sentencing and above all appellate review by civilians confirmed by the Senate. Not one of those fundamental rights can be found in Bush's military order setting up kangaroo courts for people he designates before 'trial' to be terrorists. Bush's fiat turns back the clock on all advances in military justice, through three wars, in the past half-century."

(W. Safire, New York Times, 11/26/01) Read the entire article. See also, Forum on Capital Punishment and Responses to Events of September 11.

NEW VOICES: The latest issue of the Catholics Against Capital Punishment's Newsletter features numerous statements regarding the death penalty from Catholic officials. In addition, Christian Josi, Executive Director of the American Conservative Union and consultant on the campaign of former Vice President Dan Quayle, writes:

My fundamental problems with the death penalty began as a result of my personal concern, echoed by many on all sides of the political spectrum, that it was inconsistent for one to be "pro-life" on the one hand and condone government execution on the other. Pope John Paul II weighed in and cleared up the issue for me a bit, but dare I say, I still had my doubts.

Then came the talk of margin of error; the fact that in the course of business, the government had sentenced innocent people to death based on either just plain poor legal representation or discoveries obtained through advanced DNA technology.

. . .

The time has come for us to get beyond government executions.

(CACP News Notes, 11/26/01) See also, Statements and Resolutions from Religious Organizations and Leaders.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

CAPITAL DEFENSE WEEKLY SUBSCRIPTION INFORMATION:To subscribe to Capital Defense Weekly just drop an email tocdw@karlkeys.com& remember to put subscribe somewhere in the e-mail. The introduction to Capital Defense Weekly is published at http://capitaldefenseweekly.com/CDW. Back issues can also be located at http://capitaldefenseweekly.com/CDW. Capital Defense Weekly is published 40 times (or so) a year.

FAX IT! A new update feature is being offered. Several courts are unable to post their decisions on the net & they don't appear in Westlaw or Lexis until months well after publication & therefore they wont appear here. Your help is needed. Feel free to telefax any opinion (or even winning motion) you think may be germane to (617)249-0219 or (617)249-0557 which have been set up to turn your fax into a document file so that it can be used

RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

DISCUSSION LIST FOR LEGAL PROFESSIONALS:A discussion list for legal professionals invoved with capital litigation has been formed. The list is private & limited to just legal professionals at this time due to the natue of the conversations. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe:capitaldefense-subscribe@onelist.com

NOTICES, DISCLAIMERS & CREDITS

DISCLAIMER:Karl R. Keys, Esq*, is an attorney duly admitted in the Commonwealth of Massachusetts. This weekly has been prepared for educational & information purposes only save as noted below. Pursuant to the applicable rules governing attorney conduct this weekly & related website may or may not be construed as legal advertising, however, at of an abundance of caution please treat it as such. No claim as to legal specialization within the meaning of that term as applied lawyer advertising is made as no certification body exists in the Commonwealth, or elsewhere, to make such a specialization finding. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located athttp://capitaldefenseweekly.com/disclaimer.html. Submissions related to this letter may be reproduced without further notice.Translation:Reading this newsletter & writing to me does not make me (or those I work with, for or for me) your lawyer. Although I'm not taking on any additional capital clients, to be on the safe side I am complying with Massachusetts lawyer advertising rules. If you are in a jam call a lawyer in your state.

FAIR USE NOTICE:This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to:http://www.law.cornell.edu/uscode/17/107.shtmlIf you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.Copyright waived for noncommercial use, save for the copyrights owned by others.Translation: You can use my stuff if you don't charge, but don't use materials I quote because under federal law I simply can't give away the rights of others to their own intellectual property.

WARNING:Although the news letter & related web site are award winning and used as a resource by many, be forewarned it is usually written under the influence of extrreme caffeination at very late hour of the night/morning by someone who is well out of the mainstream of the American body poltic. Perfection takes time that doing this newsletter on a weekly basis for free, on top of a busy work week & practice schedule, simply does not allow. Please use caution before citation, which is why Lexis cites are used (see Lexisone.com on how to plug into that fantastic database system) to allow a quick double check, especially for the noncapital cases that are heavily dependent on Findlaw's weekly newsletter, a newsletter notoriously wrong on the law.

CREDITS & PUBLICATION INFORMATION: ISSN: 1523-6684