In a week with few reportable case (and several which have not been widely available yet, most notably the LaGrand decisions). This week focuses on to capital cases, Gary Graham (n/k/a Shaka Sankofa) v. Johnson andGary Walker v. Oklahoma. In Graham the Fifth Circuit examines this strong case of actual innocence on a successive petition and finds it wanting. In Walker the Tenth Circuit examines competency at trial and a Petitioner's right under Ake v. Oklahoma. One non-capital habeas case of note is out of the Ninth Circuit, Delgado v. Lewis in which that court examines what to do under the AEDPA when there is no state court decision on the merits of an issue.

In Focus

Gary Graham (n/k/a Shaka Sankofa) v. Johnson Fifth Circuit, in holding the AEDPA applies, denies Petitioner the right to file a successive habeas petition. A small portion of the holding below, those dealing with successive petitions should read the entire opinion.

The only issue raised by Graham's appeal, whether AEDPA applies to his current habeas application, is an issue of law that we review de novo. See Kiser v. Johnson, 163 F.3d 326, 326-27 (5th Cir. 1999). The two alternative pleadings are properly directed to us, rather than to the district court, in the first instance: The Motion to Recall Mandate in Previous Habeas Case asks us to withdraw our own prior decision, see Calderon v. Thompson, 118 S. Ct. 1489, 1498 (1998) ("[T]he courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."), and the Motion for Order Authorizing District Court to Consider Successive Habeas Petition must be filed in the appropriate court of appeals, see 28 U.S.C. § 2244(b)(3)(A). . . .

Finally, Graham presents a sketchy argument that AEDPA cuts off federal court review of a constitutional violation that resulted in a conviction and death sentence for a factually innocent person and, as such, constitutes an unconstitutional suspension of the writ of habeas corpus and a violation of the Fifth, Eighth, and Fourteenth Amendments.

We accept Graham's concession that AEDPA would preclude his application, see infra, but we do not agree that the statute is therefore unconstitutional. The Supreme Court has rejected the argument that AEDPA's new restrictions on successive habeas petitions are a "suspension" of the writ of habeas corpus contrary to article I, § 9, clause 2 of the federal Constitution. See Felker, 518 U.S. at 663-64.

Nor do AEDPA's amendments to § 2244(b) violate the Fifth, Eighth, and Fourteenth Amendments. We have found no support for Graham's argument that denying federal court review of a successive habeas application alleging that constitutional violations resulted in the conviction of an innocent person contravenes due process and constitutes cruel and unusual punishment. The Supreme Court has stated that a procedural limitation "is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Medina v. California, 505 U.S. 437, 445 (1992) (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (citations and internal quotation marks omitted). As Felker pointed out, the first Congress made the writ of habeas corpus available only to federal, not state, prisoners. See 518 U.S. at 663. Thus, the Framers could not have viewed the availability of habeas relief to inmates such as Graham as "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Even assuming, as Felker did, see id. at 663-64, that state prisoners' right to petition federal courts for writs of habeas corpus has become such a fundamental prerogative over the years, AEDPA's restrictions on successive applications fall within Congress and the courts' traditional power to limit abuses of the writ. "[T]he doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and developments, and judicial decisions. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process . . . ." See id. at 664 (citations and internal quotation marks omitted). As such, we do not see how the pre-AEDPA abuse-of-the-writ standards can be fundamental to our notions of due process. Similarly, a punishment is not cruel and unusual so as to violate the Eighth Amendment unless it is inhuman and barbarous, see In re Kemmler, 136 U.S. 436, 447 (1890), or, in a more modern formulation, "shocks the conscience and sense of justice of the people," Furman v. Georgia, 408 U.S. 238, 360 (1972) (Marshall, J., concurring). Given that AEDPA's successive application rules are, in the words of the Supreme Court, "well within" the traditional authority of Congress and the courts to curb abuses of the writ, we do not see how they can "shock the conscience."

Finally, assuming for the purpose of argument only that Graham is actually innocent, this court has rejected a claim such as that made by Graham that the execution of an innocent person, even where no constitutional violation has taken place, contravenes the Fifth, Eighth, and Fourteenth Amendments. While the Supreme Court assumed arguendo that in a capital case a "truly persuasive" demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim, Herrera, 506 U.S. at 417, we have rejected that theory, see Lucas v. Johnson, 132 F.3d 1069, 1074-76 (5th Cir.), cert. dism'd, 1998 WL 31389 (1998). Moreover, there is a state avenue open to Graham: He retains his right to petition the Texas Board of Pardons and Paroles for clemency.

In summary, we find that AEDPA, as construed by the Court in Lindh, applies by its terms to Graham's fourth federal habeas application. We reject Graham's contention that this application is a continuation of the application dismissed in 1996 for failure to exhaust state remedies for purposes of determining whether AEDPA applies. If we are wrong in concluding that Congress clearly evinced an intent that AEDPA should govern applications such as Graham's, we nevertheless find that the statute is not impermissibly retroactive as applied to Graham's fourth application. Finally, we hold that applying AEDPA to Graham's current application does not violate the Constitution. In this case, Congress has spoken, and we are compelled to listen.

Gary Walker v. Oklahoma Tenth Circuit denies relief on claims that "(1) his state court competency proceedings were unconstitutional; (2) he was denied due process and equal protection when the state refused to provide funds for neurological testing; (3) he was denied a fair trial because the trial judge refused to instruct on lesser included offenses; and (4) the "continuing threat" aggravating circumstance, which is the only one supporting his death sentence, is unconstitutional on its face and as applied."

Mr. Walker first contends he is entitled to federal habeas relief because the state court used an unconstitutional burden of proof at his competency hearing. In 1996, the Supreme Court struck down the "clear and convincing evidence" standard applied by the state courts here, holding that "[b]ecause Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process." Cooper v. Oklahoma, 517 U.S. 348, 369 (1996). The Court pointed out that "the State's power to regulate procedural burdens was subject to proscription under the Due Process Clause if it 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" and that "[t]his case involves such a rule." Id. at 367 (quoting Patterson v. New York, 432 U.S. 197, 201-202 (1977)). . . .

A defendant is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960); see also Lafferty v. Cook, 949 F.2d 1546, 1550 (10th Cir. 1991). Courts have held that competency claims can raise issues of both substantive and procedural due process. . . .

The distinction between substantive and procedural claims is significant because courts have evaluated these claims under differing evidentiary standards. In addition, we have held that a procedural competency claim is subject to waiver while a substantive competency claim is not. See Nguyen v. Reynolds, 131 F.3d 1340, 1346 & n.2 (10th Cir. 1997); but cf. United States v. Williams, 113 F.3d 1155,1160 (10th Cir. 1997) (holding in direct appeal that neither substantive nor procedural due process competency rights can be waived). However, our cases have on occasion blurred the distinctions between the two claims, particularly when both claims are raised together. See, e.g., Castro v. Ward, 138 F.3d 810, 817-18 (10th Cir. 1998) (applying both procedural and substantive competency standards to claims defaulted in state court); Sena v. New Mexico State Prison, 109 F.3d 652 (10th Cir. 1997) (applying procedural standard to substantive claim defaulted in state court). We need not attempt to reconcile any inconsistencies in our cases because we conclude that if the claim here is characterized as procedural and is therefore subject to waiver, it was not waived in this case. We further conclude that Mr. Walker has failed to establish the right to habeas relief under the standards applied either to procedural or to substantive competency claims. . . .

We point out that no competency hearing had even been held at the time of Mr. Walker's direct appeal, and that consequently no basis existed then for challenging the burden of proof. Moreover, when Mr. Walker raised the failure to be given a contemporaneous hearing for the first time in his first application for post-conviction relief, the Court of Criminal Appeals considered the merits of this claim despite the failure to raise it on direct appeal. See Walker, 826 P.2d at 1005. Accordingly, we conclude that Mr. Walker is not barred by his failure to challenge the "clear and convincing evidence" standard on direct appeal.

The Oklahoma Court of Criminal Appeals alternatively held that Mr. Walker's Cooper challenge to the burden of proof was procedurally barred by his failure to raise it in his first petition for post-conviction relief when he challenged the failure to hold a competency hearing. Prior to the 1995 amendments to the state post-conviction procedures, however, it was settled law in Oklahoma that an intervening change in the law constituted sufficient reason for a petitioner's failure to raise an issue on direct appeal or in a prior application for post-conviction relief. See Walker, 934 F. Supp. at 1293 (citing cases). Moreover, Oklahoma had held that a decision qualified as an intervening change in the law even if it was based on previously announced principles so long as it constituted the Supreme Court's definitive resolution of the matter. See id. at 1293-94 (quoting Stafford v. State, 814 P.2d 685, 687 (Okla. Crim. App. 1991)). The Court of Criminal Appeals specifically noted in Valdez v. State, 933 P.2d 931 (Okla. Crim. App. 1997), that a Cooper claim would have constituted an intervening change in the law under prior capital post-convictions statutes, id. at 933 n.7. Under these circumstances, we hold that Mr. Walker is not procedurally barred from seeking habeas relief on his Cooper claim by his failure to raise it in his first state post-conviction petition, and we turn to the merits of that claim. . . .

A habeas petitioner who makes a procedural competency claim by alleging that state procedures were inadequate to ensure he was competent to stand trial is entitled to habeas relief if the state trial court ignored evidence that, viewed objectively, raised a bona fide doubt as to the petitioner's competency to stand trial. SeeDrope v. Missouri, 420 U.S. 162, 180-81 (1975); Carter, 110 F.3d at 1105 n.7; Medina, 59 F.3d at 1106. This standard is usually applied to a claim arising when a petitioner asserts that no competency hearing was held despite the existence of evidence creating a bona fide doubt regarding his competency to stand trial or to continue in a trial already begun. In the present case, although a hearing was ultimately held, Mr. Walker's competency was determined under a constitutionally impermissible standard of proof. Such a determination is not entitled to a presumption of correctness. See Lafferty, 949 F.2d at 1551 & n.4. Indeed, in view of the Supreme Court's statement in Cooper that the clear and convincing evidence requirement "allows the State to put to trial a defendant who is more likely than not incompetent," 517 U.S. at 369, the situation here is arguably analogous to that in which no hearing has taken place. Mr. Walker is therefore entitled to some form of relief if the record evidence is sufficient to raise a bona fide doubt as to his competency at the time of his trial. . . .

We have carefully reviewed the evidence pertaining to Mr. Walker's competency at the time of his trial, including the transcript of his trial testimony. This record sets out a lamentable and grievous life history. It is undisputed that Mr. Walker was brutalized physically, emotionally, and sexually by his parents. His medical records reveal a history of serious mental disease that was apparently difficult to diagnose and to treat effectively. Nonetheless, the experts who examined the evidence determined that Mr. Walker was competent to stand trial and we have found nothing in the record to the contrary. The evidence, deplorable as it is, simply does not raise a bona fide doubt as to Mr. Walker's competency at the time of his trial. Accordingly, he cannot prevail on his procedural competency claim.

[NEUROLOGICAL TESTING]

Mr. Walker contends the lack of additional testing is relevant both to his competency claims and to his insanity defense. In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court held that due process requires a defendant be provided with court-appointed psychiatric assistance at trial and during sentencing if he demonstrates his mental state will be a significant factor in those proceedings. Id. at 1091-92. Although Ake was decided in 1985 after Mr. Walker's trial, we have held it nevertheless applies to cases such as this which were pending on direct appeal at the time. See Liles v. Saffle, 945 F.2d 333, 335 n.2 (10th Cir. 1991). Under these circumstances, the question is whether, upon review of the entire record, the petitioner could have made a threshold showing of need, which requires substantive supporting facts. Id. at 336. Although general allegations of need without substantive supporting facts and undeveloped assertions that assistance would be beneficial will not suffice, id., we have construed Ake broadly, see Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995). We held in Brewer that even when the State did not present expert testimony, the Ake requirements apply if the State presented evidence at the sentencing phase concerning the defendant's future dangerousness and the defendant showed that his mental condition could have been a significant mitigating factor. Id. The inquiry is whether evidence was presented to the trial court suggesting that his mental condition was likely to be a significant factor. Castro v. Reynolds, 71 F.3d 1502, 1513-14 (10th Cir. 1995). We believe the evidence described above presented through the mental health experts was sufficient to trigger the application of Ake, and the State therefore should have provided Mr. Walker with the opportunity for the neurological testing those experts recommended.

That conclusion does not end our inquiry, however. The denial of psychiatric assistance in violation of Ake is trial error subject to harmless error analysis under the standard set forth in Kotteakos v. United States, 328 U.S. 750 (1946); see Brewer, 51 F.3d at 1529. We must therefore decide whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, 328 U.S. at 776. Under this standard, we will grant relief if we believe the error substantially influenced the jury's decision, or if we are in grave doubt as to the harmlessness of the error. See O'Neal v. McAninch, 513 U.S. 432, 436 (1995).

Our review of the record convinces us that the lack of the additional recommended testing had no substantial injurious impact on the jury's decision. Dr. Goodman testified extensively at trial in support of Mr. Walker's insanity defense. Although Dr. Goodman stated that Mr. Walker had not been given a CT scan or an electroencephalogram and that he would have been more comfortable with his opinion if Mr. Walker had been given those tests, Dr. Goodman responded affirmatively when he was asked whether he was comfortable in giving his opinion based on the information he had at that time. We have reviewed Dr. Goodman's testimony and we are not convinced the lack of these tests was significant. The focus by both the prosecution and the defense in their extensive examination of Dr. Goodman was on the nature of Mr. Walker's mental illness and the effect his illness had upon his behavior rather than on its cause. Moreover, Dr. Goodman's testimony indicated to the jury that he and other experts who had examined Mr. Walker believed that his illness did in fact have an organic component.

We likewise conclude that the lack of neurological testing did not have an injurious impact on Mr. Walker's competency proceedings. Dr. Goodman stated unequivocally his opinion that Mr. Walker was competent to stand trial. Although Dr. Goodman reiterated that a higher degree of certainty would have existed if the additional testing had been done, he did not qualify his opinion on Mr. Walker's competency. As with the question of insanity, the issue for determination in the competency proceedings was not the cause of Mr. Walker's mental illness but its effect on his ability to understand the charges against him and to aid in his defense. Accordingly, the lack of neurological testing is not grounds for federal habeas relief.

Supreme Court Capital Case Docket

Tommy D. Strickler v. Warden Greene Supreme Court on February 3, 1999 will hear oral arguments on the question of whether Brady v. Maryland was violated. The questions presented are:

1. Whether the State violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny.

2. If so, whether the State's non-disclosure of exculpatory evidence and the State's representation that its open file contained all Brady material establishes the requisite "cause" for failing to raise a Brady claim in state proceedings.

3. Whether petitioner was prejudiced by non-disclosure.

Northwestern University's Oyez' Oyez' project notes on the background of this case:

In October 1997, on a federal habeas petition, U.S. District Judge Robert R. Merhige, Jr., overturned the conviction and the death sentence because Strickler's attorneys had not received eight exhibits, known as the "Stolzfus materials", during his trial, thereby depriving him of his right to a fair trial.

The "Stolzfus materials" were eight documents containing information obtained from the prosecution's key eyewitness - Anne Stolzfus. These police notes and records could have been used to raise doubts about Stolzfus' testimony. Initially, Stolzfus could not positively identify Strickler. She could not even recall Whitlock's license plate number until after she had seen the vehicle at the police impoundment lot.

Judge Merhige found that without Stolzfus' testimony, the jury could have easily found that Henderson, and not Strickler, had been behind the brutal murder.

In June 1998, the 4th Circuit Court of Appeals reinstated the conviction and death sentence. The court found that Strickler's attorneys had had enough information and should have asked for police records on Stolzfus. Further, since the issue had not been raised in state court, it was procedurally incorrect to raise it later.

Strickler was scheduled to die by lethal injection on Sept. 16, 1998. It was to be the first execution of a white man for the death of a black individual in Virginia since the Civil War. On Sept. 11, the death row inmate made one last effort to save his life by petitioning Gov. Jim Gilmore for clemency.

After previously denying him certiorari, two days before he was scheduled to die, on Sept. 14, the U.S. Supreme Court intervened and stayed Strickler's execution. The Court then granted him certiorari on Oct. 5, 998, allowed him to proceed in forma pauperis and limited review to the three questions noted above.

Habeas Cases

Dunn v. Singletary Eleventh Circuit, holding neither of the requirements of § 2244 is met for the filing of successive petitions is met, affirms the denial of a successive petition post-AEDPA.

Delgado v. Lewis Ninth Circuit, expounding upon its holding in Davis v. Kramer concerning the AEDPA , grants habeas relief on the issue of appellate ineffectiveness. The AEDPA holding is significant and hence repeated here at length.

Because Delgado filed his federal habeas petition after April 1, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") applies to his petition. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc), cert. denied, 118 S. Ct. 586 (1997). Under AEDPA, a federal court may grant habeas relief if a state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. S 2254(d) (West Supp. 1998).

Consistent with the approach taken by other circuits, the district court concluded that because the state court had not articulated the reasoning for its decision when it denied Delgado's habeas petition, de novo review was necessary. See Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (stating that part of reasonableness review under AEDPA "requires federal courts to take into account the care with which the state court considered the subject"); Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.), cert. denied, 119 S. Ct. 587 (1998) (holding that it could not review a state court's application of "clearly established law" when the court does not give a rationale for its adverse determination; in such a case the federal court must "independently ascertain whether the record reveals a violation"); Porter v. Gramley, 112 F.3d 1308, 1313 (7th Cir. 1997), cert. denied, 118 S. Ct. 886 (1998) (holding that AEDPA mandates respect for state court judgments if they contain a "responsible, thoughtful answer reached after a full opportunity to litigate") (citations omitted). We agree.

A more deferential standard of review of a state court's application of "clearly established law" may be warranted when the state court has provided a "thoughtfully reasoned decision." Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997). And, as recently noted by a panel of our court, AEDPA's standard of review provisions "reflect the . . . general requirement that federal courts not disturb state court determinations unless the state court has failed to follow the law as explicated by the Supreme Court." Davis v. Kramer, No. 98-16122, 1999 WL 27487, at *6 (9th Cir. Jan. 26, 1999). The Davis court went on to explore and define the meaning of "clearly established law" and "unreasonable applications of law" in a careful analysis that comports with other federal courts of appeals deci sions. See id. at *6. That issue, however, is not before us because when a state court does not articulate the rationale for its determination, a review of that court's "application of clearly established Federal law" is not possible. See Cardwell, 152 F.3d at 339. Thus, when confronted with a state court decision totally devoid of reasoning, a federal district court independently must determine whether the record reveals a constitutional violation. See id. Under those circumstances, de novo review is appropriate.

This approach is in consonance with the deference we have accorded state court findings of fact on habeas review. Although AEDPA requires federal courts to defer to reasonable state court factual findings, we have, in a number of cases in which the state court did not make findings of fact, granted less deference to the state court decision. See Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (holding that when a state court has made no findings of fact," the district court's duty to ascertain the sufficiency of the evidence by engaging in a thorough review of the complete state court record is unaffected by the AEDPA"); Jeffries , 114 F.3d at 1500 (stating that when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment") (citations and internal quotation marks omitted); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996) (stating that the district court's evidentiary hearing was the first chance that the petitioner had to develop the factual basis of his claim and therefore finding that it would be inappropriate to disregard the facts developed in the district court even in the light of AEDPA), cert. denied, 117 S. Ct. 1329 (1997).

In this case, the California Court of Appeals affirmed Delgado's conviction without opinion. The court made no factual findings nor drew any conclusions of law. The Supreme Court of California summarily denied review. Six months later, the Supreme Court of California denied Delgado's petition for habeas relief, again without explanation. Such a perfunctory review, often euphemistically described as a "postcard denial," does not warrant the deference we might usually apply. Absent a reasoned explanation, federal courts are left simply to speculate about what "clearly established law" the state court might have applied, as well as how it was applied. Under these circumstances, meaningful consideration of the state court's reasoning on federal habeas review is not possible. Thus, the district court properly deduced that it was left with no alternative but to review independently the claims in the petition.

Contrary to the Deputy Warden's contention, AEDPA does not preclude the district court's application of Anders to invalidate California's no-merit brief procedure approved in People v. Wende, 600 P.2d 1071 (Cal. 1979). In Davis, we examined the interplay between Anders and the California no merit brief procedure approved in Wende, and concluded that the Wende procedure did not comport with the constitutional requirements of Anders. See 1999 WL 27487, at *4; see also Robbins v. Smith, 152 F.3d 1062, 1068 (9th Cir. 1998) (holding that, for retroactivity purposes in a case in which appellate counsel had filed a Wende brief, "[a]pplication of Anders . . . required no extension of precedent or logical interpolation. The facts of Robbins's case almost directly mirror those of Anders. Accordingly, no `new' constitutional rule was invoked in this case"), petition for cert. filed, 67 U.S.L.W. 3437 (U.S. Dec. 17, 1998) (No. 98-1037). Likewise, in this case we have applied existing Supreme Court precedent to reach our decision, a methodology consistent with AEDPA.

Further, AEDPA does not "compel " federal courts to turn an amaurotic eye to state court proceedings, nor to rubberstamp state court interpretation of federal law. Indeed, true cooperative federalism, as well as AEDPA, demands a more nuanced approach. In this case, the results hardly could be more plain. Anders has been clearly established law of the United States Supreme Court for more than thirty years. As Chief Judge Hug determined, Wende procedures do not comport with the "very low threshold" established by the Supreme Court in Anders. See Robbins, 152 F.3d at 1067-68. And as the Davis court held, nothing in AEDPA alters that assessment. See 1999 WL 27487, at *4.

On the face of this record, Delgado's appellate counsel failed to satisfy Anders by first refusing to identify any appellate issues, despite the prior listing of potential issues by trial counsel, and by then neglecting to seek to withdraw as counsel. These errors rendered appellate counsel's performance constitutionally deficient under the Sixth Amendment. See Strickland, 466 U.S. at 687-91; Davis, 1999 WL 27487, at *4. . . .

The absence of any meaningful legal assistance in this case makes a mockery of the representation of indigent defendants contemplated by the Supreme Court in Anders, Penson, Strickland, and Gideon v. Wainwright, 372 U.S. 335 (1963). Clearly established constitutional law requires competent advocacy in criminal defense, not shadowboxing. To hold otherwise would, to paraphrase Eliot, render the clear sound of Gideon's trumpet quiet and meaningless as wind in dry grass.

DISCLAIMER & CREDITS

Written and edited by Karl R. Keys, Esq., a Massachusetts practitioner, who focuses his practice on the defense of condemned. (c) 1997-1999. THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copyrighted information owned by others. This newsletter is no substitute for legal research as it doesn't cover unpublished cases, and frequently misses cases. Similarly nothing posted is warranted as to accuracy, typos, or for that much of anything else. For educational use only. USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY CLIENT RELATIONSHIP & MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. LJX materials are reproduced pursuant to the subscriber agreement ¶ 3(b). Requests for assistance are gladly forwarded to the appropriate parties, but solicitation for counsel can not, unfortunately be forwarded at this time. In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state.