In Focus

Caro v. Calderon Ninth Circuit grants an evidentiary hearing in this case on the issue of organic brain damage due to exposure to organophosphates and other chemicals by the condemned.

Failure to investigate a defendant's organic brain damage or other mental impairments may constitute ineffective assistance of counsel. See, e.g., Hendricks v. Calderon, 70 F.3d 1032, 1043-44 (9th Cir. 1995); Evans v. Lewis, 855 F.2d 631, 637-38 (9th Cir. 1988). In addition, this Court has recognized that the failure to present evidence necessary to bridge a cultural gap may constitute ineffective assistance of counsel. Siripongs, 35 F.3d at 1316. Counsel have a duty to make a reasonable investigation such that they are able to make informed decisions about how best to represent their clients. Strickland, 466 U.S. at 691; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). "Thus, we have found counsel ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so." Sanders, 21 F.3d at 1456.

Caro has presented several declarations from experts stating that no evaluation of his mental capacities is complete without information concerning Caro's exposure to neurotoxicants as well as his personal background. Caro was examined by four experts prior to trial, including one medical doctor, a psychologist, and a psychiatrist. None of the experts indicated that Caro suffered from a mental impairment severe enough to constitute legal insanity or diminished capacity. Nevertheless, the medical doctor who examined Caro prior to trial has since declared that, had he known of Caro's extraordinary exposure to pesticides, the severe physical, emotional, and psychological abuse he suffered as a child, and his social and cultural history, he would have testified that Caro had a diminished mental capacity. In addition, the competence of the psychiatrist is subject to question, since he prompted a suicide attempt by telling Caro that he should have the right to take his own life. Finally, none of the experts were neurologists or toxicologists and none conducted the neurological testing needed to evaluate the effects that the pesticides and chemicals had on Caro's brain.

Counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert. Counsel in this case was aware of Caro's extraordinary acute and chronic exposure to neurotoxicants, and yet he failed to consult either a neurologist or a toxicologist, experts on the effects of the chemical poisoning. In addition, he failed to provide those experts who did examine Caro with the information necessary to make an accurate evaluation of Caro's neurological system.

However, this case is now about the sentencing phase of Caro's trial and the effect in that phase of Caro's

chemically-induced neurological damage. It has been demonstrated that such poisoning causes inexplicable and aggressive behavior. No amount of disdain for the Yale Medical School can change the fact that the jury here was never presented with the most important evidence of mitigation -- the chemical poisoning of Caro's brain. Furthermore, the dissent fails to understand the difference between chemical poisoning causing brain damage which results in aggressive behavior and the death of a brain cell caused by the lack of oxygen as the result of a stroke which does not cause aggressive behavior. As the dissent does not understand that difference, then it is clear that a jury must have such a difference explained by experts. It may be the difference between life and death.

It is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase. "The Constitution prohibits imposition of the death penalty without adequate consideration of factors which might evoke mercy." Hendricks, 70 F.3d at 1044 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1161 (9th Cir. 1989), vacated and remanded on other grounds, 501 U.S. 901 (1991)); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989).

The government argues that Caro suffered no prejudice during the sentencing phase because the jury was presented with extensive mitigating evidence, there was overwhelming evidence of Caro's guilt, and aggravating factors weighed against him. The sentencing jury was aware that Caro was beaten and suffered head injuries as a child. The jury also knew that Caro worked as a flagger in high school and at an agricultural chemical company as an adult. The jury did not, however, have the benefit of expert testimony to explain the ramifications of these experiences on Caro's behavior. Expert evidence is necessary on such issues when lay people are unable to make a reasoned judgment alone.

In addition, this Court has held that overwhelming evidence of guilt does not ameliorate the failure to present mitigating evidence at the penalty phase. Hendricks, 70 F.3d at 1044. "The determination of whether to impose a death sen- tence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors [in California] give the jury broad latitude to consider amorphous human factors, to weigh the worth of one's life against his culpability." Id. The type of mitigating evidence omitted here is precisely the type most likely to affect a jury's evaluation of the punishment Caro should receive.

Smith v. Bowersox Eighth Circuit holds that certiorari off of direct appeal does not counts under the AEDPA's towards the one-year statute oflimitations.

Review of a state criminal conviction by the Supreme Court of the United States is considered direct review of the conviction. Bell v. Maryland, 378 U.S. 226, 232 (1964). Moreover, there is a well-established body of federal case law that interprets the phrase "final by the conclusion of direct review" to include an opportunity to seek certiorari.(4) When Congress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory construction call for us to define the statute's terms in harmony with that accepted judicial meaning. See, e.g., Evans v. United States, 504 U.S. 255, 259-60 (1992)(citing and quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Thus, a chance to solicit review of constitutional issues before the United States Supreme Court, after the end of state court proceedings, properly falls within the meaning of "final by the conclusion of direct review."

We conclude that the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ."

Capital Cases

Workman v. Bell The Sixth Circuit in an opinion that has caused some controversy due to the posture in which it reached the panel (summary judgment) and the clear dispute as to facts in the case, holds:

If a state court reaches the merits of a federal claim, then the claim is not defaulted. See Wainright v. Witt, 469 U.S. 412, 431 n.11 (1984) ("[W]here the state courts do not rely on independent state grounds for disposing of a claim and instead reach the merits of a federal question, the federal question is properly before us."). The district court determined that the decision of the Court of Criminal Appeals was based in part on state law and in part on federal law, and that "given the intertwine of federal and state law, no default would apply because of [the] plain statement requirement." This is a proper conclusion. The Tennessee Court of Criminal Appeals reached the merits of this claim. Workman III, 868 S.W.2d at 709-710. Therefore, Workman has preserved this issue for review.

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The district court addressed Workman's claim that his counsel failed to adequately investigate and present mitigating factors relating to his diminished capacity and family history. After citing evidence of Workman's counsel's activities relating to preparing a mitigation defense, the district court found: [f]irst, it is clear the defense team diligently pursued numerous angles for presenting a mitigation defense, including interviewing various family members, psychologists, and medical personnel familiar with petitioner's background. Second, despite many conferences with petitioner, it appears from counsel's files that petitioner never advised his lawyers of the history of abuse that he now presents. . . . Third, the defense team ordered two psychological exams. . . . Fourth, the evidence indicates a strong strategic reason for not pursuing investigations into petitioner's capacity; that is, counsel deliberately decided to avoid a diminished capacity defense in order to avoid introduction of evidence of petitioner's antisocial personality. Clearly, such evidence would undermine counsel's contrary efforts to present petitioner as a scared, intoxicated and inadequate individual acting atypically. . . . To the extent that counsel failed to investigate the details of petitioner's childhood, clearly those failures resulted either from petitioner's own conduct, or from reasoned decisions not to pursue fruitless, perhaps harmful, inquiries.

Failing to present any mitigating evidence is disfavored. See Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997)("The Constitution . .. requires defense counsel to reasonably investigate a defendant's background and present it to the jury. Failure to investigate or present mitigating evidence at sentencing may constitute ineffective assistance of counsel."). However, it is clear that Workman's trial counsel investigated his background and character but determined for tactical reasons not to present such information to the jury. Furthermore, Workman himself had very little information tooffer his trial counsel regarding his family history. Counsel cannot be said to have been ineffective simply because Workman now offers evidence of mitigation.

Thompson v. Cain Fifth Circuit holds, chiefly, that petitioner failed to show exulpatory nature of disputed evidence

Brady requires that upon request the prosecution must disclose to the defense evidence favorable to the accused that, if suppressed would deprive him of a fair trial. Brady, 373 U.S. at 86-87, 83 S.Ct. at 1196-97. Though Brady addressed only exculpatory evidence, this doctrine has been expanded to include impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Having reviewed the record, we find that none of the materials that appellant catalogues with relation to Perkins are in and of themselves exculpatory and thus do not fall within the ambit of Brady. Still, we must consider whether such materials were proper impeachment evidence regarding Perkins. In order for such information to be relevant impeachment evidence, it is necessary that knowledge of the reward was concealed from the defense and that Perkins himself denied knowledge of the reward. The record reflects that the defense was aware of the existence of the reward money and that Perkins might be entitled to such funds.(2) Further, the audio tapes do not indicate that Perkins requested a reward or that any member of the Liuzza family promised him a reward. The Crime Stoppers questionnaire does not indicate that Perkins was the caller, or that Perkins received any reward money. Additionally, the record indicates that at no time did Perkins deny knowledge of the reward or that he might be entitled to collect it.(3) Moreover, even if the evidence to which Thompson points were proper impeachment evidence, the prosecution is under no duty to furnish defendant with information that is readily accessible to the defense. Herrera v. Collins, 954 F.2d 1029 (5th Cir. 1992). Because defense counsel had knowledge of such evidence and could easily have requested access from the prosecution, we conclude that Thompson's Brady allegations against Perkins are without merit.

Davis v. Johnson Fifth Circuit holds that the statute of limitations period under the AEDPA is not jurisdictional and that trial counsel was not ineffective for not more arguing youth as a mitigator.

A plain reading of the language of § 2244, which contains the AEDPA limitations period, leads to the conclusion that Congress intended that the limitations period be interpreted as a statute of limitations. The limitations period does not "speak in jurisdictional terms" and does not explicitly refer to any limitations on jurisdiction. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Instead, § 2244(d)(1) states only that "a 1-year period of limitation shall apply" and does not contain any restrictive language that would imply a limit on federal court jurisdiction. The Supreme Court has held that limitations periods with even more limiting language than the AEDPA provision could be equitably tolled. See Burnett, 380 U.S. at 426 (holding that a limitations period mandating that "no action shall be maintained . . . unless commenced within three years from the day the cause of action accrued" was subject to equitable tolling). In addition, the limitation period does not establish an absolute outside limit within which suits must be filed, as in the ERISA limitations period we recently found to be a statute of repose. See Radford v. General Dynamics Corp., 151 F.3d 396, 400 (5th Cir. 1998). In that case, we found that a limitations period mandating that "[n]o action may be commenced . . . after the earlier of" six years after the last violation or three years after discovery of the violation should be interpreted as a statute of repose that could not be equitably tolled. 29 U.S.C. § 1113; see Radford, 151 F.3d at 400; see also Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998) (holding that because a provision requiring that potential plaintiffs exhaust administrative remedies before bringing § 1983 civil rights suits did not use "sweeping and direct" language limiting federal jurisdiction, the provision was not a jurisdictional bar). Section 2244(d)(1) does not prohibit the courts from entertaining actions after the statutory limit has passed; instead, it merely sets forth the relevant statute of limitations. Therefore, the statutory language of § 2244(d)(1) indicates that Congress did not intend the limitations period to divest federal jurisdiction.

This interpretation of § 2244(d)(1) is consistent with a plain reading of AEDPA's placement within the federal habeas statute. When Congress amended the habeas corpus provisions by enacting AEDPA, it took care to separate jurisdiction provisions from this limitations-period provision. The explicit grant of jurisdiction to the district courts relating to the habeas writ is contained in 28 U.S.C. § 2241. Congress chose to insert the AEDPA limitation amendment into § 2244, which concerns the finality of determinations and contains provisions relating to non-jurisdictional limitations, such as restraints on duplicative and frivolous litigation. This plain reading of the statute as a whole implies that Congress did not intend by its choice of language and placement to limit federal jurisdiction through adoption of a one-year limitations period for federal habeas claims.

AEDPA's statutory language and construction clearly evinces a congressional intent to impose a one-year statute of limitations for the filing of federal habeas claims by state prisoners. We hold, therefore, that the one-year period of limitations in § 2244(d)(1) of AEDPA is to be construed as a statute of limitations, and not a jurisdictional bar. As such, in rare and exceptional circumstances, it can be equitably tolled. See Conaway v. Control Data Corp., 955 F.2d 358, 361-62 (5th Cir. 1992) (finding that because a limitations period is not a jurisdictional requirement, "the limitation statute is subject to estoppel and equitable tolling" (citing Zipes, 455 U.S. at 393); see also Calderon, 128 F.3d at 1289 ("[AEDPA's] one-year timing provision is a statute of limitations subject to equitable tolling, not a jurisdictional bar.").

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The Texas Court of Criminal Appeals held that this conduct by Davis's attorney did not prejudice Davis's defense. See Ex parte Davis, 866 S.W.2d at 239-40. The court noted that youth is only relevant as a mitigating factor to the second special issue, whether Davis would be dangerous in the future, and that a jury may find youth mitigating within that context only if it could find that a defendant's "violent conduct is a product of his youth, [and that] he may be expected to outgrow it." Id. at 240 (citing Johnson v. Texas, 509 U.S. 350, 368 (1993)). The state court found that the wealth of evidence presented during the punishment phase of the trial concerning Davis's extensive criminal past foreclosed any reasonable probability that the jury would have found Davis capable of reforming his conduct as he matured.(7) See id. at 239-40. Because "no other mitigating aspect of youth need have been considered," the court found that Davis's defense was not prejudiced and he therefore was not deprived of effective assistance of counsel under the Sixth Amendment. Id. at 240. We cannot say that this state-court conclusion involved an unreasonable application of the Strickland test.

The Supreme Court, in Johnson v. Texas, 509 U.S. 350, 368 (1993), articulated that "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that dominate in younger years may subside." Thus, the state court did not err in determining that the relevant question under Strickland is whether the jury would have decided not to impose the death penalty after considering whether Davis's crime was a product of youthful immaturity. The prosecutor legitimately presented detailed evidence concerning Davis's extensive criminal past during the punishment phase of the trial that could have reasonably persuaded jurors that Davis's crime was not a product of his youth. Based on this evidence, we cannot say that the state court's determination that Davis's defense was not prejudiced by his attorney's failure to object to the prosecutor's statements was unreasonable. This conclusion was not "so clearly incorrect that it would not be debatable among reasonable jurists." Drinkard, 97 F.3d at 769; see Brock v. McCotter, 781 F.2d 1152, 1158 (5th Cir. 1986) (finding no Sixth Amendment violation after prosecutor improperly told juror that youth could not be considered a mitigating factor, as "where no reasonable person would view a particular fact as mitigating it may properly be excluded as irrelevant"). Therefore, we decline to issue Davis a COA on this ground. 2. Intentional versus deliberate conduct

Lilly v. Virginia, 1998 WL 596783 (Nov. 9, 1998). The Court granted certiorari in this capital case direct appeal to consider the following questions:

I. Whether the admission into evidence of a custodial confession by an alleged accomplice, which confession inculpates a criminal defendant in a capital murder case, consistently minimizes the declarant's role and shifts blame onto others, offered under a state exception to the hearsay rule as a declaration against interest of an unavailable witness because the declarant refused to testify under the Fifth Amendment, violates the Confrontation Clause of the Sixth Amendment?

II. Whether there is a firmly rooted exception to the hearsay rule which would permit the admission into evidence of a custodial confession by an alleged accomplice, which confession inculpates a criminal defendant in a capital murder case, consistently minimizes the declarant's role and shifts blame onto others, without violating the Confrontation Clause of the Sixth Amendment?

III. In assessing the reliability of the hearsay statements of an unavailable declarant, offered as a declaration against interest, whether the Sixth and Fourteenth Amendments prohibit consideration of corroborating evidence other than the circumstances surrounding the making of the statement?

Habeas

Agard v. Portundo The Second Circuit in one of the hottest cases in that Circuit in recent years examnines a petition for rehearing in that case : "Appellee's petition argues, for the first time, that the majority's opinions created a "new rule" that, under Teague v. Lane, 489 U.S. 288 (1989), cannot be retroactively applied. In this circumstance, where the Teague issue was not raised in the district court and raised for the first time in the court of appeals only in the petition for rehearing, we believe that a panel has the discretion not to consider the issue. Teague is not jurisdictional in the sense that a court must invoke it sua sponte where applicable. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994); Ciak v. United States, 59 F.3d 296, 302-03 (2d Cir. 1995) (court need not address Teague argument where government did not raise it in brief or at oral argument). Moreover, the Supreme Court has declined to apply Teague where it was argued for the first time in a case only after certiorari was granted. See Schiro v. Farley, 510 U.S. 222, 228-29 (1994). Teague itself is driven in part by considerations of comity. But comity also calls for representatives of states not to agree to federal courts expending substantial time in addressing the merits of a case, only to argue belatedly that the merits should not have been reached."

Fields v. Johnson Fifth Circuit holds that AEDPA mandates a reasonable time (1 year from the passage of the AEDPA) to file a habeas application if the petition would otherwise be time barred prior to April 24, 1997.

Courts also faced applicants whose one-year time limit had already run before AEDPA became effective. Fields also falls into this category; the time for his state appeal lapsed in July 1993, Tex. R. App. P. 202(b); therefore, the § 2244(d)(1) period would have expired in July 1994.

But, in Flores, 135 F.3d at 1002-05, considering a § 2255 movant, our court joined several sister circuits in granting such otherwise-time-barred prisoners a "reasonable" length of time to file such motions. See Ross v. Artuz, 150 F.3d 97, 101 (2d Cir. 1998); Joseph v. McGinnnis, 150 F.3d 103, 104 (2d Cir. 1998); Mickens v. United States, 148 F.3d 145, 147-48 (2d Cir. 1998); Rosa v. Senkowski, 148 F.3d 134, 135-36 (2d Cir. 1998); Peterson v. Demskie, 107 F.3d 92, 92-93 (2d Cir. 1997); Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374-75 (4th Cir. 1998); O'Connor v. United States, 133 F.3d 548, 550 (7th Cir. 1998); Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 118 S. Ct. 899 (1998); Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998), petition for cert. filed, no. 98-5195; U.S. v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997).

Flores based its "reasonableness period" on the holding of Hanner v. State of Mississippi, 833 F.2d 55 (5th Cir. 1987), and Culbreth v. Downing, 28 S.E. 294 (N.C. 1897), that claims accruing before a change in a limitations period must be filed within the shorter of (1) the time allowed by the old limitation period, running from the claim's accrual, and (2) the time allowed by the new limitation period, running from the time of the change. Flores, 135 F.3d at 1005, 1006 (quoting Culbreth, 28 S.E. at 296, and Hanner, 833 F.2d at 59). Because, pre-AEDPA, § 2255 motions were not subject to a limitations period, AEDPA's limitations period amounted to the new statute of limitations period running from 24 April 1996.

Flanagan clarified the Flores period in two ways. First, the reasonableness period applies to § 2254 applications as well as to § 2255 motions. Flanagan, 154 F.3d at 200 n.2; cf. Flores, 135 F.3d at 1002 n.7. Second, the period does not include the day of AEDPA's enactment, Flanagan, 154 F.3d at 200-02; accordingly, applications filed on 24 April 1997 are timely.

Tyson v. Keane Second Sircuit in examing the right of indigents to expert assistance holds that "Ake and Durant are distinguishable because of the type of expert assistance requested. Ake asked for a psychiatrist; Durant for a fingerprint analyst. These types of experts offer information and analysis that a non-expert cannot provide. Although the jury remains the ultimate judge of sanity, without expert assistance "the risk of an inaccurate resolution of sanity issues is extremely high." Ake, 470 U.S. at 82. Similarly, a jury cannot discern whether a fingerprint from the scene matches defendant's prints without expert assistance. Voice identification, however, does not depend on specialized expertise. Juries may listen to an audiotape of a voice and determine who is speaking even though the voice has been authenticated only by a lay witness rather than an expert. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence ¶ 901.07 (Joseph M. McLaughlin ed., 2d ed. 1998); Ricketts v. City of Hartford, 74 F.3d 1397, 1409-11 (2d Cir. 1996); United States v. Sliker, 751 F.2d 477, 496-500 (2d Cir. 1984) "

Wilcox v. FL. Dept of Corr. Eleventh Circuit allows access to habeas relief under § 2254 despite the district court finding of the time having run to file, holding "while Wilcox's appeal was pending, this Court addressed this issue in Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998). In Goodman, this Court determined that federal prisoners whose convictions became final before the AEDPA's effective date of April 24, 1996, "must be given a reasonable time after the enactment of § 105's one-year 'period of limitation' to file their § 2255 motions, and, under these circumstances, a reasonable period is until April 23, 1997-one year from the date of enactment of § 105 of the AEDPA." Id. at 1337. Goodman also cited with approval the Ninth Circuit's holding that the one-year period of limitation included in the AEDPA amendment to 28 U.S.C. § 2244 "d[oes] not begin to run against any state prisoner prior to the statute's date of enactment." Goodman, 151 F.3d at 1337 (citing Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 118 S. Ct. 1389 (1998)). This Court declared that to hold otherwise and bar this prisoner group from filing habeas corpus petitions "would be unfair and impermissibly retroactive." Id. .. We find the holding of Goodman should extend to § 2254 petitions and that Wilcox's petition was timely filed for purposes of the AEDPA because it was filed within a reasonable time-within one year from the AEDPA's effective date.

Paters v. United States Seventh Circuit addresses effectiveness of counsel in rejection g a plea deal. " The district court applied the wrong prejudice analysis in this case. In order to establish prejudice, Paters must show (1) through objective evidence that (2) there is a reasonable probability that, but for counsel's inadequate performance, he would have accepted the government's offer. Paters has certainly met the second prong of that test. He has alleged a reasonable probability that, but for counsel's inadequate performance, he would have accepted the government's offer.

Ellerby v. USA Second Circuit grants a remand so that petitioner can add claims to his § 2255 petition to include claims of ineffective assistance of counsel that had been include in the direct appeal brief

Spunge v. Parke Seventh Circuit holds no error in prosecutorial comments relating to the invocation of silence as well as the interrogation that led to those comments.

Hendrick v. Attorney General of Oklahoma Tenth Circuit dismisses for lack of exhaustion a petition challenging a DUI conviction on double jeopardy grounds.

Smith v. Bowersox Eighth Circuit holds that certiorari off of direct appeal does not counts under the AEDPA's towards the one-year statute oflimitations.

Review of a state criminal conviction by the Supreme Court of the United States is considered direct review of the conviction. Bell v. Maryland, 378 U.S. 226, 232 (1964). Moreover, there is a well-established body of federal case law that interprets the phrase "final by the conclusion of direct review" to include an opportunity to seek certiorari.(4) When Congress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory construction call for us to define the statute's terms in harmony with that accepted judicial meaning. See, e.g., Evans v. United States, 504 U.S. 255, 259-60 (1992)(citing and quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Thus, a chance to solicit review of constitutional issues before the United States Supreme Court, after the end of state court proceedings, properly falls within the meaning of "final by the conclusion of direct review."

We conclude that the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ."

Roe v. Delo Eighth Circuit grants the habeas petitioner a new direct appeal holding:

The instruction error was significant and would have been apparent to a reasonably competent appellate attorney who took the time to compare the first degree murder instruction given with the governing statute and Missouri Approved Criminal Instruction. Other, less meritorious instruction issues were raised on direct appeal, suggesting that the failure to raise this issue was oversight, not deliberate strategy. Indeed, in an affidavit submitted in support of Roe's motion to recall the mandate, appellate counsel averred that he could not recall why the claim was omitted, but it was not because of a "strategic decision." In these circumstances, we conclude the ineffectiveness prong of Strickland turns on whether an objectively reasonable attorney would have presented the issue for plain error review because it had a reasonable likelihood of success. In other words, this is the rare case where both Strickland prongs turn on the same question, whether there is a reasonable probability that the outcome of Roe's appeal would have been different had this issue been raised.

DeJesus v. United States Second Circuit affirms "a district court order denying his petition to vacate his conviction of using or carrying a firearm during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Relying on the United States Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), DeJesus argues that the trial court gave the jury an erroneous instruction regarding the meaning of "use" under § 924(c)."

Sicurella v. United States Second Circuit holds that federal law mandates that when a gun is used in a crime a five year sentence must be tacked on to run consecutively, not concurrently, with the underlying offense.

In Depth

In honor of this week's conference at Northwestern University on innocence, here is a brief overview of 75 cases of innocents walking free from death row in the last quarter of a century.

1. David Keaton (Florida, Convicted 1971, Released 1973) Sentenced to death for murdering an off-duty deputy sheriff during a robbery. Charges were dropped and he was released after the actual killer was convicted.

2. Samuel A. Poole (North Carolina, Convicted 1973, Released 1974) After being convicted of first degree burglary and given a mandatory death sentence, Poole had his conviction overturned by the N.C. Supreme Court because the case lacked substantial evidence that he was the person who broke into the home.

3. James Creamer (Georgia, Convicted 1973, Released 1975) Sentenced to death for a murder allegedly committed with six other individuals. After an investigation by the Atlanta Constitution, a federal judge declared that the prosecution had withheld and destroyed evidence, a witness admitted she had lied in court, and another man confessed to the crimes. The convictions against all seven men were overturned, and charges were later dropped.

4. Wilbert Lee (Florida, Convicted 1963, Released 1975)

5. Freddie Pitts (Florida, Convicted 1963, Released 1975) Lee and Pitts were convicted of a double murder and sentenced to death. They were released when they received a full pardon from Governor Askew because of their innocence. Another man confessed to the killings.

6. Thomas Gladish (New Mexico, Convicted 1974, Released 1976)

7. Richard Greer (New Mexico, Convicted 1974, Released 1976)

8. Ronald Keine (New Mexico, Convicted 1974, Released 1976)

9. Clarence Smith (New Mexico, Convicted 1974, Released 1976) These four were convicted of murder, kidnaping, sodomy, and rape and were sentenced to death. They were released after a drifter admitted to the killings and a newspaper investigation uncovered lies by the prosecution's star witness.

10. Delbert Tibbs (Florida, Convicted 1974, Released 1977) Sentenced to death for the ape of a sixteen-year-old and the murder of her companion. The conviction was overturned by the Florida Supreme Court because the verdict was not supported by the weight of the evidence. Tibbs' former prosecutor said that the original investigation had been tainted from the beginning.

11. Earl Charles (Georgia, Convicted 1975, Released 1978) Convicted on two counts of murder and sentenced to death. He was released when evidence was found that ubstantiated his alibi. After an investigation, the district attorney announced that he would not retry the case. Charles won a substantial settlement from city officials for misconduct in the original investigation.

12. Jonathan Treadway (Arizona, Convicted 1975, Released 1978) Convicted of sodomy and first degree murder of a six-year-old and sentenced to death. He was acquitted of all charges at retrial by the jury after 5 pathologists testified that the victim probably died of natural causes and that there was no evidence of sodomy.

13. Gary Beeman (Ohio, Convicted 1976, Released 1979) Convicted of aggravated murder and sentenced to death. Acquitted at retrial when evidence showed that the true killer was the main prosecution witness at the first trial.

14. Jerry Banks (Georgia, Convicted 1975, Released 1980) Sentenced to death for two counts of murder. The conviction was overturned because the prosecution knowingly withheld exculpatory evidence. Banks committed suicide after his wife divorced him. His estate won a settlement from the county for the benefit of his children.

15. Larry Hicks (Indiana, Convicted 1978, Released 1980) Convicted on two counts of murder and sentenced to death. He was acquitted at retrial when witnesses confirmed his alibi and when the eyewitness' testimony from the first trial was proven to be perjured.

16. Charles Ray Giddens (Oklahoma, Convicted 1978, Released 1981) Conviction and death sentence reversed by the Oklahoma Court of Criminal Appeals on the grounds of insufficient evidence and the charges were dropped.

17. Michael Linder (South Carolina, Convicted 1979, Released 1981) Acquitted at retrial on the grounds of self-defense.

18. Johnny Ross (Louisiana, Convicted 1975, Released 1981) Sentenced to death for rape. He was released when his blood type was found to be inconsistent with that of the rapist's.

19. Anibal Jarramillo (Florida, Convicted 1981, Released 1982) Sentenced to death for two counts of first degree murder. He was released when the Florida Supreme Court ruled the evidence did not sustain the conviction.

20. Lawyer Johnson (Massachusetts, Convicted 1971, Released 1982) Sentenced to death for first degree murder. The charges were dropped when a previously silent eyewitness came forward and implicated the state's chief witness as the actual killer.

21. Anthony Brown (Florida, Convicted 1983, Released 1986) Convicted of first degree murder and sentenced to death. At the retrial, the state's chief witness admitted that this testimony at the first trial had been perjured and Brown was acquitted.

22. Neil Ferber (Pennsylvania, Convicted 1982, Released 1986) Convicted of first degree murder and sentenced to death. He was released at the request of the state's attorney when new evidence showed that the conviction was based on the perjured testimony of a jail-house informant.

23. Joseph Green Brown (Florida, Convicted 1974, Released 1987) Charges were dropped after the 11th Circuit Court of Appeals ruled that the prosecution had knowingly allowed false testimony to be introduced at trial. Brown came within 13 hours of execution.

24. Perry Cobb (Illinois, Convicted 1979, Released 1987)

25. Darby (Williams) Tillis (Illinois, Convicted 1979, Released 1987) Convicted and sentenced to death for a double murder. They were acquitted at retrial when an assistant state's attorney came forward and destroyed the credibility of the state's chief witness.

26. Henry Drake (Georgia, Convicted 1977, Released 1987) Re-sentenced to a life sentence at his second retrial. Six months later, the parole board freed him, convinced he was exonerated by his alleged accomplice and by testimony from the medical examiner.

27. John Henry Knapp (Arizona, Convicted 1974, Released 1987) Originally sentenced to death for the arson murder of his two children. He was released after new evidence about the cause of the fire prompted the judge to order a new trial. His third trial in 1991 resulted in a hung jury. Knapp was again released in 1992 after an agreement with the prosecutors in which he pleaded no contest to second degree murder. He steadfastly maintained his innocence.

28. Vernon McManus (Texas, Convicted 1977, Released 1987) After a new trial was ordered, the prosecution dropped the charges when a key witness refused to testify.

29. Anthony Ray Peek (Florida, Convicted 1978, Released 1987) Convicted of murder and sentenced to death. His conviction was overturned when expert testimony was shown to be false. He was acquitted at his second retrial.

30. Juan Ramos (Florida, Convicted 1983, Released 1987) Sentenced to death for rape and murder. The decision was vacated by the Florida Supreme Court because of improper use of evidence. At his retrial, he was acquitted.

31. Robert Wallace (Georgia, Convicted 1980, Released 1987) Sentenced to death for the slaying of a police officer. The 11th Circuit ordered a retrial because Wallace had not been competent to stand trial. He was acquitted at the retrial because it was found that the shooting was accidental.

32. Jerry Bigelow (California, Convicted 1980, Released 1988) Convicted of murder and sentenced to death after acting as his own attorney. His conviction was overturned by the California Supreme Court and he was acquitted at retrial.

33. Willie Brown (Florida, Convicted 1983, Released 1988)

34. Larry Troy (Florida, Convicted 1983, Released 1988) Originally sentenced to death after being accused of stabbing a fellow prisoner, they were released when the evidence showed that the main witness at the trial had perjured himself.

35. William Jent (Florida, Convicted 1980, Released 1988)

36. Earnest Miller (Florida, Convicted 1980, Released 1988) A federal district court ordered a new trial because of suppression of exculpatory evidence. They were released immediately after agreeing to plead guilty to second degree murder. They repudiated their plea upon leaving the courtroom and were later awarded compensation by the Pasco County Sheriff's Department because of official errors.

37. Randall Dale Adams (Texas, Conviction: 1977, Released 1989) He was ordered to be released pending a new trial by the Texas Court of Appeals. The prosecutors did not seek a new trial due to substantial evidence of Adam's innocence. Subject of the movie, The Thin Blue Line.

38. Jesse Keith Brown (South Carolina, Convicted 1983, Released 1989) The conviction was reversed twice by the state Supreme Court. At the third trial, he was acquitted of the capital charge but convicted of related robbery charges.

39. Robert Cox (Florida, Convicted 1988, Released 1989) Released by a unanimous decision of the Florida Supreme Court on the basis of insufficient evidence.

40. Timothy Hennis (North Carolina, Convicted 1986, Released 1989) Convicted on three counts of murder and sentenced to death. The North Carolina Supreme Court granted a retrial because of the use of inflammatory evidence. At retrial, Hennis was acquitted.

41. James Richardson (Florida, Convicted 1968, Released 1989) Released after re-examination of the case by Janet Reno of the Miami State's Attorney's office which concluded he was innocent.

42. Clarence Brandley (Texas, Convicted 1980, Released 1990) Awarded a new trial when evidence showed prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses. All charges were dropped. Brandley is the subject of the book White Lies by Nick Davies.

43. Patrick Croy (California, Convicted 1979, Released 1990) Conviction overturned by state Supreme Court because of improper jury instructions. Acquitted at retrial after arguing self-defense.

44. Dale Johnston (Ohio, Convicted 1984, Released 1990) Sentenced to death for the murder of his stepdaughter and her fiancée. His conviction was overturned in 1988 by the Ohio Supreme Court because the prosecution withheld exculpatory evidence from his defense, and because one witness had been hypnotized. The state later dropped the charges.

45. John C. Skelton (Texas, Convicted 1982, Released 1990) Convicted of killing a man by exploding dynamite in his pick-up truck. The conviction was overturned by the Texas Court of Criminal Appeals due to insufficient evidence.

46. Gary Nelson (Georgia, Convicted 1980, Released 1991) Nelson was released after a review of the prosecutor's files revealed that material information had been improperly withheld from the defense. The county district attorney acknowledged: "There is no material element of the state's case in the original trial which has not subsequently been determined to be impeached or contradicted."

47. Bradley P. Scott (Florida, Convicted 1988, Released 1991) Convicted of murder ten years after the crime. On appeal, he was released by the Florida Supreme Court because of the insufficiency of the evidence.

48. Sonia Jacobs (Florida, Convicted 1976, Released 1992) Jacobs and her companion, Jesse Tafero, were sentenced to death for the murder of 2 policemen at a highway rest stop in 1976. A third co-defendant received a life sentence after pleading guilty and testifying against Jacobs and Tafero. The jury recommended a life sentence for Jacobs, but the judge overruled the jury and imposed death. A childhood friend and fillmmaker, Micki Dickoff,

then became interested in her case. Jacob's conviction was overturned on a federal writ of habeas corpus in 1992. Following the discovery that the chief prosecution witness had failed a lie-detector test, the prosecutor accepted a plea in which Jacobs did not admit guilt, and she was immediately released. Jesse Tafero, whose conviction was based on much of the same highly questionable evidence, had been executed in 1990 before the evidence of

innocence had been uncovered. 49. Charles Smith (Indiana, Convicted 1983, Released 1991) Sentence to death for a street robbery and murder of a young woman. The man who claimed to be the getaway driver had his charges dropped in exchange for testifying against Smith. The Indiana Supreme Court overturned his conviction in 1989 because of ineffective assistance of counsel. He was acquitted at re-trial after presenting evidence that witnesses

against him had lied under oath.

50 . Jay C. Smith (Pennsylvania, Convicted 1986, Released 1992) A former high school principal who was convicted of the 1979 murder of 3 people, though his death sentence was later reduce to life. He was freed after the Pennsylvania Supreme Court unanimously ruled that the prosecution had withheld crucial evidence, calling the state's action "egregious" misconduct.

51. Kirk Bloodsworth (Maryland, Convicted 1984, Released 1993) Convicted and sentenced to death for the rape and murder of a young girl. He was granted a new trial and given a life sentence. He was released after subsequent DNA testing confirmed his innocence.

52. Muneer Deeb (Texas, Convicted 1985, Released 1993) Deeb was originally sentenced to death for allegedly contracting with three hitmen to kill his ex-girlfriend. He consistently claimed no involvement in the crime. Deeb's conviction was overturned by the Texas Court of Criminal Appeals in 1991 because improper evidence had been admitted at his first trial. He was retried and acquitted. (See David Spence below who was executed on the same evidence).

53. Federico M. Macias (Texas, Convicted 1984, Released 1993) Convicted for the slaying of Robert Haney. He was granted a writ of habeas corpus because of ineffective assistance of counsel and possible innocence. A grand jury refused to re-indict because of lack of evidence.

54. Walter (Johnny D.) McMillian (Alabama, Convicted 1988, Released 1993) Conviction was overturned by the Alabama Court of Criminal Appeals. He was freed after three witnesses recanted their testimony and prosecutors agreed the case had been mishandled.

55. James Robison (Arizona, Convicted 1977, Released 1993) Convicted of murder and conspiracy in 1977 in the death of a reporter, Don Bolles. His conviction was overturned in 1980, but he was recharged with the offense in 1990. He was acquitted at retrial in December 1993.

56. Gregory R. Wilhoit (Oklahoma, Convicted 1987, Released 1993) Convicted of killing his estranged wife while she slept. His conviction was overturned and he was released in 1991 when 11 forensic experts testified that a bite mark found on his dead wife did not belong to him. The appeals court also found ineffective assistance of counsel. He was acquitted at retrial in April 1993.

57. Joseph Burrows (Illinois, Convicted 1989, Released 1994) No physical evidence linked Burrows to the murder of William Dulin. The prosecution's two chief witnesses recanted their testimony against Burrows, and one of them confessed to the murder for which Burrows had been sent to death row. One of the witnesses said he had been coerced by prosecutors and police. Burrows was released, and the Illinois appellate courts have upheld the overturning of his conviction.

58. Andrew Golden (Florida, Convicted 1991, Released 1994) A high school teacher in Florida convicted of murdering his wife. His conviction was overturned by the Florida Supreme Court in 1993. The court held that the state had failed to prove that the victim's death was anything but an accident. Golden was released into the waiting arms of his sons on January 6, 1994.

59. Clarence Smith (Louisiana, Convicted 1985, Released 1994) Smith's conviction was overturned by the state Supreme Court because the jury was improperly instructed. He was acquitted at a retrial and released. The principal witnesses at both trials were two convicts with a long list of crimes who were given immunity and plea bargains in exchange for their testimony.

60. Sabrina Butler (Mississippi, Convicted 1990, Released 1995) Sentenced to death for the murder of her nine-month-old child. When she found her baby not breathing, she performed CPR and took him to the hospital. She was interrogated by the police and then prosecuted. Her conviction was overturned by the Mississippi Supreme Court in 1992. Upon re-trial, she was acquitted on December 17, 1995 after a very brief jury deliberation. It is now believed that the baby may have died either of cystic kidney disease or from SIDS.

61. Robert Charles Cruz (Arizona, Convicted 1981, Released 1995) Cruz was charged with planning the killing of two people in Phoenix in 1980. He went through five trials, including two convictions and two mistrials, before his acquittal on June 1, 1995. The chief prosecution witness, a convicted burglar and former drug dealer, was given immunity for his testimony.

62. Rolando Cruz (Illinois, Convicted 1985, Released 1995) Sentenced to death with Alejandro Hernandez for the 1983 murder of Jeanine Nicarico. Granted a new trial by the Illinois Supreme Court, he was re-tried in 1990 and again sentenced to death even though another man, Brian Dugan, had confessed to the crime. At his third trial, the judge entered a directed verdict of not guilty before the defense ever put on its case. Three prosecutors and four law enforcement officials involved in the prosecution of the case have been indicted for obstruction of justice.

63. Alejandro Hernandez (Illinois, Convicted 1985, Released 1995) Sentenced to death with Rolando Cruz for the 1983 murder of Jeanine Nicarico. He was retried in 1990, but the trial ended in a hung jury. The third trial in 1991 resulted in an 80 year prison sentence. The conviction was overturned by the Illinois Supreme Court in 1995. Only his own indirect statements, no physical evidence, linked Hernandez, who is borderline retarded, to the crime. He was released on bond and charges were subsequently dropped after his co-defendant's acquittal. The U.S. Department of Justice is considering an investigation of civil rights iolations in this case.

64. Adolph Munson (Oklahoma, Convicted 1985, Released 1995) Conviction was unanimously overturned by Oklahoma's highest criminal appeals court because the state withheld material evidence tending to exonerate Munson. Some of the forensic evidence at trial was provided by Dr. Ralph Erdmann, who was subsequently convicted of seven felony counts involving misrepresentation of facts in other cases and stripped of his license. Munson was acquitted at retrial.

65. Verneal Jimerson (Illinois, Convicted 1985, Released 1996) Sentenced to death for a 1978 murder of a youn couple (see also Dennis Williams). Paula Gray, the chief witness against him, had an IQ of 57. She later recanted her entire testimony, saying the police forced her to lie. The original charges were dismissed but were resurrected 7 years later when the police offered to drop charges against Gray if she would implicated Jimerson. Gray's 50 year sentence was converted to 2 years probation. In 1995, the Illinois Supreme Court unanimously reversed Jimerson's conviction based on Gray's false testimony. He was released on bond and the charges against him were subsequently dropped.

66. Gary Gauger (Illinois, Convicted 1993, Released 1996) Convicted of killing his parents in April 1993. In March 1996, the U.S. District Court overturned his conviction, ruling that authorities never had probable cause to even arrest Gauger or subject him to 21 hours of intensive questioning. He was released in October 1996 by the same judge that had sentenced him to die by lethal injection. His sentence had earlier been reduced to life in prison. The prosecution did not challenge his release.

67. Troy Lee Jones (California, Convicted 1982, Released 1996) The California Supreme Court granted Jones a new trial because he was not adequately defended at his original murder trial. The Court found his attorney failed to conduct an adequate investigation, speak with possible witnesses, obtain relevant police reports or seek pre-trial investigative funds. Moreover, the attorney elicited damaging testimony against his own client during cross-examination of a witness. Six months later, the prosecution announced it was dropping all charges against Jones.

68. Carl Lawson (Illinois, Convicted 1990, Released 1996) Convicted and sentenced to death for the murder of Terrence Jones in a family dispute. He was tried three times. The first conviction was overturned, in part because Lawson's public defender had been an assistant prosecutor when Lawson was arrested. The second trial ended in a hung jury, 11-1 for acquittal. At his third trial, Lawson was acquitted.

69. Roberto Miranda (Nevada, Convicted 1982, Released 1996) Released after the prosecution declined to retry him following the reversal of his conviction. Miranda maintained his innocence throughout his 14 years on death row. Prosecutors originally offered him a plea bargain whereby he would serve as little as 10 years in prison, but he refused because he was innocent. At trial, he was represented by an attorney with one year's experience who had inherited the case when his colleague died. In overturning his conviction, the judge wrote: "The lack of pretrial preparation by trial counsel...cannot be justified."

70. Dennis Williams (Illinois, Convicted 1979, Released 1996) Convicted along with three others (see Verneal Jimerson) for the 1978 murder of a young couple. After 18 years in prison, Williams was released because new evidence showed that all four men were wrongly convicted. Much of the investigative work which led to their release was done by three journalism students. Recent DNA tests indicate that none of the four men were involved in the crime, and another man has confessed to the murder. Charges were dropped and the Cook County State's Attorney apologized to these four men.

71. Ricardo Aldape Guerra (Texas, Convicted 1982, Released 1997 Sentenced to death for the murder of a police officer in Houston. Federal District Judge Kenneth Hoyt ruled on November 15, 1994 that Guerra should either be retried in 30 days or released, stating that the actions of the police and prosecutors in this case were "outrageous," "intentional," and "done in bad faith." He further said that their misconduct "was designed and calculated to obtain...another notch in their guns." Judge Hoyt's ruling was unanimously upheld by the U.S. Court of Appeals. A new trial was granted to Guerra, but the D.A. dropped the charges instead. Guerra was released and returned to his native country of Mexico where he was killed in a car accident in August 1997.

72. Benjamin Harris (Washington, Convicted 1985, Released 1997) The U.S. Court of Appeals vacated Harris' conviction because his original trial lawyer was incompetent. Harris maintains his innocence and says he was framed for the 1984 murder of Jimmie Turner. Harris' attorney interviewed only 3 of the 32 witnesses listed in police reports and spent less than 2 hours consulting with Harris before trial. His co-defendant was acquitted. The prosecution decided not to retry Harris but tried to have him confined as insane. They had previously argued that he was competent to stand trial. A jury decided that Harris should not be detained at a state hospital.

73. Robert Hayes (Florida, Convicted 1991, Released 1997) Convicted of the rape and murder of a co-worker based partly on faulty DNA evidence. The Florida Supreme Court threw out Hayes' conviction and the DNA evidence in 1995. The victim had been found clutching hairs, probably from her assailant. The hairs were from a white man, and Hayes is black. Hayes was acquitted at retrial.

74. Randall Padgett (Alabama, Convicted 1992, Released 1997) Convicted of murdering his estranged wife in 1990 and sentenced to death. The conviction was overturned by the Alabama Court of Criminal Appeals in 1995, and Padgett was acquitted at retrial. There was some evidence presented that another woman committed the crime.

75. Curtis Kyles (Louisiana, Convicted 1984, Released 1998) Kyles' conviction was overturned by the U.S. Supreme Court because the prosecution had withheld material evidence. His successful appeal was in the form of a federal habeas corpus petition since he had lost all appeals in state court. The state withheld considerable information about a paid informant who may have been the actual murderer. Subsequent retrials ended in hung juries with the majority voting for acquittal. After the fifth hung jury, the prosecutor finally dropped all charges.

76. Robert Lee Miller, Jr. (Oklahoma, Convicted 1988, Released 1998) Convicted of the rape and murder of two elderly women. However, recent DNA evidence pointed to another defendant who was already incarcerated on similar charges. The conviction was overturned in 1995, and Miller was granted a new trial. An Oklahoma County Special Judge dismissed charges against Miller saying there was not enough evidence to justify his continued imprisonment. The prosecution finally decided to drop charges, and Miller was freed.

I add to the list those killed despite of plausible claims of innocence (this list is by no means exhaustive).

[A}Roy Stewart (Fl) -- was convicted of the murder of a woman in 1979. The sole witness to testify against him stated that he had confessed the killing to her. But some years after the trial she admitted that her story was not true, and was given for the sole purpose of avoiding a jail sentence herself for forgery and possession of marijuana. She was released from jail following her testimony at Stewart's trial and was paid a cash reward for her false story. Three state's Attorneys who prosecuted Stewart later came forward opposing the execution for lack of evidence. One of the state's Attorneys said, "The state completely botched the investigation of the scene. They threw away critical evidence. I came to learn... that they also had not pursued other defendants who had much more legitimate contact with the decedent than Mr. Stewart." However, even over the objections of the prosecuting attorneys, Roy Stewart was executed on April 22, 1994.

[B] Jesse Tafero (Fl) -- was sentenced to death along with Sonia Jacobs for the murder of two policemen at a highway rest stop in 1976. A third co-defendant received a life sentence after pleading guilty and testifying against Jacobs and Tafero. A childhood friend and filmmaker, Micki Dickoff, then became interested in Jacobs case. Jacobs's conviction was overturned on a federal writ of habeas corpus in 1992. Following the discovery that the chief prosecution witness had failed a lie-detector test, the prosecutor accepted a plea in which Jacobs did not admit guilt, and she was immediately released. Jesse Tafero, whose conviction was based on much of the same highly questionable evidence, had been executed in 1990 before the evidence of innocence had been uncovered.

[C] Willie Darden (Fl)-- was convicted of the murder of a store owner during an attempted robbery. Alibi evidence from two completely independent witnesses came to light in 1986, showing that Darden could not have committed the murder. This new evidence was never considered by the courts on its merits, but was dismissed on technical grounds. Even before this new evidence emerged, the U.S. Supreme Court was bitterly divided over the case and upheld the conviction by a narrow five-to-four majority. The dissenting justices criticized the majority for being "willing to tolerate a level of fairness and reliability so low it should make conscientious prosecutors cringe." Willie Darden.was executed on March 15, 1988.

[D]David Spence (Tx) -- Prosecution argued that a certain drug dealer (Muneer Deeb)wanted several people dead and then presented evidence that linked the targets of the murder for hire to Deeb. The prosecution than argued that Spence killed the wrong people because he mistook them for the intended target. In addition to the evidence admitted into evidence (including someone else's confession to the crime) in the initial trial and federal habeas proceedings, additional witness have come forward since that time and DNA evidence of another person (the source being neither those convicted of the crime nor the victims) found on the victims body. Deeb, the person who supposedly hired Spence to do the killing, had his capital conviction reversed on appeal and was later found not guilty by a jury of his peers using much of the evidence uncovered by Spence's attorney. For more details see Bob Herbert's articles from this past summer in the NYT, as well as HBO's -- The Execution machine.

[E] James Adams (Fl) -- Adams was convicted of first-degree murder, sentenced to death, and executed in 1984. A witness who identified Adams as driving the car away from the victim's home shortly after the crime was later discovered that this witness was angry with Adams for allegedly dating his wife. A second witness heard a voice inside the victim's home at the time of the crime and saw someone fleeing. He stated this voice was a woman's; the day after the crime he stated that the fleeing person was positively not Adams. More importantly, a hair sample found clutched in the victim's hand, which in all likelihood had come from the assailant, did not mach Adams' hair. Much of this exculpatory information was not discovered until the case was examined by a skilled investigator a month before Adams' execution.

[F] Ellis Felker (Ga) --Felker was the main suspect and was put under police surveillance within hours of her disappearance, which occurred fourteen days before the discovery of her body in a creek. An autopsy then put her death within the previous five days. However, when it was realized that this would have ruled Felker out as a suspect because he had been under police surveillance for the previous two weeks, the findings of the autopsy were changed. Attorneys representing Felker during the appeals process showed notes and photographs of Ludlam's body to pathologists who unanimously concluded that she could not have been dead for longer than three days. Unfortunately, Felker discovered this information too late as Congress changed the standard of late round appeals just prior to Felker filing his list appeal.

[G] Walter Blair (Mo.) -- claims of innocence were never heard because he presented them to late (successor habeas proceedings). Blair produced seven affidavits which had shown his actual innocence of the crime. Five of the affiants alleged that another man, Ernest Jones, admitted in their presence that he had killed the victim and framed Blair. Unlike Herrera's case (see below) these did not rely on hearsay, and there were no internal inconsistencies on the relevant points among the seven affidavits. There also was a plausible explanation for the delay in bringing forth the evidence--all seven affiants testified they feared Jones because they knew he previously had committed multiple murders. One affiant was a trial witness; her affidavit claimed that she had falsified her trial testimony at Jones' direction because she feared him. The petition also alleged prosecutorial misconduct, allegations, that were likewise never fully aired.

[H] Roger Coleman (Va) -- A case in constant controversy, evidence produced in the late-innings of the appeal seemed to cast doubt on Coleman's guilt in the murder of Wanda McCoy and rather pointed to Donney and Michael Ramey, the former reportedly having admitted his guilt to three woman while brutally raping them in manner consistant with the manner in which the decedent was raped prior to her death. Nell Shortridge whose son was a friend of Donney and Michael Ramey, found a plastic garbage bag in the back of his pickup truck. Inside it he found a bloody sheet, a flashlight, a pair of scissors and two cowboy shirts. The sheet had "more blood than a person could lose without having to go to the hospital," said Nell Shortridge, who reported the bag and its contents to a county sheriff. But he said he never inquired further about the items and they were eventually thrown into a landfill.

[I] Joseph O'Dell (Va) -- Sperm found in the victim's body (Helen Schartner/44) had different genetic markers than O'Dell's. Other evidence used to bolster O'Dell's plea included the lack of physical evidence; evidence found at the scene -- cigarettes, footprints and tire tracks -- not matching O'Dell's personal effects; and an alleged confession to Schartner's murder by double murderer David Pruett, who was executed in December 1993. Evdience linking him to the murders, in light of a DNA test was a "3-probe DNA match between Schartner's blood and the bloodstains on (O'Dell's) blue jacket,'' however when studied by four expert witnesses for both the defense and prosecution and that the tests were ''found to be in error because. . . the procedure and test were outdated according to FBI standards.''

[J] Leonel Herrera (Tx) -- presented affidavits and positive polygraph results from a variety of witnesses, including an eyewitness to the murder and a former Texas state judge, both of whom stated that someone else had committed the crime. However, the Supreme Court ruled that innocence alone does not justify a federal hearing on this evidence nor was federal habeas relief available for mere innocence.

[K] Robert Nelson Drew (Tx) -- A second accused, Ernest Puralewski, was convicted of the murder and sentenced to 60 years' imprisonment. Puralewski later came forward with a signed affidavit in which he stated that he alone had been responsible for the crime: "I am the person who murdered Jeffrey Mays and Robert Drew is innocent." Robert Drew's lawyers sought a new hearing so that this late evidence could be considered on its merits, but their requests were turned down.

[L] Barry Fairchild (Ar) -- sentenced to death in August 1983 for the kidnap, rape and shooting death of Marjorie "Greta" Mason. The conviction was based solely on a videotaped 'confession'. Blood, hair, and semen samples could not be linked to Fairchild. The 'confession' video shows Barry Fairchild's Head wrapped in bandages, indicating he was subject to severe beating. 13 other black men were questioned by Pulaski County Sheriff Tommy Robinson and Deputy Larry Dill and also subjected to extreme physical and mental torture. Michael Johnson, questionend at the same time as Fairchild, states he heard Fairchild's screams and noises similar to beating using a baseball bat. Sheriff Tommy Robinson and Deputy Larry Dill denied ever using excessive force to obtain confessions. Two Federal Court judges, while upholding the death sentence, have ruled that Fairchild was not the actual killer.

[M] Jesse Jacobs (Tx) -- Jacobs does not have an explicit claim of innocence, rather he was executed despite someone else being convicted under a different theory of the case: Jacobs had been convicted and sentenced to death after the state had put on evidence to show that he was the actual killer in an abduction ending in murder which also involved a co-defendant. At the later trial of the co-defendant, the state reversed its story and said it was the co-defendant, not Jacobs, who pulled the trigger. The DA who put him on the row later fought to get him off the row, but the state AG's office refused.

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