A judge who denies a stay of execution in a capital case often wonders if an innocent man is going to his death...Those doubts exist because our system of criminal justice does not work with the efficiency of a machine--errors are made...[T]he sad truth is that a cog in the machine often slips: memories fail; mistaken identifications are made; those whose wield the power of life and death itself--the police officer, the witness, the prosecutor, the juror, and even the judge--become overzealous...And at times there is a venal combination between the police and a witness.

Justice Douglas, Foreword, J. Frank & B. Frank, Not Guilty 11--12 (1957).

[T]here is evidence that innocent people have been executed before their innocence can be proved... No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony, and human error remain all too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some.

Furman v. Georgia, 408 U.S. 238, 364, 367-68 (1972) (Marshall, J., concurring) (footnote omitted).

A "majority of the Commission" on capital punishment in Illinois believed, after a thorough study, that "no system can or will be constructed which sufficiently guarantees that the death penalty will be applied without arbitrariness or error ..." (Error meaning a wrongful conviction). The Commission was "unanimous in the belief that no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death."

http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf. Preamble at iii.

Even the rabid ⁽²³⁾ pro-death penalty fringe group the United States Attorney relies upon admits the inevitability of the execution of the innocent. In a link from prodeathpenalty.com, another anonymous author states:

"But no matter how many precautions the state governed by law takes, it is just as well reasonable to assume that some innocent may come, not only to be sentenced to death, but even executed. No doubt this is the most tragic (sic) that can occur in a state that introduces the capital punishment. An innocent person who has been executed will never have the opportunity to be restored and compensated by the State, and will be gone forever. But this is a known risk that a modern and democratic state must be prepared to take."

http://w1.155.telia.com/~u15509119/ny_sida_4.htm#svar 1

In 1999, the Illinois Supreme Court did reject the argument made here in Bull. Interestingly, the Court appeared to admit that the execution of the innocent is a fact or a future certainty. "Have mistakes been made? Will mistakes be made? Certainly." Id. at 842. We submit that Justice Harrison's partial dissent is the better position. "Innocent people are being sentenced to death." Bull at 847 (Harrison, J., dissenting) "[T]he execution of an innocent person is inevitable ..." ⁽²⁴⁾ Id. at 848.

DPIC lists 5 executions despite substantial doubts about guilt. These individuals are: Roger Coleman, Joseph O'Dell, David Spence, ⁽²⁵⁾ Leo Jones and Gary Graham. The listing is illustrative and not exhaustive. There are other cases of grave doubt: Jesse Tafero whose co-defendant, Sonia Jacobs, was later released. Radelet, et al., would also including James Adams. In additional to Gray Graham and David Spence, the Texas Defender Service lists four other executions (Robert Drew,

Odell Barnes, Jr., Richard Jones and David Stoker) involving doubts about guilt. Other possible innocence cases (Arnold - executed January 16, 2002) have recently emerged. ⁽²⁶⁾

Defendants would ask the government, if it was beyond dispute that 100 innocent citizens had been executed, should the Courts intercede? Obviously, the answer is yes. But what if it were only 90, or 80, or 5? Sufficient evidence has emerged to require this Court to respond. ⁽²⁷⁾

"There has been an 'incredible lag' between the development of modern scientific methods of investigation and their application to criminal cases." Furman, 408 U. S. at 368 n.158 (Marshall, J. concurring). The development of new forensic techniques and technologies is sure to result in additional exonerations. We submit that the 32 exonerations in ten years is merely the tip of an iceberg of unknown size. We only know there are more innocents on death row and in the grave. The 5^th and 8^th Amendments prohibit adding to this total.

A documentary directed by John McHale, entitled: "Unreasonable Doubt: The Joe Amrine Case," strongly suggests that Missouri is about to execute an innocent man. ⁽²⁸⁾ The film may be viewed at: http://www.communication.ilstu.edu/activities/documentary.htm.

According to the Arizona Tribune (May 18, 2002) due to a new DNA test, David Hyde, has been moved off death row to a local jail awaiting the County Attorney's decision whether to retry him. The County Attorney, Richard Romley, insists that Hyde is guilty regardless of the DNA evidence that has emerged.

"Rep. Bill McCollum, R-Fla., admits that some innocent people will die, but says that the tradeoff is worth the security of keeping the death penalty. 'I don't think there's any question that someday somebody who is innocent will be executed in this country,' McCollum told ABCNEWS' Nightline Monday, night . . . ." Jackie Cooperman, ABCNEWS.com, July 15, 1997, <http://more.absnews.go.com/sections/us/death715/index.html: [Exhibit U].

Justice Stevens has written in disgust about this position.

This Court's recent refusal to stay an execution provides an illustration. After a jury had sentenced the defendant, the prosecutor announced that a different person had pulled the trigger. Nevertheless, the State executed the condemned man without giving him a chance to present this information to a jury. See Jacobs v. Scott, 513 U.S. 1067 (Stevens, J., dissenting from denial of stay of execution). Six days later, a news account described death penalty supporters' lack of concern about the danger of executing innocent people. 'One [proponent of capital punishment] likened the death penalty to a childhood vaccine approved by the government with full knowledge that at least one child, somewhere, would die from an adverse reaction.'

Verhovek, When Justice Shows Its Darker Side, N.Y. Times, Jan. 8, 1995, section 4, p. 6.

Harris v. Alabama, 513 U.S. 504, 523 (1994) (Stevens J., dissenting).

We submit that there is substantial proof that Gary Graham was innocent. [See the affirmation of Richard Burr, separate Graham Exhibit]. No jury or judge ever heard this evidence. We ask this Court to do so. See In re Gary Graham, 530 U.S. 1256 (June 22, 2000) denying original writ of habeas corpus (Stephens, Suter, Ginsberg and Bryer, J.J., dissenting). ⁽²⁹⁾ It is a sad irony that the Supreme Court has so often erected procedural hurdles to the condemned's efforts to exonerate themselves in the very cases presenting the most doubt of guilt. See, e.g., Graham v. Collins, 506 U.S. 461, 467 (1993) (Teague bars Penry claim); Coleman v. Thompson, 501 U.S. 722, 57 (1992) ("Last Term the Court ruled that Roger Coleman could not present his arguments on the merits to the federal courts, simply because the person then acting as his attorney had made a trivial error in filing his notice of appeal three days late... Coleman has now produced substantial evidence that he may be innocent of the crime for which he was sentenced to die. Yet the Court once again turns him away, this time permitting the Commonwealth of Virginia to execute him without a hearing ..." Coleman v. Thompson, 504 U.S. 188 (1992) (Blackmun, J., dissenting from a denial of a stay); O'Dell v. Netherland, 521 U.S. 151 (1997) ((Teague bars Simmons claim); Murray v. Giarratano, 492 U.S. 1 (1989) (neither the 8^th Amendment nor due process requires states to appoint counsel for indigent death row inmates seeking state post-conviction relief.)

In Herrera, only a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant's ability to get a hearing on a claim of actual innocence. Ibid. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera without the benefit of an evidentiary hearing. The Court is unmoved by this dilemma, however; it prefers "finality" in death sentences to reliable determinations of a capital defendant's guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment's competing constitutional commands, or that the Federal Judiciary will provide meaningful oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional.

Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 1138 (1994) (Blackmun J., dissenting).

The government claims that there has been "no demonstration that any innocent defendant ... has been sentenced to the death penalty under the FDPA." [GM 29]. In fact, David Ronald Chandler was innocent. http://www.capdefnet.org/htm_library/Chandler1.htm. This is why the President of the United States granted clemency. This is why the Attorney General of the United States recommended clemency. ⁽³⁰⁾ Almost 30 years ago to the day, in Furman v. Georgia, the Supreme Court "concluded that the death penalty, as then administered under various state and federal statutes, constituted a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments." Pulley v. Harris, 465 U.S. 37, 68 (1984) (Brennan, J. dissenting). The Court drew no distinction between state and federal sentencing schemes. There was no suggestion that the federal statutes produced a superior, more reliable, outcome.

"At that time, the Court was convinced that death sentences were being imposed in a manner that was so arbitrary and capricious that no individual death sentence could be constitutionally justified." Id. The Court's ruling applied to all cases, state and federal, including obviously guilty death row inmates. This Court should follow Furman.

"Even the most sophisticated death penalty schemes are unable to prevent human error from condemning the innocent." Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 1138 n.8 (1994) (Blackmun J., dissenting). Nor has the government made any effort to demonstrate what "safeguards" under the Federal Death Penalty Act are "more elaborate than those provided in most states." [GM at 5, 13].

So far, federal prosecutors have filed at least 20 capital charges against the legally or factually innocent, including 7 defendants acquitted after the Attorney General declined to order a death penalty trial ⁽³¹⁾ and 7 acquitted after extensive scrutiny in a three level review process within the Department of Justice, producing a collective decision to file a "death" notice. ⁽³²⁾ So, the Attorney General has sought the death penalty against 10 innocent citizens and prosecutor's have admitted that two or three of those were innocent. ⁽³³⁾

So far, two inmates have been executed after review. One condemned inmate, Chandler, has been released from death row due to doubts about his guilt. One could argue that is an "error rate" of 33%. 31 citizens have recently been condemned to die in federal court [GM 27]. ⁽³⁴⁾ Five death sentences have already been reversed and two of these individuals were not resentenced to death. Only 15 of these death sentences have been affirmed on appeal, so serious error is committed thus

far in at least 1 in every 4 federal death penalty trials. The government's assertion that federal authorities are somehow less prone to err than state authorities is very questionable. ⁽³⁵⁾

Federal authorities employ notoriously unreliable "cooperating witnesses" with a disturbing frequency and far more often than state authorities. ⁽³⁶⁾

Criminal witnesses testifying for benefits contribute to wrongful convictions in many capital convictions. In Campbell, "Issues of Consistency in the Federal Death Penalty, A Round Table Discussion on the Role of the U.S. Attorney" (Vera Institute of Justice, 2002), http://www.vera.org/publications/publications_5.asp?publication_id=161, former United States Attorney for the Eastern District of New York, Loretta Lynch, suggested that murder cases end up in federal court precisely because it is easier to present accomplice testimony. Id. at 7.

Another former U.S. Attorney in the same district, Zachary Carter, stated he was "reluctant to seek the death penalty, even if he felt the crime warranted it on every other level" in cases involving cooperator testimony because "accomplices, usually cooperating in exchange for lighter sentences themselves, may perceive an advantage in embellishing their testimony ..." http://www.vera.org/publications/publications_5.asp?publication_id=161. (Emphasis added.)

Recently, former United States Attorney Michael Dettmer, of the Western District of Michigan, discussed "prematurely ... charging ... a defendant with a federal death penalty crime based only on circumstantial evidence, to then discover they had the wrong person. ⁽³⁷⁾ http://www.vera.org/publications/publications_5.asp?publication_id=161 Id. at 5.

The evidence against these defendants appears to be exclusively: 1) motive and 2) "co-operator" testimony. ⁽³⁸⁾ Thus, this is precisely the type of case which can result in a miscarriage of justice. Additionally, the government is incorrect that Alan Quinones, at least, doesn't make a claim of "actual innocence." That is precisely what his not guilty plea did. Nor is this necessary in order to make a facial constitutionality attack on the death penalty.

Most practices which lead to wrongful convictions exist equally in federal and state courtrooms. Some occur more frequently in federal cases. They are:

2 DNA Inclusions

6 Other Forensic Inclusions

15 False Confessions

16 Informants / Snitches

17 False Witness Testimony

21 Microscopic Hair Comparison Matches

23 Bad Lawyering

26 Defective or Fraudulent Science

34 Prosecutorial Misconduct

38 Police Misconduct

40 Serology Inclusion

61 Mistaken I.D.

http://www.innocenceproject.org/causes/index.php

"[W]e do not doubt that clemency [for the possibly innocent condemned] --like the criminal justice system itself--is fallible." Herrera, 506 U. S. at 415 n15. Notwithstanding President Clinton's grant of clemency to Chandler, given the numbers of exonerations we now confront, clemency is not an adequate safeguard, particularly in this era when lack of support for capital punishment is widely viewed as the political kiss of death. "Executive clemency--the traditional backstop that was said to prevent execution 'when there is the slightest doubt of guilt'--has shriveled up in recent years. It is now too uncommon to have a major impact on the danger of executing innocent defendants." Gross, "Lost Lives: Miscarriages of Justice in Capital Cases", 61 Law & Contemp. Probs. 125, 135 (1998) , quotng Carrington, Neither Cruel nor Unusual 123 (1978). See Michael L. Radelet & Barbara A. Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Rich. L. Rev. 289 (1993); Neal Walker, Executive Clemency and the Death Penalty, 22 Am. J. Crim. L. 266 (1994).

There is a second type of arbitrariness the Court might include in its analysis. "The second type of error in capital punishment occurs when we execute someone whose crime does not seem so aggravated when compared to those of many who escaped the death penalty." Kaplan, The Problem of Capital Punishment, 1983 U.Ill.L.F. 555, 576, quoted in Pulley v. Harris, 465 U.S. 37, 68-69 (1984) (Brennan, J. dissenting).

In fact, the very first involuntary execution in the modern era, of John Spenkellink, was precisely such an error. "As I read the record, he was probably guilty of voluntary manslaughter, or at most second-degree murder. He was a drifter who killed another drifter who had sexually assaulted him. Although he received capital punishment in Florida, in California most district attorneys would probably have been happy to accept a plea to second-degree murder in such a case. Kaplan, supra, at 576. See Spinkellink v. Wainwright, 578 F.2d 582, 586 n. 3 (CA5 1978); Spinkellink v. State, 313 So.2d 666, 668 (Fla.1975)." Pulley v. Harris, 465 U.S. 37, 68 (1984) (Brennan, J. dissenting). There have been hundreds since.

Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted...yet the finality of death precludes relief."

Furman, 408 U. S. at 290 (Brennan, J. concurring). The Court should broaden it's consideration of wrongful executions to include a larger pool of cases. "[T]he rate of executions of people for whom death is not a legal punishment, though some other penalty may be, is probably substantial." Liebman, "Opting for real death penalty reform," http://www.law.ohio-state.edu/LawJournal/liebman.htm .

Elsewhere, in defendants' other death penalty submissions, we present evidence that the federal government did not seek the death penalty against scores of more culpable capital defendants, including dozens of cases involving murder and multiple murder by members of the white mob. While nothing is more horrific than the execution of the innocent, being "struck by lightening" in this regard, violates the mandate of Furman.

The Government argues that the constitutional challenge to the FDPA based on the inevitability of the execution of innocent persons is not justiciable prior to the actual imposition of a death sentence. Despite the existence of numerous constitutional rulings by trial courts on the state and federal level, the Government asserts that such a determination by this Court would be "advisory" and therefore precluded by the ripeness doctrine. For a variety of reasons, the Government's position is baseless.

1. The law of "ripeness."

The requirement that a case be ripe for adjudication is a limitation on judicial review in the federal jurisdiction. The general principle of ripeness is supported by various policy considerations. Essentially, a controversy is ripe for review when it is "concrete and focused" involving a statute or regulation which has been applied to the claimant. See Rotunda, R. & Nowak, J., Treatise on Constitutional Law, § 2.13 at 208 (West 1999). For example, United States v. Mitchell, 330 U.S. 75 (1947), concerned a constitutional challenge to the Hatch Act, which, in relevant part, prohibited partisan political activity on the part of federal employees of the Executive Branch. The plaintiffs sought declaratory relief and an injunction to prevent enforcement. At the time of the challenge, only one of the plaintiffs had actually violated the Act. The Court held that only the claim of the plaintiff who had been charged with political activity was ripe for review. As for the others, the Court declined "to bring under [federal court] jurisdiction ill-defined controversies over constitutional issues." Id. at 91.

The Supreme Court's ripeness jurisprudence has been enunciated predominantly in the context of applications for declaratory relief from federal and state statutes and regulations. Thus, on the one hand, the Court held that an action against the INS seeking to enjoin the implementation of certain policies which could result in disparate treatment of some aliens domiciled in the United States was not ripe. International Longshoremen's & Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222 (1954). In so doing, the Court described the plaintiffs' plea for relief as, in effect, asking "the District Court to rule that a statute the sanctions of which had not been set in motion against individuals on whose behalf relief was sought, because an occasion for doing so had not arisen, would not be applied to them if in the future such a contingency should arise." 347 U.S. at 223-24. On the other hand, in Cramp v. Board of Public Instruction, 368 U.S. 278 (1961), the Court held ripe the challenge to a Florida loyalty oath statute by a plaintiff who refused to take the oath because of the vagueness of its language. The Court found "direct and serious" injury would occur to the plaintiff if the constitutionality of the statute were not reviewed, noting that

the very vice of which he complains is that the language of the statute is so vague and indefinite that others could with reason interpret it differently. He argues, in other words, that he could unconstitutional be subjected to all the risks of a criminal prosecution despite the sworn allegations as to his past conduct . . . .

368 U.S. at 284.

The ripeness doctrine is most frequently invoked by a reviewing court which is asked to rule on the validity of a statute or regulation which has yet to be enforced. See Mitchell, supra; Int'l Longshoremen, supra; Cramp, supra; Nutritional Health Alliance v. Shalala, 144 F.3d 220 (2d Cir. 1998); Thomas v. City of New York, 143 F.3d 31 (2d Cir. 1998). In the criminal context, with limited exceptions, the question of ripeness arises when federal courts are asked to review enactments by individuals who anticipate that the statute may be enforced against them in the future. See, e.g., Cramp, supra. When resolution of an issue turns on whether "there are nebulous future events so contingent in nature that there is no certainty they will ever occur," the case is not ripe for adjudication. Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir. 1998) (quoting In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1146 (2d Cir. 1993)) In determining whether a controversy is ripe for review, courts must look to (1) the fitness of the issue for review and (2) the hardship to the parties of withholding consideration. Texas v. United States, 523 U.S. 296, 300-01 (1998), citing Abbott Labs v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977); In re Drexel Burnham Lambert Group, Inc., 995 F.2d at 1146 (also citing Abbott).

2. Considerations of ripeness do not preclude review of the constitutionality of the FDPA.

The question whether the FDPA is unconstitutional because of the likely prospect that innocent persons will be executed is a justiciable issue now because it meets both prongs of the Abbott test. The first prong, whether the claim is fit for judicial review requires that a pre-enforcement facial challenge to a statute involve a purely legal question not dependent upon the manner in which it is applied to a particular claimant. See Nutritional Health Alliance v. Shalala, 144 F.3d at 225. In other words, does the determination of the constitutionality of the statute turn on a factual record to be developed in a future proceeding. Id. at 226. Here, it clearly does not. The facts, as presented by the defendants, are the studies which demonstrate that the existence of the death penalty itself will result in the death of a meaningful number of innocent people. There is no future event upon which this question could depend. It is the absence of a future remedy for wrongfully-convicted death-sentenced innocents which is the constitutional vice created by the operation of the FDPA.

The issue presented is also justiciable under the second portion of the Abbott ripeness test, because the FDPA creates "a direct and immediate hardship" for the defendants. The fact that the Government seeks the execution of Messrs. Quinones and Rodriguez under the FDPA triggers the implementation of the extraordinary measures entailed in a capital-murder trial. The jurors must be subjected to death-qualification, meaning that otherwise-qualified jurors who cannot set aside their conscientious opposition to the death penalty will be eliminated from judging the defendants' case. The jury will be told that the Government seeks death as punishment even before it has made a determination of innocence or guilt. Trial strategy decisions inevitably will be influenced by the prospect of a penalty phase. Finally, in the event they are convicted, the defendants will participate in a proceeding whose result will determine whether they live or die.

In Cramp v. Board of Public Instruction, the Supreme Court held that the potential that a person will be "subjected to all the risks of criminal prosecution . . ." for perjury constituted a direct and serious hardship so as to make a claim justiciable. 368 U.S. at 283. Similarly, in United States v. Mitchell, the Court agreed that the case was justiciable as to one plaintiff because the mere charge that he violated the Hatch Act created the potential for disciplinary action against him. 330 U.S. at 91. Given the extreme nature of the consequences for the defendants here, there can be no doubt that, if judicial review is withheld, they will suffer direct and immediate hardship. ⁽³⁹⁾

3. Numerous courts have reviewed constitutional challenges prior to trial.

An alternative way to measure the justiciability of a constitutional claim is to look to the manner in which the same or similar claims are addressed by courts of comparable jurisdiction. The fact that other courts entertain and decide these issues is particularly significant in this context because the issue of ripeness is a jurisdictional one which must be raised sua sponte by the court if not raised by the parties. See Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57 n.18 (1993); Thomas v. City of New York, 143 F.3d 31 (2d Cir. 1998).

An examination of comparable cases demonstrates that federal district judges nationwide have addressed constitutional challenges to the FDPA. Federal defendants have argued before federal district courts that the federal death penalty, whether the FDPA or 21 U.S.C. § 848, is facially unconstitutional for a variety of reasons. With only one exception to be addressed below, the district courts have viewed those issues to be justiciable. See United States v. Bin Laden, 126 F. Supp.2d 290 (S.D.N.Y. 2001). ⁽⁴⁰⁾

Furthermore, circuit courts which have considered similar challenges on appeal have yet to express concern about the exercise of jurisdiction over such claims by a district court. See United States v. Acosta-Martinez , 252 F.3d 13 ( 1^st Cir. 2001). ⁽⁴¹⁾ Indeed, in Acosta-Martinez, the First Circuit reversed a district court in Puerto Rico which had held, pre-trial, that the imposition of the federal death penalty on citizens of Puerto Rico violated due process, not once expressing concern about justiciability. Similarly, state trial courts routinely entertain facial Eighth Amendment challenges to their death penalty statute prior to trial. See, e.g., State v. Bass, 189 N.J. Super. 445, 460 A.2d 214 (Law Div. 1983), cited with approval, State v. Ramseur, 106 N.J. 123, 202, 524 A.2d 188, 227 (1987). ⁽⁴²⁾

In the face of the overwhelming authority that facial constitutional challenges are routinely decided pre-trial by courts with trial-level jurisdiction, the Government fails to identify what distinguishes this particular facial constitutional challenge from those faced by other trial courts. The Government simply identifies six cases in which courts have found a particular constitutional challenge not ripe for review. With one exception, each of these cases involves procedural postures and issues markedly different from this case. For example, Commonwealth v. Klobuchir is simply a decision by the Pennsylvania Supreme Court not to review, on an interlocutory appeal, two federal constitutional claims which were not presented to the trial court and, therefore waived under Pennsylvania law. 486 Pa. 241, 247-48, 405 A.2d 881, 883-84 (1979). In footnote 5 of that opinion, to which the Government cites particularly, the Pennsylvania court addresses the appropriateness of assuming jurisdiction over an interlocutory appeal of the denial of a pre-trial motion on the ground that, if there is a conviction, the denial would be appealable by the defendant. Id. at n.5. The clear inference is that the motion had been ripe for pre-trial review by the trial court. Indeed, as has been noted previously, had the issue not been raised and decided first by the trial court, under Pennsylvania law the issue was forever waived. ⁽⁴³⁾

Likewise, the Utah and Louisiana cases relied on by the Government also concern themselves, not with the exercise of original jurisdiction by a trial court pre-trial, but rather with the appropriateness of exercising appellate jurisdiction over interlocutory appeals brought by defendants who did not receive relief requested pre-trial in the trial court. As in the Pennsylvania case, nowhere in those decisions does the appellate court say that the matter was not justiciable in the trial court. They merely declared the issues not appropriate for appellate review. See State v. Cinel, 646 So.2d 309, 317-18 (La. 1994); State v. Ortiz, 987 P,2d 39-41 (Ut. 1999).

Similarly, the procedural posture of the habeas case the Government cites is crucial to understanding the Eighth Circuit's decision. There, the court declined to review the constitutionality of the Nebraska death penalty because the state conceded that the writ should be granted on another constitutional issue and the matter returned to the state trial court for a new determination of the propriety of the death penalty. Holton v. Black, 838 F.2d 984, 985-86 (8^th Cir. 1988). The case is an example of a federal court declining to exercise collateral review over a state court decision, not original jurisdiction over a pre-trial motion.

Finally, the Government relies on the decision in United States v. Cuff, in which the district court refused to decide whether the FDPA was unconstitutional for failing to provide meaningful appellate review because those questions belong in the Court of Appeals. 8 F.Supp.2d 282, 285-86 (S.D.N.Y. 1999). The Cuff court readily acknowledged that it stood virtually alone in its view of the justiciability of the issue. Indeed, the Frank decision, cited favorably in Cuff, refrained from deciding only that portion of the challenge to the adequacy of appellate review which attacked the failure to make it mandatory, and not because the issue was not ripe, but because defendant lacked standing. See United States v. Frank, 8 F.Supp. at 270.

Furthermore, even if this Court were to agree with Cuff's reasoning, it does not follow that the constitutional issue raised in this case deserves a similar fate. The constitutional challenge to the FDPA in Cuff was based on the nature and scope of appellate review. Here, the defendants claim that the penalty itself is unconstitutional because it cuts off an otherwise-available remedy through which claims of innocence could be presented. Thus, it is the very elimination of a forum for innocence claims by the execution of the claimant which is at issue here, not the adequacy of the procedures for death-sentenced appellants to vindicate rights on appeal.

4. Conclusion.

The question before this Court is not the scope of the remedy available to innocent persons sentenced to death but the unavailability of any remedy at all. The issue is ripe because it is well-defined, concrete and focused, and so is fit for review, and the defendants would suffer extraordinary hardship if consideration were withheld.

Defendants are perplexed by the government's unnecessary assault on the "Liebman study." See, Liebman, James S., Jeffrey Fagan and Valerie West, A Broken System: Error Rates in Capital Cases, 1973-1995, June 12, 2000. http://justice.policy.net/jpreport/index.html?PROACTIVE_ID =cecfcfcfcec6cdcec6c5cecfc. This unwarranted, ⁽⁴⁴⁾ gratuitous ad hominem attack should be ignored. The "Liebman study" was not intended to uncover innocents who have been executed. Rather, this effort documented judicially recognized serious errors in death penalty cases, quite a different

endeavor. Does the government deny that the capital sentencing system is error prone? Does it really detract from the Court's essential point if the error rate is "only 52%," rather than 68%? ⁽⁴⁵⁾

"There is considerable evidence that the very process of determining whether any potential jurors are excludable for cause under Witherspoon predisposes jurors to convict," thus increasing the likelihood that the innocent will be executed. Lockhart v. McCree, 476 U.S. 162, 172 (1986) (Marshall, Brennan and Stevens, J.J. dissenting).

Many years ago, Fay v. New York, 332 U.S. 261 (1947) presented the "blue ribbon jury" for review. This panel was screened for "all who possess . . . such conscientious opinions with regard to the death penalty as would preclude finding a defendant guilty ..." 332 U.S. at 267-68. So-called "nullifiers," which is a much narrower class than at issue in Lockhart, didn't serve on the special panel. Complaint about sex discrimination - only 11% were women - was said to be "almost frivolous." Fay, 332 U.S. at 266 n. 4. "A more serious allegation against the special jury panel is that it is more inclined than the general panel to convict." 332 U.S. at 278. "Extensive studies" were made by "the New York State Judicial Council" which "indicated[d] that special juries are prone to convict. In a study of certain types of homicide cases, it found that in 1933 and 1934, special juries convicted in eighty-three and eighty-two percent of the cases while ordinary juries ... convicted in forty-three and thirty-seven percent respectively." 332 U.S. at 278, 279.

Afterward, Witherspoon v. Illinois, 391 U.S. 510, 521 n. 18 (1968), discussed the possibility that so-called "death-qualified" jury's are "less than neutral with respect to guilt." Social science research has proven this proposition. In McCree, the Supreme Court assumed that "death qualification" in fact produces juries somewhat more "conviction-prone" than "non-death-qualified" juries. See "H. Zeisel, Some Data on Juror Attitudes Toward Capital Punishment (University of Chicago Monograph 1968); W. Wilson, Belief in Capital Punishment and Jury Performance (unpublished manuscript, University of Texas, 1964); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.Civ.Rights- Civ.Lib.L.Rev. 53 (1970); Jurow, New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971); and Cowan, Thompson, & Ellsworth, The Effects of Death Qualification on Jurors' Predisposition to Convict and on the Quality of Deliberation, 8 Law & Hum.Behav. 53 (1984). In addition, McCree introduced evidence on this issue from a Harris Survey conducted in 1971. Louis Harris & Associates, Inc., Study No. 2016 (1971) (Harris-1971)." McCree, 476 U.S. at 169, n. 4.

In McCree, the Supreme Court criticized but did not reject out-of-hand the unquestionably impressive array of social science studies indicating that the very process of selecting a jury in a capital case creates a more conviction-prone jury. See., e.g., Hovey v. Superior Court, 616 P.2d 1301, 1341 (Cal. 1980) ["most of the criticisms do not have merit."]. Nor does McCree, 476 U.S. at 172 n. 11, seriously dispute the "'essential unanimity' of support among social science researchers and other academics for McCree's assertion that 'death-qualification' has a significant effect on the outcome of jury deliberations at the guilt phase of capital trials," (quoting the dissent, 476 U.S. at 188). "[T]here are no studies which contradict" the empirical records developed in Hovey, McCree and Keeton v. Garrison, 578 F.Supp. 1164, 1171-79, rev'd, 742 F.2d 129 (4^th Cir. 1984), cert. denied, 106 S.Ct. 2258 (1986). See Grigsby v. Mabry, 758 F.2d 226, 238 (8^th Cir. 1985) (en banc), rev'd sub nom McCree. This remains true.

Death qualification infringes a capital defendant's "interest in a completely fair determination of guilt or innocence." Witherspoon, 391 U.S. at 520 n. 18. This Court should strike the federal death penalty. As an alternative remedy, this court should not ask any juror penalty related questions.

This Court should strike the death penalty. Alternatively, if this Court, or an appellate court, is not so convinced, this Court should order other prophylactic measures designed to attempt to protect an innocent citizen from being condemned. ⁽⁴⁶⁾ It is within this Court's discretion to do so. The government's essential position is that there isn't a problem here, let alone one of constitutional dimension, and, if there is, there is nothing the Court can or should do about it. We disagree. ⁽⁴⁷⁾ "[C]apital proceedings [must] be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of factfinding." Monge v. California, 524 U.S. 721, 732 (1998). If the Court, or an appellate court, permits the government to seek the death penalty, we also ask the Court to:

bar punishment related excusal of potential jurors during voir dire;

impanel a separate jury for the punishment determination;

order 8th Amendment-based mandatory open-file discovery, subject only to witness safety concerns; ⁽⁴⁸⁾

reverse the perverse peremptory challenge advantage that now accrues with a request to seek the death penalty--the United States gets four fewer challenges than the defense in a non-capital case, but equal numbers of challenges in a death penalty case. This Court should exercise its discretion and award at least six additional

challenges to the defense, so long as the government insists on seeking the death penalty;

award surrebuttal argument (i.e. the last word) to the defense at the guilt stage, but only if the death penalty is sought; and

insist on special Giglio enforcement measures where co-operators and jailhouse informants are used at a death penalty trial, with detailed accounting, such as videotaping or recording, ⁽⁴⁹⁾ of all prior versions of such witnesses' statements, including attorney proffers (e.g. Spicer v. Warden, Roxbury Corr. Inst. (4th Cir.)) and conducting a pretrial reliability hearing; ⁽⁵⁰⁾

subject any alleged stranger eyewitness to a pretrial reliability hearing;

bar testimony by any witness who has received benefits in return for testimony; and

award immunity for defense witnesses as necessary upon proper request. ⁽⁵¹⁾

The Court should require the government to disclose certain items in discovery. First, the government chooses to refer to an alleged statement(s) by Diego Rodriguez, apparently in violation of the government's own proffer agreement, to support the proposition that Rodriguez, at least, is not actually innocent. All counsel and the Court, but not Allen Quinones' lawyers, have been privy to this document or documents. Quinones previously requested production and does so again. It violates due process to prevent Allen Quinones from participating in the conversation about this document or documents. ⁽⁵³⁾ We submit that Attorney General Janet Reno recommended that President Clinton grant clemency due to doubts about Chandler's guilt. We request that the Department of Justice be ordered to produce the Attorney General's recommendation in this regard.

Because the government challenges the basis of the Court's preliminary decision, this Court should schedule an evidentiary hearing on the currently scheduled trial date of September 3, 2002 (so as to allow adequate investigation, preparation and an opportunity to present the testimony of far-flung witnesses), to determine how many innocent persons have been freed from death row in the last decade, the factors contributing to both their convictions and death sentences and exoneration and whether any innocent person has been executed.

For these reasons, defendants respectfully request that the Court to declare the federal death penalty statute unconstitutional on its face, or, in the alternative, to grant other relief.

Respectfully submitted,

By: ______________________________

Kevin McNally, Esq.

P.O. Box 1243

513 Capitol Avenue

Frankfort, KY 40602

Tel: (502) 227-2142

Lee Ginsberg, Esq.

101 E. 52^nd Street, 10^th Floor

New York, NY 10022

Tel: (212) 319-7592

Attorneys for Defendant

Alan Quinones

Don Buchwald, Esq.

100 Park Avenue, Ste. 3060

New York, NY 10017

Tel: (212) 661-0040

Avraham C. Moskowitz, Esq.

Moskowitz & Book, LP

1372 Broadway, 14th Floor

New York, NY 10118

Tel: (212) 221-7999

Jean D. Barrett, Esq.

Ruhnke & Barrett

47 Park Street

Montclair, N.J. 07042

Tel: (973) 744-1000

Attorneys for Defendant

Diego Rodriguez

Kevin McNally declares as follows:

I am one of the CJA appointed counsel for defendant Alan Quinones.

On May__, 2002, I caused a copy of this Memorandum to be served by Express Mail on:

Hon. Jed S. Rakoff

United States District Judge

500 Pearl Street

New York, NY 10007

Assistant United States Attorneys

David B. Anders

Amy K. Orange

Silvio J. Mollo Building

One Saint Andrews Plaza

New York, NY 10007

DATED: Frankfort, Kentucky

May __, 2002

___________________________

KEVIN McNALLY

1. The death penalty is hardly the "wonder drug" of the criminal justice system. However, we can leave that debate for another day.

2. "Four years later, faced with new death penalty statutes enacted by the States of Georgia, Florida, and Texas, a majority of the Court concluded that the procedural mechanisms included in those statutes provided sufficient protection to ensure their constitutional application. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242(1976); Jurek v. Texas, 428 U.S. 262(1976)." Pulley v. Harris, 465 U.S. 37, 68 (1984) (Brennan, J. dissenting). We now see this is not the case. Furman v. Georgia, 408 U.S. 238 (1972) "deplored the 'wanton' and 'random' infliction of death by a government with constitutionally limited power...There is little doubt now that Furman's essential holding was correct." Callins v. Collins, 510 U.S. 1141 (1994) (Blackmun J., dissenting).

3. See, e.g., Maria Glod, "Exonerated Inmates Seeking Safeguards for Justice," Wash. Post, June 28, 2001, at B1. She describes the plight of former death row inmate Michael Graham who " paced in his prison cell for 14 years ... on death row before he was released last year. Graham "testified [before a committee of the United States Senate] in favor of sweeping reforms intended to safeguard against the execution of innocent people." Affidavit of Gary Gauger. Kugiya, "Free of Death Row: Hard Road for 13 Former inmates," Newsday.com (May 19, 2002) [Exhibit C]. The Associated Press, "Death Row Survivors Meet at Law School Conference; 'Where I've been and not to be able to hate is a miracle,' Ex-Prisoner Says" St. Louis Post-Dispatch (November 15, 1998) [Exhibit D] Pleming, "Facing life on the outside after death row," Reuters (March 6) [Exhibit D]. Singer, "Freed From Death row, but Not From Anger, Frustration," Chicago Tribune (Nov. 12, 1995) [Exhibit D]. "Former Death Row Inmate Still Paying Child Support," Amarillo Globe-News [Exhibit D]. "Death Penalty Controversy" Oprah.com (2002) [Exhibit D]. Cohen and Hastings, "For 110 inmates freed by DNA tests, true freedom remains elusive," Associated Press (May 28, 2002) [Exhibit T].

4. Finucane, "Man Freed After Serving 32 Years," The Associated Press (January 5, 2001); "Murder Verdict Thrown Out After 32 Years," Associated Press (January 7, 2001) [Exhibit O].

5. "To the majority in Herrera, however, as to most judges and legislators at the time (1993), the possibility that an innocent person might be executed pursuant to a death penalty statute seemed remote...That assumption no longer seems tenable...evidence has emerged that clearly indicates that, despite all the aforementioned safeguards, innocent people-mostly of color-are convicted of capital crimes they never committed, their convictions affirmed, and their collateral remedies denied, with a frequency far greater than previously supposed ..." "We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency." United States v. Quinones, 2002 WL 724231, *1, 3 (SDNY).

6. Lee, "Majority Think Innocent Have Been Executed," Dallas Morning News (June 22, 2000).

7. The pro-death penalty crowd, whomever they might be, insists that only wrongful convictions under "guided discretion" statutes be counted. Since the discretion to be guided is what penalty to impose, not whether the defendant is actually guilty, this appears to be a lame criticism.

8. "After examination of the DPIC list and supporting materials included appellate opinions, newspaper reports, and academic articles..." http://www.prodeathpenalty.com/DPIC.htm.

9. Freedburg, "Florida Leads the Nation in Wrongful Death Sentences With 20, St. Petersburg Times (July 4, 1999) [Exhibit J]; Master, "New Evidence Overturns Murder Conviction in Va." Washington Post (November 14, 2001) [Exhibit T]; Michael Kennedy and Denaile Cerone, "Conviction Set Aside for 'Thin Blue Line' Character," The Los Angeles Times (Mar. 2, 1989) [Exhibit Q]; Death Row Informations: Innocent Released (regarding Charles Fain) [Exhibit S]; "American released from death row," BBC News (August 25, 2001) [Exhibit S]; Possley and Armstrong, "Prosecution on Trial in DuPage Series: Trial & Error. How Prosecutors Sacrifice Justice to Win. The third of a five-part series." Chicago Tribune (Jan. 12, 1999) [Exhibit K]; Sealey, "Moratorium on Execution in Illinois," ABC News Internet (December 17, 2000) [Exhibit L]; Armstrong and Mills, "Death Row Justice Derailed Bias, Errors and Incompetence in Capital Cases Have Turned Illinois' Harshest Punishment Into its Least Credible, Series: Tribune Investigative Report: The Failure of the Death Penalty in Illinois. First of a five-part series." Chicago Tribune (Nov. 14, 1999) [Exhibit L]; Malone, "When the System Fails; Cuban Immigrant Freed 14 Years After Death Sentence. SERIES: Death Row Inmates: In Their Own Words Book I: The Faces of Death Row Chapter 4: Freed After 14 Years" The Dallas Morning News (April 23, 1997) [Exhibit M]; Holt and McRoberts, "Porter Fully Savors 1^st Taste of Freedom," Chicago Tribune (February 6, 1999) [Exhibit M]; Mills and Armstrong, "Another Death Row Inmate Cleared Series: Tribune Investigative Report. A Follow-Up," Chicago Tribune (Jan. 19, 2000) [Exhibit M]; Mills, "12^th Death Row Inmate Exonerated," Chicago Tribune (May 17, 1999) [Exhibit M]; Clines, "Pardoned Inmate's Laywers Attack Virginia Evidence Law," New York Times (October 4, 2000) [Exhibit N]; "Inmate Cleared by DNA Barred From DC," Associated Press (February 9, 2001) [Exhibit N]; Transcript: "At Death's Door: The Risk of Executing the Innocent," CNN: The Point with Greta Van Susteren (June 27, 2001) [Exhibit N]; "Another day in court. Witness's Competency at Issue for New Trial," The Florida Times-Union (April 27, 1998) [Exhibit Q]; "Ex-Death Row Inmates Seek Moratorium," New York Times (April 6, 2000) [Exhibit O]; Thoming-Gale and Caywood, "Shareef Cousin: Will Justice Be Done?" Justice: Denied - The Magazine for the Wrongly Convicted" http://www.justicedenied.org/v1issue2.htm [Exhibit O]; Farley and Willwerth, "Death Teen Walking: The U.S. is one of the few nations that put juveniles on death row. Shareef Cousin is one of them. He may be innocent." [Exhibit O].

10. We also submit a videotape of the "60 Minutes segment regarding Walter McMillian [Video Exhibit 1] and the documentary that led to the release of Randall Dale Adams, "The Thin Blue Line." [Video Exhibit No. 2].

11. As the government points out, DNA is not a factor in this investigation, other than identifying the deceased. [GM 26]. This is so in 80% or so of criminal cases. Many different types of evidence can lead to exoneration. Aynesworth, "Man admits to sibling's crime," The Washington Times (May 20, 2002) [Exhibit T]; Masters, "New Evidence Overturns Murder Conviction in Va.," Washington Post, B1 (November 14, 2001) [Exhibit T]; Review by Robert Peebles, "Actual Innocence," Death Penalty Institute of Oklahoma (June 10, 2000) [Exhibit T]; Romano, "Police Chemist's Missteps Cause Okla. Scandal," Washington Post (November 26, 2001) [Exhibit T]; and "Another Day In Court, Witness's Competency at Issue for New Trial," St. Petersburg Times (April 27, 1998) [Exhibit R].

12. "There is simply no consensus that polygraph evidence is reliable: The scientific community and the state and federal courts are extremely polarized on the matter." United States v. Scheffer, 523 U.S. 303 (1998).

13. See affidavit of Bryan Stevenson and his and McMillian's testimony before Congress [Exhibit P]. Applebome, "Alabama Releases Man Held on Death Row for Six Years," The New York Times (March 3, 1993) [Exhibit V]; Gergen's "Death by incompetence," U.S. News & World Report Magazine (June 26, 2000) [Exhibit P].

14. DPIC lists 13 additional cases of "probable" innocence, a category of cases where the condemned was removed from death row but entered a plea to a lesser charge or died before a retrial or was convicted of some lesser but related charge. Undoubtedly, some of these individuals are completely innocent. Addtionally, DPIC lists 15 commutations in the last 13 years due to doubts about guilt. Reflecting this growing problem, there were 4 between 1979-1989 and 11 thereafter.

15. See, e.g., Frank Green, DNA Tests Not Likely After an Execution: Va. Opposing Third Request of its Kind, Richmond Times-Dispatch, March 26, 2001, at A-1 (describing resistance of state officials to requests for DNA samples and other evidence in police files that could potentially demonstrate that executed individuals were innocent); "Coleman case wins an advance -- DNA test request goes to high court." Richmond Times-Dispatch (April 28, 2002) [Exhibit E]. Bils, "Prosecutors to Appeal New Trial for Burrows" Chicago Tribune (Oct. 1, 1994) [Exhibit E]. Fritsch, "Justice Delayed and Denied: Evidence of innocence can come too late for freedom," New York Times, (July 30, 2000) [Exhibit E].

16. "See, e.g., E. Borchard, Convicting the Innocent (1932); J. Frank & B. Frank, Not Guilty (1957); E. Gardner, Court of Last Resort (1952)...Murder, Errors of Justice, and Capital Punishment, in Bedau, supra, n. 45, at 434, 438. See also Black, The Crisis in Capital Punishment, 31 Md.L.Rev. 289 (1971); Hirschberg, Wrongful Convictions, 13 Rocky Mt.L.Rev. 20 (1940); Pollak, The Errors of Justice, 284 Annals Am.Acad.Pol. & Soc.Sci. 115 (1952)." Furman, 408 U. S. at 364 n. 156 (Marshall, J. concurring).

17. "In constitutional terms, the issue is whether--now that we know the fallibility of our system in capital cases--capital punishment is unconstitutional because it creates an undue risk that a meaningful number of innocent persons, by being put to death before the emergence of the techniques or evidence that will establish their innocence...[T]he inference is unmistakable that numerous innocent people have been executed whose innocence might otherwise have been similarly established, whether by newly-developed scientific techniques, newly-discovered evidence, or simply renewed attention to their cases." United States v. Quinones, 2002 WL 72423182 *2 (SDNY).

18. Friedberg, "Judge orders accused killer to stay in psychiatric care," Sun-Sentinel (May 29, 2002) [Exhibit U]. This has also happened to lifers who weren't on death row. Rodricks, "A Delay of Justice Proves to Have Fatal Consequences," The Baltimore Sun (April 12, 2002) [Exhibit U]. We submit a copy of the Frontline documentary: "Requiem for Frank Lee Smith." [Video Exhibit No. 3].

19. In 1933, Charles Bernstein was convicted and sentenced to death in the District of Columbia. In 1935, minutes before Bernstein's scheduled execution, President Franklin D. Roosevelt commuted the sentence to life. In 1940 Bernstein was released. In 1945 he received an unconditional pardon from President Harry S. Truman. Radelet, et al., "In Spite of Innocence," at 286.

20. Harris County; Former Texas Court of Criminal Appeals Judge Charles Baird: " We've had such an enormous amount of executions that it's difficult to believe that the system worked flawlessly in all of those cases." See Christopher Lee, "Majority Think Innocent Have Been Executed", Dallas Morning News (June 22, 2000) [Exhibit H]. "There is no question, in my mind, that someone has slipped through the cracks and that an innocent person has been executed." Dateline NBC (August 30, 2000) [Exhibit U].

21. O'Dell v. Thompson, 502 U.S. 995 (1991) (Blackmun, Stevens, O'Conno, J. J., respecting the denial of certiorari).

22. See Jacobs v. Scott, 513 U.S. 1067 (1995) (Stevens, Ginsberg J. J., dissenting from denial of stay of execution).

23. The deathpenalty.com web site, amoung other things, links to a site which argues for impeachment of "Judge John Nixon. A Federal judge who uses his position to illegally advance his own personal opinion against the death penalty." http://www.prodeathpenalty.com/links.htm.

24. "Despite the courts' efforts to fashion a death penalty scheme that is just, fair, and reliable, the system is not working. Innocent people are being sentenced to death. Examples of innocent people who were arrested, tried and convicted of capital offenses are numerous and well documented....When there have been so many mistakes in such a short span of time, however, the only conclusion I can draw is that the system does not work as the Constitution requires it to."

"If these men dodged the executioner, it was only because of luck and the dedication of the attorneys, reporters, family members and volunteers who labored to win their release. They survived despite the criminal justice system, not because of it. The truth is that left to the devices of the court system, they would probably have all ended up dead at the hands of the state for crimes they did not commit. One must wonder how many others have not been so fortunate." Bull at 847.

25. "I do not think David Spence committed this office." Lt. Marvin Horton, supervisor of the Waco Police Department's investigation into the Lake Waco murders, during sworn testimony in 1993. "I have really never been convinced [of David Spence''s guilt]." Larry Scott, Waco Chief of Police at the time of the Lake Waco murder investigation, during sworn testimony in 1993. http://www.texasdefender.org/study/chapter9.html.

26. See affidavit of prosecutor Bill May who refused to seek an indictment. [Exhibit W].

27. See also Caher, "Troubling Account of a Wrongful Execution," New York Law Journal (May 7, 2002; Secours, "Is Tennessee Doomed to Repeat the Shame of Wrongful Execution?" The Tennessean (February 9) [Exhibit H].

28. Lindorff, "Too late to stop the hangman?" Salon (Feb. 20, 2002); "A Kansas City man sits on death row, awaiting his execution," KCTV5 [Exhibit I].

29. Marshall, "Gary Graham deserves a real day in court, not execution now. Not one of the 647 executions in the U.S. in the past 23 years has been based on evidence this frail," Los Angeles Times (June 21, 2000) [Exhibit F]. We submit supporting documents and a videotape in support. [Video Exhibit No. 1].

30. "At the attorney general's request, I commuted one death sentence because the defendant's principal accuser later changed his testimony, casting doubt on the defendant's guilt." Clinton, "My Reasons for the Pardons," New York Times (February 18, 2001). [Exhibit V]. Defendants attach, as an exhibit, the "60 Minutes," CBS News, segment about Chandler's innocence claim. [Video Exhibit No. 1]. This Court should order disclosure of Attorney General Reno's recommendation to President Clinton in this regard.

31. United States v. Derrick Kelley (E.D. VA CR No. 93-162-N) (acquitted of all charges); United States v. Michael Flanagan (D. CO CR No. 96-357 M) (acquitted); United States v. Donald George Brown (E.D. NY CR No. 96-149 (S-5) (RJD) (acquitted of two counts and jury hung regarding co-defendant's involvement); United States v. Franklin Moyler (E.D. VA CR No. 96-00374-a) (acquitted); United States v. Gary Benton (E.D. KY CR No. 96-9) (acquitted in state and federal court); United States v. Anthony Urbistando (S.D. NY CR No. 98-CR 566 (DLC)) (acquitted of murder) and United States v. Ewan Bryce (D. CT CR No. 99-CR-238-ALL) (acquitted). [See McNally affidavit, Exhibit B]. No doubt there are others.

32. United States v. Mack, et al. (S.D. FL CR No. 93-252-CR-UUB)(three defendants); United States v. Jacobo, et al. (C.D. CA CR No. 99-83-(A)-DT) (two defendants) and United States v. Ricky Lee Brown, Barbara Brown and Janette Ables (N.D. WV CR No. 1:98CR34) ( two defendants acquitted, charges dropped as to the third). [See McNally affidavit, Exhibit B]. Affidavit of Jay T. McCamic [Exhibit B].

33. United States v. Reginald Brown (E.D. MI CR No. 92-81127) and United States v. Antonio McKelton (E.D. MI CR No. 98-80348). Declaration of Richard Kammen [Exhibit B]. Affidavit of Penny R. Beardslee [Exhibit B].

34. Actually, 32 as of today. http://www.deathpenaltyinfo.org/fedprisoners.html.

35. "Justice Lawyers Recommend Delay in McVeigh Execution," New York Times (May 11, 2001); "FBI Director Details Blunder on McVeigh Records," New York Times (May 17, 2001); "The Flight Schools: Despite FBI memo, students in Phoenix went unchecked," New York Times (May 25, 2002). "FBI agent says superior altered report, foiling inquiry" New York Times (May 24, 2002); "F.B.I. Inaction Blurred Picture Before Sept. 11", New York Times (May 27,2002).

36. Hamblett, " Federal Informant Hit With $1.3 Million Verdict." New York Law Journal (April 17, 2002) [Exhibit X].

37. This was a reference to United States v. John Flores Angiano and Tirzo Jorge Angiano (W.D. MI CR No. 1:97-CR-23). Similar cases were United States v. Jose Crecencio Martinez Vargas and Carlos Lopes (W.D. OK CR NO. 99-CR-63-ALL) and United States v. Angel Bernacett Cosme (D. PR CR No. 99-346 (HL)). McNally affidavit, Exhibit B.

38. We are unaware of any physical evidence proving that defendants killed the deceased.

39. Solely because they are targeted for the death penalty, and not for any misconduct, defendants have recently been placed in the Special Housing Unit at the Metropolitan Correctional Complex (MCC), under severe conditions of confinement and restricted access by telephone to counsel. This isolation has caused defendants mental suffering. Defendant Quinones began refusing legal and other visits, causing the MCC Psychology Department to contact counsel for Alan Quinones and the government to express concerns about Quinones ability to assist his counsel.

40. See also United States v. Chanthadara, 928 F. Supp. 1055 (D. Kan. 1996); United States v. Church, 151 F.Supp.2d 715 (W.D. Va. 2001); United States v. Cooper, 91 F.Supp.2d 90 (D.D.C. 2000); United States v. Davis, 904 F.Supp. 554 (E.D. La. 1995); United States v. DesAnges, 921 F.Supp. 349 (W.D. Va. 1996); United States v. Edelin, 134 F.Supp.2d 59 (D.D.C. 2001); United States v. Frank, 8 F.Supp.2d 253 (S.D.N.Y. 1998); United States v. Hammer, 25 F.Supp.2d 518 (M.D. Pa. 1998); United States v. Johnson, 136 F.Supp.2d 553 (W.D. Va. 2001); United States v. Llera Plaza, 179 F.Supp.2d 444 (E.D. Pa. 2001); United States v. McVeigh, 944 F. Supp. 1478 (D. Colo. 1996); United States v. Nguyen, 928 F.Supp. 1525 (D. Kan. 1996); United States v. O'Driscoll, 2002 WL 24507 (M.D. Pa. 2002); United States v. Pitera, 795 F.Supp. 546 (E.D.N.Y. 1992); United States v. Spivey, 958 F.Supp. 1523 (D.N.M. 1997); United States v. Walker, 910 F.Supp. 837 (N.D.N.Y. 1995).

41. See also United States v. Allen, 247 F.3d 741 (8^th Cir. 2001); United States v. Barnette, 21 F.3d 803 (4^th Cir. 2000); United States v. Chandler, 996 F.2d 1073 (1993); United States v. Hall, 152 F.3d 381 (5^th Cir. 1998); United States v. Jones, 132 F.3d 232 (5^th Cir. 1998) aff'd, 527 U.S. 373 (1999); United States v. McCullah, 76 F.3d 1087 (10^th Cir. 1996); United States v. Paul, 217 F.3d 989 (8^th Cir. 2000) and United States v. Tipton, 90 F.3d 86 (4^th Cir. 1996); United States v. Webster, 162 F.3d 308 (5^th Cir. 1999).

42. Cf. People v. Superior Court, 31 Cal.3d 797, 647 P.2d 76, 183 Cal.Rptr. 800 (1982); In re Petition of State, 433 A.2d 325 (Del. 1981); Preston v. State, 444 So.2d 939 (Fla. 1984); State v. Moose, 310 N.C. 482 313 S.E.2d 507 (1984); State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984); Hopkinson v. State, 664 P.2d 43 (Wyo. 1983); Moore v. State, 479 N.E.2d 1264 (Ind. 1985); State v. Compton, 104 N.M. 683, 726 P.2d 837 91986); Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984) and Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980).

43. Indeed, were the defendants here attempting to raise this issue for the first time on appeal, the Government would no doubt be arguing, as the Pennsylvania prosecutors did, that the challenge had been waived, or was at best reviewable only as plain error.

44. "Washington Post Editorial," Washington Post (June 19, 2000) ; Liebman, Fagan and West, "Technical errors can kill," National Law Journal (September 4, 2000) and "Wrong by the Margin of a Person's Life," The Wall Street Journal (June 23, 2000) [Exhibit Z].

45. The Court did not cite Professor Liebman "extensively," as the government claims [GM 24], but once. It appears that the government, no doubt encouraged by pro-death penalty critics of the Liebman study, chose to attack Professor Liebman merely because there was an opportunity to do so, not because it advances an important point germane to the essential issue of exoneration. The government goes to the extreme of beginning each line of attack with reference to "the study and the website" as if they are fungible. This is very misleading.

46. Second Circuit Judge Jon O. Newman, "Make Judges Certify Guilt in Capital Cases," Newsday (July 5, 2000) [Exhibit Y].

47. Illinois Governor George Ryan: " Until I can be sure that everyone sentenced to death in Illinois is truly guilty, until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate. Disbarred lawyers, jailhouse informants - those kinds of problems are in the system, and we've got to get them out." See Ken Armstrong and Steve Mills, Ryan: "'Until I Can Be Sure': Illinois is First State to Suspend Death Penalty," Chicago Tribune (February 1, /2000).

48. Some districts already employ this type of discovery. Former United States Attorney Edward L. Dowd, Jr., of the Eastern District of Missouri, recently advocated an open file discovery practice in death penalty cases: "If you are going to try to take somebody's life, you should give them all the evidence you have," he said. "You should give them everything." http://www.vera.org/publications/publications_5.asp?publication_id=161 at 5.

49. Just as the Illinois "Commission of Capital Punishment" recommended in its April 2002 report "videotaping all questioning of a capital suspect conducted in a police facility and repeating on tape, in the presence of the prospective defendant, any of his statements alleged to have been made elsewhere," the Court should impose a similar requirement on criminals who the government intends to present at trial and on whom the United States has bestowed benefits. http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf. Preamble at i.

50. Likewise, the Illinois "Commission on Capital Punishment" recommends "intensifying the scrutiny of the testimony of in-custody informants, including recommending a pre-trial hearing to determine the reliability of such testimony before it may be received in a capital trial." Preamble at ii. http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf

The false testimony of jailhouse informants, aka, "snitches" expecting some benefit in their own cases, is an important cause of the execution or near execution of the innocent. "Snitch testimony helped convict or condemn 4 of the 12 Illinois Death Row inmates who were later exonerated. In two other cases, prosecutors had jailhouse informant testimony ready but did not use it" (against innocent men). "The Inside Informant," Chicago Tribune (November 16, 1999) at 8. This means that of the undisputed 12 innocent men in Illinois who were nearly executed, 50% faced perjury by some lying jailbird wanting out. See generally Dodd v. State, 65 Crim.L.Rptr. 499, 68 USLW 1084 (August 17, 1999), 1999 OK CR 29 (July 29, 1999), new opinion 2000 OK CR 2, 993 P.2d 778.

The Innocence Project has found that jailhouse snitches were used in 21% of their wrongful conviction cases in which the defendants were later cleared by DNA evidence. Scheck and Neufeld, "Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted" (2001).

51. The Third Circuit Court of Appeals, in Government of the Virgin Islands v. Smith, 615 F.2d 964, 974 (3rd Cir. 1980), held: " [W]hen it is found that a potential defense witness can offer testimony which is clearly exculpatory and essential to the defense case ⁽⁵²⁾

52. ²The Court actually held that the trial court need not find that the testimony would be clearly exculpatory or otherwise essential to the defendant's case, but it must be found that the proffered testimony would be relevant to the defendant's case. See also United States v. Westerdahl, 945 F.2d 1083 (9th Cir. 1991)(in order to make out claim for prosecutorial misconduct in connection with the refusal to grant immunity to a witness, the defendant must show that the evidence sought from a non-immunized witness was relevant and that the Government distorted the judicial fact-finding process by denying immunity to a potential witness; the defendant need not, in order to show relevancy of the witness' testimony, go so far as to establish that the testimony was clearly exculpatory or essential to the defense). "

53. Counsel for Diego Rodriguez continue to oppose disclosure to Quinones of any statements by Rodriguez.