The Texas Court of Criminal Appeals in Ex parte Varelas has granted relief, in the only death penalty case in which relief was had this issue, on the grounds that counsel was ineffective.  Key in the decision to grant relief was trial counsel's gallant admission that he had not requested jury instructions that could have aided his client not as part of "trial strategy" but rather oversight.  Events half a continent away from Texas are also noted this week. In State  v. Timmendequas, (the underlying crime spawned "Megan's Law " legislation  nationally) the state supreme court examines the proportionality of the death penalty as the second half of of the two part appeals process in any Garden State capital case and offers an excellent check list for how proportionality reviews should be conducted.  Slightly to the north of New Jersey In a state where the death penalty has been abolished, Massachusetts,  Peter Limone this week, after having spent six years on death row, was  exonerated when information surfaced that the FBI new he had been framed over a generation ago for a murder he had not committed. The sole federal case this week, Chandler v. Moore, the Eleventh Circuit denied relief chiefly on issues relating to comments  made by the government and the court. Featured this week  is the story of the Peter Limone case, a reminder to never quit believing in the good fight. As always, if a case you are working on has been overlooked or you would like to contribute, please feel free to contact the weekly at cdw@karlkeys.com. Supreme Court No cases available this week. Captial Case Relief Granted Ex parte Varelas  (Tx Crim Appeals) Relief granted on ineffective assistance of counsel. "If a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction." Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). Therefore, if applicant's counsel had requested the jury to be instructed that they could not consider the extraneous act evidence unless they believed beyond a reasonable doubt that applicant committed those acts, the requested charge should have been given. n2  Likewise, when the State   is permitted to introduce evidence of defendant's extraneous acts for a limited purpose, the defendant also has the burden of requesting an instruction limiting consideration of those acts. See Abdnor v. State (Abdnor II), 808 S.W.2d 476, 478 (Tex. Crim. App. 1991). When a defendant so requests this instruction, the trial court errs in not giving the instruction. See id. at 478. In pre-trial hearings, the State argued that the extraneous acts were admissible for the limited purpose of showing state of mind, intent, relationship, motive and to rebut defensive issues. Therefore, if applicant's counsel had requested that the jury be instructed that they could consider the extraneous act evidence only for the limited purposes for which it was offered, the trial court would have been required to give the requested instruction. n3 See George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (stating that "if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that  [*10]  the defendant committed the extraneous offense.").  . . . At the time of applicant's  [*12]  direct appeal, we were unable to determine his attorney's reasons for failing to object to the omissions in the charge.  But we now have before us an affidavit from applicant's trial counsel and can now determine whether such failure was a product of trial strategy. Trial counsel's affidavit states:    I have read the Court of Criminal Appeals opinion in which the Court "had trouble understanding why trial counsel did not request a burden of proof or limiting instruction regarding these offenses." . . . I can now assure the Court that my failure to request these instructions was not the result of trial strategy. It was simply an oversight. I was aware of Harrell and George at the time of the trial, but I simply neglected to invoke them and ask the trial court either for a burden of proof instruction or a limiting instruction. I had no reason in fact not to request these instructions, nor can I think of any reason I should not have requested them on the facts of Mr. Varelas's case.  Trial counsel further stated in the affidavit that the instructions would have been consistent with the two defensive issues raised at trial: one, that L.W.'s mother killed her or; two, that  [*13]  applicant killed her, but there was not a specific intent to kill L.W. Trial counsel's conduct fell below an objective standard of reasonableness by failing to request the jury instructions. The trial court would have been required to give the instructions had counsel requested them, and reasonable counsel would have requested the instructions given the facts of this case. Therefore, we conclude that trial counsel's performance was deficient for failing to request either an instruction on the burden of proof or limiting instructions regarding the extraneous act evidence admitted at applicant's trial. n4  Next, we must consider whether there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 694. The function of the trial court's charge is to instruct the jury on how to apply the law to the facts. n5 See Abdnor v. State (Abdnor III), 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). It is designed to "lead and prevent confusion" during jury deliberations. Id. (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)). The charge must contain an accurate description of the law, and when it does not, the "integrity of the verdict is called into doubt." See id.  Because this charge did not contain the appropriate burden of proof for the extraneous act evidence, it is reasonable  [*15]  to presume that the jury did not necessarily find beyond a reasonable doubt that the extraneous acts were committed by applicant before using this evidence against him. n6 See, 871 S.W.2d at 740 (stating that "where no instruction is given, we cannot follow the presumption that the jury properly considered the evidence at trial."). Similarly, the charge did not contain a limiting instruction telling the jury to consider the extraneous acts only for the purposes for which they were admitted - namely state of mind, intent, relationship, motive and to rebut defensive issues. Without such an instruction, the jury was likely to consider the extraneous acts as direct evidence of applicant's guilt; that is, that he acted in conformity with his character. See id. at 738 (stating that "where no limiting instruction is given, . . ., we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated.").  In applicant's trial, evidence of the extraneous acts was central to the State's case-in-chief. The State argued from its opening statement to its closing remarks that applicant was responsible for the injuries to L.W., and consequently, was responsible for her death. To bolster this claim, the State presented evidence that applicant had shoved L.W. with his foot, had excessively dunked her in a pool, had "thumped" her on the head, and had made her sit still on a couch for two hours. By emphasizing that applicant had committed these acts and by characterizing them as "bad" acts, the State hoped to persuade the jury that applicant was physically abusing L.W. If the jury believed applicant was engaged in a pattern of abuse of L.W., then they would probably conclude that he was responsible for her death.  On the other hand, applicant's attorneys attempted to create a reasonable doubt by arguing their defensive theory that L.W.'s mother was responsible for the injuries and death of L.W. To strengthen applicant's defense, they presented evidence of the mother's temper. Through medical testimony, it was shown that the mother could have killed L.W. -- she had both the opportunity and the  [*17]  strength required. Other medical evidence that was presented showed that the CPR efforts used in an attempt to save L.W. could have caused some of the injuries and bruising found on L.W.'s body. Applicant's attorneys also attempted to discredit the one witness, a long-time friend of L.W.'s mother, who testified regarding the extraneous acts. Applicant's attorneys portrayed this witness as a drug-user and highlighted inconsistencies in her testimony. Essentially, applicant's attorneys sought to persuade the jury to question her motivation and truthfulness in testifying. Whether the jury believed this witness's testimony was also key to the State's case. If the jury did not believe her, then they might not believe applicant was physically abusing L.W. or had been the cause of her death. Finally, applicant's attorneys produced testimony that Child Protective Services had investigated L.W.'s household and had found no evidence of child abuse on the part of applicant.  Moreover, the State produced little evidence linking applicant to L.W.'s death aside from the evidence concerning the extraneous acts. An inmate who shared a jail cell with applicant before his trial testified that applicant  [*18]  told him that he kicked a girl, but that it was an accident. In response, applicant's attorneys emphasized that the inmate knew only limited Spanish, while applicant understood only minimal English. The defense questioned how well the inmate could actually understand what applicant stated in the cell and questioned the inmate's motive in giving the testimony. The State also presented evidence that applicant reacted too calmly after finding out that L.W. had died, that L.W.'s siblings were afraid of applicant, and that applicant slept at the police station while waiting to be interviewed. In the videotaped statement of applicant taken by officers, applicant gave his account of the morning L.W. died. He stated that from the time L.W. woke up, she was quiet and kept falling down. When she became unconscious, applicant attempted CPR on her. When that did not work, he then carried her next door and the neighbor called 9-1-1. Applicant denied ever hitting or hurting L.W., and he stated that he treated L.W. better than her own father did.  Considering all of the evidence presented by both the State and applicant's trial attorneys, we conclude that applicant's defense was prejudiced because  [*19]  the jury did not receive instructions on the burden of proof or limiting instructions for the extraneous acts. The jury was specifically instructed in the court's charge that they "may consider all relevant facts and circumstances surrounding the death of [L.W.], if any, and the previous relationship existing between the accused and the deceased . . ." in determining if applicant was guilty. By not requiring the jury to find applicant committed the extraneous acts beyond a reasonable doubt before considering them as evidence during their deliberations, the jury was left with no guidance as to the proper weight to be given to those acts. More than likely, the jury assumed that because the extraneous acts were part of the evidence surrounding the relationship between applicant and L.W., they were proper factors in determining applicant's guilt. The extraneous acts could have been considered as evidence that applicant killed L.W. without the jury so much as even questioning the possibility that applicant may not have committed those acts. Additionally, without the limiting instructions, it is probable that the jury considered the extraneous acts as direct evidence of applicant's guilt,  [*20]  i.e., propensity evidence, rather than for the purposes in which they were offered, which was limited to the applicant's state of mind, intent, relationship, motive and to rebut defensive issues.  Finally, by not requesting the proper instructions, applicant's trial counsel jeopardized the jury's ability to find applicant guilty only of a lesser-included offense. In the charge, the jury was instructed to consider the charges of involuntary manslaughter and criminally negligent homicide if they did not find applicant guilty of capital murder. As previously explained, by not holding the jury to the proper burden of proof and limiting instructions regarding the extraneous acts, the likelihood of the jury finding applicant guilty of capital murder dramatically increased. Conversely, there was a lesser chance that the jury would instead find applicant guilty of involuntary manslaughter or criminally negligent homicide. Under the facts of this case, there is a reasonable probability that applicant would have been convicted only of a lesser-included offense had the proper instructions been given. If the jury did not believe that applicant committed the extraneous acts, then they might not  [*21]  have believed he was engaged in a pattern of abusing L.W. Without a strong pattern of abuse, it would have been increasingly difficult for the jury to find applicant intentionally caused L.W.'s death. Instead, the jury probably would have found appellant not guilty or, at the most, guilty of unintentionally causing L.W.'s death, i.e., involuntary manslaughter or criminally negligent homicide.  Captial Cases Remanded for Further Adjudication No cases available this week. Federal Captial Cases Relief Denied Chandler v. Moore (11th Cir)  Trial court's statement that "defendant was in trouble" in response to defense counsel's question to prospective juror about whether juror thought defendant was in trouble did not deny defendant the presumption of innocence given the general jury instructions and context of remark, as well as inflammatory remarks by the prosecution. Chandler argues that the trial court's comments at his trial indicated a bias in favor of the State, thus relieving the State of its burden of proof and violating his Due Process rights. Chandler proffers two instances of alleged prejudicial court comments. The first comment occurred during voir dire when defense counsel asked a prospective juror if she thought Chandler was in trouble. The trial court stated, "[i]t's obvious he's in trouble." [R. Vol. 5, Exh. A, p.821]. The second comment occurred when the trial court questioned the prospective jurors about pretrial publicity. After the prospective juror stated that she might have an opinion about Chandler's guilt or innocence, the trial court asked, "is that opinion such that it cannot be changed by the evidence and testimony that comes out and takes place during this trial?" [R. Vol. 4, Exh. A, p. 34]. The second comment is not properly before this court for review. Chandler raised this issue for the first time in his Rule 3.850 state post-conviction motion. The issue was included in Chandler's cumulative errors issue. On appeal, the Florida Supreme Court found that issue barred because it could have been raised on direct appeal. Chandler, 634 So.2d at 1068. Since the last state court to consider the issue determined that it was procedurally barred, the issue is barred from federal review. Harris v. Reed, 489 U.S. 255, 263 109 S.Ct. 1038 (1989). Since the Florida Supreme Court found the issue to be procedurally barred, we are precluded from addressing the merits unless Chandler can demonstrate "cause and prejudice" for his procedural default or that he is "actually innocent." Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th Cir. 1991). Chandler has not demonstrated that either exception applies to his case. The first comment is properly before this court for review. Chandler raised this issue on direct appeal, and the Florida Supreme Court found no reversible error. [R. Vol. 10, Exh. E]; Chandler, 442 So.2d at 172, n.1. We agree that this comment, when viewed in its entirety and in the proper context, did not undermine Chandler's presumption of innocence. The comment at issue arose in the following context: Mrs. Watson: Well, I distinctly remember when I read it, when it first happened, that I had sympathy for the mother. Mr. Maslanik: For the mother? Mrs. Watson: For the mother, for the people, for the ones, you know - Mr. Maslanik: When you say you had sympathy for the mother, who were you talking about? Mrs. Watson: Well, I was thinking of his mother. I guess, because I had lost a son, you know, and by him getting in trouble like that, I had compassion for her. Mr. Maslanik: So when you read the articles or whatever you read or heard, you felt that he was in trouble? Mrs. Watson: Yes, I felt he was in trouble. . . . .  Mr. Maslanik: Do you feel that in any way he's in trouble? Mr. Stone: Well, You Honor, I'm going to object to that. I don't think that's a proper question. The Court: I'll sustain the objection. It's obvious he's in trouble. Mr. Maslanik: Your Honor, I would object to that. I don't think he's in any kind of trouble. He's been charged and the evidence may not be sufficient and he may not be guilty - The Court: That's very true. But if getting charged, if that's not being in trouble, I think that's - Mr. Maslanik: . . . I would also ask The Court to please refrain from making remarks about the fact he's in trouble. That gives the jurors some indication that The Court has a feeling he is in trouble or in some way there is a problem with him being here. He starts out with the presumption of innocence - The Court: This is true. But anytime a jury panel laughs when you ask that question - it was obvious to everybody in this courtroom that any person charged with a crime this serious is in trouble. There is no two ways about it. It's just an improper question so I'll sustain the objection. [R. Vol. 5, Exh. A, ¶. 819-822.]. We find nothing untoward in the trial court's comment. This one comment, standing alone, did not deprive Chandler of his presumption of innocence, especially in light of the court's several explanations regarding the concepts of presumption of innocence and the State's burden of proof. Moreover, the court properly instructed the jury regarding Chandler's presumption of innocence, the State's burden of proof, and the fact that anything the court or the attorneys say is not evidence. Accordingly, we hold the comment was not erroneous and did not deprive Chandler of his Due Process rights. See e.g., United States v. Cortez, 757 F.2d 1204, 1208 (11th Cir. 1985) (rejecting petitioner's claim that judge's remarks were improper as the comments were direct responses to questions and the jury was properly instructed not to consider the judge's comments as evidence). State Captial Cases Relief Denied State  v. Timmendequas (New Jersey) Defendant's death sentence is not disproportionate.  1. Proportionality review focuses on whether a specific defendant's death sentence is inconsistent with the penalty imposed in comparable cases. To aid in this process, the Administrative Office of the Courts (AOC) maintains a database of all death-eligible cases. The AOC subdivides the cases into thirteen distinct categories of comparison cases. With the concurrence of the parties, defendant has been placed in the "sexual assault" category. (Pp. 11-17)  2. The first step in comparing defendant's case to other sexual assault cases is to perform frequency analysis, which now consists exclusively of the salient-factors test. This test allows the Court to measure the relative frequency of a death sentence in factually-similar cases to determine whether there is a societal consensus that death is the appropriate remedy. A review of the data reveals that a greater percentage of sexual assault cases advanced to penalty trial and received the death sentence than did all death-eligible  [*6]  defendants. This demonstrates that sexualassault murders are considered more deathworthy than other death-eligible homicides. (Pp. 17-20)  3. The next step is to conduct precedent-seeking review, which is the traditional, case-by-case form of review in which the Court compares similar death-eligible cases. The Court first examines the criminal culpability of the defendant, which has three components: moral blameworthiness, the degree of victimization, and the character of the defendant. Consideration of defendant's moral blameworthiness, the degree of victimization of Megan and her family, and defendant's character leads the Court to conclude that defendant is highly deathworthy. (Pp. 20-27)  4. The Court then analyzes the comparison cases in defendant's category to determine if defendant is more or less deathworthy than the comparison defendant. If defendant is less deathworthy than a life-sentenced defendant, that conclusion supports defendant's claim of disproportionality. If defendant is more deathworthy than a life-sentenced defendant, that detracts from defendant's claim. Although defendant's death sentence is arguably disparate compared to the life sentences imposed  [*7]  on several other defendants, disparity alone does not demonstrate disproportionality. Proportionality review seeks to assure that a death sentence is not an aberration; it is not intended to ensure that one killer's sentence is identical to all other similarly categorized killers. The fact that defendant is more culpable than the bulk of the defendants in his comparison group demonstrates that his death sentence is not an aberration. (Pp. 27-44)  Greene v. State  (Arkansas)  "Relief denied on resentencing on several grounds, most notably that of mitigation.  "Greene contends that the trial court erred in refusing to admit evidence offered by defense counsel as mitigating evidence or victim-impact evidence. The pertinent facts are that while on death row, Greene received a letter from Edna Burnett, the victim's wife, expressing her forgiveness of Greene for the murder and her desire that he be given a life sentence rather than the death penalty. At the resentencing hearing in July 1999, defense counsel sought to introduce this testimony, either by actual letter or through the live testimony of  Edna Burnett. The trial court ruled that the letter was inadmissible. The court also ruled that Mrs. Burnett could not testify in person that in her opinion Greene should be sentenced to life in prison or about her forgiveness of him for his crime." People v. Edwards (Illinois) Appellant denied relief on allegatioms relating to suficiency of warrants, the use of hypnotically refreshed testimony, Brady related claims, ineffective assistance of counsel at the guilt and penalty phase of the trial, peremptory challenges, and impermissible double counting of aggravating felonies. People v. Barrow (Illinois) Petitioner denied relief on grounds that he was denied his right to counsle when one of his  attorneys was barred from entering the courtroom, counsel's failure to timely object and to prepare, use of perjured testimony, suppression of evidence, and that petitioner was unfit for trial as he was on psychotropic drugs during th course of the trial. Leonard v. State (Nevada) Relief denied on issues relating towthdrawal of county public defender, problems death qualification and jury selections, tate’s failure to preserve evidence, use of leading questions, limitation on cross-examination, failure to disclose presentence investigation reports,  jury instructions at both phases of the proceeedings, prosecutorial misconduct, use of a prior conviction aggravating circumstance, constitutionality of the death penalty,  speedy trial and that the use of informant testimony violated the state's anti-gratuity statute. Other Notable Cases US v. Christakis (01/30/01 9th Cir) Defendant in drug conspiracy suffered ineffective assistance of counsel because his attorney at the suppression hearing for a wiretap involving an unindicted co-conspirator had previously represented the co-conspirator. Riggins v. Norris (02/01/01 8th Cir)  State courts' denial of prisoner's ineffective assistance of counsel claim were not based on an reasonable determination of the evidence presented at the post-conviction relief hearing, given trial court's assessment of prisoner's credibility. US v. Hanson (01/29/01 8th Cir) Where government agents used a deceptive strategem and coercive tactics on a suspect who did not voluntarily acquiesce to interrogation, the suspect was in custody and entitled to Miranda warnings.  Closs v. Weber (01/30/01 8th Cir) Where defendant agreed to psychological treatment as a condition of his condition of parole, state court was not unreasonable in upholding his revocation of parole after he refused to take psychotropic medication prescribed by doctors. Dressler  v. McCaughtry (02/01/01 7th Cir) The fact that defendant maintained a collection of videos and pictures depicting intentional violence was probative of prosecution claim that he was obsessed with that subject, and such materials could be admitted into evidence without violating defendant's First Amendment rights. Williams v. Gibson (01/30/01 10th Cir) While habeas petitioner's failure to file a petition in error and supporting brief may be a jurisdictional bar under local rules, the  time before a state court denies habeas relief will still toll the one-year statute of limitations for filing a federal habeas claim under 28 USC 2244(d)(2). Locke v. Saffle (01/31/01 10th Cir) Under 28 U.S.C. 2244(d)(1)(A), a habeas petitioner's one-year statute of limitations period begins to run when the deadline for a petition  for a writ of certiorari with the United States Supreme Court expires even if petitioner did not seek a writ. US v. Schaffer (02/02/01 10th Cir) A presidential pardon granted during the pendency of appeals renders such appeals, decisions, and all underlying judgments, verdicts, and decisions of the District Court moot. Outrages of the Week   Featured This week, Peter Limone has gone free after serving 33 years in prison, six of which were on death row.  His story sets forth a chilling reminder of what can go wrong even in a state that prides itself on going the extra mile to protect the rights of the accused and convicted. February 2, 2001 An Innocent Man Goes Free 33 Years After Conviction By CAREY GOLDBERG Thirty-three years, two months and five days. That is how long Peter Limone sat in prison, pinned by a murder conviction that just last month, after many appeals, was finally vacated. For four years of that prison time, Mr. Limone was on death row. His wife eked out a living by sewing, and visited him faithfully twice a week, convinced of his innocence. His four children grew up and began having children of their own; he had a heart attack. His middle years passed, they all passed, inside. Now, at 66, Mr. Limone has been returned to his family, a circle so devoted that two dozen relatives and friends, from 2-year-old twin granddaughters to an 82-year-old brother, came to court this week to watch a judge confirm that Mr. Limone was officially free and the case against him officially dropped. "It was disgusting, what was done to him," said William T. Koski, a lawyer for Mr. Limone, who plans to sue. "It should be chilling to everyone else."  What was done to Mr. Limone, who was a lounge manager and sometime numbers runner before he was imprisoned, became overwhelmingly clear only in recent weeks. He was effectively framed by a hit man cooperating with prosecutors and left to languish by Federal Bureau of Investigation agents who apparently knew he was innocent but never spoke out. And it emerged as an unexpected side effect of a major federal trial here involving two notorious old Boston mob leaders, Stephen Flemmi and James Bulger, known as Whitey. In proceedings over several years here, Judge Mark L. Wolf of Federal District Court turned up instances of F.B.I. misdeeds so disturbing that they prompted an investigation by a Department of Justice task force and the establishment of guidelines on how agents interact with informants and what they must tell prosecutors about those relationships. Testimony has painted some F.B.I. agents as corrupt, and others as so intent on cracking the Italian mob in New England a generation ago that they entered into relationships with "top echelon informants" and let them literally get away with murder. As those proceedings unfolded, John Cavicchi kept an eye on them. Beginning in 1977, Mr. Cavicchi, a lawyer, had fought to clear a man named Louis Greco who had been convicted with Mr. Limone and four others in the 1965 murder of Edward Deegan, a small-time criminal. The main witness against them was Joseph Barboza, a hit man also known as The Animal, who later admitted that he had fabricated much of his testimony. He later died. Mr. Cavicchi's efforts had failed; Mr. Greco died in prison in 1995. But the fight in Mr. Cavicchi remained alive. He knew some of the testimony in the proceedings before Judge Wolf touched on the Deegan murder, and he started to ask Judge Wolf for documents in the case, he said Errata From the Death Penalty Information Center reports:  EDITORIAL  As part of a series on the death penalty in Texas, the Houston Chronicle called for greater emphasis on indigent defense:  "If there is an indisputable problem with the manner in which the death penalty is assessed and carried out in Texas, that problem can lie with the inadequacy of the defense often provided to indigent defendants charged with capital murder.  Since there is no room for error when the death penalty is enacted, Texans owe it to the defendants and to their own conscience to insist that every indigent defendant receive a competent, vigorous defense." (Houston Chronicle, 2/5/01).  See also, New Voices and Editorials  Tennessee Death Penalty Supporter Urges Governor to Grant Clemency  Rep. Frank Buck, D-Dowelltown, one of the Tennessee Legislature's leading death penalty supporters, recently wrote to Governor Don Sundquist urging  him to grant clemency to death row inmate Philip Workman.  Citing new evidence and a recanting witness, Buck believes "justice may not have been done in this case."  Workman, who was convicted of killing Memphis police Lt. Ronald Oliver, has new evidence to support his claim that he could not have fired the shots that killed Oliver.  "Governor, this case just does not sit right on my conscience," wrote Buck, the chairman of the House Judiciary Committee. "There is enough doubt here that if I were on the jury, I would never vote for the death penalty in this particular case."  Workman recently received a stay of execution while the U.S. Supreme Court considers whether to hear his case.  If the stay is lifted, the Governor will have to consider whether to grant clemency. (Knoxville News-Sentinel, 2/3/01)  See also, clemency.   Polls in Texas and Connecticut Reveal Troubling Issues  Texas:  A new Houston Chronicle poll of residents of Harris County, Texas, found that although more people are sentenced to death in Harris County than any other Texas county, citizens of Harris proved less supportive of the death penalty than other Texans.  Poll director Richard Murray said the findings show a gradual waning of support for capital punishment.  The poll also found:  -  67% thought it was somewhat or very likely that an innocent person has been executed in this country since the punishment was resumed; 59% found it at least somewhat likely that such a mistake had been made in Texas  -  almost 1/2 expressed concern that capital punishment was not applied fairly to all ethnic or racial groups  -  67% supported giving juries the option to sentence capital murderers to life without parole, a measure that soon will be put before the Texas legislature  -  62% support capital punishment, a figure closer to the national average than the 69% that support it from the other Texas counties  (Houston Chronicle, 1/4/01)  Connecticut:  A Quinnipiac University Poll of Connecticut voters released in June, 2000 found:  -  when given the sentencing option of life without parole or the death penalty, 42% chose life without parole, and 41% chose the death penalty  -  65% believe a poor person is more likely than a person with higher income to face the death penalty for the same crime  -  53% believe a black person is more likely than a white person to face the death penalty for the same crime (black voters believe 85 - 8% there is a racial bias, while white voters believe it 51-42%)  -  90% believe an innocent person has been wrongly convicted sentenced to death in the past 20 years  -  93% believe post-conviction DNA testing should be available to inmates if such tests might show they were innocent  -  only 58% knew that Connecticut has the death penalty  (Connecticut Network to Abolish the Death Penalty, Press Release, 1/22/00)   Charges Dropped Against Two Innocent Men 33 Years After Being Sentenced to Death      Thirty -three years after being convicted and sentenced to death for a 1965 murder,  Peter Limone's conviction has been overturned and the case against him officially dropped.  The move came as a result of a Justice Department task force's discovery of compelling new evidence that Limone and his co-defendants Joseph Salvati, Henry Tamelo, and Louis Greco were actually innocent of the murder of Edward Deegan.       In 1968, all four were convicted and sentenced to die in Massachusetts' electric chair, but were spared in 1974 when Massachusetts abolished the death penalty and their sentences were commuted to life in prison. Salvati, who was released in 1997 when the governor commuted his sentence, received word from prosecutors that they were dropping the case against him as well.  Tamelo and Greco  both died in prison.       At trial, the main witness against the four men was Joseph Barboza, a hit man cooperating with prosecutors, who later admitted that he had fabricated much of his testimony.  The recently revealed FBI documents show that informants had told the FBI before the murder that Deegan would soon be killed and by whom, and a memorandum after the crime listed the men involved.  Neither list included Limone, Salvati, Tamelo or Greco.       Ralph C. Martin, II, the Suffolk County District Attorney, acknowledged that "a great wrong was committed." (New York Times, 2/2/01 and Boston Herald, 1/21/01)       With Limone and Salvati's exonerations, there have now been 95 wrongly convicted inmates freed from death row because of new evidence of their innocence.   It is probable that Greco and Tamelo will be added to the list if they are officially exonerated.  See also, Innocence      New Report Marks Anniversary of Illinois Moratorium on Executions  On January 30th, the Illinois Death Penalty Moratorium Project released a report entitled, "A Broken System at Work:  Preliminary Report  on the State of the Death Penalty in Illinois in the Year of the Moratorium."  The  report details the strong public support for the moratorium in Illinois and the national momentum which has been created for addressing the problems of the death penalty.  Nevertheless, the report notes many new death sentences have been handed down in Illinois, some which exhibit the same problems as found in the cases which led to the moratorium.       Bill Ryan, chair of the Illinois Death Penalty Moratorium Project stated, "The report supplies more data to support the position that the death penalty is beyond repair and must be abolished. The death penalty is ineffective, inefficient, racist, and way too expensive."  (Illinois Death Penalty Moratorium Project Press Release, 1/30/01)     Stay Granted to Tennessee death row inmate   Tennessee death row inmate Philip Workman was granted a stay while the United States Supreme Court considers whether to hear his case.  Workman, who has new evidence supporting his claim that he did not shoot the victim, was scheduled to be executed on January 31, 2001.  The European Union had appealed to the Governor and the Board of Probation and Paroles to halt Workman's execution. (Read the European Union's press release).      Of the 11 executions that did occur in January, 7 were in Oklahoma and all have been in the south.  See also, Number of executions by state.   New Resources  Law Review:  "Georgia Death Penalty Law" by Mike Mears and Ken Driggs covers recent death penalty decisions from the Georgia Supreme Court, and examines direct appeal decisions directly affecting death penalty cases. The article discusses jury selection, guilt and sentencing trials, preservation of error, state habeas corpus, and the Georgia electric chair.  (52 Mercer Law Review 29 (2000))  See also, Law review & journal articles on the death penalty.  Web page:  DPIC's Foreign Nationals and the Death Penalty in the United States has been updated as of January 30, 2001 with information from Mark Warren of Amnesty International.  The page offers data on foreign nationals currently on death row and accounts of  violations of the rights of foreign nationals.  The page also provides news about this issue,  including updated information on Germany's action against the U.S. in the International Court of Justice for violations of consular rights in death penalty cases.  Services: Capital Punishment Investigations & Educational Services (CPIES) - This  new non-profit agency is an association of experienced defense investigators, social workers, and others dedicated to raising the standard of investigations for death penalty cases. The agency's services will include investigation and consultation, education and training, and client family services in Texas.  For more information, contact CPIES at 214-366-4830    From the mailbox From this week's inbox: Karl, I just noticed that in last week's edition of Capital Defense Weekly, you have a link to the Indiana Supreme Court's direct appeal decision in Prowell v. State.  The link you want is to the state post-conviction appeal.  Keep up the wonderful work.  http://www.state.in.us/judiciary/opinions/archive/01110101.trb.html Paula Sites -- thanks  Paula for the link. CAPITAL DEFENSE DISCUSSION LIST: A discussion list for legal professionals doing capital litigation has been formed. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioners', who may not be at a public defender's office or similar non-profit, a forum to seek advice & bounce ideas around. The list is private & moderated only to try to weed out prosecutors & law enforcement.  Post message: capitaldefense@onelist.com Subscribe: capitaldefense-subscribe@onelist.com Unsubscribe: capitaldefense-unsubscribe@onelist.com List owner: capitaldefense-owner@onelist.com RELATED RESOURCES   You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA)  & www.capdefnet.org (federal defender)  have many prepackaged motions and law guides dealing with death penalty issue.  Finally, the discussion groups above can help you with any questions you might have. DISCLAIMER & CREDITS -- Anti-copyright 1997-2001. ISSN: 1523-6684. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational & information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.This letter and related website materials may be freely redistributed with attribution save for the copyrighted works of others. In short, reading this newsletter does not make me (or those I work with, for or for me)  your lawyer and you can use my stuff.  Submissions related to this letter may be reproduced without further notice.  Please note all rights to terminate a subscription are retained by the editorial staff. Although I am always glad to help where I can , I am in private practice and receive no financial remuneration for the this weekly, the related web site or the discussion list,  as such  requests for assistance can not always timely be answered as the bills still need to be paid. FAIR USE NOTICE: This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner. PUBLISHER INFORMATION: All comments, inquiries or complaints may be sent to:  Karl R. Keys, Esq.  167 Milk Street  Suite 127  Boston, MA 02109  kkeys@capitaldefenseweekly.com  617.249.0219 Volume IV, issue 4 Please note: due to the large number of requests for assistance, the office cannot respond to all requests.  Your letter alone will not constitute the establishment of an attorney-client relationship.