favorable-termination

WASHINGTON, Nov. 9, 1999 - University administrators and students clashed Tuesday over a Midwestern university's use of mandatory student fees to fund controversial student groups, as students claimed the fees violate their free speech rights while the university argued the system protects them.

The U.S. Supreme Court heard arguments from the Board of Regents in a case involving the University of Wisconsin-Madison. The suit, filed by former student Scott Southworth in 1995 contends that students should not be compelled to pay mandatory fees when they have no control over distribution among individual organizations.

One school, the University of Nebraska abandoned the idea of supporting student groups through student activity fees 20 years ago. But a decision upholding a lower court ruling that mandatory fees are unconstitutional could affect how other public universities fund student activities on campus, said Brady Williamson, professor of constitutional law at the University of Wisconsin-Madison.

"This is a case of a collision of rights as both sides assert that the First Amendment protects them," Williamson said. "The university believes diversity in campus organizations is essential to its very purpose while the plaintiffs feel they should not be compelled to support, directly or indirectly, ideals they oppose."

Since 1979, only three student-run organizations - the student government, the Daily Nebraskan and the University Program Council - have been eligible to receive funding from student fees.

The remaining organizations have had to seek outside donations, collect membership dues or apply for cosponsorship from the university's program council to support their activities. The University of Nebraska Alumni Association and Pepsi Corp. also make funds available to student groups.

"If the college Republicans want to bring a speaker they can usually get enough funds from the community," said Adam Kafka, president of the university's Program Council. But groups that don't have as strong community ties will have to come to the Program Council or go to those other groups."

About 20 groups apply for cosponsorship each semester from the council, which allocates money to cover about half the event, Kafka said.

Nebraska's student fee system differs greatly from those of most universities that fund student groups using fees. However, some allow students to "opt out" of funding groups they do not support.

The majority of the university's $255 student fee is nonrefundable and is distributed among the university's health, recreation and student centers. Of that amount, $10.83 is used to fund student organizations and may be refunded.

If the Supreme Court rules in favor of Southworth, public universities would be required either to stop funding controversial organizations or to provide students a partial refund -- a system much like the one used by the University of Nebraska.

Dale Herbeck, professor of First Amendment law at Boston College who is familiar with the case said there was a fine line between compelled and free speech. This case should help redefine those boundaries, Herbeck said.

"The university maintains that the campus is an alive, raucous place where many ideas are and should be expressed," he said.

But Daniel Troy, counsel to the Washington Legal Foundation, a nonprofit organization specializing in free speech issues, questioned the central focus of the argument. He pointed out that the absence of such funding would not endanger the "marketplace of ideas."

"The university can afford to get students involved without taking student money and distributing it to a select number of groups," Troy said. "The government just can't take money and use it to fund speech in a university context."

They call them mules, people who smuggle drugs inside their bodies. They swallow balloons full of heroine, or plastic casings the size of lipstick tubes filled with crystal methamphetamine.

Mules have to ingest the drugs in a particularly strategic manner. Monitored by drug dealers, they swallow containers a few at a time over the course of several days, so they don't throw them up. They eat miniscule amounts of food and very little water. Some of them begin passing the containers even before they reach the U.S. border, and are forced to re-ingest them.

And through it all, they have to pray that none of the containers burst, causing a painful and ugly death.

"Nothing speaks to me more about the desperation and the desperate situation of their lives," said Lisa Fairchild, a U.S. Customs Service Special Agent in San Ysidro, Calif. "Working in this job, you see a side of humanity that most people never get to see."

In 1999, border authorities in California made 4,907 seizures totaling 396,249 pounds of narcotics, and though a good amount of the drugs were carried in by mules, the majority came through in more conventional fashions.

"You begin by looking for the obvious," said Van Brown, a U.S. Customs Service Inspector in San Ysidro. "Shallow glove boxes, unusually high floors, gas tanks that don't hold much, cooling systems that are mechanically sound but don't work because something is blocking them."

This is the kind of work done every day by Customs inspectors who watch thousands of cars drive across the border from Mexico into the United States. For most of those driving, the customs inspection will take between 30 and 60 seconds.

"We just ask them a few questions, stuff about their car, their nationality, why they were in Mexico," Brown explained. "And if anything sounds weird, we pull them over."

Inspectors also look for odd physical signs that a vehicle, or someone in it, could be smuggling drugs.

"Dust-free older cars, the ones that are like 15 years old, that's usually a big sign, because no matter how good you keep your car, as it ages it gets dusty," Brown said. "Or cars with mismatched panels."

Suspicious vehicles are pulled into Vehicle Inspection 2, an area set aside for more detailed inspections, which can take up to two hours. Specially-trained dogs are brought in to smell the vehicle for drugs, and the car is closely examined.

Then, if drugs are found, the passengers of the car are taken into custody while the vehicle and the narcotics are held as evidence.

"If we find a person who isn't supposed to be in this country, we turn him over [to the U.S. Immigration and Naturalization Service]," Brown explained. "They're interested in the people, and we're interested in the stuff."

After suspects are taken into custody, a customs special agent is called in. It is her job to build the case for prosecutors.

And though some people are released at this point, the drivers of vehicles carrying drugs usually get arrested.

"In the 14 years I have been doing this, I have never released a driver," Fairchild said. "These organizations go to tremendous trouble to get their drugs into this country," Fairchild said. "They have to pay people to build compartments for smuggling, they have to pay drivers, they have to pay people to stash the stuff until it can be delivered.

"These organizations work just like Wal-Mart — they are big business, and it doesn't make sense for [the organization] to take something of extreme value, say $100,000, and give it to someone who doesn't know he has it."

Still, some suspects won't confess, even with the most concrete of evidence against them.

"We had this one guy, he was basically stripped, but we still hadn't found the drugs the dogs smelled," Brown said. "But then we asked him to take off his shoes, and there in his sock was this big lump.

"'What's that?' we asked, and he said he didn't know. ‘How did it get there?' we asked, and he said he didn't know, but someone else must have put in there when he wasn't looking."

The police detain or arrest a suspect, only to find drugs in his car, in his coat pocket, even hidden in his body.

It is a constant scenario on news reports and television crime shows.

Though many police searches require a warrant, others, such as many performed in conjunction with an arrest, do not.

Police say these searches are necessary to stem the flood of illegal drugs overwhelming the country. But a number of legal scholars say the latitude law enforcement is allowed, reinforced by recent Supreme Court decisions, has eroded the protections of the 4th Amendment against unreasonable searches and seizures.

"The 4th Amendment has become something of a hostage in the war against drugs," said Susan Herman, a law professor at Brooklyn Law School and general counsel for the American Civil Liberties Union.

This tension is behind the Supreme Court's decision in Bond v. U.S. to address whether a Border Patrol agent can legally squeeze the luggage of passengers on a Greyhound bus to see if the bags contain drugs.

Border Patrol agents in Texas, where the contested action took place, said feeling luggage at border checkpoints is necessary to fight drugs flowing into the United States from Mexico.

"There are a lot of narcotics going up and down the borders," Chief Patrol Agent Luis Barker said. "We're using unobtrusive methods to detect that."

Losing the ability to search "would hinder us in being able to keep drugs off the border," he added.

Officials also say the searches are a minimal inconvenience to public transportation passengers. Typically, a Border Patrol agent squeezes each piece of luggage after a routine check to ensure each passenger has appropriate citizenship papers.

"The searches take only a few minutes," said Marilyn R. Chambers, sector counsel for the Border Patrol. "It's a slight infringement, if at all, on their 4th Amendment rights. [The agents] are off in a few minutes if they don't find anything."

Some legal experts say such a "slight infringement" goes too far in allowing law enforcement free rein at the expense of individual privacy. In fact, a "plain squeeze" genre has evolved from the more traditional plain view doctrine in search cases, in which searches are lawful so long as the suspicious object is in open view of law enforcement.

"Plain squeeze" cases like the one at issue in Bond occur "with no other justification other than they just like to do it," said Barbara Bergman, a law professor at the University of New Mexico who specializes in the 4th Amendment. "The only purpose for the officer squeezing is to see if anything of interest is inside. People are more and more willing to give up their rights to get a safer society, but I'm not sure we get that."

Several Supreme Court decisions in recent years have expanded the range of searches that may be considered constitutional.

In 1998, the Court decided that a Florida program in which law enforcement officials boarded buses and randomly asked passengers for permission to search their luggage was constitutional. In another case that term, the Court ruled that passengers in a car could have their personal belongings searched in the course of the car being examined. The Court in that decision reversed a lower court ruling that found the search of a purse left on the seat of a car unreasonable.

In an earlier case, the Court also allowed Washington, D.C. law enforcement officers to stop cars for minor traffic violations and search the vehicles for drugs. The officers in question were actually vice squad members who were uninterested in traffic enforcement.

A study of recent rulings by Ohio University law professor Arthur Marinelli found the Court abandoning a "probable cause requirement" for police searches and seizures in favor of a "reasonableness test" that balanced privacy rights against the government's need to protect society.

The motivation behind this trend toward less protection under the 4th Amendment is a prevailing public attitude that police need a lot of freedom to make society safer, experts say.

"I think we have a general public who believes that it doesn't matter how illegal substances are found -- police need a wider latitude to conduct their searches," said Julie Aimen, a former president of the Illinois Attorneys for Criminal Justice. "The warrant requirement was intended to keep police officers from running wild with their investigations. In the name of the need for heightened security, we're forgetting those checks and balances."

Yet law enforcement agents say there is a greater danger to the public welfare if they do not conduct their investigations.

"We've even found liquid methamphetamine, which is very flammable and explosive," said Deputy Chief Patrol Agent Jerry Armstrong about the Border Patrol searches. "There are dangers to the public too if we don't find this stuff. It could cause an explosion that would kill everyone on that bus."

As the Supreme Court balances the need for individual privacy with the need for effective law enforcement, there are few signs that the Court will reverse its trend and allow greater protection under the 4th Amendment, say legal experts from both sides of the issue.

"It's somewhat easy for the Supreme Court justices to allow these searches," Herman said. "They're not the ones who have to suffer the fear and indignity of being stopped. They don't fit the profile."

And with the weight of public opinion behind them, officers are more likely to feel that their searches will be considered justified. But the 4th Amendment protections should be held firm regardless of popular opinion on the rights of law enforcement, Herman added.

"The Supreme Court has tended to forget the counter-majoritarian role of the 4th Amendment," she said. "The majority might want to allow the police to do whatever they want, but not all of us will suffer equally. Regardless of what the majority would like to do, we have to see some limits."

Many taxpayers are afraid of a phone call from the Internal Revenue Service. They're afraid of the myriad forms, the possible miscalculations and, worse, being audited.

But the tables were turned when 79-year-old David Baral decided to sue the IRS over a $1,000 credit dispute in 1993.

After hours of visiting law libraries and reading lengthy documents, the former Washington Post mailroom worker represented himself in the lower courts.

"I had to do it. I was required to do it,'' said Baral about his suit against the IRS. It became a matter of resolve; the IRS against a mailman, who'd done his research. "They owed me the money and they refused to give it to me."

Baral's lawsuit stems from a 1988 tax return he didn't file on time. Upon first calculation, Baral feared that the money the IRS held from his weekly paycheck wouldn't be enough to cover all that he owed.

So, he sent an extra $1,100 to the agency -- before he completed all the necessary forms -- in an attempt to cover the amount. On April 15, 1989, he filed for an extension on his forms, which gave him four more months to submit his return.

Baral was sure that money left over from his 1987 income tax return and the money he had already sent in would cover what he owed the IRS.

But he didn't send in his 1988 forms to the agency until 1993, when they wrote to remind him of it.

"He filed between 1989 and 1993,'' said Walter Rockler, who would become Baral's attorney after he lost at trial and on appeal. "He just filed late [for 1988].''

Four years after he filed for an extension, Baral learned that he had indeed overpaid the IRS by $1,175. And, he wanted his money back in the form of credit.

But the IRS refused to give the money back, claiming that Baral had run out of time to request the refund.

Although Baral lost in the District Court and the U.S. Court of Appeals he continued to file for the $1,000 that was owed.

"I was pretty confident that I had the better hand, even though the courts didn't agree with me," Baral said. "I think the government is miscalculating the law here, and the only way I could get this resolved was to take it to the U.S. Supreme Court.''

Now, the 6-year-old suit could cost thousands, including court fees and the possible cost of an attorney, said Rockler. "It's not the money. It's the principle," Baral said.

With the hours he spent in a law library, the retired worker found a case he says could help him win in the U.S. Supreme Court. In 1945, the Rosenman v. United States case featured the same elements of Baral's dispute in which the statue of limitations had run out on an IRS form.

"The Rosenman case is the key to the U.S. Supreme Court,'' said Rockler, who has argued before the Court a few times. "It's very critical to this case." And Baral found it himself.

On March 25, 1995, 16-year-old Ryan Moore and five others were driving on rural Deerfield Avenue in northeastern Ohio when the car they were travelling in was struck by a Conrail freight train. Three survived, but Moore, 17-year-old Joshua White, and 16-year-old Alyson Ley, were all killed instantly.

The site of the accident was, at that time, marked only with a crossbuck. No warning gates, lights or stop signs existed. Including Moore's accident, the Deerfield Avenue crossing has claimed the lives of eight people since 1975.

There are neither lights nor warning gates at approximately 80 percent of all public railroad crossings nationwide, according to the Federal Railroad Administration

In the tragedy's aftermath, Ryan's parents, Dennis and Vicky Moore, reluctantly found themselves faced with the issue of railroad safety.

Believing that Ryan's death could have been avoided, the Moores established The Angels on Track Foundation in 1996, a non-profit organization that awards partial reimbursement grants to local highway authorities for railroad grade safety upgrades.

If a county establishes a task force, Angels on Track will match the local highway authority contribution, but will not exceed $40,000. The county must also identify and prioritize all its grade crossings requiring improvement. They operate the foundation from their hometown of Canal Fulton, Ohio."

The Moores' funding efforts have only been in Ohio so far, but they said they are hoping to reach out to other states soon.

"The railroad companies need to make a concerted effort to protect people," Dennis Moore said. "But until the laws change, they're not going to do anything on their own."

To finance their efforts, the Moores use money they received in a civil lawsuit filed against Conrail for the accident. The suit, which was filed jointly by the Moore family and other families involved in the accident, charged Conrail with conscious disregard for public safety.

They claimed Conrail knew the crossing on Deerfield Avenue was dangerous, but did nothing to improve it.

"They [railroad companies] feel they have no responsibility for public safety," Vicky Moore said. "The laws don't tell them they need to make any safety improvement efforts so they don't."

A jury awarded the Moore family $7 million when it decided Conrail should bear 45 percent of the responsibility for the accident. The jury ruled that the remaining 55 percent of responsibility should be placed on the car's driver, Ryan's older brother, Jason.

In post trial motions, the judge dismissed the jury's conscious disregard decision against Jason Moore.

Their main goal in establishing Angels on Track was to cut through and expedite the bureaucratic process that can often make railroad crossing improvement take longer than necessary. Currently, many states requiring safety improvements must get federal approval, which can slow the process further.

The Moores said they have contacted members of the Ohio legislature to voice their concern for railroad safety, but are frustrated by the delayed response.

"We're tired of the people who should be working on this issue ignoring it," Vicky Moore said. "We think the agencies that are supposed to make the changes are turning a blind eye to this problem and meanwhile, people are dying everyday."

Despite the accident in March 1995, and five deaths prior, warning lights and gates were not installed at the Deerfield Avenue crossing until November — eight months after Moore's death.

"Ryan's collision was preventable — they all are," Vicky Moore said. "It's not a priority until somebody is dead and then it's too late."

According to a 1999 study released by RailWatch, a Texas-based non-profit organization, a car-train accident occurs every 90 minutes in the U.S. The study also indicated that more than 500 deaths and 1,800 injuries resulted from these accidents in 1998.

"Our organization was formed because we want Congress to have in depth railroad safety hearings," said RailWatch Executive Director Sherry Kiesling Fox. "We've raised a lot of questions, but want Congress to use its investigative muscle to get to the bottom of all these safety concerns."

RailWatch is a nationally-focused organization established one year ago. Mayors and city council members from around the country founded it to address their local railroad safety concerns.

"Our goal is to push the rail safety issue into the national spotlight because it doesn't receive the kind of attention it deserves," Fox said. "RailWatch hopes to give a voice to local concerns that are really national concerns."

In addition to crusading for safer crossings, RailWatch addresses issues of defective train equipment, overworked employees, poorly trained employees and hazardous material transportation.

According to the RailWatch study, a train carrying dangerous cargo runs off the tracks and forces an evacuation every two weeks in the U.S.

Realizing they were not alone in their fight, the Moores established the National Railroad Safety Coalition (NRSC) that held its first meeting Nov. 20, 1999, in North Canton, Ohio, to coordinate the efforts of smaller groups like theirs around the country.

Most coalition members arrived in North Canton sharing a common bond of losing a loved one in a rail accident.

"Every state in this country has a family just like ours," Vicky Moore said. "Maybe they don't know they can make a change and that's why we've set up the coalition."

About 30 members of grassroots groups from all over the country, including RailWatch, attended to help give one voice to improving railroad safety. The group is hoping to bring at least 500 people together for a meeting in the fall of 2000 in Washington, D.C.

"We want to go to Washington to get the nation's attention and the attention of politicians," Dennis Moore said.

It's quiet on a Sunday December afternoon in Willowbrook, a village southwest of Chicago.

A mailbox points to a narrow road that meanders on Tennessee Avenue.

A dim light illuminates a one-story home surrounded by leafless trees that shoot high into the dark clouds.

And a rush of snowflakes rips by, as a soft wind whispers through the branches.

Just as quiet as the street on which Grace Olech lives is the suit she filed against the village of Willowbrook, which unexpectedly found its way to the U.S. Supreme Court.

"I didn't even know about it," said Paul Kriks, who has lived across from Olech on Tennessee Avenue for 20 years.

In fact, he said, "I don't even know her. I know of her, but we don't talk to her."

The Kriks said their only connection with Olech was when they and their neighbors were experiencing flooding problems on their properties a decade ago.

Properties on their street flooded about twice a year, Kriks said. The water even formed a pond in one of the neighbor's backyards.

More than 20 northwest Willowbrook residents formed a group called "Stop the Waters" and three families filed suit for damages to their properties, claiming the village's poor storm-water management planning and enlargement of culverts on their properties caused the damage.

They alleged that their yards were being flooded because the village did not provide adequate drainage and did not require developers to provide proper detention areas on their properties.

"To control the storm water in the vicinity," according to John Wimmer, one of Olech's attorneys, the village was going to build ditches near the families' properties. "In other words, they were going to give her more water, not drinking water, storm water."

Phyllis Zimmer, Olech's daughter, was the first to get a lawyer, recalled neighbor Kriks. "We contributed about $1,000, but then we bailed out because they wanted more money and we didn't hear from the village or the committee."

And that was their last involvement with Olech and the group. Four years later, the suit went to trial in DuPage County. The judge granted the village's request to dismiss the case because recovery on damages was limited to a one-year period prior to the filing of the complaint, and did not include recovery on damages four years earlier.

The families appealed and the Illinois appellate court reversed after finding that Willowbrook's actions did not "constitute an improvement to real property."

The families received a $155,000 settlement from the village, according to attorney Wimmer, who would represent Olech later.

The Paugas, who live a few houses north of Olech, heard about the case, but were never involved with the lawsuit. And like the Kriks, they too did not know about the second suit Olech filed, the one all the controversy seems to be over.

Olech, now 72, claims that four years ago, the village of Willowbrook violated her constitutional rights under the Equal Protection Clause. When her well broke, she asked the village to connect her home to the municipal water system and the village agreed--on the condition that she grant the village a 33-foot easement.

Olech refused because she said the village only required a 15-foot easement from other village residents.

Kriks said that there are easement variances, depending on the location of the main water system and the layout of one's house.

"We gave up about 30 to 35 feet of easement, and we understood this when we first moved in," Kriks claimed. "And that's not secret information. It depends on how far your house is from the street, and (Olech's) house if about 150 feet from the street."

Although the village finally relented, it took another four months before constrution began to hook up city water to her house. She had gone without water for the winter of 1995.

In her suit, she alleges that Willowbrook picked on her out of sheer vindictiveness because she and her neighbors had filed state-court lawsuits against the village in August of 1989.

The lawsuits, Olech said, caused "ill will" on the part of the village, and the easement was retaliation against the families.

The village was "being vindictive and treated her different intentionally for no legitimate government reason," Wimmer said. "They don't like her, because she (had) sued them for flooding her property."

The village contends that the added easement was to be used to install a paved roadway and public utilities and that the requirement had not nothing to do with any prior lawsuits filed by her. The village also says that the delay in construction was related to weather.

Kriks said he does not believe that the village is "out to be vindictive of any single person. They look at the facts and determine what's best" for the community, he said.

Kriks said he finds Olech's claim that the village singled her out "strange."

"If your well breaks," Kriks said, "fix it."

"I can't tell you that (the village of Willowbrook) did it," said Jean Pauga, another of Olech's neighbors. "But I'll tell you I wouldn't be surprised (that the village singled her out out of sheer vindictiveness)."

By 1999, Pauga had been fighting the village for more than a year to stop "extreme" high-density housing development on and around her street.

"We just want the houses to be the same" as the ones in our neighborhood, Bob Pauga said.

The Paugas sent letters to the village, attended board meetings and formed meetings with neighbors to petition the village. "And you get absolutely nowhere with them," she said. "They don't listen to anybody." The Paugas are seeing a trend in the villages and cities around them that they said they don't like.

"They want to enlarge the community, make it more important" by developing high-density buildings, the family said. "They want to expand Willowbrook in the direction of a bureaucratic system."

But the Paugas, and many of their neighbors, do not want their community to go in that direction, she said.

And the struggle to stop the development is an "it's the good ole ‘you can't fight city hall,'" according to Jean Pauga.

Kriks believes the village has good intentions. "I don't see anything wrong with (improving the road). The street is dangerous," he claimed. "Every now and then, a car ends up in a ditch. You have one lane and two cars going on both directions."

The safer you want the street to be, the more property you will have to give up, he believes.

But Wimmer said, "We all want things, but the constitution requires that if the government wants to take private property for public use, they have to pay for it. But the village never attempted to pay a dime for it."

A car pulls aside onto someone's property, as another drives around it.

The cold air creeps in and winds through a barely-lit street.

The wind hushes, and it's quiet on Tennessee Avenue.

So quiet is Olech's suit against the village of Willowbrook this time around that the neighbors barely know about it.

Attorneys for a condemned man in Florida are not only trying to show that using the electric chair in executions is cruel and unusual punishment, but that men with families and good jobs don't commit cold-blooded murder in their right mind.

Anthony Bryan, who is condemned for the 1983 murder of an elderly watchman in the Florida panhandle, was a shrimp boat captain with a wife and four children, until he had a devastating 30-foot fall on a fishing boat that caused his behavior to become erratic, and damaged his brain. His attorneys believe he was mentally ill when he committed the crime, and should therefore not be executed. Twelve states that use capital punishment prohibit executions of people who are mentally ill or retarded. Florida does not.

During his trial in 1986, Ted Stokes, who had never tried a capital murder case before and was an alcoholic, represented Bryan. Just days before Bryan was to be executed, Stokes signed a sworn affidavit and admitted to Bryan's attorneys that he was drinking daily, and made numerous errors while representing the convicted killer from 1983 to 1989. Stokes is now rehabilitated and practices law in Milton, Fla.

Stokes admitted in his affidavit that he failed to review a key tape of a conversation between Bryan and a woman he was with when he committed the crime, and did not question Sharon Cooper, the state's key witness, aggressively enough about Bryan's state of mind. According to the Orlando Sentinel, Andrew Thomas, Bryan's new attorney, located Cooper. She told him that Bryan was deprived of food and sleep, smoking a lot of marijuana and suffering from major depression when he committed the crime.

In addition to arguing that Stokes failed to adequately make a mental competency defense and poorly represented the condemned man, Bryan's attorneys argue that their client was insane when the crime was committed, and that prosecutors withheld crucial pieces of evidence. The Florida Supreme Court, and other courts, have dismissed those claims.

"None of the courts appeared to care," said Thomas about the new information in his client's case.

Bryan's attorneys included an affidavit from James Larson, a mental health professional who did not testify in Bryan's trial because he told Stokes that his testimony would not be helpful. Stokes did not call any mental health experts to testify in the penalty phase of Bryan's trial, although he did introduce their reports into the record. Bryan alleges that Stokes' failures did not result from tactical choices, but a failure on his part to meet a basic standard of competent performance.

Larson mentions in his affidavit that Bryan attempted suicide three times in 1983, was found mentally incompetent in 1984, and suffers from a number of syndromes including major depression and organic personality. A mental health professional, according to the affidavit, also testified in court that Bryan was insane when he robbed a bank in 1983, the same year he murdered George Wilson.

"I do believe that the combination of an active major mental illness, organic brain impairment, alcohol and narcotic consumption, sleep deprivation, food deprivation, borderline intellectual ability, and the overall internal and external stressors at work on Mr. Bryan were serious conditions relating to his ability or lack thereof to form specific intent to rob, kidnap, and/or murder George Wilson," wrote Larson in his affidavit.

In convicting Anthony Bryan, state attorneys used a tape-recorded conversation between Sharon Cooper, identified in Bryan's state Supreme Court brief as an undisclosed agent with the Santa Rosa County Sheriff's Department. According to Bryan's attorneys, Cooper tried to obtain a confession from him under false pretenses on the tape, and violated his civil rights by taping their conversation. The trial court, according to Bryan's counsel, was going to play the tape in rebuttal but did not, and only had Sharon Cooper testify to its contents, giving the jury the impression that Bryan and Cooper had concocted his alibi together.

Stokes could not cross-examine Cooper about the tape since he had never been able to listen to it. In 1990, he alleged in postconviction legal proceedings that prosecutors were witholding the tape from him. Bryan's attorneys say they first got the tape on Oct.13, 1999, fourteen days before their client's scheduled execution.

"The tape reveals a mentally incompetent, depressed Anthony Bryan who denies every attempt by Cooper to implicate him in the homicide," wrote Bryan's attorneys in the state Supreme Court brief.

Bryan robbed a bank in Grand Bay, Ala. with a shotgun in 1983. He managed to escape the crime scene. Less than a month after robbing the bank, Bryan met Cooper in Jacksonville, Fla. They hitchhiked from there to Mississippi, where they obtained a truck in which they returned to Florida. While en route, they stopped to retrieve the shotgun Bryan used in the bank robbery.

While in Florida, Bryan obtained a cabin cruiser, which he and Cooper used to travel back to Mississippi. In Pascagoula, the boat became damaged, and the two stopped to make repairs. Bryan borrowed tools from George Wilson, but could not repair the boat. Needing transportation and money, Bryan robbed Wilson at gunpoint. He then robbed the seafood wholesaler where Wilson worked. After returning, Bryan locked the bound watchman in the trunk of Wilson's car, and he drove him into Florida's Santa Rosa County.

After spending a night in a motel there, Bryan marched Wilson at gunpoint into a secluded spot in the woods next to a creek. Wilson begged for his life, but Bryan hit him with the gun, and he fell into the creek. Bryan then shot him once in the face, and pushed Wilson's car into a nearby river. Bryan was arrested in 1983, but escaped from prison the next year. He was re-arrested in Colorado in 1985, and convicted and sentenced to death in 1986.

State and federal courts at all levels in Florida have held that Stokes did in fact present an adequate mental health defense, and have also ruled that the facts of the case are not consistent with arguments that Bryan is incompetent. The 11th Circuit Court of Appeals ruled that Bryan had tried to cover up the murder in ways that showed he did appreciate the consequences of his actions. Bryan, after dumping Wilson's car in a river, mailed the murder weapon and some clothing to Biloxi, Miss. In addition, Bryan later tried to have a fellow inmate at the Springfield Medical Center help him come up with an alibi for the crime.

Bryan's attorney now describes his client as "extremely gentle" and someone "who cares more for others than he does for himself." Thomas also said that Bryan, with whome he has been working since September, has expressed remorse for the incident, and is well-adjusted to prison life.

Florida must wait to execute another mentally ill man, Thomas Provenzano, who was convicted of murdering two bailiffs in a 1994 courthouse shootout in Orlando. Since his conviction in 1984, Provenzano's attorneys have claimed they did not have the resources to adequately represent him. His attorney, from the Tampa office of the Capital Collateral Representative, which represents indigent death row inmates, told a judge that no one in his office had any familiarity with Provenzano's case. Since his conviction, Provenzano has claimed he is Jesus Christ.

December 1999

Adrift on an isle in the middle of the Pacific Ocean, the government of Guam faces the same issues as its counterparts throughout the United States: budget crunches, racial divisions, partisan friction. There are differences, too: a location much closer to Asia than North America, a population that is 98 percent Roman Catholic and an ancient Spanish heritage that still manifests itself in village customs.

But in Guam, located 6,000 miles southwest of Los Angeles, the government also labors under the uneasy knowledge that a court decision could rule it illegitimate at any time.

"Politics are difficult enough when you have a Democratic governor and a Republican legislature," said Roger Berliner, legal counsel to the Guam government. "But that difficulty is enhanced when at any moment, they could get a Republican governor to work with," he added, referring to the natural tendency of lawmakers to wait out a lame duck from the opposing party.

Though second-term Gov. Carl T.C. Gutierrez has been administering the territory since the island's November 1998 general election, the Supreme Court has yet to decide whether Gutierrez was legitimately elected. Both a U.S. District Court and the Circuit Court of Appeals ruled that Gutierrez had not won a proper majority. The courts ordered a run-off between Gutierrez and his challenger, Republican Joseph Ada. Appeals from Gutierrez have stayed that run-off until the Supreme Court issues its decision.

As the fate of the sitting government is dragged through the courts, the people of the tiny island, about three times the size of Washington, D.C., struggle to maintain business as usual.

"The public response has been a mixture of confusion, anxiety and despair," Berliner said. "Despair that a case of this nature could go on for so long before being decided."

Yet most of the time, the case makes few ripples on the surface of daily life on the island.

The case has been so downplayed throughout Guam, said Michael Cruz, a Guam resident studying at Northwestern University. "Everyone just believes Gutierrez is the governor."

The rulings against Gutierrez and his lieutenant governor, Madeleine Z. Bordallo, stung even more because the two have figured prominently in Guam politics for half of the island's contemporary history. Ceded to the United States in 1898 following the Spanish-American War, Guam became an unincorporated U.S. territory when President Harry Truman signed the Guam Organic Act of 1950.

The 58-year-old Gutierrez was a nine-term senator in the 15-member Guam Legislature, first elected in 1972. Self-educated — he never attended college — he established the first data processing center on Guam and founded both Carltom Consulting and Carltom Enterprises, responsible for a number of construction projects on the island.

Bordallo served twice as the First Lady of Guam while her husband, Ricardo J. Bordallo, was governor from 1975 to 1978 and 1983 to 1986. Born and educated in Minnesota (she was a voice major at St. Katherine's College), Bordallo also was a five-term senator.

The 1998 election was the largest in Guam history and was fiercely fought between the incumbent Gutierrez and Ada, himself a former governor.

After reports of voting irregularities spread throughout the island, Ada filed an election fraud lawsuit in Guam Superior Court. In that suit, Ada alleged that the Gutierrez campaign conspired to let non-U.S. citizens, non-Guam citizens, and dead and underage voters cast ballots. A judge dismissed the state suit in February 1999, but Ada's federal challenge has stormed its way to the Supreme Court.

"It's not about winning or losing," Ada told supporters after filing the suits. "It's about preserving the integrity of the election."

But if Ada wins the Supreme Court battle, the integrity of the election actually will be undermined, said the founder of a nonprofit organization that filed a brief with the Court supporting Gutierrez.

"If the point of view of Ada is upheld, you could be condoning a situation where you could never achieve a winner in an election," said Deborah Phillips, president of the Voting Integrity Project in Arlington, Va.

If the Court sides with Ada, the Guam Election Commission would have to count partially blank ballots toward the total number of votes cast when determining a majority in the governor's race.

"We want to be sure we're achieving the first goal of an election, which is to elect someone," Phillips said. "You can't do that in a possible realm where among all the possible noses counted are those who merely cast a blank ballot. You could wind up having a perpetual run-off."

In the midst of all the controversy, Gutierrez is trying simply to maintain his authority over the legislature and the 153,000 residents of Guam, the site of a former U.S. operations base in the Pacific during World War II. In January, 1999, the governor and Bordallo skipped their inauguration ceremony and quietly assumed office, attempting to focus on the demands of governing the island.

Gutierrez has faced crisis before. When he first became governor in 1995, Guam had only $5 million in the bank and a government payday approaching. Although the economy has somewhat stabilized, the island is still highly dependent on the 1.2 million tourists who visit each year for the tropical climate and alluring coral reefs. The governor has stated that he wants to diversify the economy and make it more efficient.

He also has said he wants to increase the respect Guam receives from the U.S. government, which has sometimes displeased the island government by not allowing enough self-determination for the territory and its native Chamorro population.

But as Gutierrez pursues his goals, he also is constantly looking over his shoulder, waiting for a Supreme Court decision that could unseat him at any time.

"You just do the best you can," Berliner said of the governor's precarious position. "You try to have a positive outlook and move forward with your agenda."

The legal battle swirling around a cult, murder plots and a letter from the British government came to an end when the U.S. government turned over a letter that it had protected as confidential for five years.

The move came only after the Supreme Court had agreed to hear the case about the freedom of information act. The woman that it could have helped had already been tried, convicted, served out her sentence and gone back to England.

The case of U.S. v. Weatherhead was dismissed as moot only five days before oral arguments were scheduled.

The battle really began in a cult commune in Oregon in the 1980s. Two British women, Sally Croft and Susan Hagan, were followers of Bhagwan Shree Rajneesh, known as India's "free-sex guru."

They were among the more than 4,000 people who followed the guru's teaching of sex, meditation and wealth, and took new names and wore red robes as well as a 108-bead necklace with the Bhagwan's picture on it.

They lived on a 64,000-acre ranch called Rajneeshpuram that was in continuous conflict with the local authorities.

The Bhagwan's free love and free spending clashed with the residents of nearby Antelope, Ore. who believed the cult wanted to take over the area. Their fears seemed confirmed when the group began bringing homeless people from all over the country to the commune in order to pad their numbers and take advantage of Oregon's lenient voting laws.

In 1985, the Bhagwan was arrested on immigration fraud charges and thrown out of the United States. His former top female leader, Ma Anand Sheela, pleaded guilty to charges involving the 1984 salmonella poisoning of 750 nearby residents, admitting that she and others sprayed liquid salmonella bacteria on food in local resturaunts and salad bars in an effort to keep them from voting in a local election.

Eleven other aides pleaded guilty to wiretapping charges and the former mayor of the Rajneeshpuram was sentenced to two years in prison for arranging sham marriages so foreign followers of the Bhagwan could get around U.S. immigration laws.

Then came the case of Croft and Hagan. They left the United States in 1985 as a federal immigration investigation by U.S. Attorney for Oregon Charles Turner gathered momentum. They both allegedly had sham marriages that had enabled them to stay in America.

Five years after the departure, they were both charged in the United States with conspiring to kill Turner.

During the extradition battle, the women found some powerful allies in the British government, including Tony Blair. There was a fear that the women could not get a fair trial in Oregon.

After agreeing to send the women back to face charges, the British government wrote a letter to the U.S. government that expressed concern for the fairness of the trials. It is that letter that led to the legal dispute in America.

Unknown until days before the case was to be argued in Dec. 1999 before the U.S. Supreme Court, the letter states: "As you will know, Ms. Hagan and Ms. Croft and others, including prominent members of both Houses of Parliament, have expressed fears that they will not receive a fair trial in Oregon ... Ms. Hagan and Ms. Croft had asked the Home Secretary to seek an undertaking from the United States Government that the place of the trial be moved to another, neutral, state."

Leslie Weatherhead, Croft's attorney, requested the letter from the State and Justice Departments. He wanted to use the letter as evidence in a change of venue hearing.

The State Department classified the letter and the litigation intensified.

The letter also stated that one of the weapons charges against the women had to dropped because there is no English equivalent offense.

"It is shocking and appalling that the government would not at a minimum give us that," said Chuck Cooper, the attorney for Weatherhead, referring to the paragraph about firearms charges.

While the legal wrangling continued, Croft was tried and convicted in Oregan and sentenced to five years in prison for murder conspiracy. She has since served out her sentence and gone back to England.

After both sides filed their briefs with the Supreme Court, the government decided not to fight it anymore. They turned the letter over to Cooper. The Supreme Court dismissed the case as moot.

"Would the disclosure of the letter and the British government's concern over a fair trial made a difference in the mind of the judge [when deciding on a change of venue request]?" Cooper said. "No one knows. But nobody can say that it wouldn't have."

Don McCauley is chuckling over the phone from his Newark, New Jersey office. In his 12 years as a public defender, which includes two appearances before the U.S. Supreme Court, his clients have proven that truth really is stranger than fiction.

"I always have a roster of colorful characters," he says.

Colorful may be an understatement. Wacky, bizarre, and downright laughable might come closer to describing the off-beat criminals who have paraded through his doors.

Bank robbers seem to be a specialty.

In one case, McCauley defended a man whose getaway vehicle was a bicycle. "He was caught by good Samaritans who saw him peddling away," McCauley says.

Then there was the man who said he robbed a bank to pay for a proper headstone and burial for a beloved family member - his dog. The man got away with robbing one bank before he grew faint at heart and turned himself in to guards at a second bank he'd planned to hit.

But the poster child for McCauley's ring of thieves is perhaps Sylvester Mosley. Mosley, unarmed, liked to smile and hold up written signs asking bank tellers to please hand over all their money. As bank robbers go, Mosley was a perfect gentleman.

"In his case, he was on videotape for at least 20 minutes waiting in line," McCauley says.

Mosley's case made it all the way to the Supreme Court in 1998, where McCauley first argued that bank larceny should be a lesser-included offense in bank robbery. Weeks before the decision, however, Mosley died of AIDS. The Carter case is a second chance for McCauley to make his arguments. He's a bank robber, too, or as McCauley is apt to correct, a bank larcenist, since that is the very issue before the Court.

Then there are other clients. In 1999, McCauley defended a 41-year-old maintenance worker from New York City who married 16 women to help them get green cards. The press dubbed the man the "serial groom," and McCauley told reporters his client was just "a Ken doll who showed up for photographs." Immigration officials were not amused.

And while it may be a crime to marry under false pretenses, McCauley once argued that "it's not a crime to be in love" when he defended a Ukranian immigrant who wrote love letters to Chelsea Clinton.

McCauley has also defended suspects who, in a twist of the usual scenario, said they committed a crime when they actually hadn't.

In what was touted as the largest undercover sting operation in U.S. history in 1992, McCauley helped get charges dropped against 15 of 80 people accused of selling stolen merchandise to undercover FBI agents.

The agents operated an electronics store in a Linden, New Jersey shopping mall, recovering $26 million of merchandise in two years, including trucks full of BMWs, Nabisco snack crackers, women's lingerie, camcorders and cereal.

But after interviewing more than a dozen potential clients, McCauley realized many were telling the same story: The FBI's main informant in the sting operation had paid his neighbors, some of them alcoholics, to come down to the electronics shop and claim they had stolen merchandise parked in trucks out back.

McCauley told the media at the time, "He [the informant] knew the FBI was getting tired of seeing the same faces, so he decided to bring in some new ones." The phony thieves would collect payment from the FBI and split the money with the informant, not realizing it was a setup.

Sometimes, too, law enforcement officials provide the intrigue in McCauley's line of work.

In 1993, drug charges were dropped against one of McCauley's clients on the basis that he had been denied a speedy trial. State and federal officials had arrested Charles Jennings and forgotten he was in jail. Ten months later, a federal posse scoured his house in search of him.

"Not surprisingly," a displeased judge noted, Jennings was not to be found. That's because he was where he'd been since his arrest -- the Mercer County jail.

"My client was illiterate," McCauley recalls. "He had no family and no real money. They [law enforcement officials] assumed he'd make bail and he never did."

As a longtime New Jersey public defender, it's fair to say McCauley has seen it all. But he counts his appearances before the Supreme Court as the highlights of his career.

In the weeks leading up to oral arguments, McCauley says he's using moot court rehearsals to prepare, having learned the first time around to expect a lot of questions.

"Last time I got about two sentences out before the questions started and they never stopped," he said. "The justices were extraordinarily prepared and engaged in the arguments."

In the meantime, McCauley still has a full workload. He's quick to say why he chose to spend his life defending accused criminals. "It's easy to accuse and prosecute," he says. "I'd rather work for the underdog."

Especially when they're this entertaining.