115. The remaining applicants complained under Articles 11 and 14 of the Convention about a violation of their right to freedom of association in that the State authorities had tolerated the discriminatory policies of their employer and refused to examine their discrimination complaint due to absence of effective legal mechanism in the domestic law ..
120. The Court notes that the parties disagree whether the circumstances of the present case involve direct intervention by the State, given the status of the Kaliningrad seaport company. The Court considers that it should not rule on this issue since responsibility of the Russian Federation would, anyway, be engaged if the matters complained of resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 41, ECHR 2002‑V).
122. The Court observes that the applicants obtained State protection in respect of one-off measures by their employer which they believed violated their rights. Thus, a domestic court ordered compensation in the form of two months’ wages for their reassignment to DUR-only work teams, which had allegedly resulted in a decrease in their earnings (see paragraph 46 above); the allegedly prejudicial safety regulations test was organised again as ordered by the State Work Safety Inspectorate (see paragraphs 27-28 above); a regional prosecutor found that there had been an arbitrary decrease in working hours, giving rise to an award of lost earnings and compensation for non-pecuniary damage by a court of law (see paragraphs 31 and 33 above); lost earnings and compensation for non‑pecuniary damage were also granted for non-enforcement of the judgment of 24 May 2002 (see paragraph 90 above); and in most instances the courts also granted compensation to individual trade union members affected by the employer’s actions (see paragraphs 53-73 above). Furthermore, the domestic courts carefully examined the applicants’ grievances in connection with the lucrative transfer to a new stevedoring company offered to their co-workers but not to them and granted their claims for lost earnings, reinstatement and non-pecuniary damage (see paragraph 82 above). The applicants did not complain that the judgments of the domestic courts in this connection were ill-founded or arbitrary.
123. Nevertheless, as to the substance of the right of association enshrined in Article 11, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade-union freedom, subject to its margin of appreciation (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, 12 November 2008). An employee or worker should be free to join, or not join a trade union without being sanctioned or subject to disincentives (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 39, ECHR 2007‑...). The wording of Article 11 explicitly refers to the right of “everybody”, and this provision obviously includes a right not to be discriminated against for choosing to avail oneself of the right to be protected by trade union, also given that Article 14 formed an integral part of each of the Articles laying down rights and freedoms whatever their nature (see National Union of Belgian Police, cited above, § 44). Thus the totality of the measures implemented to safeguard the guarantees of Article 11 should include protection against discrimination on the ground of trade union membership which, according to the Freedom of Association Committee, constitutes one of the most serious violations of freedom of association capable to jeopardize the very existence of a trade union (see paragraph 107 above).
124. The Court finds crucially important that individuals affected by discriminatory treatment should be provided with an opportunity to challenge it and to have the right to take legal action to obtain damages and other relief. Therefore, the States are required under Articles 11 and 14 of the Convention to set up a judicial system that would ensure real and effective protection against the anti-union discrimination.
125. The Court thus has to consider whether sufficient measures were taken by the authorities to protect the applicants from alleged discriminative treatment on the ground of their choice to join the trade-union.
130. The Court notes that various techniques were used by the Kaliningrad seaport company in order to encourage employees to relinquish their union membership, including their re-assignment to special work teams with limited opportunities, dismissals subsequently found unlawful by the courts, decrease of earnings, disciplinary sanctions, refusal to reinstate following the court’s judgment etc. As a result, the DUR membership has dramatically shrunk from 290 in 1999 to 24 in 2001. The Court also refers to the findings of the Kaliningrad Regional Duma (see paragraph 51 above) and ILO Committee on Freedom of Association (see paragraph 108 above) that the question of anti-union discrimination was reasonably raised by the applicants. It agrees therefore that the clear negative effects that one’s membership of DUR had on the applicants were sufficient to constitute a prima facie case of discrimination in enjoyment of the rights guaranteed by Article 11 of the Convention.
131. The Court further notes that the applicants in the present case requested the authorities to prevent abuse of employers aimed at compelling them to leave the union. They drew the courts’ attention to a regular repetition of discriminative actions against them over a long period of time. To their point of view, granting of their discrimination complaint would serve as the most effective tool for protection of their right to join a trade union without being sanctioned or subject to disincentives.
132. The Court observes that Russian law at the material time contained a blanket prohibition on all discrimination on the ground of trade union membership or non-membership (section 9 of the Trade-Union Act). Under domestic law the applicants could have their discrimination complaint examined by a court, by virtue of the general rules of the Russian Civil Code (Articles 11-12) and the lex specialis contained in section 29 of the Trade Union Act.
133. These provisions, however, remained ineffective in the instant case. The Court notes that the domestic judicial authorities, in two sets of proceedings, refused to entertain the applicants’ discrimination complaints, having held that the existence of discrimination could be established in criminal proceedings only and that therefore the applicants’ claims could not be determined via a civil action (see paragraphs 47 and 49 above). This position, also confirmed in the Government’s observations, was nevertheless once overruled when the Baltiyskiy District Court examined on the merits yet another discrimination complaint lodged barely one year later (see paragraphs 83-84 above).
134. However, the principal deficiency of the criminal remedy is that, being based on the principle of personal liability, it requires proof “beyond reasonable doubts” of direct intent on the part of one of the company’s key managers to discriminate against the trade-union members. Failure to establish such intent led to decisions not to institute criminal proceedings (see paragraphs 38-39, 45, 47 and 49 above). Furthermore, the victims of discrimination have only a minor role in the institution and conduct of criminal proceedings. The Court is thus not persuaded that a criminal prosecution, which depended on the ability of the prosecuting authorities to unmask and prove direct intent to discriminate against the trade union members, could have provided adequate and practicable redress in respect of the alleged anti-union discrimination. Alternatively, the civil proceedings would allow fulfilling the far more delicate task of examining all elements of relationship between the applicants and their employer, including combined effect of various techniques used by the latter to induce dockers to relinquish DUR membership, and granting appropriate redress.
135. The Court will not speculate on whether the effective protection of the applicants’ right not to be discriminated against could prevent future unfavourable actions against them from the part of their employer, as the applicants suggested. Nonetheless it considers that given an objective effect of the employer’s conduct, the lack of such protection could entail fear of potential discrimination and discourage other persons from joining the trade union, which may lead to its disappearance, thus negatively affecting the enjoyment of the freedom of association.
136. In sum, the Court considers that the State failed to fulfil its positive obligations to adopt effective and clear judicial protection against discrimination on the ground of trade union membership. It follows that there has been a violation of Article 14 of the Convention taken together with Article 11.


text:
(1) This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1.
(2) This Convention applies only to contracts concluded on or after the date when the Convention enters into force in respect of the Contracting States referred to in subparagraph (1)(a) or the Contracting State referred to in subparagraph (1)(b) of article 1.
1. The principle of non-retroactivity is established in article 100, placing temporal thresholds on the application of the Convention. Pursuant to article 100(1), the rules on contract formation (Part II of the Convention, supplemented by Part I) are only applicable when the proposal for concluding the contract is made on or after the date when the Convention enters into force in the relevant State or States. Under article 100(2), the rules of the Convention regarding the rights and obligations of the parties (Part III of the Convention, supplemented by Part I) are applicable to contracts that are concluded on or after the date the Convention entered into force in the relevant State. Both article 100(1) and (2) refer to entry into force "in respect of the Contracting States referred to in subparagraph 1(a) or the Contracting State referred to in subparagraph (1)(b) of article 1." Under article 100(1), for the formation rules of the Convention to apply the offer must be made after a State is considered a Contracting State per article 1(1)(a) or 1(1)(b).  Under article 100(2), for the Convention's rules governing the rights and obligations of the parties to apply a contract must be concluded on or after the date a State is considered a Contracting State per article 1(1)(a) or 1(1)(b).  Regardless of applicability under article 100, it has been held that parties have the discretion to opt in to the Convention at the time of a dispute.
2. The Convention has been held inapplicable where the contract of sale was concluded prior to the date the Convention entered into force in the countries relevant to the transaction.
3. The Convention was held inapplicable in a case involving a contract between a seller from a non-Contracting State and a buyer from a State in which the Convention was not in force at the time the contract was concluded.
4. The Convention was held inapplicable in a case involving a contract between a seller from a non-Contracting State and a buyer from a Contracting State that made an article 95 reservation. The Court held that article 100 supported non-applicability of the Convention because the Convention was not in force in the non-Contracting State at the conclusion of the contract.
5. In one case a court held that, by virtue of Article 3 of the Convention of the Law Applicable to Contracts for the International Sale of Goods (Hague Conference June 1955), the CISG was applicable to a transaction even though the contract was concluded before the Convention's entry into force in the State of the buyer, on the basis that it was the law of the seller.
6. In another case, even though the parties concluded an international sale of goods contract that included a C&F clause before the Convention entered into force, and the parties did not display any intent to apply the Convention to the contract, the court applied the Convention. The court held that, under the C&F clause (which provides that the seller's liability only extended to the time the goods were handed over to the first carrier), supplemented by article 67 CISG, the seller was not responsible for damage to the goods.
7. In one case the court declined to decide between the applicability of the Convention (seller's law) and the 1964 Hague Sales Convention (buyer's law) because the outcome would be the same under either law.
1. See the Digest for article 99 regarding the time for entry into force of the Convention.
2. [BELGIUM Hof van Beroep Antwerpen 18 June 1996]; [BELGIUM Rechtbank van Koophandel Veurne 19 March 2003 (CVBA L. v. E.G. BV)]; CLOUT case No. 143 [HUNGARY Fovarosi Birosag Budapest 21 May 1996]; CLOUT case No. 188 [SPAIN Tribunal Supremo 3 March 1997 (Tana v. Naviera del O. v. Iberico)] ("The court noted that the CISG did not become part of Spanish law until after the dispute arose between the parties. Accordingly, and in view of the interpretation of articles 99(2) and 100(2) CISG, the court held that the CISG was not applicable to the dispute, which arose from a contract for the sale of goods concluded prior to the entry into force of the CISG in Spain."); [NETHERLANDS Arrondissementsrechtbank Arnhem 3 September 1992 (S. Jacobs v. auto Opgenoort)] ("The court further held that CISG was not applicable as the contract had been concluded before 1 January 1992, being the date of entry into force of CISG in the Netherlands (article 100 CISG)".
3. CLOUT case no. 2 [GERMANY Oberlandesgericht Frankfurt 17 September 1991] (although Germany was not a Contracting State to the CISG at the time of contract formation, the CISG applied via the application of article 1(1)(b)).
4. [GREECE Monomeles Protodikio Thessalonikis 2003] ("At the time of conclusion of the contract of sale the CISG applied in France but not in Greece…. The CISG applied by virtue of article 1(1)(b) thereof, since the private international law rules of France referred to the law of a Contracting State."); CLOUT case No. 887 [SWITZERLAND Appellationsgericht Basel-Stadt 22 August 2003] (as the Convention was not in force in one of the States, the applicability of the Convention was based on article 1(1)(b), i.e., the rules of private international commercial law lead to the application of the law of a Contracting State).
5. CLOUT case No. 191 [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial, 31 October 1995].
6. [NETHERLANDS Hof's Hertogenbosch 27 November 1991]; [NETHERLANDS Arrondissementsrechtbank Arnhem 27 May 1993 (Hunfeld v. Vos)] ("On the basis of Article 100 of the CISG, this Convention is not applicable to the agreements that were concluded before 1 January 1992, and the Convention relating to a Uniform Law on the International Sale of Goods (hereinafter ULIS), which was in force until 1 January 1992, is applicable."); CLOUT case No. 102 [ICC Court of Arbitration of the International Chamber of Commerce, September 1997 (Arbitral award No. 8962)] ("The tribunal found that, pursuant to Article 100(2) CISG, the Convention was not applicable, since the contract was concluded before the Convention entered into force in the countries involved (including France, the place of arbitration), even though those countries were parties to the Convention at the time of the issuance of the arbitral award."); CLOUT case No. 8 [ITALY Corte di Cassazione 24 October 1988 (Kretshmer v. Muratori Enzo)]; [NETHERLANDS Arrondissementsrechtbank Almelo 21 June 1989 (Societe Nouvelle des Papeteries v. Machinefabriek)]; [NETHERLANDS Hoge Raad 25 September 1992 (Societe Nouvelle des Papeteries v. Machinefabriek)]; [NETHERLANDS Gerechtshof Amsterdam 8 April 1993 (Verwer v. Pex Handelsmij & Toshiba Deutschland)]; [NETHERLANDS Arrondissementsrechtbank Arnhem 29 April 1993 (Groticke v. Neptunus Shipyard)]; [NETHERLANDS Arrondissementsrechtbank Arnhem 27 May 1993 (Hunfeld v. Vos)] (English editorial remarks available); [AUSTRIA Oberster Gerichtshof 26 May 1994] (English editorial remarks available); [GERMANY Oberlandesgericht Karlsruhe 11 February 1993] (English editorial remarks available); [GERMANY Oberlandesgericht Koln 16 October 1992] (English editorial remarks available); [GERMANY Oberlandesgericht Koln 2 October 1992] (English editorial remarks available); CLOUT case No. 22 [ARGENTINA Cámara Nacional de apelaciones en lo Comercial 15 March 1991]; [NETHERLANDS Gerechtshof Arnhem 27 April 1991]; [BELGIUM Rechtbank van koophandel Hasselt 16 March 1994] ("The Court held that the deliveries made after the entry into force of CISG in the Netherlands were governed by CISG, as the Belgian rules of private international law led to the application of the law of the Netherlands, a contracting State (article 1(1)(b) CISG), while only the deliveries made prior to that date were governed by the 1964 Hague Convention relating to a Uniform Law on the International Sale of Goods ULIS");); [RUSSIA Tribunal of International Commerical Arbitration at the Russian Federation Chamber of Commerce and Industry 18 December 1998] (the Convention was not considered applicable as it was not in force in one of the States at the time of the conclusion of the contract; however, it was considered "subsidiary law" under article 7(2) because "its provisions are considered to be applicable to the relations between the parties as the rules making it pursuant to the Constitution of the Russian Federation [seller's country] … a component part of the legal system of Russia."; [SWITZERLAND Tribunal Cantonal Vaud 14 March 1993]; CLOUT case No. 212 [SWITZERLAND Tribunal Cantonal Vaud 14 March 1996]; [SWITZERLAND Tribunal Cantonal Vaud 29 April 1992]; [SWITZERLAND Handelsgericht Zurich 9 April 1991].
7. [NETHERLANDS Arrondissementsrechtbank Arnhem 22 October 1992 (Streamline Building Products v. Albrecht)] (English editorial remarks available); [NETHERLANDS Arrondissementsrechtbank Arnhem 15 April 1993 (J.A. Harris & Sons v. Nijmergsche Ijzergieterij)] (English editorial remarks available).
8. CLOUT case No. 616 [UNITED STATES U.S. District Court, Southern District of Florida 22 November 2002 (Impuls v. Psion-Teklogix)].
9. [BELGIUM Rechtbank van Koophandel Ieper 29 January 2001].
10. CLOUT case no. 191 [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial, 31 October 1995].
11. [BELGIUM Rechtbank van koophandel Hasselt 21 January 1997].

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Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, & KAPLAN, JJ.
At the trial of an indictment for murder, where there was substantial evidence that the defendant was insane at the time of making an in-custody statement admitting that he shot the victim, this court, assuming without decision that, in view of Eisen v. Picard, 452 F. 2d 860 (1st Cir.), the defendant's statement was improperly received in evidence, nevertheless held that, as there was overwhelming evidence apart from the statement that the defendant did the shooting, its receipt in evidence was harmless beyond a reasonable doubt [666-668]; the statement was, in any event, admissible on the issue of the defendant's sanity [668-669].
INDICTMENT found and returned in the Superior Court on September 30, 1966.
The case was tried before Taveira, J., and a motion for a new trial was heard by him.
Alexander Whiteside, II, for the defendant.
BRAUCHER, J. This is an appeal under G. L. c. 278, Sections 33A-33G, from a conviction upon an indictment charging the defendant with the murder of his sister's husband. The defendant was arrested on August 17, 1966, shortly after the death of the victim. Until September, 1968, the defendant was deemed incompetent to stand trial, and the trial was held in May, 1969. There was a nolle prosequi of so much of the indictment as alleged first degree murder, and the defendant was convicted of murder in the second degree. In February, 1971, the defendant moved for a new trial, and the motion was denied in April, 1971.
The defendant argues two main points: first, that the judge erred in admitting in evidence the defendant's "confession" to a police officer while in custody, and second, that a new trial should be ordered because the prosecution withheld evidence of the defendant's lack of criminal responsibility and because justice so requires in view of the totality of the evidence. At the trial, the defendant made no attempt to controvert the evidence for the prosecution, but contended only that he was insane and was in no way responsible for what took place. Compare Commonwealth v. Cox, 327 Mass. 609, 610. Without objection the judge charged the jury that "there doesn't seem to be any dispute that this defendant shot and killed" the victim. In his motion for a new trial, the defendant asserted that the "sole defense in this case was that the defendant's mental condition was such that he was not criminally responsible for the alleged homicide." Some of the defendant's present contentions seem to run counter to his trial strategy. See Commonwealth v.
Johnson, 352 Mass. 311, 317, cert. dism. as improvidently granted sub nom. Johnson v. Massachusetts, 390 U.S. 511, 511n; Commonwealth v. Earl, ante, 11, 15.
We summarize first the evidence for the prosecution apart from any admissions of the defendant. He was thirty-five years old at the time of the shooting, and had lived in the same house with his sister for many years. The victim, her husband, had lived in the same house since their marriage in 1963. The defendant had an eighth grade education, a long history of alcoholism and possibly drug addiction, including hospitalization, ate tranquilizer pills "like candy," and never held a steady job. The victim regularly beat his wife, and the defendant observed many of the beatings. On quite a few occasions the defendant asked the victim to stop, but his sister told him not to interfere. The defendant kept guns as a hobby.
On the night of the shooting the defendant was last seen by his sister at supper with her father, her husband, and her five children. She last saw the victim when she went to bed about 9 or 9:30 P.M. About 1:30 A.M. the victim was shot in the head three times in his separate bedroom, probably while in a sitting position. About that time a next door neighbor, returning home after a work day ending at midnight, thought he heard a gunshot. Then the defendant, whom the neighbor had known about ten years, came along, called to the neighbor, threatened him with a gun, and shot at a car. The neighbor grabbed the gun when it fell out of the defendant's pocket, and the defendant fled. The neighbor asked his mother to call the police. The police came and arrested the defendant. Three bullets found in the victim's room and one found in the car at which the defendant had shot had been fired from the gun taken from the defendant. That gun required a separate pull of four to four and one-half pounds on the trigger for each successive shot. Ammunition taken from the defendant on his arrest was of the same make and caliber, and there was human blood on the defendant's shirt.
We next summarize the statements of the defendant which were admitted in evidence without any exception by him. The defendant, before he was arrested, told the neighbor that he had shot the victim because "[h]e twisted the dog's ear, hit my sister. . . . I ran into the bedroom. . . . I woke him up, told him I was going to shoot him, and I shot him. . . . I can shoot you, too. You coming with me? . . . If that is the cops, I will shoot it out with them." He wanted to make a telephone call, but not from the telephone in a nearby laundromat: "No, the cop is in there all the time and I know him and they have been looking for me and he will pick me up." Later he said, "If there is anybody in that car I will shoot them." Still later he said, "Stop. If you're thinking about running, don't, because I am a good shot. I can shoot you just like anything . . .. I can really shoot you." When he shot at the car, the neighbor said, "Sonny, cops are going to be coming," and the defendant said, "I know. We have to go hide somewhere." After the neighbor grabbed the gun, the defendant said, "Don't turn me in. I know a lot of . . . friends. If I can't get you, they will." When he was arrested, the defendant said to the arresting officers, "Shoot anyway. I am going to get the chair." When asked his name, he said, "I know my rights. I don't have to tell you anything." At the station he telephoned his father and said, "Dad, I am in a little bit of trouble. . . . I am in bad trouble." He then turned to an officer and said, "He deserved it. He beat up my sister and he punctured her eardrum." He also asked if he could be bailed.
"He came out with some beauties." The defendant objected that the witness should be asked whether "in his opinion the man knew what he was doing or knew what he was talking about." The officer testified, "Whether he understood it or not, it's a difficult question to answer. . . . No, I really couldn't answer whether he understood the questions or not. If he realized the depth of the questions, I don't know." Upon the defendant's renewed objection the judge ruled that he would permit testimony as to a statement made voluntarily by the defendant without a question, and that the defendant's lack of understanding "goes to the weight of the evidence." The defendant excepted to that ruling. In response to several further questions by the prosecutor, by counsel for the defendant, and by the court, without further objection or exception, the officer testified that the defendant "stated that he knew at the time Capt. Finn was a no good . . . [obscenity]," that Captain Finn asked, "Do you realize or do you understand what you are in here for?" and that the defendant said, "Yes, I know what I am here for, because I shot that . . . [obscenity] brother-in-law."
The defendant assigns as error the admission in evidence of his "confession" that he "killed" his brother-in-law, the judge's ruling that his understanding went to the weight of the evidence, and the consequent failure to consider whether the "confession" was voluntary, "the product of a rational intellect," citing Eisen v. Picard, 452 F. 2d 860, 865 (1st Cir.), cert. den. sub nom. Picard v. Eisen, 406 U.S. 950. The Commonwealth argues that the evidence was admitted without objection, and that the assignment of error therefore brings nothing before us. But we think the earlier exception sufficiently raised the question whether it was error to admit evidence of the defendant's in-custody inculpatory statement, if it "most probably was not the product of any meaningful act of volition." Blackburn v. Alabama, 361 U.S. 199, 211.
with his attorney, without mentioning voluntariness or mental competency. The main evidence of the defendant's insanity was not introduced until after the challenged ruling, and the defendant did not request a voir dire or move to strike the testimony. The Commonwealth argues that in this situation the judge's ruling should be upheld, because it was correct at the time he made it. We pass this contention. See Blackburn v. Alabama, 361 U.S. 199, 209-210. Where, as in the Blackburn case, a conviction rests significantly on a full-fledged confession by the defendant, there is authority that, once it becomes apparent that the accused's mental condition is a factor that ought to be looked into in relation to the admissibility of his confession, the trial judge on his own motion should order a hearing on the defendant's capacity to make the confession. United States v. Silva, 418 F. 2d 328, 330-331 (2d Cir.).
Moreover, in Eisen v. Picard, 452 F. 2d 860 (1st Cir.), cert. den. sub nom. Picard v. Eisen, 406 U.S. 950, the Court of Appeals applied the Blackburn rule to inculpatory statements made by the defendant after he was taken into custody, including spontaneous statements to police officers. It was apparently that court's view that, if the trial judge has before him substantial evidence of the defendant's insanity at the time of such statements, it must appear from the record "with unmistakable clarity" that the trial judge considered whether the statements were "the product of a rational intellect." Id. at 863-865. The present record makes no such showing.
Our decisions are contrary to the decision in Eisen v. Picard, supra. Commonwealth v. Reagan, 175 Mass. 335, 340. Commonwealth v. Zelenski, 287 Mass. 125, 128-129. Commonwealth v. Eisen, 358 Mass. 740, 745. We are of course bound by decisions of the Supreme Court on questions of Federal law, but we are not concluded by decisions of other Federal courts, although we give respectful consideration to such lower Federal court decisions as seem persuasive. Brown v. Palmer Clay Prod.
Co. 290 Mass. 108, 110. LaBonte v. New York, N. H. & H. R.R. 341 Mass. 127, 130. In the present case, however, our decision is in effect reviewable by writ of habeas corpus in a United States District Court which would be bound by the decision in Eisen v. Picard, supra. It would be undesirable for us to affirm the conviction of a defendant if the inevitable consequence were that he would be released on a writ of habeas corpus. We therefore assume for the purposes of this case, without deciding, that Eisen v. Picard, supra, accurately states the Federal law.
In the Eisen case, unlike the present one, there was evidence indicating "a strong probability" that the defendant's noncustodial admissions were the result of his assumption of responsibility, "even though he had no memory of the crime and might in fact be innocent," or of "an insane compulsion to confess and that they were not based on memory." Id. at 865. But the court's opinion with respect to admissions to police officers during custody is not limited to such cases. Hence we assume that under the rule of the Eisen case there was error in the admission of the defendant's statement to police officers that he had shot his brother-in-law.
So far as that statement bore on the defendant's commission of the act, we have no difficulty in concluding that its admission in evidence was harmless beyond a reasonable doubt. See Milton v. Wainwright, 407 U.S. 371, 372-373. See also Chapman v. California, 386 U.S. 18, 24; Schneble v. Florida, 405 U.S. 427, 432. The evidence that the defendant did the shooting was overwhelming, apart from any admission by him. He took no exception to testimony of numerous similar admissions, and made no effort to controvert the evidence for the prosecution. In this setting the additional statement was inconsequential.
that statements by an insane person are not admissible on the issue of his sanity. So to hold, at least where the statements have no other impact of consequence, would reduce the trial of the issue of sanity to an absurd game. The defendant's experts testified that he was not responsible, largely on the basis of statements made by him that were no more voluntary than his statement to the police officers. We do not believe that he can select some of his statements and insist that the issue of sanity shall be decided on the basis of the statements he has selected.
2. The withholding of evidence. Two psychiatrists testified for the defendant: Dr. Barrows, assistant medical director at the Bridgewater State Hospital, and Dr. Allen, acting medical director there. They had seen the defendant numerous times beginning soon after his arrest in August, 1966, and in their opinion he was not criminally responsible. A third psychiatrist, Dr. Coleman, had examined the defendant on behalf of the prosecution shortly before the trial in May, 1969, and was of the same opinion. The defendant and his counsel were aware that Dr. Coleman had examined the defendant, but had not seen his report and did not know what he would say. Dr. Coleman was present at the trial but was not called as a witness. The defendant made a sweeping motion that he be furnished with all evidence of an exculpatory nature, but withdrew the motion before trial. He never moved for production of Dr. Coleman's report, but in February, 1971, he moved for a new trial by reason of the "defendant's deprivation by the prosecuting attorney of Dr. Coleman's exculpatory evidence." The motion was denied and an exception taken.
only two psychiatrists who testified. Its materiality seems marginal. See Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 317-318; Commonwealth v. Cassesso, 360 Mass. 570, 577-579. Moreover, we have no basis for ruling that the prosecutor "suppressed" the evidence after a "request" by the defendant. Counsel for the defendant claimed that he made a request, but the prosecutor had no memory of it, and the judge made no finding on the point. The prosecution had no duty to call the doctor to testify. Commonwealth v. Cox, 327 Mass. 609, 613-614. People v. Norwood, 5 Ill. App. 3d 130, 133. The defendant could have called the doctor as a witness, but did not, nor did he seek a recess to consider such a course. See People v. Gendron, 41 Ill. 2d 351, 359. We cannot say that the evidence was unconstitutionally withheld. Commonwealth v. Earl, ante, 11, 15-16, and cases cited. See Commonwealth v. French, 357 Mass. 356, 399; Welch v. Beto, 234 F. Supp. 484, 491 (S. D. Texas), distinguishing Ashley v. Texas, 319 F. 2d 80 (5th Cir.); United States v. DeLeo, 422 F. 2d 487, 498-499 (1st Cir.), cert. den. sub nom. DeLeo v. United States, 397 U.S. 1037.
3. The "unanimous psychiatric testimony." The defendant urges us to order a new trial because of the undisputed psychiatric trial testimony, which he says should have been reinforced by Dr. Coleman's testimony. The jury, he contends, may have been confused by the judge's instruction, to which no exception was taken, to "consider the presumption of sanity, and give it such weight as in your judgment you think it is entitled to." The cumulative effect, he argues, was to dilute the burden of the prosecution to prove sanity beyond a reasonable doubt, and justice therefore requires a new trial.
357 Mass. 168, 181-182. The present case ceased to be a "capital case" subject to Section 33E, since the defendant was not "tried on an indictment for murder in the first degree." Commonwealth v. Myers, 356 Mass. 343, 346-347. Our power to set aside a verdict, apart from Section 33E, in order to prevent a miscarriage of justice when a decisive matter has not been raised at trial, "has been sparingly used." Ibid.
This is not an appropriate case for the exercise of that power. The charge to the jury on the issue of sanity was strictly in accord with the standards laid down in Commonwealth v. McHoul, 352 Mass. 544, 555. "Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion on insanity by an expert on either side of the issue as conclusive. That is no less so in a case where one party has not secured an expert to express a contrary opinion." Commonwealth v. Smith, 357 Mass. 168, 178. The defendant's conduct and his spontaneous statements, although characterized by a doctor as showing a "paranoid reaction," fully justified the jury in inferring that he had substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law. There was evidence that he disliked the victim on rational grounds cumulated over a considerable period of time. There seems to be no dispute that he was mentally ill in some sense at most and perhaps all relevant times, but the question whether he was normal for other purposes is distinct from the issue of criminal responsibility.
and one-half hours after the jury retired, in response to a question from the jury, he repeated this instruction, this time without any statement that the jury should weigh the presumption. Any confusion generated by the original charge was thereupon thoroughly dissipated.

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TLJ Daily E-Mail Alert No. 842, February 24, 2004.
February 24, 2004, 9:00 AM ET, Alert No. 842.
He addressed the events of September 11, 2001, the formation of the Department of Homeland Security (DHS), and its accomplishments in its first year of operation. He addressed the interoperability of communications systems, and border and port security systems.
He also touched on the role of new technologies. He stated that "Every day we must operate with the knowledge that our enemies are changing based on how we change. As we shore up one vulnerability, they work to uncover another. This is why science and technology is key to winning this new kind of war. The work we do at Homeland Security, in partnership with the private sector, national laboratories, universities and research centers, help us push the scientific envelope. It helps drive the development and use of high technology to combat the weapons of high consequence. New tools of analysis, information sharing and detection help us counter terrorist attacks -- before they can happen -- and if they happen, minimize their impact."
The DHS also released a document titled "Homeland Security's Strategic Plan". It elaborates that "Through the Homeland Security Advanced Research Projects Agency (HSARPA), the department will engage both small and large businesses to assist in filling technology gaps quickly."
He also addressed information sharing between governmental entities. He stated that "We will secure real-time nationwide connectivity between all 50 states and territories. This will mean multi-directional information sharing -- the first phase of which, cyber-connectivity, will be completed within the next three months. Most notably, this is a system driven from the bottom up ... and brought to us as a communication tool because our state and local partners developed it and wanted it."
He also covered information collection and sharing regarding critical infrastructures. He said that "vast, rich information sharing tools are critical to our ability to keeping our nation's critical infrastructure far from a terrorist's reach. And so, I'm announcing today that, by December of this year, together with our partners, we will create a unified, national critical infrastructure database that will enable us to identify our greatest points of vulnerability, existing levels of security and then add increased measures of protection where needed."
The DHS Strategic Plan adds that "To increase protections of the nation's critical infrastructure, the department is taking a systemized, risk based approach to this important challenge. By the end of this year, the department will create a master database of all existing critical infrastructure in the country which will be matched against current intelligence. This will allow the department to more easily and quickly identify the greatest points of vulnerability, assess existing levels of security and increase protections as necessary."
The Strategic Plan also describes the "Unified National Database of Critical Infrastructure". It states that "A national database of all physical critical infrastructure ranked by priority will be created by December 2004. The department will also develop the tools, processes, and methodologies for identifying new critical infrastructure so that the unified national database will remain current."
Neither Secretary Ridge, nor the Strategic Plan, specifically addressed protection of computer or communications systems. However, on Tuesday, February 24, the Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing titled "Cyberterrorism". The scheduled witnesses include Amit Yoran (at right), Director of the DHS's National Cybersecurity Division. This hearing is scheduled to begin at 10:00 AM in Room 226 of the Dirksen Building.
2/23. The Supreme Court denied certiorari, without opinion, in Video Pipeline v. Buena Vista, See, Order List [26 pages in PDF] at page 4. This is a petition for writ of certiorari to the U.S. Court of Appeals (3rdCir) in a copyright infringement case involving the online distribution of short clip previews of Disney movies. Buena Vista (a licensed distributor of Disney movies) prevailed below. The Appeals Court rejected Video Pipeline's fair use and copyright misuse defenses.
For a summary of the proceedings below, see story titled "3rd Circuit Addresses Fair Use and Copyright Misuse" published in TLJ Daily E-Mail Alert No. 727, August 27, 2003.
The August 26, 2003 Court of Appeals opinion [23 pages in PDF] is notable because of its analysis of the doctrine of copyright misuse. It expanded the scope of the doctrine from its origins in competition and antitrust analysis. It wrote that copyrights should not be enforceable where the enforcement undermines the Constitutional purpose of copyright protection -- "to promote the Progress of Science and useful Arts". Specifically, the Court wrote that suppression of criticism may be inconsistent with the Constitutional purpose. See also, September 19, 2003 order [2 pages in PDF] amending opinion.
However, the Court held that the defense is inapplicable in this case. It wrote that "There is no evidence that the public will find it any more difficult to obtain criticism of Disney and its interests, or even that the public is considerably less likely to come across this criticism, if it is not displayed on the same site as the trailers."
The dispute in the case involves Video Pipeline's internet publication of approximately two minute long "clip reviews" of Disney movies, made by Video Pipeline. These clip reviews are different from the approximately two minute long "movie trailers", made by Disney, and published in Disney web sites, and licensed to other web site operators.
The defense of copyright misuse was raised in this case because Disney licensed its movie trailers subject to license terms that prohibit the licensees from using the movie trailers in a way that is "derogatory to or critical of the entertainment industry or of" Disney. That is, Disney uses the exclusive rights conferred upon it by the Copyright Act, not only to obtain a return for its creative efforts (which is consistent with the purposes of copyright protection), but also to suppress criticism (which is contrary to the purposes of copyright protection).
Whether or not anyone can distribute short movie clip reviews may not be of momentous importance. But, the doctrine misuse, if it were expanded as the Court of Appeals suggests, could have many significant applications in the context of digital works and online distribution. For a discussion of the history of the doctrine of misuse, and the possible implications of cases such as Video Pipleline, see story titled "3rd Circuit Breaks New Ground on Copyright Misuse", also published in TLJ Daily E-Mail Alert No. 727, September 27, 2003.
The case is Video Pipeline, Inc. v. Buena Vista, et al., Sup.Ct. No. 03-763, a petition for writ of certiorari to the U.S. Court of Appeals for the 3rd Circuit. The Appeals Court issued its opinion on August 26, 2003, and amended it on September 19, 2003. Judge Thomas Ambro wrote the unanimous opinion for the three judge panel; Judges Becker and Nygaard joined. The opinion is also reported at 342 F.3d 191. This is App. Ct. No. 02-2497. The U.S. District Court for the District of New Jersey issued its opinion of March 28, 2002. It is published at 192 F. Supp. 2d 321. It is D.C. No. 00-cv-05236, Judge Jerome Simandle presiding.
2/23. The Supreme Court denied certiorari, without opinions, in several notable patent cases, including Accuscan, Inc. v. Xerox Corp., DeKalb Genetics Corp. v. Bayer CropScience, and Deering Precision Instruments v. Vector Distribution Systems.
Accuscan, Inc. v. Xerox Corp. is a patent case involving the doctrine of equivalents. Accuscan obtained a judgment in the U.S. District Court (SDNY). The U.S. Court of Appeals (FedCir) reversed in part. On June 3, 2002 the Supreme Court granted certiorari, vacated and remanded (in one order) in light of the May 28, 2002 opinion [PDF] in Festo v. Shoketsu Kinzoku Kogyo Kabushiki. On September 17, 2003, on remand, the Appeals Court again held, in an unpublished opinion, that none of the accused products infringe the asserted claims either literally or under the doctrine of equivalents. This is Sup. Ct. No. 03-869.
The Supreme Court also denied certiorari in DeKalb Genetics Corp. v. Bayer CropScience. See, Order List [26 pages in PDF] at page 6. This is a patent, trade secret, misappropriation and fraudulent inducement case involving the genetic material of plant seeds. This is Sup. Ct. No. 03-916. See, September 29, 2003 opinion of the Federal Circuit on remand, also reported at 345 F.3d 1366.
Finally, the Court denied certiorari in Deering Precision Instruments v. Vector Distribution Systems. See, Order List [26 pages in PDF] at page 7. This is a petition for writ of certiorari to the U.S. Court of Appeals (FedCir) in a patent case involving the doctrine of equivalents. See, Appeals Court opinion. This is Sup.Ct. No. 03-958, Appeals Court Nos. 02-1013 and 02-1197, and D.C. No. 01-C-1118 (Northern District of Illinois). The patent in suit is U.S. Patent No. 4,744,428.
2/19. The Federal Communications Commission's (FCC) Media Bureau issued a Public Notice [PDF] stating that it requests public comments on the recently enacted consolidated appropriations bill's provisions pertaining to the national TV ownership cap.
This item is DA 04-320 in MB Docket No. 02-277. Comments will be due 21 days after publication in the Federal Register. Reply comments will be due 31 days after publication in the Federal Register. The FCC had not yet published this notice in the Federal Register as of the February 24, 2004 issue.
On June 2, the FCC announced rules changes that maintain, but relax, several FCC media ownership rules. Among other things, the FCC raised the national TV ownership cap from 35% to 45%. See, June 2, 2003 Report and Order and Notice of Proposed Rulemaking [257 pages in PDF]. See also, stories titled "FCC Announces Revisions to Media Ownership Rules" and "Reaction to the FCC's Media Ownership Announcement" in TLJ Daily E-Mail Alert No. 672, June 3, 2003.
See also, story titled "Bush Signs Omnibus Appropriations Bill", and story titled "Summary of Technology Related Provisions of the Omnibus Appropriations Bill", both published in TLJ Daily E-Mail Alert No. 824, January 27, 2004.
On Thursday, February 19, 2004, the FCC issued a notice requesting public comment on this legislation. It references the passage of the appropriations bill. It then states that "Section 629(1) of the Appropriations Act amends Section 202(c) of the Telecommunications Act of 1996 ("Telecom Act"), and directs the Commission to modify the national television ownership limit to 39 percent. Pending petitions for reconsideration ask the Commission to reconsider its decision to retain the UHF discount, urging its immediate elimination. We are opening a limited comment period in order to afford petitioners and commenters an opportunity to update the record as to the effect, if any, of the Appropriations Act on our authority and decision in this area. We invite comment as to whether the enactment of the 39% national cap affects our authority to modify or eliminate the UHF discount. For example, does passage of the 39% cap signify congressional approval, adoption, or ratification of the 50% UHF discount?"
FCC Commissioners Michael Copps and Jonathan Adelstein criticized the issuance of the notice requesting public comments. They stated in a joint release [PDF] on Monday, February 23 that "We were surprised to learn last Friday that agency staff had released a Public Notice seeking comment on the UHF Discount. With an issue of this import, it appears to us to be a highly unusual and irregular step for the staff to take without input from members of the Commission. The timing of this move -- coming little more than a week after the oral argument in this case coupled with an immediate communication from the FCC General Counsel to the Third Circuit seeking to hold the issue in abeyance based on the staff Public Notice -- may lead to questions of whether this is an attempt to avoid a substantive court decision on an apparent weakness and inconsistency in the June 2nd media ownership order."
2/18. Securities and Exchange Commission (SEC) Commissioner Cynthia Glassman gave a speech in London, U.K. at the Eighth Annual Conference on The Practical Implications of SEC Regulation Outside the United States.
Glassman (at right) addressed a number of topics, including electronic communication networks.
She stated that "Advances in technology also require us to re-examine the fairness and effectiveness of our rules. Very shortly, the Commission is going to be considering a number of market structure proposals, including the controversial trade-through rule currently in effect in the listed markets. A broker is not supposed to execute a customer's order in one market when a better price is available in another market. But the emergence of automatic execution by electronic communication networks ("ECNs") competing with traditional manual markets has complicated the situation, to say the least."
She continued that "While the purpose of the rule was to protect limit orders, the problem is that the rule requires the ECN to wait the 30 seconds it takes the floor-based specialist to respond. That might not have seemed like a very long time in 1978 when the rule was adopted, but it's an eternity today. And if the market moves during that 30 seconds, the specialist may decide not to execute the order. Best execution has come to mean different things to different customers. Many customers value the split-second speed and certainty of execution offered by the ECNs over - not a certain better price, but simply the possibility of a better price -- on an exchange."
2/23. Nancy Judy was named Director of the Federal Trade Commission's (FTC) Office of Public Affairs. She has previously worked in public relations at Myvesta, ProMarc Agency, and the American Bankers Association. She replaces Cathy MacFarlane, who has been nominated to be Assistant Secretary (Public Affairs) at the Department of Housing and Urban Development. See, FTC release.
2/23. Lillie Coney joined the Electronic Privacy Information Center (EPIC) as a Senior Policy Analyst. She will focus on civil rights, privacy, and electronic voting issues. She will also be the Coordinator of the National Committee on Voting Integrity. She was previously the Public Policy Coordinator for the Association of Computing Machinery (ACM). Before that, she worked for Rep. Sheila Lee (D-TX).
The House will meet at 2:00 PM for legislative business. The House will consider several non-technology related items under suspension of the rules. Votes will be postponed until 6:30 PM. See, Republican Whip Notice.
9:30 AM. The Senate Commerce Committee will hold a hearing on voice over internet protocol (VOIP). The witnesses will be Federal Communications Commission (FCC) Chairman Michael Powell, Jeffrey Citron (CH/CEO of Vonage), Glenn Britt (Ch/CEO of Time Warner Cable), Glen Post (Ch/CEO of CenturyTel), Stan Wise (President of the National Association of Regulatory Utility Commissioners), and Kevin Werbach (Supernova Group). The Committee notice states that it "will hear testimony on the appropriate federal and state regulatory treatment of VOIP, including obligations related to intercarrier compensation, disability access, E-911, universal service, and assistance to law enforcement". Location: Room 253, Russell Building.
10:00 AM. The Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing on titled "Cyberterrorism". The scheduled witnesses are John Malcolm (Deputy Assistant Attorney General in charge of the Computer Crimes and Intellectual Property Section of the DOJ's Criminal Division), Keith Lourdeau (FBI Deputy Assistant Director), Amit Yoran (Director of the National Cybersecurity Division of the DHS), Dan Verton (author), Howard Schmidt (Chief information Security of EBay), and Michael Vatis (Task Force on National Security in the Information Age). Sen. Jon Kyl (R-AZ) will preside. See, notice. Location: Room 226, Dirksen Building.
11:30 AM. Secretary of Homeland Security Tom Ridge, DHS Under Secretary Frank Libutti, and Washington DC Mayor Anthony Williams will speak at at event. They will address the expansion of the DHS "computer based counterterrorism communications system to all 50 states, five territories, Washington, DC, and 50 major urban areas". This communications capability is built on the Joint Regional Information Exchange System (JRIES) platform. The DHS adds that "Press wishing to attend this event must present valid credentials and arrive no later than 11:00 AM EST for PRESET. Final access will be 11:15 AM EST". Press contact: 202 282-8010. Location: Joint Operations Command Center, 5th Floor, Metropolitan Police Department, 300 Indiana Ave., NW.
12:30 PM - 2:00 PM. Michael Gallagher, Acting Administrator of the National Telecommunications and Information Administration (NTIA) will speak on broadcast issues at the Media Institute Communications Forum Monthly Luncheon. For more information, contact Clyde Ensslin (NTIA) at 202 482-7002. Location: Four Seasons Hotel.
4:00 PM. The House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property will hold a hearing titled "Reauthorization of the Satellite Home Viewer Improvement Act". The hearing will be webcast. Press contact: Jeff Lungren or Terry Shawn at 202 225-2492. Location: Room 2141, Rayburn Building.
Day three of a three day conference hosted by the National Emergency Numbering Association (NENA) titled "9-1-1 Goes to Washington". The scheduled speakers include FCC Chairman Michael Powell, NTIA Administrator Michael Gallagher, and members of the Congressional E911 Caucus. For more information, contact Dale Curtis or Susie Beamon at 202 715-1537 or Nena_media@yahoo.com. Location: Grand Hyatt Hotel, 1000 H Street, NW.
8:45 AM - 3:00 PM. The American Enterprise Institute (AEI) will host an event titled "The Advantages of High Productivity Growth". The speakers will include Barry Bosworth (Brookings Institute), Jared Bernstein (Economic Policy Institute), Elaine Chao (Secretary of Labor), Bruce Mehlman (Computer Systems Policy Project), Marvin Kosters (AEI), Adam Posen (Institute for International Economics), and Kathleen Utgoff (Bureau of Labor Statistics). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.
10:00 AM. The House Budget Committee will hold a hearing titled "The Economic Outlook and Current Fiscal Issues". The witness will be Federal Reserve Board Chairman Alan Greenspan. Location: Room 210, Cannon Building.
10:00 AM - 12:00 NOON. The House Science Committee will hold a hearing titled "The Conflict Between Science and Security in Visa Policy: Status and Next Steps". Press contact: Heidi Tringe at 202 225-4275. Location: Room 2318, Rayburn Building.
10:00 AM. The President's Export Council's Subcommittee on Export Administration (PECSEA) will hold a partially closed meeting. The PECSEA provides advice on encouraging trade with countries with which the U.S. has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons. The agenda includes a presentation by the Bureau of Industry and Security (BIS). See, notice in the Federal Register, February 3, 2004, Vol. 69, No. 22, at Page 5125. Location: Department of Commerce, Room 4832, 14th Street between Pennsylvania and Constitution Avenues, NW.
10:00 AM. The Senate Budget Committee will hold a hearing on President Bush's budget proposals for the Department of Homeland Security. Secretary Tom Ridge will testify. Location: Room 608, Dirksen Building.
10:00 AM. The Senate Judiciary Committee will hold a hearing on the nomination of Roger Benitez to be a Judge of the U.S. District Court for the Southern District of California. See, notice. Location: Room 226, Dirksen Building.
12:15 PM. The Federal Communications Bar Association's (FCBA) Online Communications Practice Committee will host a brown bag lunch. The topic will be "VoIP Deployment Overview". The speakers will be Rick Whitt (MCI), Melissa Newman (Qwest), Elana Shapochinikov (Net2Phone). RSVP to Evelyn Opany at 202 689-7163. Location: Piper Rudnick, 1200 19th St., NW.
1:00 PM. The House Homeland Security Committee Subcommittee on Cybersecurity, Science and Research & Development will hold a hearing titled "Homeland Security Science and Technology Budget Hearing for Fiscal Year 2005". The witness will be Charles McQueary, Under Secretary for Science and Technology. See, notice. Location: Room 2325, Rayburn Building.
9:30 AM. The House Commerce Committee's Subcommittee on Telecommunications and the Internet will hold another hearing on HR 3717, the "Broadcast Decency Enforcement Act of 2004". The hearing will be webcast. See, notice. Press contact: Jon Tripp at 202 225-5735. Location: Room 2123, Rayburn Building.
9:30 AM. The Senate Foreign Relations Committee will hold a hearings to examine public diplomacy and international free press. The witnesses will be Margaret Tutwiler (Under Secretary for Public Diplomacy & Public Affairs), Gene Mater (The Freedom Forum), Adam Powell (Annenberg School of Communications), and Kurt Wimmer (Covington & Burling). Location: Room 419, Dirksen Building.
11:00 AM - 2:00 PM. Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in open session. Under Secretary for Science and Technology Charles McQueary will speak at 11:00 AM. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
12:00 NOON -1:30 PM. The Steering Committee on Telehealth and Healthcare Informatics will host a luncheon. The speaker will be Phil Bond, the Under Secretary of Commerce for Technology. He will release a report titled "Innovation, Demand, and Investment in Telehealth". RSVP to Neal Neuberger at Nealn@hlthtech.com or 703 790-4933. See, notice. Location: Room 402, Dirksen Building.
12:30 PM. Supachai Panitchpakdi, Director General of the World Trade Organization (WTO), will speak at a luncheon hosted by the National Press Club (NPC). Location: NPC, 529 14th St. NW, 13th Floor.
2:30 - 5:30 PM. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in closed session. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) will hold a workshop on DRAFT Special Publication 800-60, titled "Guide for Mapping Types of Information and Information Systems to Security Categories". See, Volume I [PDF] and Volume II [PDF]. The workshop is open to government workers only. For more information, contact Elaine Frye at elaine.frye@nist.gov.
8:25 AM - 3:00 PM. The Department of Homeland Security's (DHS) Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet in closed session. See, notice in the Federal Register, February 13, 2004, Vol. 69, No. 30, at Page 7245. Location: The Bolger Center, 9600 Newbridge Drive, Potomac, MD.
9:00 AM - 4:00 PM. The National Institute of Standards and Technology's (NIST) will host an event titled "Spam Technology Workshop". The price to attend is $70. See, notice in the Federal Register, November 25, 2003, Vol. 68, No. 227, at Pages 66075 - 66076. Location: NIST, Administration Building (Building 101), Green Auditorium, Gaithersburg, MD.
The National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) will hold a workshop on DRAFT Special Publication 800-60, titled "Guide for Mapping Types of Information and Information Systems to Security Categories". See, Volume I [PDF] and Volume II [PDF]. This is a repeat of the February 26 workshop. The workshop is open to government workers only. For more information, contact Elaine Frye at elaine.frye@nist.gov.
Deadline to submit comments to the National Telecommunications and Information Administration (NTIA) in response to its notice in the Federal Register requesting comments to assist it in developing recommendations to the Federal Communications Commission (FCC) on the use of the 3650-3700 MHz band for unlicensed devices, such as 802.11 (WiFi) and BlueTooth. The FCC released its Notice of Inquiry [MS Word] on December 20, 2002. This is ET Docket No. 02-380. See, Federal Register, January 28, 2004, Vol. 69, No. 18, at Pages 4118 - 4120. See also, story titled "FCC Announces Notice of Inquiry Re More Spectrum for Unlicensed Use" in TLJ Daily E-Mail Alert No. 566, December 12, 2002, and story titled "NTIA Seeks Comments on Use of 3650-3700 MHz Band By Unlicensed Devices" in TLJ Daily E-Mail Alert No. 832, February 9, 2004.
Deadline to submit comments to the Federal Communications Commission (FCC) regarding Level 3 Communications' petition for forbearance requesting the FCC to forbear from application of 47 U.S.C. � 251(g), the exception clause of � 51.701(b)(1) of the FCC's rules, and � 69.5(b) of the FCC's rules to the extent those provisions could be interpreted to permit local exchange carrier (LECs) to impose interstate or intrastate access charges on internet protocol (IP) traffic that originates or terminates on the public switched telephone network (PSTN), or on PSTN-PSTN traffic that is incidental thereto. This is WC Docket No. 03-266. See, FCC notice [3 pages in PDF].
Deadline to submit reply comments to the Federal Communications Commission (FCC) to update the record concerning petitions for reconsideration of rules that the FCC adopted in the 1997 access charge reform docket. See, notice in the Federal Register, January 16, 2004, Vol. 69, No. 11, at Pages 2560 - 2561.
2/23. Rep. Roy Blunt (R-MO), the House Republican Whip released the Whip Notice for the week of February 23, 2004. This lists bills and others items scheduled for consideration during the week of February 23. Notably, the notice does not include HR 1561, the "United States Patent and Trademark Fee Modernization Act of 2003".
2/23. U.S. Trade Representative (USTR) Robert Zoellick (at right) held a press conference in Geneva, Switzerland at which he discussed his travels over the past two weeks to Japan, China, Singapore, India, South Africa, and other countries. He stated that "there are encouraging signs that 2004 need not be a lost year for the Doha negotiations". See, transcript.
2/23. MCI WorldCom announced in a release that AT&T and MCI WorldCom "today jointly announced they have reached an out-of-court resolution of all claims the two companies have had against each other, both before and after MCI filed Chapter 11 petitions in July 2002. The agreement includes resolution of AT&T's call routing claims against MCI and MCI's dismissal of its contempt of court motion against AT&T." It added that "No other terms of the agreement were disclosed. The agreement has been submitted for approval to the federal Bankruptcy Court for the Southern District of New York." See also, AT&T release.
2/23. The Copyright Office (CO) published a notice in the Federal Register that recites, discusses, and sets a comment deadline for, proposed rules governing the service of complaints, summonses, subpoenas and other legal process on the CO and its employees in their official capacities. Comments are due by March 24, 2004. See, Federal Register, February 23, 2004, Vol. 69, No. 35, at Pages 8120 - 8126.
2/23. The General Accounting Office (GAO) released a report [83 pages in PDF] titled "Information Management: Update on Freedom of Information Act Implementation Status". It is a presentation outline prepared for Sen. Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee, and a defender of the Freedom of Information Act.

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hring-mæ-acute;led; adj. Ornamented with inlaid rings :-- Hringmæ-acute;led sweord, Cd. 93; Th. 120, 10; Gen. 1992. v. preceding word.
hring-mere, es; n. A round pool, a bath, Exon. 124 b; Th. 478, 21; Ruin. 45.
hring-naca, an; m. See hringed-stefna, Beo. Th. 2728; B. 1862.
hring-sele; m. A hall in which rings are distributed or stored up, Beo. Th. 4024; B. 2010 [Hrothgar's palace]: 6008; B. 3053 [the cavern where the dragon guarded the treasure]: 5672; B. 2840. v. beág-sel, -sele.
hring-seta circenses ludi, Cot. 43, Lye.
hring-sete circus, Cot. 183, Lye.
hring-sittend circumsedens, spectans, Hpt. Gl. 407.
hring-þegu, e; f. Acceptance of rings, of gifts given by a lord :-- Ne biþ him tó hearpan hyge ne tó hringþege. Exon. 82 a; Th. 308, 24; Seef. 44. v. beág-þegu.
hring-weorþung, e; f. Honouring by the gift of a ring :-- Ne mægþ habban on healse hringweorþunge no maiden's neck shall be graced with a ring, Beo. Th. 6027; B. 3017. v. hord-weorþung.
hring-wíse, an; f. In the phrase on hringwísan ring-wise, in rings :-- Hwítes hiowes and eác missenlíces wæs hió on hringwísan fág candido versicolore in modum ranarum, Nar. 16, 1. v. hring-fáh.
hrínung, e; f. Touch; tactus :-- In hríning hlafes intincti panis, Jn. Skt. p. 7, 3. Mið ríning &l-bar; miððý gehrán tactu, 8, 7.
hríseht; adj. Bushy, bristly; setosus, Cot. 186, Lye.
hrisel, hresl, es; m. [?] A shuttle; radius :-- Hrisl radiolum, Ælfc. Gl. 110; Som. 79, 54; Wrt. Voc. 59, 25: radium, Wrt. Voc. 281, 75. Hresl [hrefl. Wrt.] radius, 66, 12. Hrisil, Exon. 109 a; Th. 417, 20; Rä. 36, 7. v. hrisian, and cf. scytel.
hrisian; p. ede To shake :-- Syrcan hrysedon shook their coats of mail, Beo. Th. 458; B. 226. Hrisedon heáfud moverunt capita, Ps. Surt. 21, 8: 108, 24. [Cf. Hresigende febricitans, Mk. Skt. 1, 30 (later MS.).] Stefn drihtnes hrysiendis wésten vox Domini concutientis desertum, Ps. Spl. T. 28, 7. [Laym. rusien: Ayenb. resie: Chauc. rese: Goth. hrisian: O. Sax. hrisian to shake, tremble: cf. Icel. hrista to shake.] v. á-hrisian.
hristenda [hriscenda ?] astridulus, siridulus, Lye. v. hryscan, or next word [?].
hristlan to rustle :-- Hristlend[e] crepens, Lye.
hristlung, e; f. A rustling; crepitus, strepitus. Lye.
hristung, e; f. A quivering, spasmodic action :-- Ceolan hristung and hreóung hlýdende swíðust innan [or should hristlung (v. preceding word) be read?], L. M. 2, 46; Lchdm. ii. 258, 18. Cockayne, who explains as above, compares with Icel. hrista to shake. See also hristenda.
hrið-ádl, e; f. A fever :-- Gif him hriðádl getenge biþ if fever be upon him, L. M. 2, 24; Lchdm. ii. 214, 16.
hríðer, hrýðer, es; n. Horned cattle, ox, cow, heifer :-- Jung hrýðer juniculus [anniculus ?], Ælfc. Gl. 22; Som. 59, 86; Wrt. Voc. 23, 45. Geong hrýðer L. M. 2, 16; Lchdm. ii. 196, 24. Se hláford geáhsode ðæt ðæt hrýðer [cf. fear, 7] geond ðæt wésten férde the master learned that the bull was going through the desert, Blickl. Homl. 199, 9, 11, 14, 19, 26. Ðæ-acute;r wæ-acute;ron gecýpe hrýðeru and scép there were for sale oxen and sheep, Homl. Th. i. 406, 18. Hwílum hý him ráredon on swá hrýðro sometimes they bellowed at him like oxen, Shrn. 141, 10. Gif hrýðera steorfan if cattle are dying, Lchdm. iii. 54, 31. Ðæ-acute;ron næs orfcynnes nán máre búton vii hruðeru, Cod. Dipl. Kmbl. iv. 275, 7: Ex. 34, 19. Bige mid ðam ylcan feó swá hwæt swá ðé lícige hrýðera and sceáp emes ex eadem pecunia quidquid tibi placuerit sive ex armentis sive ex ovibus, Deut. 14, 26. Hrýðera and scép, Jos. 6, 21. Næfde hé má ðonne twentig hrýðera and twentig sceápa and twentig swýna, Ors. 1, 1; Swt. 18, 14. Hrýðera gehlów the lowing of oxen, Ælfc. Gr. 1; Som. 2, 35. Hine oftorfodon mid bánum and mid hrýðera [hrýðeres, MS. F: neáta, MS. D.] heáfdum they stoned him to death with bones and heads of cattle, Chr. 1012; Erl. 146, 18. Hrýðra fald bucetum, Ælfc. Gl. 1; Som. 55, 23; Wrt. Voc. 15, 22. Of hríðerum de armento, Lev. 1, 3. Of nýtenum ðæt ys of hríðerum and of sceápum de pecoribus id est de bobus et ovibus, 2. [A. R. reoðer: Laym. ruðeren, roðere; pl: R. Glouc. roþeren: O. Frs. hrither, rither, reder: cf. O. H. Ger. hrind armentum, bos: Ger. rind.] v. eald-hríðer.
hríðer-freóls taurilia, Hpt. Gl. 515.
hríðer-heáwere, es; m. A butcher :-- Hrýðerheáwere bucida, qui boves mactat, Ælfc. Gl. 33; Som. 62, 33; Wrt. Voc. 28, 16.
hríðer-heord, e; f. A herd of cattle :-- Eówre sceáp and eówer hrýðerheorda oves tuæ et amenta tua, Gen. 45, 10.
hriðian; p. ode To shake, quake, have a fever: -- Sió wamb hryt the stomach is fevered, L. M. 2, 25; Lchdm. ii. 216, 20. Hie hriðiaþ they are feverish, 26; Lchdm. ii. 220, 5. Hé hriðode he was sick with a fever, Homl. Th. i. 86, 7. Hriðgende [cf. Lind. cuacende &l-bar; bifigende] febricitantem, Mt. Kmbl. 8, 14. Hriðigende, Mk. Skt. 1, 30. Hé biþ hriðende he is feverish, L. M. 2, 17; Lchdm. ii. 198, 21. [Cf. O. H. Ger. ridan febricitare.] v. hrisian.
hriðing, e; f. Fever, feverishness :-- Mid hriðingum swíðe strangum with very violent fevers, L. M. 2, 46; Lchdm. ii. 258, 2.
hrið-suht [?], e; f. Fever :-- Hál of ridesohte the fever left her, Mk. Skt. Rush. 1, 31. Perhaps the word is borrowed; cf. Icel. riðu-sótt fever, ague.
hroden; pp. of hreóðan Laden, laden with ornaments, ornamented, adorned :-- Brýd beága hroden a bride adorned with rings, Exon. 12 a; Th. 18, 31; Cri. 292. Ðá wæs heal hroden feónda feorum then was the hall burdened with the lives of his foes [filled with the slain], Bec. Th. 2307; B. 1151. Hroden ealowæge the ornamented ale-cup, 995; B. 495: 2048; 1022. [Cf. Icel. hroðian in hroðit sigli.] v. beág-, ge-, gold-, sinc-hroden; on-hreóðan.
HRÓF, es; m. A ROOF, the top, summit, highest part [cf. Tennyson's 'Why should we only toil the roof and crown of things?'] :-- Góma vel hróf ðæs múþes palatum vel uranon, Ælfc. Gl. 71; Som. 70, 106; Wrt. Voc. 43, 35. Hróf camara, 290, 2. Se hróf hæfde mislíce heáhnysse the roof was not all of one height, Homl. Th. i. 508, 18. Ðæt héhste gód is hróf eallra óðra góda the chief good is the roof and crown of all other goods, Bt. 34, 7; Fox 142, 35. Wið ðæs heán hrófes ðæs héhstan andgites in summæ intelligentiæ cacumen, 41, 5; Fox 254, 16. Under fæstenne folca hrófes under the firmament, Cd. 8; Th. 10, 8; Gen. 153. Mec feredon under hrófes hleó bore me under the shelter of the sky, Exon. 107 b; Th. 409, 22; Rä. 28, 5. Martinus ástáh on ðam sticelan hrófe, Homl. Th. ii. 510, 7. Ðe ne beóþ tó ðam hrófe ðonne git cumen fulfremedra mægena nondum ad extremam manum virtutum perfectione perductas, Bt. 18, 1; Fox 60, 22. From hróf eardes a summo terræ, Mk. Skt. Lind. 13, 27. On hrófe gestód heán landes he stopped on the summit of the mount, Cd. 140; Th. 175, 20; Gen. 2898. Of hé[um] heofnes hrófe ex summa cæli arce, Rtl. 101, 24. Hé gescóp eorþan bearnum heofon tó [h]rófe qui filiis hominum cælum pro culmine tecti creavit, Bd. 4, 24; S. 597, 22. Ðenden hé on ðysse worulde wunode under wolcna hrófe, Judth. 10; Thw. 22, 19; Jud. 67: Elen. Kmbl. 178; El. 89: Cd. 158; Th. 196, 28; Exod. 298. Ðæt wé to ðam hýhstan hrófe gestígan that we may mount to heaven, Exon. 18 b; Th. 47, 3; Cri. 749. Ðe ðæs húses hróf staðeliaþ qui ædificant domum, Ps. Th. 126, 1. Gif hwylc wíf seteþ hire bearn ofer hróf si mulier aliqua infantem suam super tectum posuerit, L. Ecg. C. 33; Th. ii. 156, 45. Ofer heánne hróf, Beo. Th. 1970; B. 983: 1857; B. 926: 1677; B. 836. Under beorges hróf in the cave, 5504; B. 2755. Ðá gewát se engel up on heánne hróf heofona ríces, Cd. 196; Th. 244, 2; Dan. 442. Fiðru mid ðæ-acute;m ic fleógan mæg ofer heáne hróf heofones ðisses pennæ quæ celsa conscendant poli, Bt. Met. Fox 24, 5; Met. 24, 3: Cd. 46; Th. 58, 34; Gen. 956. Ofer wealles hróf super muros, Ps. Th. 54, 9: Exon. 108 a; Th. 412, 1; Rä. 30, 7. Hylles hróf, 104 b; Th. 397, 30; Rä. 16, 27. Helmes hróf, Beo. Th. 2064; B. 1030. Under wætera hrófas [of passing through the Red Sea], Cd. 170; Th. 214, 18; Exod. 571. Bodiaþ uppan hrófum prædicate super tecta, Mt. Kmbl. 10, 27. [Laym. róf: Orm. rhof: O. Frs. hróf: Icel. hróf a shed under which ships are built or kept.] DER. heofon-, inwit-hróf.

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Kevin Michael McNally, Asst. Public Advocate, Frankfort, Ky., M. Gail Robinson (argued), for petitioner-appellant.
Steven L. Beshear, Atty. Gen., Frankfort, Ky., Martin Glazer (argued), Virgil W. Webb, III, for respondent-appellee.
Before KEITH and MERRITT, Circuit Judges and WISEMAN, District Judge.
Honorable Thomas A. Wiseman, Jr., District Judge, United States District Court for the Middle District of Tennessee, sitting by designation.
The facts and prior procedural history of this case are set forth in the Court's opinion of December 20, 1983. 724 F.2d 37 (6th Cir. 1983). Petitioner filed a petition for the Writ of Certiorari, and a Motion to Vacate the prior judgment of this Court, the Supreme Court vacated the judgment and remanded the cause to this Court, ___ U.S. ___, 105 S.Ct. 2315, 85 L.Ed.2d 835, for further proceedings in light of the assertions set forth in the petitioner's Motion to Vacate, and the response filed thereto.
This Court had vacated the judgment of the district court sua sponte because it appeared to us on the record before us that petitioner had failed to exhaust available remedies in the Kentucky courts. We found that petitioner had not presented the Kentucky Supreme Court with the claim that his procedural default should be excused to prevent injustice or because his counsel was inadequate. We held that Ky. R.Cr. 11.42 afforded petitioner an adequate post-conviction opportunity to raise these claims and that it had not been utilized.
After certiorari was granted, counsel for petitioner first learned that petitioner had filed two pro se state post-conviction actions under Ky.R.Cr. 11.42 prior to the filing of his habeas corpus action, and these facts were acknowledged by the respondent. In view of these events, unknown to counsel and unasserted before us in our previous consideration, the case is remanded to us to reconsider the petitioner's appeal from the dismissal by the district court on its merits.
I NECESSITY OF A "CAUSE AND PREJUDICE" HEARING.
The standard of "cause" for a procedural default was left open for case-by-case determination in the seminal case of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Court there said: "Matters such as the competence of counsel, the procedural context in which the asserted waiver occurred, the character of the constitutional right at stake, and the overall fairness of the entire proceeding, may be more significant than the language of the test the Court purports to apply." Id. at 95-96, 97 S.Ct. at 2511 (Burger, J., concurring).
This Court has held that a hearing is necessary to determine cause and prejudice under Sykes. See Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981).
One of the early cases that establishes that evidentiary hearings should be held to determine whether incompetence of counsel constituted "cause" under Sykes was Jiminez v. Estelle, 557 F.2d 506, 511 (5th Cir. 1977). There the petitioner alleged that he had received an illegal sentence because it was based on prior convictions that were obtained in denial of his right to counsel. The state required contemporaneous objections to this evidence, but the defendant's attorney failed to object to the convictions on due process grounds and therefore waived the claims under Sykes. The court stressed that this could be a "classic case in which holding that the federal habeas court cannot consider the error [alleged] would run counter to the Supreme Court's provision of the failsafe mechanism of permitting him to show that rigid application of the Rule would indeed result in a miscarriage of justice." Id. at 511. The court also observed that no tactical advantage could have been gained by failure to object and remanded the case for a hearing on cause and prejudice. Id. The Fifth Circuit has continued to require hearings. See, e.g., Huffman v. Wainwright, 651 F.2d 347, 352 (5th Cir. 1981) (per curiam).
Because the Sykes court left open the standard of "cause" for a case-by-case determination, the Ninth Circuit has held that the degree of attorney inadvertence necessary to constitute cause must be resolved by examination of the particular facts at hand. Thus, the court held that an evidentiary hearing should be required in many cases. Farrow v. United States, 580 F.2d 1339, 1356-57 (9th Cir. 1978) (en banc).
Under the circumstances in the present case, the district court must grant the petitioner a hearing to determine whether there was cause and prejudice to justify his procedural default. The district court gave the petitioner no opportunity to demonstrate why his counsel failed to preserve the error or to hear from trial counsel whether there was a legitimate reason for the default. Because there are factual issues in dispute and an insufficient record upon which to resolve the legitimate claims advanced by the petitioner, the district court erred in denying petitioner's request for a cause and prejudice hearing. See Hines v. Enomoto, 658 F.2d 667, 674 (9th Cir. 1981): United States v. Barnes, 610 F.2d 888, 893 (D.C. Cir. 1979). Without a hearing, there would never be an opportunity for a habeas petitioner to meet the Supreme Court's cause and prejudice requirement.
This case must therefore be remanded to the district court for a hearing on cause and prejudice. In reviewing this case, the Court must consider the various claims which the petitioner has raised. To ensure that the district court has adequate guidance to resolve the issues, and to clarify the standard of cause and prejudice for future cases, we will proceed to discuss the considerations necessary for informed resolution of this case.
Counsel for the state assert that ineffectiveness of counsel can never constitute cause for a procedural default. They rely primarily on two cases: Washington v. Estelle, 648 F.2d 276 (5th Cir.), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); Lumpkin v. Ricketts, 551 F.2d 680 (5th Cir.), cert. denied, 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316 (1977). In Lumpkin the court held that the bare allegation that an attorney was ineffective in failing to raise an objection is insufficient to establish cause. 551 F.2d at 682-83. This statement, however, was dicta because a court had already determined that counsel had not been ineffective in failing to raise the claim. Id. at 683. Again, in Washington, the court stressed that the bare allegation of ineffectiveness of counsel was insufficient to establish cause while also observing that the record itself did not bear out the allegation. 648 F.2d at 278.
Subsequent to the decision in Lumpkin, the Fifth Circuit held that proof of ineffectiveness of counsel was a sufficient showing of cause under Sykes to justify review of defaulted claims. Sincox v. United States, 571 F.2d 876, 880 (5th Cir. 1978). Subsequent to the decision in Washington, the Fifth Circuit again recognized that inadequate representation of counsel constitutes cause for a default, and remanded for a hearing a determine why counsel had failed to challenge jury selection procedures. Huffman v. Wainwright, 651 F.2d 347, 351-52 (5th Cir. 1981) (per curiam). See also Goodwin v. Balkcom, 684 F.2d 794, 809 n. 17 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983) (observing that ineffective counsel may satisfy cause and prejudice requirements and distinguishing Lumpkin v. Ricketts where there was a "hollow claim" or base assertion of ineffective counsel, unsupported by testimony); Jurek v. Estelle, 593 F.2d 672, 684 (5th Cir. 1979), en banc, 623 F.2d 929 (1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981) ("[A]ttorney misfeasance which amounts to an abdication of the duty to make informed tactical choices at trial constitutes cause within the meaning of Wainwright v. Sykes.").
The Ninth Circuit has held that the inadvertence or ignorance of counsel will constitute cause even if the attorney's handling of the case does not constitute ineffective assistance of counsel. Garrison v. McCarthy, 653 F.2d 374, 377-78 (9th Cir. 1981). Similarly, the Eighth Circuit has held that inadvertence of counsel may constitute cause for a procedural default. Collins v. Auger, 577 F.2d 1107, 1110 n. 2 (8th Cir. 1978) (dicta), cert. denied, 439 U.S. 1133, 99 S.Ct. 1057, 59 L.Ed.2d 96 (1979); Rinehart v. Brewer, 561 F.2d 126, 130 n. 6 (8th Cir. 1977) (holding that ineffective assistance of counsel provided a showing of cause for a procedural default, in light of all the circumstances at trial). Courts have generally agreed that constitutionally ineffective assistance of counsel constitutes cause, though they have split over whether lesser negligence is sufficient. Goodman Sallett, Wainwright v. Sykes: The Lower Federal Courts Respond, 30 Hastings L.Rev. 1683, 1725 (1979). Such a holding is not inconsistent with the Supreme Court's holding in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Although the Isaac Court refused to hold that a default caused by an attorney's inadvertence in failing to anticipate a constitutional ground upon which to challenge a conviction would not satisfy the cause requirement, the Court distinguished situations where an attorney is incompetent. See Engle v. Isaac, 456 U.S. at 134, 102 S.Ct. at 1575. Incompetence of counsel is distinguishable from mere inadvertence or negligence, and should be sufficient to justify habeas review despite a procedural default.
The district court in the present case did not recognize the petitioner's claim that ineffective assistance of counsel may constitute cause for a procedural default. This claim, however, has consistently been upheld in this circuit. In Canary v. Bland, 583 F.2d 887 (6th Cir. 1978), the defendant had been convicted under Kentucky's habitual criminal statute when one prior conviction had been obtained on a guilty plea following a defective transfer from juvenile court. Because the attorney failed to challenge that conviction in the habitual criminal proceeding, the claim was forfeited under state law. Nothing that the deficiencies in transfer proceedings were clear on the face of the juvenile court order, the court held that the attorney was obliged to bring the infirmities in the prior proceedings to the attention of the court or, at the latest, on appeal. The court held that his failure to do so constituted a denial of the petitioner's right to counsel and therefore that the petitioner had demonstrated cause for the procedural default. Id. at 891 (citing Beasley v. United States, 491 F.2d 687 (6th Cir. 1974) (ineffective assistance of counsel standard)).
The district court should therefore afford the petitioner an opportunity to establish that his trial attorneys conduct satisfied the cause and prejudice standard of Sykes. It is conceivable that the petitioner may be able to establish that his counsel was ineffective. This circuit defines effective counsel as one who performs "at least as well as a lawyer with ordinary training and skill in the criminal law." Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). To satisfy the requirements of Sykes, the error must work to the defendant's actual prejudice. If the failure to object to the prior convictions in this case had not resulted in an enhancement of Alcorn's sentence, it would not have satisfied Sykes' prejudice requirement and would not constitute ineffective assistance. See McDonald v. Estelle, 536 F.2d 667, 671 (5th Cir. 1976) (per curiam), vacated and remanded in light of Sykes, 433 U.S. 904, 97 S.Ct. 2967, 53 L.Ed.2d 1088, remanded for consideration of cause, 564 F.2d 199 (5th Cir. 1977). Similarly, other nonegregious errors such as failure to perceive or anticipate a change in the law, as was the case in Isaac, generally cannot be considered ineffective assistance of counsel.
There are factors in this case other than the effectiveness of counsel, and the district court should not limit its consideration of cause and prejudice to the issue of whether counsel was sufficiently effective. The right at issue in this case is a fundamental one — the right not to be convicted unless guilt is proved by sufficient evidence. The district court must therefore determine, after a full and fair hearing, whether such a basic right is entitled to a more moderate calculation of cause and prejudice and whether the state presents sufficient interests in finality to justify its strong limitations on a review of that right.
The petitioner asserts that Sykes should not apply to claims of insufficient evidence to support a conviction. It is a denial of due process to convict and punish a person without evidence of that person's guilt. Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654 (1960). A conviction based on a record lacking evidence as to a crucial element of the offense charged violates due process. Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 665, 38 L.Ed.2d 666 (1974). Under Kentucky law, proof that the defendant in a persistent felon trial was eighteen years of age at the time he committed the prior felonies is an essential element of the offense which the state must prove. The proof requirement is not satisfied merely by showing that the defendant was eighteen at the time of the conviction. Adams v. Commonwealth, 551 S.W.2d 561, 564 (Ky. 1977). Therefore, the petitioner's persistent felon conviction based upon no proof beyond a reasonable doubt on this element of the crime violates due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).
In Jackson v. Virginia, 443 U.S. 307, 322-23, 99 S.Ct. 2781, 2790-91, 61 L.Ed.2d 560 (1979), the Supreme Court upheld the reviewability of sufficiency of the evidence claims in habeas corpus despite an invitation to impose an absolute rule of preclusion on such claims as it had in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), with Fourth Amendment claims. In contrast to Fourth Amendment exclusionary rule claims, which the Court held present "an issue that has no bearing on the basic justice of [one's] incarceration," Powell, 428 U.S. at 492 n. 31, 96 S.Ct. at 3051 n. 31 (1976), the Jackson Court stressed that sufficiency of the evidence claims are central to the question of guilt or innocence. 443 U.S. at 322-23, 99 S.Ct. at 2790-91 (1979). The petitioner's claim is therefore one involving "guilt related rights," which the Supreme Court deems to be most deserving of protection. See Wilkes, Federal and State Postconviction Remedies and Relief, § 8-29 at 184 (1983). Rights to substantive due process, such as the right to a conviction upon proof beyond a reasonable doubt, are among the most important. "[T]he writ has historically been available for attacking convictions on . . . grounds [of substantive due process] . . . because it represents the clearest instance where finality interests should yield." Mackey v. United States, 401 U.S. 667, 692-93, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring). See Canary v. Bland, 583 F.2d 887, 891-95 (6th Cir. 1978) (Merritt, J., concurring).
Nevertheless, the Supreme Court has indicated that the cause and prejudice standard applies to sufficiency of the evidence claims. In Jackson, the Court implicitly recognized this requirement: "Thus, assuming . . . that no independent and adequate state ground stands as a bar, [citing Francis ( v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149) and Sykes], it follows that such a claim is cognizable in a federal habeas corpus proceeding." 443 U.S. at 321, 99 S.Ct. at 2790 (1979). Additionally, the Court noted the practice of federal courts to entertain " properly preserved challenges to evidentiary sufficiency," id. at 317 n. 10, 99 S.Ct. at 2788 n. 10 (1979) (emphasis added), and stressed that the petitioner in that case had properly preserved the error under Virginia law, which required sufficiency of the evidence claims to be raised on direct appeal, id., at 311 n. 4, 99 S.Ct. at 2785 n. 4 (1979). The Court reiterated its concern for procedural requirements in Jackson cases in Isaac, where it held that errors affecting the truthfinding function must meet a threshold showing of cause and prejudice but noted that the nature of the claim "may affect the calculation of cause and actual prejudice." Isaac, 456 U.S. at 129, 102 S.Ct. at 1572 (1982). The petitioner's sufficiency of the evidence claim should therefore be supported by a showing of cause and prejudice.
The importance of this right, however, affects the calculation of cause and prejudice. The state interests served by Sykes and Isaac are not present to the same degree in a case such as this, and may well be insufficient to justify the State's procedural barriers. There is clearly no tactical justification to be gained by failing to assert a challenge to the sufficiency of the evidence, nor any reason to "sandbag" the claim for later determination. Nor is there a compelling need for a challenge to be made at trial as there is in the case of an objection to jury instructions or a motion to suppress evidence. In those cases there is a need to proceed with the trial and submit the factual issues to the jury. Moreover, a successful challenge to those violations would require a retrial of the case on remand. Here, however, where the sufficiency of evidence may be resolved from the record, there may be no need to bring the case back again before a jury. Therefore, the interest in finality and in making the trial the "main event" are not as compelling.
Unlike the contemporaneous objection rule in Sykes, the procedural requirement in this case is not as common and well-established a rule. Prior to 1977, the Kentucky courts had allowed sufficiency of the evidence claims to be preserved for appellate review by a motion for a directed verdict or on a motion for a new trial. See Carpenter v. Liebson, 683 F.2d 169, 170 (6th Cir. 1982) (citing Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky. 1977); Long v. Commonwealth, 559 S.W.2d 482 (Ky. 1977)). Moreover, Kentucky's requirement is more demanding than the one implicitly approved in Jackson v. Virginia, which allowed defendants to raise sufficiency of the evidence claims on direct appeal. Virginia's requirement in Jackson would have allowed the petitioner in this case to raise his claims in the state courts.
Because of the importance of the right at issue, it is vital that criminal defendants be allowed an adequate opportunity to present these claims. An inadequate state forum for presenting sufficiency of the evidence claims will constitute "cause" for the procedural default. See Canary v. Bland, 583 F.2d 887, 894 (6th Cir. 1978) (Merritt, J., concurring). A procedural default under a state procedural rule that is arbitrary or unreasonable may not preclude section 2254 relief. See Kinnamon, Defenses to the Preclusive Rule of Wainwright v. Sykes. 28 Drake L.Rev. 571, 597-98 (1978-79). Where a right as fundamental as substantive due process is at issue, relief should not be precluded by an attorney's failure to comply with a procedural rule which does not embody a strong state interest in finality. As discussed above, the policies of finality discussed in Sykes are not present in full force in this case. Yet, the state has required that objections to the sufficiency of the evidence be preserved at trial or forever precluded. The state courts then refused to hear the objections on appeal and further rejected, without hearing evidence, the petitioner's offer to prove that the default was due to his attorney's incompetency. Kentucky has thus made it effectively impossible for Alcorn to assert his sufficiency of the evidence claim. We can discern no legitimate state interest strong enough to justify this. If Alcorn can show that the state forum "was insufficiently hospitable to his federal claim," he has established cause for the procedural default. Jurek v. Estelle, 593 F.2d 672, 684 (5th Cir. 1979), en banc, 623 F.2d 929 (1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).
Because there was no evidence presented of Alcorn's guilt under the persistent felon statute, the prejudice prong is clearly satisfied. Where is strong evidence of a petitioner's guilt and a lack of evidence for his claim, the actual prejudice requirement is not satisfied. United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982); Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977). Actual prejudice must work to the convicted person's "actual and substantial disadvantage, infesting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. at 170, 102 S.Ct. at 1596 (1982). The errors at the petitioner's trial worked to his actual disadvantage because he was convicted without proof of his guilt. Anytime one is convicted when the evidence does not establish his guilt of the crime charged, he has demonstrated actual prejudice.
Because the petitioner may not have had sufficiently effective counsel or an adequate opportunity to raise his claims, and because his claims related to the fundamental right to proof of guilt beyond a reasonable doubt, this cause is reversed and remanded to the district court for a hearing on cause for the procedural default.

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