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Joseph Stanley FAULDER





Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: July 8, 1975
Date of arrest: April 1977
Date of birth: October 19, 1937
Victim profile: Inez Phillips (female, 75)
Method of murder: Stabbing with knife
Location: Gregg County, Texas, USA
Status: Executed by lethal injection in Texas on June 17, 1999
clemency petition


Last Statement:
This offender declined to make a last statement.


Texas Attorney General

Tuesday, June 15, 1999


AUSTIN - Texas Attorney General John Cornyn offers the following information on Joseph Stanley Faulder who is scheduled to be executed after 6 p.m., Thursday, June 17th.


On the morning of July 9, 1975, the body of Inez Phillips, a widow seventy-five years of age, was found on a bed in her home in Gladewater, Texas, by her maid. A butcher knife was found thrust six and a half inches into her chest, tape covered her mouth, and her arms were bound.

The medical examiner testified that the victim had a number of bruises on the left side of her body and legs, on her face, on a wrist, and on her fingers. Five small puncture wounds were on her right shoulder. The stab wound to the chest penetrated through a cartilaged area of a rib and the heart, almost to the back bone. The back of the victim's skull had a two inch long depressed fracture, consistent with a "heavy blow" from a blackjack (a club encased in leather). Both the stab wound and the skull fracture were sufficient to cause death. The following events led to the victim's death.

In 1974, the victim had a floor safe installed in a closet in her home. One of the employees involved in installing the floor tile which concealed the safe was James Moulton. At Faulder's trial, Moulton confirmed that he had performed floor work on the victim's house in 1974, and that he went with Lynda McCann, also known as Stormy Summers, to a bar on June 27, 1975, where he met Doyle Hughes and Faulder for the first time. Faulder bragged about being a safecracker, and Moulton told him about the victim's safe, sketched a diagram, and told them that only the seventy-five year old woman lived there.

Moulton drove the four of them to see the victim's house. Moulton testified that he was not involved in the actual burglary and murder, that he called a police hotline to give information on the case, and that Hughes was not involved in the discussions regarding the offense. Moulton pleaded guilty to conspiracy to burglarize a house and received a five year sentence, but the sentence was not part of a plea bargain.

Doyle Hughes testified that he met Faulder in April or May of 1975, and that Faulder lived with Hughes and Hughes' mother for about two weeks between that time and July of 1975. Two or three weeks before the murder, Hughes went with Faulder to a bar, where he met, for the first time, Moulton and Lynda.

Hughes saw Moulton draw a diagram of the victim's house and mention that there was supposed to be some money or jewelry in it. Moulton drove the four of them to the victim's house that night and described how they could tie up the victim and open the safe. Although Hughes did not participate in the conversation, Faulder said he could open the safe, and Lynda said she was behind on her rent. A week later, Hughes was at Lynda's house with Moulton, Faulder, and Lynda's husband when Faulder showed Hughes a pistol.

Lynda McCann confirmed that she met Faulder and Hughes for the first time when she went to the bar with Moulton on June 27th. She confirmed that Moulton drew a map of the victim's house, that there was a discussion of a burglary, that Faulder said he could crack safes, and that they all drove to the victim's house that night. She added that Hughes did not participate in the conversations regarding the proposed burglary. She testified that Faulder stayed at her house around July 5th and told her that, if anyone asked about the house they had looked at, she was to tell them Faulder had forgotten about it.

On July 8th, Faulder told Lynda he wanted her to go with him to check out the house again and see if it felt right. Faulder, who had no car, had obtained a car which had been "hot-wired." The two drove to a convenience store, which Faulder entered with a gun to determine if it looked right for a robbery. Faulder decided against that robbery. After declining Lynda's request to take her home, Faulder proceeded to the victim's house.

When they arrived at the victim's house, the two approached the house, at Faulder's instructions, and Lynda knocked on the door. When no one answered, Lynda asked Faulder to leave, but he said no, and they walked to the back of the house. Faulder possessed a pistol and a blackjack at the time. When Lynda knocked on the back door, the victim opened the door slightly and Faulder then forced his way inside with the gun in his hand. Faulder told the victim that she would not be hurt if she cooperated, and made her go to her bedroom. Faulder questioned her about the safe, but she said there was nothing in it and that she did not remember the combination. However, she directed Faulder to where the combination was written down. Faulder left the gun with Lynda while he went to open the safe.

While they waited, Lynda put the gun down to calm the victim, but Phillips grabbed for the weapon, they struggled over it, and it went off. Faulder returned, angry because of the gunshot and because there was nothing in the safe. Faulder put tape over the victim's mouth and told Lynda to leave the room. Shortly thereafter, Lynda began to hear thumps and moaning. Lynda then saw Faulder obtain a long knife from the kitchen and heard one more thump from the bedroom. Faulder then came out with a bag and they left. While driving away from the scene, Faulder said that he knew the victim was dead because he had stabbed her. Faulder also threw the blackjack out the car window.

When they returned home, Lynda told her husband, Harold Ernest "Ernie" McCann, that they had been to the victim's house and that she was dead. Lynda testified that the charges against her were eventually reduced to conspiracy to commit burglary of a habitation and that she had pleaded guilty in exchange for her testimony and a sentence of ten years probation.

Ernie McCann testified that Faulder stayed with him and Lynda, and that he overheard them talking about criminal activity. For instance, he heard Faulder say something like "I might have to knock her in the head." He was also present when Lynda and Faulder came home on July 8th and Lynda said, "She is dead." He saw that Faulder had a bag with him which was filled with jewelry. McCann then followed Faulder to a gas station where Faulder left his car and rode back with McCann. Faulder told McCann that "there was an accident, that they didn't mean to kill the woman," but that she fell on a knife and then they hit her in the head because she was still alive. McCann also confirmed that Faulder had possessed a blackjack and a pistol.


Faulder was originally indicted on June 1, 1977, in the 124th Judicial District Court of Gregg County, Texas, in Cause No. 11,139-B, for the murder of Inez Phillips committed in the course of aggravated robbery, a capital offense. Faulder was convicted of the capital offense and sentenced to death. However, in 1979, the Texas Court of Criminal Appeals reversed Faulder's conviction and sentence, having concluded that police had obtained a confession from Faulder in violation of constitutional protections. In 1980, the United States Supreme Court denied a petition for writ of certiorari filed by the State.

The State retried Faulder, this time on a change of venue to Angelina County. Faulder was again found guilty of the capital offense and was sentenced to death on July 10, 1981. His conviction and sentence were affirmed by the Court of Criminal Appeals on September 30, 1987.

In 1991 and 1992, Faulder filed for state habeas review in the form of an application and three amended applications. After an evidentiary hearing, the state trial court recommended the denial of habeas relief on November 23, 1992, and the Court of Criminal Appeals denied relief.

On December 2, 1992, Faulder filed a federal petition for writ of habeas corpus in the United States District Court for the Eastern District of Texas. After an evidentiary hearing, the federal district court denied relief on March 31, 1995. On appeal, the United States Court of Appeal for the Fifth Circuit affirmed. The Supreme Court denied Faulder's petition for writ of certiorari on November 18, 1996.

On May 30, 1997, Faulder filed another application for state writ of habeas corpus. The Court of Criminal Appeals denied relief on September 16, 1998, and denied Faulder's motion for reconsideration on October 21, 1998. The Supreme Court denied Faulder's petition for writ of certiorari on January 25, 1999. Prior to that time, Faulder had filed another application for state writ of habeas corpus, which was dismissed by the Court of Criminal Appeals the following day. On June 4, 1999, Faulder filed another application for state writ of habeas corpus. As of June 8, 1999, the application is pending before the Court of Criminal Appeals.

Additionally, Faulder has been involved in civil litigation, in state and federal court, regarding the clemency policies of the Texas Board of Pardons and Paroles. In state court, a Travis County state district court denied relief on January 8, 1999, after a hearing. That decision was affirmed by the Third Court of Appeals on May 18, 1999. Faulder's federal court action was filed December 8, 1998, in the United States District Court for the Western District of Texas, Austin Division. After a hearing, the federal district court denied relief on December 9, 1998. As of June 8, 1999, an appeal is pending in the Fifth Circuit.


At the punishment phase of trial, the State presented two witnesses who testified that Faulder had a bad reputation in his community for being a peaceful and law abiding citizen. Additionally, psychiatrist Clay Griffith testified, based upon a hypothetical question derived from the facts of the case, that a defendant who committed such acts had an anti-social personality and would kill again. Psychiatrist James Grigson similarly testified from a hypothetical that the individual would continue to commit acts of violence. Finally, psychiatrist James Hunter testified from a hypothetical that the individual would be highly likely to engage in continued acts that would be a danger to society.


There was no evidence of drug or alcohol use in connection with the instant offense.


Joseph Stanley Faulder, 61, 99-06-17, Texas

Convicted killer Joseph Stanley Faulder became the 1st Canadian in almost a half-century to be executed in the United States Thursday evening.

Faulder, 61, was pronounced dead at 6:18 p.m., 6 minutes after the flow of lethal drugs began. He coughed twice, let out 2 gasps and then stopped moving.

Faulder nodded to his lawyer, Sandra Babcock, as she walked into the death chamber. Ms., Babcock stood right against the glass and asked Faulder, "You O.K.?" He didn't respond.

When the warden asked Faulder whether he had any last words, Faulder shook his head and said, "No statements."

Faulder, 61, didn't deny killing 75-year-old Inez Phillips during a burglary of her East Texas home in 1975. But attorneys for the former auto mechanic from Jasper, Alberta, argued his conviction was tainted because he never was told after his arrest that he could seek legal assistance from Canadian authorities as allowed under international law.

The Canadian government filed documents in Faulder's appeals protesting his treatment and won the backing of U.S. Secretary of State Madeleine Albright in calling for a reprieve. The federal courts, however, rejected Faulder's appeals and state officials, including Gov. George W. Bush, refused other requests that could have blocked the execution.

The Supreme Court late Thursday afternoon denied another request for a reprieve, clearing the way for the execution. Faulder's attorneys, asking the punishment be stopped, cited a 200-year-old law that allows foreign citizens to sue American officials if they have been harmed by breaches of treaties.

"There is no new evidence that questions the jury's verdict that he is guilty of this crime," Bush said, refusing to issue a one-time 30-day reprieve.

In December, the high court halted Faulder's scheduled execution about 30 minutes before he could have received lethal injection. In January, the justices rejected his appeal, lifted their reprieve and state officials set the new execution date for Thursday.
It was his 10th execution date.

"I'm at peace with my maker," Faulder told prison officials Thursday as he was moved from death row to a holding cell adjacent to the death chamber. "I'm ready to go."

He refused repeated requests in recent months for interviews with reporters.

"12 jurors have spoken by convicting Mr. Faulder and sentencing him to death," Attorney General John Cornyn said. "10 different courts and more than 38 judges have reviewed a total of 17 appeals, each time rejecting his appeal and affirming the capital murder conviction."

Faulder would be oldest of the 178 inmates executed in Texas since the state resumed carrying out capital punishment in 1982. The total is the highest in the United States.

Faulder's case attracted much media attention in Canada, a country that outlawed capital punishment in 1976. In Canada, convicted murderers can be sentenced to life in prison with no chance for parole until at least 25 years are served. The last execution of a Canadian in the United States was in the early 1950s.

Faulder was being held in Colorado in 1977 on unrelated charges when he was charged with the murder 2 years earlier of Mrs. Phillips at her home in Gladewater, about 115 miles east of Dallas.

His attorneys contended Canadian authorities should have been told of his murder arrest and detention under terms of the Vienna Convention on Consular Relations. Also under that treaty, Texas authorities should have informed Faulder of his right to contact the Canadian government for help, his attorneys said.

"We continue to regret the long delay between the time Mr. Faulder was arrested and when Canadian consulate officials learned of the case," a State Department spokesman, who asked that he not be identified by name, said Thursday. "But under our system, we've exhausted all of our possibilities and recognize that the final decision is in the hands of the state."

Odis Hill, the former Gregg County district attorney who prosecuted Faulder, said while authorities knew of Faulder's ties to Canada because he spent at least 2 prison terms there, it was at Faulder's insistence Canadian authorities were kept in the dark.

"He has had every legal resource that any individual could ever ask for or enjoy under our Constitution," Hill said.

When arrested, Faulder was carrying a Colorado driver's license and had applied for a Texas license. It wasn't until 15 years later that his family, who believed he was long dead, and the Canadian government discovered he was alive.

Trial testimony revealed how Faulder and his girlfriend, Lynda McCann, barged into Mrs. Phillips' house July 8, 1975.

Faulder ordered Mrs. Phillips to surrender the combination to a floor safe. While Faulder worked on the safe, Ms. McCann, carrying Faulder's gun, and Mrs. Phillips struggled over the weapon and it discharged.

Faulder became enraged over the gunfire and also that he found the safe empty. He ordered Ms. McCann from the room. A maid found Mrs. Phillips' body the next morning. A 6 1/2-inch butcher knife was embedded in her chest. Her arms were tied and tape covered her mouth. Ms. McCann later testified against Faulder.

"Too often we lose sight of the horrific circumstances of the crime and the tragic plight of the victims and their families," Cornyn said.

Faulder's first conviction was thrown out by an appeals court which found his confession was improperly obtained. He was retried, convicted and condemned again in 1981.

Faulder becomes the 14th condemned inmate to be put to death this year in Texas, and the 178th overall since Texas resumed executions on Dec. 7, 1982.

Joseph Stanley FAULDER

Mary Robinson, the U.N. High Commissioner for Human Rights, made a last-minute appeal to U.S. Secretary of State Madeleine Albright to block the Texas execution of a Canadian national scheduled for Thursday.

"I urge you to use your influence with a view to stopping the execution and initiating a thorough review of this case," Robinson, the former president of Ireland, wrote.
"The loss of life resulting from the execution of death sentence is irreparable," she said, adding that the legal process was fraught with irregularities.

The United States is the only western democracy to retain the death penalty.

Barring a reprieve from Texas Gov. George W. Bush, Canadian Stanley Faulder, on death row since 1996, was scheduled to die by lethal injection at the state prison in Huntsville shortly at 7 p.m. EDT (2300 GMT) on Thursday.

A 61-year-old native of Jasper, Alberta, Faulder was convicted of the December 1975 murder of an elderly widow, Inez Phillips, during a botched robbery at her home in Gladewater, Texas, 120 miles (190 km) east of Dallas.

Robinson, in her letter, said Texas violated Faulder's right to Canadian consular services under international law and obtained a confession from him without a lawyer present.

"I have received reports alleging several irregularities in Mr. Faulder's trial and appeals process, among these being the fact that he was not informed of his rights under the Vienna Convention on Consular Relations to seek assistance from his consulate after his arrest," she said.

Canadian authorities were unaware of Faulder's situation until 1992 when his lawyer contacted the Ottawa government, Robinson added.

"It is further reported that immediately after his arrest Mr. Faulder was interrogated for four days during which time he was denied access to legal counsel," she said. "It appears that after these 4 days he was also made to sign a confession without the presence of a lawyer."

The U.S. federal government has had little success in getting executions stayed on grounds of international law in similar cases despite the Vienna treaty that allows foreigners to seek consular services, a provision used frequently by American citizens in trouble abroad.

In Texas, one lower court 2 years ago refused to allow the extradition of a Rwandan indicted for participating in the 1994 genocide in his country by a U.N. war crimes tribunal the United States had helped to set up.



Texas Executes Canadian Killer Despite International Pleas

By Barbara Whitaker - The New York Times

A Canadian man who survived nine dates with death in 22 years on death row in Texas was executed today despite international pleas again to halt the proceeding.

The man, Joseph Stanley Faulder, 61, who was sentenced to death for the 1975 murder of a wealthy elderly woman, was the first Canadian to be executed in the United States since 1952.

Canadian officials, as well as human rights groups and international legal authorities, had sought to halt the execution for several reasons, among them that Mr. Faulder was never notified of his right to contact the Canadian Consulate.

In a final appeal, which was rejected by the United States Supreme Court about 75 minutes before the execution, Mr. Faulder's lawyer, Sandra Babcock, turned to a 200-year-old law, the Alien Tort Claims Act, that allows foreign citizens to sue the United States for violations of international law. Ms. Babcock argued that Texas violated the Vienna Convention on Consular Relations' guarantee that citizens arrested abroad be allowed to seek assistance from their consulates.

She also argued that the 22 years Mr. Faulder spent on death row were excessive and that his nine prior execution dates resulted in cruel and unusual punishment.

The appeal was rejected without comment, clearing the way for Mr. Faulder's death by injection shortly after 6 P.M. His execution was the 14th this year in Texas and the 178th since the death penalty was reinstated in the state in December 1982.

Asked about the international legal aspects of the case, a spokeswoman for Gov. George W. Bush said that was a matter for the courts.

Pressed on the diplomatic nature of the issue, particularly since Governor Bush is a Presidential candidate, the spokeswoman said, ''Canada is a friend and neighbor of the United States and we hope Canadians understand that Governor Bush has taken an oath to uphold the laws of Texas, including the death penalty.''

The Pardons and Paroles Board voted 18 to 0 on Wednesday to deny Mr. Faulder's request for reprieve or commutation of sentence. Governor Bush cannot grant a reprieve without the support of the board, though he could grant a one-time 30-day delay.

Attorney General John Cornyn of Texas defended the execution, noting that ''10 different courts and more than 38 judges have reviewed a total of 17 appeals, each time rejecting his appeal and affirming the capital murder conviction.''

Mr. Faulder was arrested in Colorado in 1977 nearly two years after the stabbing death of Inez Phillips in a July 1975 robbery of her home in Gladewater, Tex. Ms. Phillips was also severely beaten.

The issues regarding Mr. Faulder's citizenship did not come to light until 1991 when Ms. Babcock began representing him, and she contacted the Canadian Consulate in Dallas, which had no record of Mr. Faulder. She has argued that the consulate's involvement in the case could have bolstered his defense.

The case also focused attention on questionable practices of the Texas Pardons and Paroles Board. In an appeal that the United States Supreme Court denied on Wednesday, Ms. Babcock argued that the clemency process in Texas failed to meet minimum standards of fairness.


Texas executes Canadian Stanley Faulder

By Kate Randall - World Socialist Web Site

June 19, 1999

Stanley Faulder, a 61-year-old native of Jasper, Alberta, was executed by lethal injection in Huntsville, Texas on Thursday. His final appeal to the US Supreme Court was rejected 75 minutes before he was put to death. Faulder became the first Canadian executed in the US since 1952.

Aspiring presidential candidate and Texas Governor George W. Bush did not intervene to halt the execution. The Texas Board of Parole and Pardons voted 18-0 Wednesday to deny Faulder's request for reprieve or commutation of sentence. Although Bush could not override their ruling, he could have granted a one-time 30-day delay.

Plans to execute Faulder had provoked international protest because Texas authorities failed at the time of his arrest to inform him of his right to seek assistance from the Canadian consulate. In violation of the Vienna Convention on Consular Relations, Faulder had been in prison for 15 years before the Canadian government was informed of his arrest and conviction. The United States is a signer to the treaty, although Texas claims it is not required to abide by it, as the state did not sign it.

Amnesty International, the human rights group, has reported that it knows of 73 foreign nationals from 24 countries currently sitting on death row in the United States. Of these, only three were informed of their consular rights. Texas has executed three foreign nationals—Carlos Santana, Ramon Montoya and Irineo Tristan Montoya. The state of Virginia executed Paraguayan Angel Francisco Breard early last year, despite protests from the International Court of Justice.

Secretary of State Madeleine Albright had intervened in the Faulder case, urging a full clemency review and the granting of a 30-day reprieve. The Canadian government had also called for a stay of the execution. Faulder's lawyer Sandra Babcock argued as well that the 22 years the prisoner spent on death row and his nine previous execution dates constituted cruel and unusual punishment.

Faulder was convicted in 1977 for the 1975 murder of an elderly woman in Gladewater, Texas, and was sentenced to death. The victim's wealthy family hired private prosecutors, and their case relied upon the testimony of an alleged accomplice in the crime, who was granted immunity. The family offered this witness a large cash payment in exchange for testimony incriminating Faulder. The prosecution also hired "expert" witnesses to testify to Faulder's supposed sociopathic tendencies.

Faulder was provided with a court-appointed lawyer, who never brought out at trial that Faulder had suffered a massive head injury at the age of three, causing permanent brain damage and mental impairment. The attorney carried out no pre-trial investigation and called no witnesses. Texas law does not forbid the execution of the mentally impaired.

In a related development, Governor Bush is expected to veto a bill passed by the both houses of the Texas state legislature that would provide the most minimal protection for indigent defendants. The bill would require that defendants be provided with legal counsel within 20 days of requesting one. In most states, the court must appoint an attorney within 72 hours. In Texas the appointment of attorneys to the indigent is the responsibility of local judges, who determine their fees. Judges, who are elected in the Texas, often assign these cases to lawyers who have contributed to their campaigns.

As of April 1, there were 436 prisoners on death row in Texas, including 24 juveniles. Those as young as 17 can receive a death sentence. Since the death penalty was reinstated in the US in 1974, the state has carried out 176 executions, the greatest number of any US state.


Adding Insult to Injury: the case of Joseph Stanley Faulder

Joseph Stanley Faulder, age 61, is a Canadian citizen facing imminent execution in Texas. After 21 years under sentence of death, Faulder has exhausted all normal avenues of appeal; he is now scheduled to die by lethal injection on 10 December, 1998 - International Human Rights Day. In a morbid irony, Faulder's execution would thus coincide precisely with the 50th anniversary of the UN Universal Declaration of Human Rights.

The case of Stanley Faulder illustrates many of Amnesty International's long-standing concerns over the administration of the death penalty in Texas, including grossly deficient trial procedures, inadequate appellate review, violations of international law and the absence of any meaningful clemency process.(1) Amnesty International is calling on authorities in the USA to reaffirm their commitment to universal human rights standards by commuting Stanley Faulder's death sentence on humanitarian grounds.

Case Summary

On 8 July 1975, Inez Phillips, age 75, was murdered during the burglary of her home in Gladewater, Texas. The crime shocked and outraged the town's residents: Mrs. Phillips was the widow of the former mayor of Gladewater and the matriarch of a wealthy and influential Texas oil family.

According to the prosecution's version of the events, Stanley Faulder and Linda McMann, a former prostitute, planned to rob a floor safe in the Phillips’ home. McCann later testified that, while she was struggling with the victim, Faulder subdued Inez Phillips with a cosh and then fatally stabbed her with a knife which he found in the kitchen.

The victim's son, Jack Phillips, immediately offered a $50,000 reward for information on the crime. Linda McCann was quickly arrested and accused Faulder of planning the burglary and committing the murder. In 1977, Faulder was arrested in Colorado and returned to Texas.

Faulder was never informed after his arrest that he could seek assistance from his consulate, an essential legal right guaranteed to all detained foreigners under the Vienna Convention on Consular Relations.(2) Following a four-day interrogation during which his requests for an attorney were ignored, Stanley Faulder signed a "confession".

No physical evidence of any kind links Faulder to the crime, leaving the prosecution reliant on his "confession" or the testimony of his accomplice to prove he was the actual killer. However, on the strength of his statement to the police, he was speedily convicted and sentenced to death. Linda McCann was charged only with conspiracy to commit burglary and did not testify at Faulder's trial.

In 1979, the Texas Court of Criminal Appeals overturned Faulder's conviction, finding that his statement to the police was illegally obtained. Without any corroborating evidence, the local District Attorney lacked a sufficiently strong case to re-prosecute Faulder on a capital murder charge. Learning that the authorities were contemplating a plea offer of life imprisonment, Jack Phillips hired two private prosecutors for the express purpose of obtaining a new death sentence against Stanley Faulder.

The private prosecutors concluded that Linda McCann's testimony was crucial for a conviction. Prior to any recorded contact with the District Attorney's office, Phillip's attorneys offered Linda McCann immunity on the murder charge in exchange for her incriminating testimony--even though McCann was equally eligible for the death penalty under Texas law. Her cooperation was further induced when Jack Phillips offered her up to $15,000 in "relocation expenses".

Since McCann was an admitted participant in the crime, her testimony could not be used to convict Faulder without corroboration. The Phillips family paid her husband, Ernie McCann, a member of a local motorcycle gang, $2,000 in exchange for testimony supporting his wife's version of the events. This testimony simply consisted of McCann stating that his wife had told him the same version of event as the one she told the Court.

In total, Jack Phillips paid the private prosecutors approximately $100,000 for their successful effort to obtain a new death sentence against Faulder. A month before the trial, the District Attorney formally appointed a lawyer to the prosecution team, to preserve the semblance of public control over what was, in effect, a private vendetta launched by a wealthy person against an indigent defendant.

At trial, Faulder was represented by a court-appointed attorney who called no witnesses and who failed to investigate his client's background. The defence strategy consisted of challenging the credibility of Linda McCann--who deliberately misled the jury by denying that she had been offered money in exchange for her incriminating testimony.

During the sentencing phase of the trial, the jury heard from Dr. James Grigson, a Dallas psychiatrist notorious for providing testimony for the prosecution in Texas death penalty trials. In response to hypothetical questions about the nature of the crime, Grigson stated that Faulder was an untreatable sociopath "of the severest kind", who would certainly kill again, even if imprisoned. Grigson's testimony was crucial: under Texas law, jurors must unanimously decide that the defendant represents a continuing danger to society before they can impose a death sentence.

Confronted with this devastating testimony from a medical "expert", the jury heard no rebuttal from the defence. Faulder's attorney presented no mitigating evidence of any kind, even though readily-available medical records and character testimony could have completely discredited Grigson's diagnosis. In July 1981, Stanley Faulder was once again convicted and sentenced to death.

The Faulder case languished in the state appeal courts for nearly a decade before an attorney from the Texas Resource Center was appointed to file his first state habeas corpus petition. Learning of her client's nationality, the attorney contacted the Canadian Consulate in Dallas. Consular officials informed her that they had no record of Faulder. His name had never appeared on the annual list of imprisoned foreigners provided by state officials to facilitate consular visits.

Upon contacting the Faulder family in Canada, the attorney learned that they had been unaware of his whereabouts for many years and were deeply distressed when informed of his death sentence. Family members and friends remembered Stan Faulder as a kind and non-violent person and would gladly have testified on his behalf at the trial. They also informed the attorney of a severe childhood head injury Faulder sustained, which resulted in periodic 'blackouts' and impulsive behaviour throughout his youth.(3)

Armed with this new information which the trial lawyer had failed to obtain, Faulder's appellate attorney filed a comprehensive habeas corpus petition alleging serious irregularities in the trial procedures. During 1992, Faulder survived six consecutive execution dates obtained by Texas officials while the lower courts reviewed his claim.

At a 1992 evidentiary hearing, a completely different picture of Stanley Faulder emerged than the one presented to the jury, based on information from medical experts, family members and friends. Two clinical psychologists who conducted extensive evaluation and testing of Faulder concluded that he suffered brain damage as a child, impairing his ability to make appropriate behavioural decisions in stressful situations.

Numerous family members and friends testified that Stanley Faulder was a generous person with no history of violent behaviour, as well as a loyal friend and a loving father. The court agreed that Faulder's defence attorney was deficient for failing to present this mitigating evidence, but concluded that this positive testimony would not have altered the outcome of the trial.

A subsequent hearing in 1993 revealed new evidence of misconduct by the prosecution. Buried in their files was a hand- written note prepared by one of the private prosecutors. The note revealed that, according to Linda McCann, her husband Ernie was involved in the planning of the crime. If true, Ernie McCann would thus be an accomplice, making his trial testimony both inadmissible and false. Both McCanns testified that Ernie was not involved and only learned of the crime after it occurred.

The prosecutor's note was never revealed to the defence. Faulder's trial attorney was thus unable to properly challenge the truthfulness and credibility of both of the prosecution's key witnesses. Without the testimony of Linda and Ernie McCann, the case against Faulder would have collapsed. With that testimony, Stanley Faulder was convicted and sentenced to death; Linda McCann was given a suspended sentence for her participation in the burglary and walked out of court a free woman.

In 1996, the US Fifth Circuit Court of Appeals dismissed Faulder's habeas corpus petition on all grounds. The Court found that the hiring of private prosecutors by the victim's family was permissible, because the District Attorney had retained "control" of the case. The failings of Faulder's court-appointed attorney were likewise excused; the Court was "not persuaded" that the testimony of more than a dozen available defence witnesses would have resulted in a single juror voting against the death sentence.

The Fifth Circuit concluded that the admitted breach of Faulder's consular rights was "harmless error", because the defence had access to all of the information that could have been obtained from the Canadian government. The mere fact that Faulder's attorney "could have obtained" crucial mitigating evidence (which he did not) was deemed sufficient to excuse a grave violation of human rights under a binding international treaty.

Yet, there is every indication that the timely intervention of Canadian consular officials could well have altered the entire course of the trial and its outcome. In a series of amicus curiae(4) briefs submitted in support of Faulder's appeals, Canada has stated that the consulate would have assisted in pre-trial plea negotiations, found competent legal representation for Faulder and facilitated the presentation of extensive mitigating evidence (including medical records) available only from Canadian sources.

Far from being harmless, Canada has submitted to the US courts that the violation of the Vienna Convention "deprived Mr. Faulder of a right under international law which may have prejudiced his ability to receive a fair trial and sentencing hearing". Canada's position was recently supported by the findings of a United Nations report. In a 1998 survey of death penalty procedures in the USA, the UN Special Rapporteur on extrajudicial, arbitrary and summary executions made specific reference to the Faulder case and the appellate courts' finding of "harmless error". The report determined that "not informing the defendant of the right to contact his/her consulate for assistance may curtail the right to an adequate defence", as provided for by the International Covenant on Civil and Political Rights.(5)

Stanley Faulder was scheduled to be executed on June 13, 1997, following the dismissal of his appeal by the US Supreme Court. Well in advance of the date, his attorney filed a substantive clemency application with the Texas Board of Pardons and Paroles. The petition contained more than 20 exhibits and affidavits in support of the commutation of his death sentence.

Among the many statements of support was one from a woman who believes that she owes her life to Faulder. In 1965, the woman was seriously injured in an automobile accident. Arriving on the scene moments later, Faulder rescued her from the wrecked car. At considerable personal risk, he drove her through a blinding blizzard to the nearest hospital in time for life-saving medical treatment--hardly the actions of a remorseless sociopath.

The clemency application also addressed the testimony of Dr. Grigson, pointing out that his self-proclaimed total accuracy in predicting defendants' future behaviour was completely false. In 1995, James Grigson was expelled from the American and Texas psychiatric associations for unethical behaviour, resulting from his grossly misleading and unscientific testimony in death penalty trials.

Four days before his 1997 execution date, Faulder was granted a stay of execution to permit further review of evidence indicating that the prosecution permitted its key witnesses to lie under oath at the trial. The Board of Pardons did not respond to Faulder's application for executive clemency.

In September 1998, the Texas Court of Criminal Appeals lifted the stay of execution, paving the way for the setting of Joseph Stanley Faulder's ninth--and possibly final--execution date. The government of Canada continues to support his efforts to obtain a new trial or the commutation of his sentence.


Despite inadequate legal representation, prosecutorial irregularities and a glaring violation of treaty law, the US courts of appeal have consistently failed to grant Faulder a new trial or sentencing hearing. Two decades after the trial, serious doubts have emerged over the credibility of the evidence used to convict and sentence him to death.

Since 1992, when Faulder first raised his Vienna Convention claim, seven foreign nationals have been executed in the USA. None were informed after arrest of their international legal right to consular assistance. The US government continues to assert that the protection of the consular rights of its nationals abroad is a matter of the highest importance; domestic violations of those selfsame rights which contributed to death sentences are minimized or ignored.(6) To date, the US Department of State has declined to intervene in the Faulder case, failing even to apologize to Canada for the violation of its sovereign treaty rights.

For the citizens and governments of many nations worldwide, the fiftieth anniversary of the Universal Declaration of Human Rights will be a cause for celebration and an opportunity for rededication to the stirring principles enshrined in the Declaration. But in Texas, barring a last-minute intervention to halt Stanley Faulder's execution, December tenth will be just another day of state sanctioned killing.

On 26 October 1998, Amnesty International issued an “urgent action” calling for the Texas authorities to spare the life of Joseph Stanley Faulder. To take part in this action please contact your countries’ Amnesty International section and request UA index number AMR 51/85/98.


(1) For a comprehensive summary of AI concerns, see The Death Penalty in Texas: Lethal Injustice, AI Index: AMR 51/10/98, March 1998.
(2) Although the USA has ratified the Convention without reservations and insists on its application to US nationals arrested abroad, foreign nationals facing the death penalty in the USA are rarely informed of their consular rights--with disastrous consequences for their trial defence. For additional information, see: USA: Violation of the Rights of Foreign Nationals Under Sentence of Death, AI Index: AMR 51/01/98, January 1998.
(3) Faulder assumed that his family were aware of the murder charge and had simply disowned him. He has also stated that he had no knowledge of the presence of Canadian consular representatives in Texas or of his right to seek their crucial assistance after his arrest.
(4) A "friend of the court" brief which may be filed (with the court’s permission) by parties interested in the outcome of the case but not directly involved.
(5) Report to the UN Commission on Human Rights (document E/CN.4/1998/68/Add.3), Findings of the Special Rapporteur, 117- 121.
(6) For a summary of recent developments, see:,USA: The Execution of Angel Breard: Apologies Are Not Enough, AI Index: AMR 51/27/98, May 1998.

Amnesty International


81 F.3d 515

Joseph Stanley Faulder, Petitioner-Appellant,
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 95-40512

Federal Circuits, 5th Cir.

April 10, 1996

Appeal from the United States District Court for the Eastern District of Texas.

Before JONES, DUHE and WIENER, Circuit Judges.

DUHE, Circuit Judge:

Petitioner appeals from denial of his petition for writ of habeas corpus seeking relief from his death sentence. We affirm.

Petitioner, Joseph Stanley Faulder, is a Canadian citizen who was twice convicted and sentenced to death for the murder of Inez Phillips, an elderly widow, during the armed robbery of her home. The first conviction was reversed by the Texas Court of Criminal Appeals because Faulder's confession, which was admitted into evidence, was obtained in violation of the Fifth Amendment. Faulder v. State, 611 S.W.2d 630 (Tex.Crim.App.1979), cert. denied 449 U.S. 874 , 101 S.Ct. 215, 66 L.Ed.2d 95 (1980). The second conviction was obtained with testimony from Faulder's accomplice, Lynda McCann, who did not testify at the first trial. Because no physical evidence connects Faulder to the murder, McCann's testimony was critical.

After unsuccessful direct appeals, Faulder filed a petition for habeas corpus and a motion for stay of execution in state court. The court held an evidentiary hearing on Faulder's ineffective assistance of counsel claim and recommended that relief be denied. The Court of Criminal Appeals denied Faulder's petition.

Faulder now seeks relief from the federal courts. He filed a petition for writ of habeas corpus and motion for stay of execution. The district court granted the stay of execution and held an evidentiary hearing on the use of special prosecutors and whether the prosecution allowed McCann to testify falsely. After the hearing, the court denied Faulder's petition but granted a certificate of probable cause to appeal. Faulder claims he is entitled to relief because: (1) the use of special prosecutors violated the Eighth and Fourteenth Amendments, (2) the prosecution allowed its chief witness, Lynda McCann, to testify falsely in violation of Faulder's Fifth, Sixth and Fourteenth Amendment rights, (3) Faulder received ineffective assistance of counsel, and (4) Faulder's right to compulsory and due process was violated when law enforcement officials violated the Vienna Convention on Consular Relations.

We review the district court's findings of fact for clear error, but review issues of law de novo. Williams v. Collins, 16 F.3d 626 (5th Cir.1994). A finding of fact is clearly erroneous only when the reviewing court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. I. The use of special prosecutors

There is no per se constitutional prohibition against the use of special prosecutors. Powers v. Hauck, 399 F.2d 322 (5th Cir.1968). However, the use of special prosecutors raises concerns that the prosecutor's loyalty to the person who pays the special prosecutor may override the interests of society in justice and a fair trial for the accused. We require, therefore, that the district attorney retain control of the prosecution, the special prosecutor not be guilty of conduct prejudicial to the defendant, and the rights of the defendant be duly observed. Id. at 325.

Faulder argues that the special prosecutors controlled his prosecution. Control of the prosecution means control of crucial prosecutorial decisions, such as whether to prosecute, what targets of prosecution to select, what investigative powers to utilize, what sanctions to seek, plea bargains to strike or immunities to grant. East v. Scott, 55 F.3d 996 (5th Cir.1995). Control is not determined according to a quantitative analysis or a determination of who was lead counsel at trial. Person v. Miller, 854 F.2d 656 (4th Cir.1988) (cited with approval in East, 55 F.3d at 1001). In fact, "[w]e can conceive of situations in which without ever relinquishing effective control of the prosecution government counsel might for tactical reasons give over even more substantial portions of the actual conduct of trial to particularly skilled or knowledgeable private counsel." Person, 854 F.2d at 663.

The special prosecutors in the second trial were Odis Hill, the former district attorney who prosecuted Faulder at his first trial and Phil Burleson, a former prosecutor and well known criminal defense attorney. Mr. Hill resigned from his position as district attorney between Faulder's first and second trial. After the new district attorney, Robert Foster, was appointed, Hill offered to assist in retrying Faulder. Within thirty days of taking office, Foster faced two other demanding trials and the death of his mother. Considering his professional and personal demands and the relative inexperience of his remaining staff, Foster accepted Hill's offer. Five months later, the victim's son agreed to pay fees to Hill's law firm.1

After the first conviction was overturned, Burleson was hired by the victim's son to determine whether a second prosecution was possible without the use of Faulder's confession. Burleson retained investigators and a Canadian law firm to aid in rendering his opinion that a second prosecution could proceed provided McCann would testify. All of Burleson's fees and expenses were paid by the victim's son.

Foster assigned Jim McCoy, an assistant district attorney with two years experience, to be his representative. McCoy kept a low public profile both before and at trial and allowed Hill and Burleson to take the lead in the proceedings. At the district court evidentiary hearing, however, Hill testified that he always understood that the district attorney had the final word and would maintain control and management of the case. Hill maintained contact with Foster and he and Foster were in agreement on decisions made throughout the case. Burleson worked with Hill and Hill in turn made the necessary contacts with Foster. Further, Hill, Burleson and McCoy testified that they made decisions together, prepared witnesses together, were in agreement on most issues and worked out the differences on all others.

In light of Hill's prior relationship with the district attorney's office, the frequent communication between counsel and clear understanding of the district attorney's final decision-making authority, we agree with the district court's conclusion that the district attorney controlled Faulder's prosecution.

Faulder claims that Burleson's investigative activities were conducted without the involvement or knowledge of the district attorney's office and therefore, he is entitled to relief. This argument does not merit reversal. First, use of investigative resources is only one of several prosecutorial decisions which we must consider in determining control. Second, even if Burleson's actions were violative of our standard, the violations were corrected once Hill began to assist in the prosecution and McCoy was assigned by Foster.2 From at least that point on, the district attorney was in control of the prosecution. See Woods v. Linahan, 648 F.2d 973 (5th Cir. Unit B June 1981).

Faulder also contends that the use of special prosecutors violates the Eighth Amendment and causes arbitrary and capricious imposition of the death penalty. He reasons that defendants who kill wealthy victims are more likely to receive the death penalty because their cases are more vigorously prosecuted by special prosecutors hired by family and friends of the victim. We find no merit in Faulder's argument. To accept this argument would mean that prosecutions involving special prosecutors would be per se unconstitutional in direct opposition to the rule of Powers.

II. Failure to correct false testimony

Faulder argues that he was denied due process when the prosecution did not correct McCann's false testimony. At trial, defense counsel asked whether McCann was promised $10,000 to $15,000 in return for her testimony. McCann stated, under vigorous cross examination, that she had not been promised money in return for her testimony. She said she expected relocation expenses although not in the form of cash payment. The government's witnesses corroborate McCann's testimony that McCann would be provided relocation expenses by the victim's son to protect McCann from Faulder should he be acquitted.

A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Cordova v. Collins, 953 F.2d 167 (5th Cir.1992). To obtain relief, the defendant must show that (1) the testimony was actually false, (2) the state knew it was false and (3) the testimony was material. Kirkpatrick v. Whitley, 992 F.2d 491, 497 (5th Cir.1993). Faulder has not shown that McCann's testimony was actually false.

III. Ineffective assistance of counsel

Faulder maintains that he received ineffective assistance of counsel because his attorney presented no mitigating evidence during the sentencing phase of the trial. Defense counsel testified that he did not know that presentation of evidence at sentencing was allowed under Texas procedure even though he was board certified in criminal law and was a state criminal district attorney for approximately four years.

To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court agreed that counsel's performance was deficient3 but that the performance did not prejudice the defense. To show prejudice, the defendant must show that it is reasonably likely that the jury would have reached a different decision absent counsel's unprofessional errors. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.

Faulder argues that the following evidence could have been introduced and would have caused the jury to deliver a sentence other than death:

  (1) Defendant sustained brain damage near his fourth birthday when his head was split open on both sides after falling out of a moving car.

  (2) Expert testimony that Defendant suffered from organic brain disorder which impaired his judgment and impulse control and disqualifies a diagnosis of sociopathy and that Defendant suffered from depression and alcoholism.

  (3) Prison records from both Canada and the United States which show that Defendant was a peaceable prisoner.

  (4) Testimony from family and friends that the Defendant was a loyal friend, a trusted employee, the father of two girls and had once saved the life of an accident victim when he drove the woman to the hospital in a blizzard.

This evidence, however, is double edged. Despite Faulder's head injury, he did not exhibit confusion, uncertainty or mental impairment during the murder. Faulder abandoned his children and their mother when he left Canada. Faulder had no contact with his family for the twenty years prior to trial and at trial, he instructed his lawyer not to contact his family.4 The evidence also indicates that Faulder is intelligent and came from a loving, supportive family which would make him less sympathetic. And, the Canadian prison records contain information that despite his mental abilities, he was unable to keep his behavior under control. Testimony available from Texas authorities would have indicated that he had a bad reputation.

We are not persuaded that had all this evidence been introduced, a different sentence is a reasonably likely result.

IV. Vienna Convention

The Vienna Convention on Consular Relations requires an arresting government to notify a foreign national who has been arrested, imprisoned or taken into custody or detention of his right to contact his consul. Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77. Canadian regulations require the Canadian consul to obtain case-related information if requested by the arrestee to the extent that it cannot otherwise be obtained by the arrestee. Manual of Consular Instructions of the Department of Foreign Affairs and International Trade of Canada, Volume 11, Chapter 2, Annex D.

Texas admits that the Vienna Convention was violated. After investigating the allegations, William Zapalac, Assistant Attorney General of Texas, could find no evidence that Faulder had been advised of his rights under the Convention. However, the district court correctly concluded that Faulder or Faulder's attorney had access to all of the information that could have been obtained by the Canadian government. While we in no way approve of Texas' failure to advise Faulder, the evidence that would have been obtained by the Canadian authorities is merely the same as or cumulative of evidence defense counsel had or could have obtained. See United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). The violation, therefore, does not merit reversal.

Judgment of the district court AFFIRMED, stay of execution VACATED.


1 Hill was also a special prosecutor in Lynda McCann's case but was paid by the County

2 The exact point at which Burleson's role changed from advisor to the victim's son to special prosecutor is unclear. His investigation, therefore, may not have been part of his prosecutorial activities

3 Compare Williams v. Collins, 16 F.3d 626 (5th Cir.1994) (failure to offer mitigating evidence at sentencing phase not deficient if a result of a strategic choice)

4 Defense counsel asked Faulder to have his family attend trial to humanize him before the jury. Faulder argues that had he known they could testify, he would have changed his mind about not contacting the family


178 F.3d 343

Joseph Stanley Faulder, Plaintiff-Appellant,
Texas Board of Pardons & Paroles, Et Al., Defendants-Appellees.

No. 99-50130

Federal Circuits, 5th Cir.

June 10, 1999

Appeal from the United States District Court for the Western District of Texas.

Before JONES, WIENER and BARKSDALE, Circuit Judges.


Appellant Stanley Faulder, now sentenced to be executed on June 17, 1999, appeals from the district court's rejection of his due process challenge to the procedures used by the Texas Board of Pardons and Paroles. We find no error and affirm.

Faulder has been tried and sentenced to death twice for murdering Inez Phillips in the course of committing aggravated robbery. He has received dispositions on three state habeas petitions and one federal habeas petition. He has participated in state court civil litigation regarding the clemency policies of the Texas Board of Pardons and Paroles (the Board).

The instant case was filed against the Board on December 8, 1998, shortly before a previously scheduled execution date, in order to contest the state's clemency procedures under 42 U.S.C. 1983. The district court temporarily stayed Faulder's execution, but this court granted the Board's motion to vacate the stay, and this court then denied Faulder's motion for en banc reconsideration. The Supreme Court, however, stayed Faulder's execution pending a writ of certiorari from one of his state habeas petitions. The Court denied cert. on January 25, 1999. Faulder v. Texas, --- U.S. ----, 119 S.Ct. 909, 142 L.Ed.2d 907. A week earlier, the federal district court denied section 1983 relief after a hearing.

On appeal, Faulder argues that the Board's procedures do not meet "minimal due process" standards principally because the Board allegedly violated applicable state law and its own regulations, and Faulder received inadequate notice of issues the Board would consider.1 In addition, Faulder alleges conclusionally in his brief that the Board acts in secrecy, refuses to hold hearings, gives no reasons for its decisions, and keeps no records of its actions. He describes the Board's action as "an arbitrary exercise of administrative power."

These contentions are meritless. In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, ----, 118 S.Ct. 1244, 1253, 140 L.Ed.2d 387 (1998), Justice O'Connor's concurring opinion stated only that minimal procedural safeguards apply to clemency proceedings. Id. at ----, 118 S.Ct. at 1254. The low threshold of judicial reviewability is based on the facts that pardon and commutation decisions are not traditionally the business of courts and that they are subject to the ultimate discretion of the executive power. Id. This is highlighted by Justice O'Connor's narrow view of when judicial intervention into clemency decisions might be warranted: where a state official "flipped a coin" to determine whether to grant clemency, or the state arbitrarily denied a prisoner any access to its clemency process. Id.

Faulder's clemency procedures exhibited neither of these extreme situations. The federal district court conscientiously explained the Board's procedures and the liberal, non-evidentiary rules permitting Faulder to submit any information he thought appropriate to the Board's decision. Board members testified at length about their decision-making processes. The Board members reviewed the information they believed material to Faulder's request, and each one independently determined whether clemency ought to be recommended. The Board staff furnished members with Faulder's or his family's submissions and with such other information as was relevant or useful. We need not go further in advising the Board what procedures it might choose to adopt in the future, because what they did in this case complied with the constitutional minimum set forth in Woodard.

Further, this court has previously rejected arguments against the constitutionality of Texas's clemency procedures for essentially the same reasons stated by the district court in this case. Moody v. Rodriguez, 164 F.3d at 894. The state notes that Moody is based on a slightly different voting form prepared for the Board in capital cases after Faulder's petition was decided. The information now contained on the form adds nothing relevant to the information developed by the district court about the Board's actions in this case.

Taken either individually or cumulatively under the facts of this case, none of the objections that Faulder raises to the Board's procedures represents an essential component of due process. Procedural due process is an inherently flexible concept. And Woodard emphasizes that extra flexibility is required when, as here, the criminal process has reached an end and a highly individualized and merciful decision like executive clemency is at issue. Faulder had ample opportunity to present his best case to the Board, and the Board gave it appropriate consideration.

For these reasons, the judgement of the district court is AFFIRMED.

Faulder's motion to stay execution is DENIED. Moody v. Rodriguez, supra note 1.


1 This court has jurisdiction over the district court's final judgment adjudicating the section 1983 claim. 28 U.S.C. 1291. Unlike the request for a stay of execution, the district court's judgment did not purport to interfere with the state's carrying out of the death penalty, an action that this court earlier considered an infringement on habeas corpus jurisdiction. See Moody v. Rodriguez, 164 F.3d 893, (5th Cir.1999); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Buchanan v. Gilmore, 139 F.3d 982, 984 (4th Cir.1998)



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