NO. 65205-8 THE SUPREME COURT OF WASHINGTON OF THE STATE OF WASHINGTON ________________________________________________ In RE THE DEPENDENCY OF: A.E.P. W.M.P. Minor Children, MICHAEL PETCU, Petitioner, STATE OF WASHINGTON, Respondent. ______________________________________________ APPEAL FROM THE COURT OF APPEALS No. 18053-7-II ______________________________________________ Petitioner's Suplemental Brief ______________________________________________ GARY A. PREBLE WSB# 14758 Attorney for Petitioner GARY A. PREBLE 2120 State Avenue N.E. Olympia, WA 98506 (206) 943-6960 TABLE OF CONTENTS I. THE COURT SHOULD REQUIRE AN ABSENCE OF TAINTED TESTIMONY PRIOR TO ADMITTING CHILD ABUSE HEARSAY UNDER RCW 9A.44.120. . . . . . . . . . . . . . . . . 1 II. THE STATE DRAGS A RED HERRING ACROSS THE PATH WHEN IT CLAIMS THE CIVIL NATURE OF A DEPENDENCY HEARING REQUIRES THAT CASES DEALING WITH CONFRONTATION CLAUSE ANALYSIS SHOULD NOT APPLY TO DEPENDENCIES . . 5 III. VIDEOTAPING IS THE BEST WAY TO PREVENT OR RECOGNIZE THE EXISTENCE OF TAINTED INTERVIEWS OF YOUNG CHIL- DREN . . . . . . . . . . . . . . . . . . . . . . . . 8 IV. JUDGE SHELDON ERRED BY DEMANDING MR. PETCU COMPLETE SEXUAL DEVIANCY TREATMENT IN THE ABSENCE OF A CLINICAL DIAGNOSIS OF SEXUAL DEVIANCY. . . . . . . . 14 F. APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . A TABLE OF AUTHORITIES Cases California v. Green, 39 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) . . . . . . . . . . . . . . . . 6, 7 Dependency of S.S., 61 Wn. App. 488, 814 P.2d 204 (1991) . . . .7 Dickinson v. Edwards, 105 Wn.2d 457, 716 P.2d 814 (1986) . . . 12 Helling v. Carey, 83 Wn.2d 514, 519 P.2d 981, 67 A.L.R.3d 175 (1974). . . . . . . . . . . . . . . . . . 12 Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) . . . . . . . . . . . . . .1, 2, 6-8 Kahre v. Kahre, 916 P.2d 1363 (Okl. 1995). . . . . . . . .2, 3, 8 Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). . . . . . . . . . . . . . . . . 6, 7 People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171 (1994) . . . . . . . . . . . . . . . . 2, 3 Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d. 599, 102 S. Ct. 1388 (1982). . . . . . . . . . . . . . . . 13, 14 State v. Bryant, 65 Wn. App. 428, 828 P.2d 1121 (1992) . . . . .3 State v. Jones, 71 Wn. App. 798, 863 P.2d 85 (1993). . . . . . .2 State v. Michaels, 136 N.J. Super. 299, 642 A.2d 1372 (1994) (Michaels II). . . . . . .2, 4, 5, 8, 9 State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993) (Michaels I). . . . . . . . . . . 1-5, 8 State v. Parris, 98 Wn.2d 140, 654 P.2d 77 (1982). . . . . . . .6 State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997) . . . . . .7 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). . . . . . 4, 7 State v. Wright, 116 Idaho 382, 775 P.2d 1224, (1989). . . . . .8 The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932). . . . . . . . 12, 14 Statutes 9A.44.120. . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7 9A.44.120(1) . . . . . . . . . . . . . . . . . . . . . . . . . .6 13.34.100. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 13.34.120. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 13.34.120(2)(b). . . . . . . . . . . . . . . . . . . . . . . . 16 13.34.130. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 13.34.150. . . . . . . . . . . . . . . . . . . . . . . . . . . 16 26.44.053(2) . . . . . . . . . . . . . . . . . . . . . . . . . 14 Legislative Acts Laws 1982, ch. 129  2 . . . . . . . . . . . . . . . . . . . . .7 Laws 1985, ch. 404,  1. . . . . . . . . . . . . . . . . . . . .7 Court Rules JuCR 3.7(b). . . . . . . . . . . . . . . . . . . . . . . . . . 14 Other Authorities 1 Psychology, Public Policy, and Law, 243-448. . . . . . . . . .2 Christensen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pre-trial Interviews, 62 Wash. L. Rev. 705 (1987) . . . . . 3-5, 9, 11 McGough, L., Child Witnesses: Fragile Voices in the American Legal System, (1994, Yale University Press, New Haven) 189-232 . . . . . . . . . . . . . . . . 10 Stafford, The Child as a Witness, 37 Wash. L. Rev. 303 (1962). . . . . . . . . . . . . . . . . . . . . . . . .5 A. PURPOSE The purpose of this brief is to supplement the Petition for Discretionary Review filed in this matter March 7, 1997. The issue of competency is not addressed here because it was dealt with at length in the Petition for Review. Specifically, this brief will elaborate on the following matters presented in the Petition: 1. The court should require an absence of tainted testimony prior to admitting child abuse hearsay under RCW 9A.44.120; 2. The "indicia of reliability" analysis under RCW 9A.44.120 applies to dependency hearings; 3. Investigative interviews of children should be videorecorded. 4. Judge Sheldon inappropriately ordered sexual deviancy treatment absent a finding of sexual deviancy. B. ARGUMENT I. THE COURT SHOULD REQUIRE AN ABSENCE OF TAINTED TESTIMONY PRIOR TO ADMITTING CHILD ABUSE HEARSAY UNDER RCW 9A.44.120. In his Petition and in his Appellate Brief below, the Petitioner has requested the court to follow the cases of Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L. Ed.2d 829 (1990) and State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489, 519 (1993)(Michaels I), aff'd., 136 N.J. Super. 299, 642 A.2d 1372 (1994)(Michaels II). Though the Washington court followed Michaels I on another point, State v. Jones, 71 Wn. App. 798, 819, 863 P.2d 85 (1993) (child sexual abuse victim profile/- syndrome not admissible to prove existence of abuse or guilt of defendant); and while the court has followed Wright that prior interrogation, prompting or manipulation can affect the trustworthiness of a child's statement; the court has not yet set forth an affirmative remedy for dealing with the issue of tainted or contaminated testimony. The concerns raised by the New Jersey Michaels cases and the New York case of People v. Michael M., 162 Misc.2d 803, 618 N.Y.S.2d 171 (1994) (fol- lows Michaels I) are not limited to criminal mat- ters. The Oklahoma court in Kahre v. Kahre, 916 P.2d 1363 (Okl. 1995) stated: The chilling possibility that a child may be remembering fantasy, not fact, has caused many courts to require satisfactory proof that the child was not improperly led into making accusations of sexual abuse, such as video- tapes of the counseling sessions, before allowing the admission of such testimony. For an expression of these concerns see State v. Michaels, 264 N.J. Super. 579, 625 A.2d 489 (1993), aff'd. 136 N.J. 299, 642 A.2d 1372. Kahre goes on to say, id. at 1364: A growing body of scholarly writing has con- cluded that young children are highly suscep- tible to influence through coercive question- ing, and that small psychological rewards will prompt children to lie about events. Other scholars suggest that increasing media cover- age of sexual abuse allegations tends to make child health care professionals more likely to suspect sexual abuse as the cause of symptoms in the child. For a discussion of the litera- ture in this area see State v. Michaels, 264 N.J. Super. at 622-28, 625 A.2d at 511-15. Closer to home, the identical problem was recognized and addressed by Washington attorney, John R. Christiansen, The Testimony of Child Wit- nesses: Fact, Fantasy, and the Influence of Pre- trial Interviews, 62 Wash. L. Rev. 705 (1987) (quoted favorably on the issue of child memory development in State v. Bryant, 65 Wn. App. 428, 436, 828 P.2d 1121 (1992)). Contemporaneously with the earlier literature cited in Michaels I, see, Exhibit D to Petition for Discretionary Review, Christiansen stated: [A] young child is, in certain respects, more vulnerable to suggestion than an adult and more liable to confuse memory of fact with memory of fantasy. The danger is that pre- trial interviewing and preparation procedures will suggest facts and stimulate fantasies the child will thereafter report and recall as truth. Id. at 707. Christiansen, id., also arrived at the same conclusion as Michaels I and Michael M.: The solution to this problem is judicial review of the effects of child witness inter- viewing and preparation procedures in cases where child witness evidence will be used. Just as judges pass on the reliability of other types of evidence by assessing their foundation as prerequisite to admission at trial, so they should review pre-trial prep- aration procedures as a necessary predicate to admitting child witness evidence. While Christiansen recognized that child wit- nesses pose new problems for the legal system, he states there "is no reason the system cannot adapt to these problems and function as reliably and more sensitively in cases where children must speak as in any other case where the reputation and futures of those accused are at stake." Id. at 708 The Petitioner therefore requests the court to adopt the remedy proposed by the Michaels cases and Christiansen, prior to admitting hearsay under the tests of State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). The Michaels cases suggest a pre-trial hearing to determine whether or how much of the child's testimony can proceed. Christiansen, on the other hand, suggests that the trier of fact consider the evidence of taint as part of the whole picture. Christiansen, id. at 707-8. The taint analysis differs from Ryan in that the latter concerns itself with whether the child is being untruthful. The former asks first whether the child's memory has been contaminated such that its testimony is not reliableÄÄwhat the Oklahoma Su- preme Court called "the chilling possibility that a child may be remembering fantasy." 916 P.2d at 1363. The concern to avoid tainted testimony is not unknown in Washington jurisprudence. Former Wash- ington Supreme Court Justice Charles Stafford expressed concern "that a child will intermingle imagination with memory and thus have incorrect statements irretrievably engraved on the record by a guileless witness with no conception that they are incorrect or that the words should not have been spoken." Stafford, The Child as a Witness, 37 Wash. L. Rev. 303, 309 (1962)(quoted in Christ- iansen, 62 Wash. L. Rev. at 710, n. 22). Judge Sheldon did not do the pre-trial taint hearing suggested by the Michaels cases. She did, however, have evidence before her of the coercive nature of the interview of E.P.; and she erred in failing to recognize the tainted nature of E.P.'s testimony. See, Petition for Discretionary Review, pp. 12-15. II. THE STATE DRAGS A RED HERRING ACROSS THE PATH WHEN IT CLAIMS THE CIVIL NATURE OF A DEPENDEN- CY HEARING REQUIRES THAT CASES DEALING WITH CONFRONTATION CLAUSE ANALYSIS SHOULD NOT APPLY TO DEPENDENCIES. As already noted in the Petition for Discre- tionary Review, the state, as well as the court below, have failed to recognize the difference between "burden of proof" and "standard". The standard for admission of hearsay is reliability, regardless of whether the case is a criminal or a civil case. The goal of the trial is to get the best evidence before the trier of fact and thus arrive at the truth. There is no different stan- dard of truth for criminal cases than for civil. It is only the burden of proof that differs. The very language of RCW 9A.44.120(1) indi- cates the Confrontation Clause analysis of reli- ability is the applicable standard for that stat- ute. Child abuse hearsay is admissible if, among other things, (1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the state- ment provide sufficient indicia of reliabili- ty; "The phrase 'indicia of reliability' appears to have had its genesis in California v. Green, 39 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)." State v. Parris, 98 Wn.2d 140, 144, 654 P.2d, 77 (1982). This "indicia of reliability" analysis was carried down through other Confrontation Clause cases, including Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980) and Idaho v. Wright, supra. It is against the background of Green and Roberts that RCW 9A.44.120 was first enacted into law by Laws 1982, ch. 129  2. Originally the statute only applied to criminal proceedings. Statutory construction presumes that those enacting the law intended to include the judicial construc- tion that already existed regarding the language "indicia of reliability." State v. Rohrich, 132 Wn.2d 472, 476, 939 P.2d 697 (1997). In Laws 1985, ch. 404,  1, the statute was amended to include dependency proceedings as well. The analysis of "indicia of reliability" in Confrontation Clause cases was set forth in State v. Ryan, 103 Wn.2d at 170. The same analysis was applied to dependencies in Dependency of S.S., 61 Wn. App. 488, 495-97, 814 P.2d 204 (1991). The essential issue in the Confrontation Clause analysis of hearsay is not in the criminal nature of the proceeding, but rather in the search for reliability in the hearsay statements in order to comply with the Confrontation Clause. Thus, courts have had no problem with applying the reli- ability analysis of Ryan to dependency cases. It is disingenuous for the state to claim on the one hand that the Ryan factors apply to depen- dencies and then claim that the pre-trial taint hearing of the Michaels cases should not apply in dependencies because they are merely civil proceed- ings. In so doing, the state misses the point. The purpose of demanding reliability is that the search for truth in a dependency proceeding is no less important than in a criminal proceeding. III. VIDEOTAPING IS THE BEST WAY TO PREVENT OR RECOGNIZE THE EXISTENCE OF TAINTED INTERVIEWS OF YOUNG CHILDREN. As the Oklahoma court said in Kahre, 916 P.2d at 1363, "many courts . . . require satisfactory proof that the child was not improperly led into making accusations of sexual abuse, such as video- tapes of the counseling sessions, before allowing the admission of such testimony." The Idaho court in State v. Wright, 116 Idaho 382, 385, 775 P.2d 1224, 1227 (1989), found a doc- tor's interview technique "inadequate" because the questions and answers were not recorded on video- tape for preservation and perusal by the defense at or before trial. The Idaho court went on to say: "[t]he circumstances surrounding this interview demonstrate dangers of unreliability which because the interview was not [audio or video] recorded, can never be fully assessed." Id. at 388, 775 P.2d at 1230 (quoted in Idaho v. Wright, 497 U.S. at 813, 110 S. Ct. at 3145). The U.S. Supreme Court refused to require videotaping as a constitutional mandate, although it did say "the procedural guide- lines propounded by the court below may well en- hance the reliability of out-of-court statements of children regarding sexual abuse. Id. at 805, 110 S. Ct. at 3145 (see Michaels II, 136 N.J. at 312, 642 A.2d at 1379). The New Jersey court in Michaels II also stated: "As a matter of sound interviewing method- ology, nearly all experts agree that initial inter- view should be videotaped." 136 N.J. at 313, 642 A.2d at 1379, n 1. Christiansen, 62 Wash. L. Rev. at 714 also recommended videotaping: One promising approach is the use of video- taped interviews. If interviews are video- taped it is possible to access the suggestive- ness of the interview procedures and to pre- serve the flavor of the child's responses. A seemingly ambiguous statement in a transcript, for example, is given depth and meaning by the tone of voice and expression of the speaker. Several states have already enacted laws providing for the videotaping of child witness interviews and courts are beginning to explore the legal ramifications of this approach [fn. 35] whether or not it should ultimately prove desireable to admit a child's videotaped statements as evidence at trial, videotaped interviews are clearly the best means avail- able of accurately recording the interview itself and the procedures used. In any event, videotapes of child witness interviews might be useful in pre-trial evidentiary hearings. Christiansen in footnote 35 listed several other experts who recommend videotaping. As already noted in the Petition for Discre- tionary Review, Dr. Peterson testified it is best to record interviews. Petition at 19-20. See also, McGough, L., Child Witnesses: Fragile Voices in the American Legal System, (1994, Yale University Press, New Haven) 189-232, "Videotaping Children's Accounts" (sees videotaping as children sub-cate- gory of recorded recollections). McGough states: "In Denmark and Sweden, the precautionary audio- taping of children's interviews has been police practice for more than twenty years." Id. at 199. At the April 21, 1993 shelter care hearing, the issue of recording the children's interviews was presented to Judge Sheldon, who refused to order recording of interviews. The very next day, April 22, 1993, E.P. was interviewed by Detective Kelly and case worker Kyle Smith. BK 25. With so many experts recommending, and several states and countries requiring, recording of chil- dren's interviews, virtually no valid reason can be found for Judge Sheldon having denied Mr. Petcu's request to record the interview of Detective Kelly with E.P. Mr. Petcu obviously stood to gain noth- ing but an accurate record of the interview. Denying the recording served only to limit the knowledge of what occurred during the interview. As Christiansen stated, 62 Wash. L. Rev. at 714, "[U]nless child witness interviewing is done well, there is a danger that the child's memory may be contaminated by suggestion or conditioning and that the truth and accuracy of the child's recollections will be seriously distorted or altogether de- stroyed. Petitioner's position is that Judge Sheldon erred in denying a recording of the interview with E.P., and that had the interview of E.P. by Detec- tive Kelly and caseworker Smith been recorded, Mr. Petcu could have shown at trial that E.P.'s memory had in fact been contaminated by the leading inter- view. In addition, Mr. Petcu suggests herein that the court impose a new requirement on child inter- views, specifically, that they be recorded to the extent reasonably possible. As support for his suggestion that child interviews be recorded, Petitioner relies upon Dickinson v. Edwards, 105 Wn.2d 457, 456, 716 P.2d 814, 824 (1986), a case where the employer was held liable for a motorcycle accident of an employee who had consumed too much alcohol at a company gather- ing. In his concurrence, Justice Utter laid out several things the employer could have done to monitor intoxication of the guest. After suggest- ing the employer could have hired off-duty police, rented a machine to test blood alcohol for depart- ing employees, and providing intoxicated guest with alternate transportation home, Justice Utter then stated: The simplicity and relative inexpensiveness of some of these steps suggested duty in much the same manner in which the existence of a simple glaucoma test let us define the failure to routinely use it to be negligence, even though that was not then the standard of the profession. Helling v. Carey, 83 Wn.2d 514, 518-19, 519 P.2d 981, 67 A.L.R.3d 175 (1974) Where the burden of prevention is small compared to the probability and magnitude of the foreseeable harm, the failure to provide the pre- ventative measures cannot be excused. See, The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932) (Hand, J.). The T.J. Hooper was a case regarding ocean- going barges during a time when ship-to-shore radios were not in common usage. Judge Learned Hand held that, notwithstanding absence of custom, the cost-benefit analysis mandated finding negli- gent those tugs which did not have ship-to-shore radios. As Judge Hand so eloquently stated: They [the captains] can have at hand protection against dangers of which they can learn in no other way. Is it then a final answer that the busi- ness has not yet generally adopted receiving sets? There are, no doubt cases where courts seem to make the general practice of the calling the standard of proper diligence: We have indeed given some currency to the notion ourselves. [citations omitted]. Indeed, in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission [citations omitted] but here there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged is that they had not yet become general. Certainly in such a case we need not pause; when some have thought a device neces- sary, at least we may say that they were right, and the others too slack. The question the Supreme Court must ask is: How important is the truth in children's testimony? When the welfare of children and families is in- volved, is it more important to err on the side of administrative convenience? Parents have a "funda- mental liberty interest . . . in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d. 599, 606, 102 S. Ct. 1388 (1982). The Santosky court recognized that "the state's unusual ability to structure the evidence increases the risk of an erroneous fact finding." Id. at 763, 71 L. Ed. 2d. at 613, n. 13. In a juvenile dependency or termination case, the state's ability to structure the evidence regarding a child's testimony is virtually unrestrained. Fundamental due process would require that child interviews be videorecorded. It protects the child and the parents from erroneous statements by a suggestible child. And as Judge Hand said in The T.J. Hooper, "There are precautions so imperative that even their universal disregard will not excuse their omission." IV. JUDGE SHELDON ERRED BY DEMANDING MR. PETCU COMPLETE SEXUAL DEVIANCY TREATMENT IN THE ABSENCE OF A CLINICAL DIAGNOSIS OF SEXUAL DEVIANCY. RCW 13.34.100 sets forth the requirements for a fact-finding hearing. The rules of evidence apply at the fact-finding hearing. JuCR 3.7(b) RCW 26.44.053(2) enables the court to order the exami- nation of a parent "if the court finds such an examination is necessary to the proper determina- tion of the case." The court in this case made no such order prior to the fact-finding. Following the fact-finding, the court made no findings that Mr. Petcu was sexually deviant. SUP 34-44. RCW 13.34.130 sets forth the requirements of a Disposition Order. Judge Sheldon made a Disposi- tion Order. CP 6-12. The father complied with the requirements of a psychosexual evaluation, CP 24- 30, but was not found to be sexually deviant by the court-appointed evaluator. Nor was Mr. Petcu subsequently found to be sexually deviant by Mi- chael Comte, SUP 10-11, or Dr. Peterson, SUP 12. In addition, he successfully completed treatment pursuant to Charles M. Muller, SUP 13-14. Mr. Comte found "no clinical evidence of a sexual deviation." SUP 11. Nevertheless, Judge Sheldon, without further findings of fact, ordered Mr. Petcu to undergo "sexual deviancy treatment". SUP 8 Judge Sheldon did this absent any expert testimony regarding Mr. Petcu's supposed "sexual deviancy" or regarding any need on Mr. Petcu's part for such treatment. Moreover, whereas Judge Sheldon had originally ordered Mr. Petcu to undergo psycho-sexual evalua- tion "and follow recommendations for treatment" CP 11, it appears that Judge Sheldon decided to change the rules when the psycho-sexual evaluator recom- mended no treatment. Judge Sheldon therefore doomed Mr. Petcu to failure in her program. As Michael Comte state, SUP 11, "the primary purpose for specialized psychotherapy is to reduce re- offense [sic] probabilities." See also Charles Muller's letter, SUP 13-14, also Dr. Peterson's letter, SUP 12. RCW 13.34.150 states: "Any order made by the court in the case of a dependent child may be changed, modified, or set aside only upon a showing of a change in circumstance or as provided in RCW 13.34.120." Judge Sheldon showed her disregard for the statute by modifying the Disposition Order absent a change of circumstances and absent adher- ence to the requirements of RCW 13.34.120. Specif- ically, Judge Sheldon in her modified review hear- ing on July 1, 1994, SUP 22, did not comply with RCW 13.34.120(2)(b) which required her to state "the reasons why such programs [needed in order to prevent serious harm to the child] are likely to be useful; the availability of any proposed services; and the agencies overall plan for insuring that the services will be delivered." Because Judge Sheldon failed to follow the law and because there was no clinical diagnosis of sexual deviancy, Mr. Petcu should not have been required to have completed sexual deviancy treat- ment. C. CONCLUSION The purpose of this Supplemental Brief has been to request the court to adopt several critical remedies regarding the accuracy and reliability of child witnesses, both in dependency and criminal proceedings, specifically the Petitioner request that the court, in the tradition of Judge Learned Hand, propose a requirement of videotaping of child interviews and pre-trial taint hearing when chil- dren have undergone interviews. If truth is the goal, such changes will only further enhance the process. Respectfully submitted November 3, 1997. PREBLE LAW FIRM __________________________ GARY A. PREBLE, WSB #14758 Attorney for Petitioner APPENDIX