amy: eric freedman, can you comment?> this particular issue is so important that defense lawyer david brooke went out of his way in open court to repeat to the judge this test said, your honor honor, we reiterate our demand for this instruction and read it in a vain effort to catch the attention of the mainstream press, which failed to pick up on this point. and the judge said, i've already ruled on that in chambers. we had long arguments about that, as we now know, away from the press and out of the public eye in which you refused to give the instruction -- he refused to give the instruction. but we know from the transcript that and from what was said in court that the defense expose subtly asked for this and it was extensively refused by the judge on the basis of considerations which he did not tell is coming to said, what i told you in chambers. amy: is this grounds for appeal? >> no question. the failure to give that instruction in a situation which it has been given 71 times of federal death penalty cases, including