John Eldon Smith v. Ralph M. Kemp, Superintendent, Georgia Diagnostic & Classification Center

HATCHETT, Circuit Judge,

concurring in part and dissenting in part.

I respectfully dissent on the Giglio issue. The prosecutor, Fred Hasty, in his closing argument in John Eldon Smith’s 1975 trial, stated:

I want to tell you one other thing .... This indictment charges John Eldon Smith, a/k/a Machetti, Rebecca Smith a/k/a Machetti, and John Maree, Jr. with the offense of Murder in two counts, and this case has been severed and Tony Machetti is being tried. You are not to pass on the guilt of the other two defendants. As District Attorney of this Circuit, I tell you that those two other defendants will be tried and I tell you if I have anything to do with it those two defendants will be convicted of Murder, and you will hear, I am sure, the defense attorney has the closing argument and will talk to you about John Maree, what he is going to get out of this trial. I can tell you right now what he is going to get out of it. He is going to be convicted of Murder, two counts of Murder, if I have anything to do with it. You heard his testimony that he was promised protection for his fami *1473 ly. Of course, you have to understand in his testimony that he is hoping he is going to save himself from the electric chair. It is the human reaction. It is natural for him to hope that but he told you, and I can tell you, there has been no promise. [Emphasis added.]

In Giglio v. United States, 405 U.S. 150, 153-154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972), a unanimous Supreme Court stated:

As long ago as Mooney v. Holohan, 294 U.S. 103, 112 , 79 L.Ed. 791, 794 , 55 S.Ct. 340 [342], 98 ALR 406 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U.S. 213 , 87 L.Ed. 214 , 63 S.Ct. 177 (1942). In Napue v. Illinois, 360 U.S. 264 , 3 L.Ed.2d 1217 , 79 S.Ct. 1173 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., 269 [ 79 S.Ct. at 1177 ], 3 L.Ed.2d at 1221 . Thereafter Brady v. Maryland, 373 U.S. [83], at 87, 10 L.Ed.2d [215] at 218, 83 S.Ct. 1194 [at 1197] (1963), held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function § 3.11(a). When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra [360 U.S.], at 269 [ 79 S.Ct. at 1177 ], 3 L.Ed.2d at 1221 . We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict .... ” United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra [373 U.S.], at 87 [ 83 S.Ct. at 1196 ], 10 L.Ed.2d at 218 . A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury .... ” Napue, supra [360 U.S.], at 271 [ 79 S.Ct. at 1178 ], 3 L.Ed.2d at 1222 .

If a prosecutor fails to disclose to the jury an understanding or promise made to a witness, a Giglio violation occurs. Since an understanding existed between the prosecutor, Hasty, and the witness, Maree, undisclosed to the jury, I would remand to the district court for an evidentiary hearing on the issue. In order to appreciate the extent of the possible violation, it is vital to understand the facts as disclosed on the face of the record.

John Maree, a co-participant in the crime, was the key to successful prosecution of the two murders involved in this case. The state’s case against Maree was strong. The state’s evidence against Maree included his confession, his hand prints from the victim’s automobile, and a witness placing him at the crime scene. The case against Smith was weak. Without Maree’s testimony, Smith could not be placed at the crime scene.

Seven years after Smith’s trial, Hasty, the prosecutor who tried the case, told Millard Farmer, a lawyer and old acquaintance, that he (Hasty) had made a deal with Maree. Hasty explained that the deal was: a recommendation for a life sentence in exchange for Maree’s testimony against the Smiths. Farmer conveyed Hasty’s remarks to Smith’s counsel in New York. On May 25, 1983, Farmer presented an affidavit to Hasty reciting the subject matter of that prior conversation. After the two men had lunch together, Hasty found an error in the affidavit and had his secretary retype it correcting the error. At the time Hasty signed the affidavit, Farmer informed him that the affidavit would be used in Smith’s post-conviction relief efforts. Hasty’s affidavit in one portion stated:

3. Prior to the trial of John Smith, I offered John Maree, the only known eyewitness to the crime, sentences [sic] of life imprisonment in exchange for testimony against John Smith and Rebecca *1474 Smith/Machetti. Mr. Maree agreed to testify against both John Smith and Rebecca Machetti in exchange for sentences [sic] of life imprisonment. I further told John Maree that I would seek the death penalty against him if he did not testify in the trials of John Smith and Rebecca Smith/Machetti. After the trials, John Maree was in fact permitted to plead guilty and did receive sentences of life imprisonment for his role in the Akins murders. (Emphasis supplied.)

A month after Hasty executed the affidavit, one of Smith’s lawyers telephoned Hasty to inform him that the affidavit would be used in a habeas corpus petition raising a Giglio claim. Hasty did not object and did not claim that the affidavit was incorrect.

In the June 13, 1983, state evidentiary hearing, Hasty testified concerning the case:

I do know that at one point Mr. Boger [Smith’s attorney] mentioned a Giglio motion that he expected to file. I do not recall any statements made about John Eldon Smith’s conflict in testimony that he had given. I know that the Giglio motion was mentioned [but] that, at that time did not mean anything to me.

On January 12, 1983, Hasty learned for the first time that the disciplinary board of the Georgia State Bar Association had filed charges against him. Enclosed with the notice of disciplinary action were two items: 1) the transcript of Hasty’s closing argument during Smith’s 1975 trial in which Hasty told the jury that no promises were made to Maree in exchange for his testimony, and 2) an excerpt from a 1978 deposition in which Hasty stated that he made a pre-trial agreement with Maree to testify against Smith and his codefendant, Rebecca Machetti. The pertinent portion of the 1978 deposition stated:

A. Well, I talked to Mr. Morae [sic] of course, prior to [petitioner Smith’s] trial, and he testified in that case and then he testified in Rebecca Machetti’s trial ...

Q. Did he believe that he was going to get off free or get out with a light sentence by testifying?

A. We had a discussion about this, and I had agreed that if he did testify that I, I would not insist on a trial and would allow him to enter a plea of guilty and receive life sentences.

Thus, Hasty, a seasoned prosecutor, had sworn under oath on two occasions, four years apart, that he made a deal in exchange for Maree’s testimony. Because he told the Smith jury no deal had been made, he was in trouble with the Georgia State Bar.

On May 10, 1983, faced with suspension or disbarment, Hasty repudiated his two prior sworn statements at Smith’s state habeas corpus evidentiary hearing. Hasty stated that he promised Maree nothing in exchange for his testimony, neither a lighter sentence nor a letter to the parole board. During the same hearing, however, Hasty’s testimony reveals that an understanding did exist regarding what sentence he would recommend for Maree. In response to the question of whether he had ever made any promises to Maree’s attorney, Sparks, regarding Maree, Hasty testified:

I recall — I had returned early on in the investigation when I saw what evidence we had, I knew if Mr. Morray [sic] testified, I knew what my recommendation would be. I had determined that and I think I ever discussed that with Mr. Thompson. At one time I thought I had discussed it with Mr. Wilkes, but Mr. Wilkes says I did not. So, I knew what I was going to do. But, because of, again, the policy I had, I did not discuss it with Mr. Sparks. And after the Rebecca Machetti or Rebecca Smith trial was over, I recall — and this would have probably been sometime in March of 1975 — I recall Mr. Sparks came to my office and wanted to talk about the case. And earlier in my mind, I had known that if he testified that I was going to make a recommendation of concurrent life sentences. I recall when Mr. Sparks came into my office that we started discussing it and at that *1475 time I told him that I would recommend two consecutive life sentences and this upset Mr. Sparks. And he said, “Well, it ought to be concurrent.” And I agreed almost immediately with him, that they would be concurrent life — recommendation for concurrent life sentences.

Hasty’s explanation for his two prior sworn statements given four years apart: his “mind had become somewhat confused about what had actually happened.”

Although no other clear promise is evident in the state court records, the record does show an understanding by all parties as to what would happen in the event Maree did not testify. The central portion of the understanding is illustrated by Maree’s testimony. In a sworn affidavit he stated:

The only statement made pertaining to my trial was that if I did not agree to testify, that then D.A. (Fred Hasty) would assign my case to an assistant district attorney for prosecution and that a death sentence would most likely be sought.

Maree’s lawyer, Willie Sparks, characterized the understanding as follows:

Mr. Hasty did say, as I recall, that if Morray [sic] did not cooperate, it was quite possible that he would be the first man tried, and the state might well seek the death penalty.

******

Well, after this conversation, while I can’t recall precisely what was said, I conveyed to Mr. Morray [sic] that he did not have a deal with the state, but that I thought his best and wisest course purely from the point of view of his self interest was to testify for the state. His alternative was to go to trial on a case where he had already confessed a voluminous confession, where his palm print was found on the car and there was some chance the state would get the death penalty even though he did not appear to be the trigger man.

Hasty’s statement of the understanding was:

Q. Willie Sparks testified that you told him that if John Morray [sic] did not give testimony that he would be tried first and you would have now testified that that’s in fact what happened.

A. [Hasty] I do not remember telling Mr. Sparks that, but I know the prosecution business well enough to know that that’s what I would have done.

Q. But, it is your intention that if Mr. Morray [sic] did testify to the state, you would leave open the question of whether he in fact would be tried or would be permitted to plead guilty?

A. [Hasty] Did not tell Mr. Sparks what I intended to do.

Due to the inconsistency between Hasty’s testimony and his deposition and affidavit, the state court finding of no pretrial agreement is not fairly supported by the record. The incredible finding that Hasty and Maree had no understanding is supported only by Hasty’s statement that he was confused. Logic, experience, and events at trial dictate otherwise.

A federal court must make its own credibility findings under these factual circumstances. State court credibility findings are never binding on a federal court. 28 U.S. C.A. § 2254(d)(8); Sumner v. Mata, 449 U.S. 539 , 101 S.Ct. 764 , 66 L.Ed.2d 722 (1981). The state record as a whole clearly shows that Hasty communicated to Maree the idea that he would be tried first and the death penalty sought unless he testified against Smith. This understanding, however, was not disclosed to Smith’s trial jury. Instead, Hasty intentionally misled the jury as to Maree’s credibility. This is a Giglio violation. Under Giglio there is “no difference between concealment of a promise of leniency and concealment of a threat to prosecute.” United States v. Sutton, 542 F.2d 1239, 1242 (4th Cir.1976). No explicit promise or deal need be shown. The due process violation occurs if there is an undisclosed inducement for the witness’s testimony. Hawkins v. United States, 324 F.2d 873 (5th Cir.1963). As the Ninth Circuit so aptly stated:

*1476 [W]e know from experience that the Government, ... [has] ways of indicating to defendant’s counsel that benefits are likely to result from cooperation. That can be indicated without making a bald promise that the charge is going to be reduced or that the case is going to be dismissed.

United States v. Butler, 567 F.2d 885, 888, n. 4 (9th Cir.1978).

The majority and the trial judge dismiss this issue with the comment that any juror would know that Maree sought to save his life by testifying. They miss the point. The point is that the jury did not know that an understanding had been reached and the witness was testifying with the assurance that his life had been saved. Giglio merely holds that the understanding must be disclosed. An affirmative duty is on the prosecutor to disclose the understanding rather than have the jurors attempt to figure it out. The jurors must know the facts so they may judge the testimony given in light of the interest the witness is or is not seeking to protect. As Justice Frankfurter said in Griffin v. United States, 336 U.S. 704, 709 , 69 S.Ct. 814, 816 , 93 L.Ed. 993 (1949): “it would ... be too dogmatic, on the basis of mere speculation, for any court to conclude that the jury would not have attached significance to the evidence favorable to the defendant had the evidence been before it.”

Because the state findings are unsupported by the record as a whole, I would remand this case to the district court for an evidentiary hearing.

This case again illustrates the difficulty, if not the impossibility, of imposing the death penalty in a fair and impartial manner. It is a classic example of how arbitrarily this penalty is imposed. Maree, who bargained to receive $1,000 for the murder and on whom the evidence was the strongest, is eligible for parole in November 1983. He will live because the evidence against him was overwhelming and the prosecutor needed his testimony to convict Smith and Machetti. Thus, a deal was struck.

Machetti, the mastermind in this murder, has had her conviction overturned, has had a new trial, and has received a life sentence. This court overturned her first conviction because in the county where her trial was held, women were unconstitutionally underrepresented in the jury pool. Machetti v. Linahan, 679 F.2d 236 (11th Cir.1982). Her lawyers timely raised this constitutional objection. They won; she lives.

John Eldon Smith was tried in the same county, by a jury drawn from the samé unconstitutionally composed jury pool, but because his lawyers did not timely raise the unconstitutionality of the jury pool, he faces death by electrocution. His lawyers waived the jury issue. Judicial economy, as required by recent decisions of the United States Supreme Court, dictate that we not reach the underrepresentation of women issue, even under principles of “manifest injustice.” The fairness promised in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), has long been forgotten.