“The Eberhart court’s florid denunciation of ‘that sickly sentimentality’ that prompts some citizens to oppose the death penalty appears to have made it a particular favorite of some Georgia prosecutors .... ”
How later courts described this case
- “The Eberhart court’s florid denunciation of ‘that sickly sentimentality’ that prompts some citizens to oppose the death penalty appears to have made it a particular favorite of some Georgia prosecutors .... ”
- indicating this standard applies both at trial and during the sentencing phase of a case
- (b)(2) aggravating circumstance involving "kidnapping" invalid where trial court omitted any reference to "bodily injury" in guilt/innocence and sentencing phase jury charge
Written by the judges who cited it.
The opinion
JAMES C. HILL, Circuit Judge,
concurring specially:
I concur. However, lest my concurrence in Part IV be misconstrued as extending to inferences one might draw from what is there said, I write, briefly, separately.
I find no constitutional fault in a trial advocate’s calling to the court’s attention principles of law touching upon issues in a case, even though counsel interrupts his own summation to do so. Thus, if counsel is urging the jury to find that reasonable doubt exists as to his client’s guilt, I apprehend that he may, then and there, urge the judge to instruct the jury that, if it entertains reasonable doubt, it must acquit, citing precedent requiring such an instruction.
Here, however, the prosecutor did not undertake to call to the judge’s attention any authority for any proposition of law. The judgments of the Supreme Court of Georgia were, of course, binding on the Superior Court trying Mr. Potts, but it cannot be said that the quoted remarks of the justice who wrote the opinion for that court in Eberhart v. State, 47 Ga. 598 (1873), bound the trial court judge or juror. As presented by the prosecutor, it appeared that the Supreme Court of the state had ruled that “sickly sentimentality,” a “tender heart,” “false humanity,” “mercy,” and consideration of the criminal defendant had been declared unlawful in Georgia and that a juror who entertained such feelings would be a lawbreaker.
Yet we are taught by Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1967), that jurors with such feelings and inclinations are qualified to serve if they are willing to abide the law and find the facts without bias. Here, the trial court permitted it to be represented to the contrary and the representation was not corrected.
I apprehend, but do not decide, that I would agree with the Supreme Court of Georgia that “the written words of a since deceased jurist” (Presnell v. State, 241 Ga. 49 , 243 S.E.2d 496, 507 (1978)) could not have unconstitutionally affected the sentencing procedure. However, the quotation was not of an individual; it was of the Supreme Court of the state. It was not put' forth as a person’s view; it was proffered as the law. I believe it not to have been the law when written in 1873. At all events, it was not the law at the time of this trial. Witherspoon was announced in 1967.
For these reasons, I concur in Part IV; I also concur in all else stated in the opinion.