Petition — JOSEPH MULLIGAN v. GEORGIA (No. 80-5119)

Supreme Court brief1979

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RECEIVED

JUL 2 5 1980

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. a-17 ¥O-S lg

JOSEPH MULLIGAN,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

Neil H. Fink (P13430)

1500 Buhl Building

Detroit, Michigan 48226

(313) 963-1700

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 48226. (313) 963-1700

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

ON THE MERITS

I, SHOULD THIS COURT ESTABLISH THE MINIMUM

QUALITY OF REPRESENTATION TO BE PROVIDED

TO AN INDIGENT DEFENDANT TO BE, ASA

MATTER OF FEDERAL CONSTITUTIONAL LAW,

WITHIN THE RANGE OF COMPETENCE DEMANDED

OF ATTORNEYS IN CRIMINAL CASES, AND IF SO,

SHOULD THIS COURT NOTICE AS PLAIN ERROR

THAT PETITIONER, AN INDIGENT DEFENDANT IN

THE TRIAL COURT, WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE

OF COUNSEL DURING HIS TRIAL AND DIRECT

APPEAL TO THE SUPREME COURT OF GEORGIA

BECAUSE OF HIS COURT-APPOINTED COUNSEL'S

FAILURE TO PERFORM "WITHIN THE RANGE OF

COMPETENCE DEMANDED OF ATTORNEYS IN

CRIMINAL CASES", WHERE COURT-APPOINTED

COUNSEL PROVIDED A PRO FORMA DEFENSE;

FAILED TO PREPARE A TRIAL; AND COMMITTED

NUMEROUS ERRORS WHICH INCLUDED, BUT

WERE NOT LIMITED TO, HIS FAILURE TO OBJECT

TO THE CONTINUED OVERZEALOUS MISCONDUCT

OF THE PROSECUTING ATTORNEY AND FURTHER,

FAILED TO ACT AS AN ADVOCATE DURING

PETITIONER'S DIRECT APPEAL TO THE SUPREME

COURT OF GEORGIA?

“1700

”

II. CAN THE STATE OF GEORGIA CONSTITUTIONALLY

IMPOSE THE DEATH PENALTY IN THIS CASE

UNDER GODFREY V GEORGIA, US 4

100 SCt 1 CODE AN =2534.1

(b)(7) WAS NCT DELIMITED BY THE TRIAL COURT IN

ITS INSTRUCTION TO THE JURY AND THE MURDER

IN QUESTION DID NOT INVOLVE TORTURE NOR WAS

IT INORDINATELY DEPRAVED?

’

LAW OFFICES NEIL MH. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313) o6s

MICHIGAN 48226. (3:3) 963-1700

LAW OFFICES WEIL H. FINK, 1500 SUHL BUILDING, OcTRorr,

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Petitioner, an indigent defendant in the trial court,

was denied his sixth amendment right to the effec-

tive assistance of counsel during his trial and direct

appeal to the Supreme Court of Georgia because of his

court-appointed counsel's failure to perform "within

the range of competence demanded of attorneys in

criminal cases", where court-appointed counsel provided

a pro forma defense; failed to prepare for trial; and

committed i:.merous errors which included, but were not

limited to, his failure to object to the continued over-

zealous misconduct of the prosecuting attorney and further,

failed to act as an advocate during Petitioner's direct

appeal to the Supreme Court of Georgia.

A. Lack of pretrial preparation and the

colloquy in the presence of the jury regarding

defense counsel's disinterest

B. Voir Dire

C. The so-called insurance motive

D. Witness Teter's in-court identification

of defendant, gained as a result of suggestive

pretrial identification procedures, went unchal-

lenged by defense counsel

E. Exhibit 9

F. Closing arguments

G. Prosecutor's closing argument -- penalty

stage

H. Defense counsel's closing argument --

guilt stage

I, Defense counsel's closing argument --

penalty stage

J. Motion for New trial and the appeal

xii

Page

K. Instructions 41

L. Extradition 42

M. Defense opening statement -- the

: alibi that was never presented 44

N. Defense counsel's failure to poll

the jury 45

Summary 45

II, Under this Court's holding in Godfrey v. Georgia,

Petitioner's death sentence cannot be constitutionally

imposed in that Georgia Code Ann. §27-2534.1(b) (7)

was not delimited by the Georgia courts; the murder

of Marian Miller did not involve torture nor was it

inordinately depraved; and the jury's finding of an

aggravating circumstance under §27-2534.1(b)(2) is

insufficient to justify retention of the death sentemce 47

CONCLUSION 55

LAW OFFICES NEIL H. FINK. 1500 BUHL BUILDING, DETROIT. MICHIGAN 48226, (313) 963-1700

iii

“

" TABLE OF AUTHORITIES

Cases Page

Anders v California, 386 US 738 (1967) 40

Andres v United States, 333 US 740 (1948) 54

Barnard v Henderson ,514 F2d 744 (5th Cir. 1975) 17

Baxter v Rose, 523 SW 2d 930 (Tenn. 1975) 7

Beck v Alabama, 48 USLW 4801 (U.S., June 20, 1980) ll

Berger v United States, 295 US 78 (1934)

Birt v State, 236 Ca 815, 225 SE 2d 248 (1976) 50

8 Blake v State, 239 Ga 292, 236 SE 2d 637 (1977) 41,48

3 Bowen v State, 24] Ga 492, 246 SE 2d 322 (1978) 52

a Boyer v Patton, 579 F2d 284 (3d Cir. 1978) 25

; Clay v State, 236 Ga 398, 224 SE 2a 14 (1976) 42

j Coleman v United States, 379 A 2d 710 (D.C. App. 1977) 7

- Commonwealth v Adams, i Mass, _, 375 NE 2d .

. i Commonwealth v Badger, 482 Pa. 240, 393 A. 2d 642 (1979) 7

| Geleill Fitzharris, 586 F 2d 1325 (9th Cir.) cert denied

H 480 US S74 1878) | Lei aces 7,10

Davis _v Alabama, 596 F2d 1214 (5th Cir. 1979) 19

: Davis v State, 40 Md. App. 467, 391 A.2d 872 (1978) 7

: Deason v State, 562 S.W.2d 79 (Ark. 1978) 7

Devine v United States, 403 F2d 93 (10th Cir. 1968) 29

3 Diggs v Welch, 148 F2d 667 (D.C. Cir.) cert denied

See 325 US b89 (1945) Sty aR eae 8

Dix v State, 238 Ga 209, 232 SE 2a 47 (1977) 50

Donnelly v State, 516 P.2d 396 (Alaska, 1973) 7

Easter v Estelle, 609 F2d 756 (5th Cir. 1980) 9

Ewing v ‘iliams, 596 F2d 391 (9th Cir. 1979) 19

Felts v State, 588 P, 2g 572 (Okla. Crim. 1978) 7

Flores v State, 576 S.W. 2d 632 (Tex. Crim. App., 1978) 7

Furman vy Georgia, 409 US 24 (1972) 48,49

* Gardner v Florida, 430 US 349 (1977) I

bi hein | . | iad

| vO : i ee | A yet, oe ="), te og ees a a 4 Ve REF oA yp ®

; , me ; -y —f Pee Me ee SOLES

Mi he th ee. a ers 1

LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT. MICHIGAN 46226, (s13) 963-1700

Gibson v State, 351 So. 2d 948 (Fla. 1977)

Gideon v Wainwright, 372 US 335 (1963)

Gilliland v State, 142 Ga. App. 374, 285 SE 2a 780 (1977)

Gladden v Frazier, 388 F2d 777 (9th Cir. 1968)

Godfrey v Georgia, US » 100 SCt 1759 (1980)

Gradsky v United States » 373 F2d 706 (5th Cir. 1967)

Greenberg v_ United States, 280 F2qa 472 (Ist Cir. 1960)

Gregg v Georgia, 428 US 153 (1976)

Griffin v State of California, 381 US 957, 85 SCt 1797 (1965)

Hall v United States, 419 F2d 582 (5th Cir. 1969)

Harris v State, 293 A.2d 291 (Del. 1972)

Holloway v Arkansas, 435 US 475 (1978)

Holton v State, 243 Ga 312, 253 SE 2d 736 (1979)

House v State, 232 Ga 140, 205 SE 2d 217 (1979)

Jaramillo v Turner, 24 Utah 2d 19, 465 P.2d 343 (1970)

Keys v State, Ind. » 390 NE 2d 148 (1979)

In Re King, 133 Vt. 245, 336 A.2d 195 (1975)

King v United States, 372 F2q 383 (D.C. Cir. 1979)

Kruether v United States, 376 F2d 654 (10th Cir.) cert

enie ] (1967)

Lanzetta v New Jersey, 306 US 45] (1939)

McCorguodale v State, 233 Ga 369, 211 SE 2a 577 (1979)

McMann v Richardson, 397 US 759 (1969)

McQueen v Swenson, 498 F2d 207 (8th Cir. 1974)

MacKenna v Ellis, 280 F2d 592 (Sth Cir. 1960) cert denied

(1961)

Marks v United States, 260 F2d 377 (10th Cir. 1958)

Marzullo v Maryland, 561 F2d 540 (4th Cir. 1977)

cert denied, 435 US 1011 (1978)

Mason v Arizona, 504 F2q 1314 (9th Cir.) cert denied

(1974)

Michaelson V United States, 335 US 469 (1948)

Miller v Pate, 386 US 1 (1976)

Mitchell v United States, 259 F2d 787 (D.C. Cir.)

cert denied, S 850 (1958)

21,22

5, 41,47, 48,

49,50,51,52,

29,36

2,52

22,28, 38

7, 41,48

6,7,10, 46

- me

NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

LAW OFFicEes

Moore v United States, 432 F2d 730 (3rd Cir. 1970)

Nickel v Commonwealth, 565 S.W. 2d 145 (Ky. 1978)

People v Blalock,

Colo. » 592 P.2d 406 (1979)

People v Murphy, 72 Ill. 2d 421, 381 NE 2d 677 (1978)

Pitts v Glass, 231 Ga. 638, 203 SE 2d 515 (1979)

Powell v Alabama, 287 US 45 (1932)

Presnell v Georgia, 439 US 14 (1978)

Reeves v Warden, 346 F2d 915

Rhinehart v Brewer, 561 F2d 126 (8th Cir. 1977)

Roberts v Reilly, 116 US 80 (1885)

Saltys v Adams, 465 F2d 1023 (1972)

Shuman v State, 578 P2d 1183 (Nev., 1978)

Shuttlesworth v Birmingham,, 382 US 87 (1965)

Simmons v United States, 390 US 377 1968)

Slayton v Weinberger, . 213 Va 690, 194 SE 2d 703 (1973)

State v Anonymous, 34 Conn. Supp. 656, 384 A.2d 386 (1978)

State

v Bonet, 132 N.J. 186, 333 A.2d 267 (1975)

State

v Desrouches,, 110 R.I. 497, 293 A.2d 93 (1972)

State

v Dutremble, 392 A.2d 42 (Me., 1978)

State

v Garcia, 85 N.M. 460, 513 P.2a 394 (1973)

State

v Harper, 57 Wisc. 2d 543, 205 NW 2d 1 (1972)

State

v Kahalewai, 54 Ha.28 , 501 p2a 977° (1972)

State

v Kendall, 167 NW 2d 909 (Iowa, 1969)

State

v Killpack, 276 NW 2d 368 (Iowa, 1979)

State

v King, 262 NW 2d 769 (Minn. 1978)

State

v Kroeplin, 266 NW 2d 537 (N.D. 1978)

State

v Lytle, 48 Ohio St. 2d 391, 358 NE 2a 623 (1976)

State

v_Mays, 203 Neb. 487, 279 NW 2d 146 (1979)

State

v Miller, 568 P.2q 130 (Mont., 1977)

State

v Pendergrass, 270 S.C. 1, 239 SE 2d 750 (1977)

State

v Smith, 112 Ariz. 208, 540 P.2d 680 (1975)

State

v_Sneed, 284 N.C. 606, 201 SE 2d 867 (1974)

State

v Thomas, 203 SE 2d 445 (W. Va. 1974)

‘

LAW OFFICES NEIL Hh. FINK, 1500 BUHL BUILDING, OETROIT, MICHIGAN 48226, (313) 963-1700

State v West, 117 NH 343, 373 A.2d 348 (1977)

Stevens v State, 560 SW 2d 599 (Mo. App. 1978)

Stewart v State, 576 SW 2d 53 (Miss. 1969)

Stromberg v California, 283 US 359 (1931)

Terminello y Chicago, 337 US 1 (1949)

Thomas v State, 240 Ga. 393, 242 SE 2d 1 (1977)

Tillany v United States, 411 F2d 644 (5th Cir. 1969)

Tollett v Henderson, 41] US 258 (1973)

United States v Bess, 593 F2d 749 (6th Cir. 1979)

United States v Bosch, 584 F2d 1113 (Ist Cir. 1978)

United States v Breedlove, 576 F2d 57 (5th Cir. 1978)

United States v Bubar, 567 F2d 192 (2nd Cir.)

cert denied 439 US 1079 (1977)

United States v Corona, 557 F2d 1386 (5th Cir. 1977)

United States v Coppola, 479 F2d 1153 (10th Cir. 1973)

United States v Cotter, 425 F2q 450 (Ist Cir. 1970)

United States v. Dawkins, 562 F2d 567 (8th Cir. 1977)

United States v Eastor, 539 F2d 663 (8th Cir.)

cert denied 437 US 884 (1976)

United States v Flemin » 594 F2d 598 (7th Cir.)

cert denied 743 US 931 (1979)

United States v Garza, 608 F2d 659 (5th Cir. 1979)

United States v Gonzalez Vargas, 538 F2d 631 (Ist Cir. 1977)

United States v Grimm, 568 F2d 1136 (Sth Cir, 1978)

—

United States v Hammonds, 425 F2d 597 (D.C. Cir. 1970)

United States v Hughes, 411 F2d 461 (2a Cir. 1968)

cert denied 356 US 867

United States vy Jenkins , 436 F2d 140 (D.C. Cir. 1970)

United States v Katz, 425 F2da 928 (2d Cir. 1970)

United States v Lamerson, 457 F2q 37 (5th Cir. 1972)

29,31

29, 33, 38

NEIL H. FINK, ts00 SUHL BUILDING, DETRO!, MICHIGAN 48226. (313) 863-1700

LAW OFFICES

United States v Morris, 568 F2d 396 (5th Cir. 1978)

United States v Nelson, 582 F2d 1246 (10th Cir. 1978)

cert denied 439 US 1079 (1979)

United States v Pepe, 247 F2d 838 (2d Cir. 1957)

United States v Rodriguez, 585 F2d 1234 (5th Cir. 1978)

United States v Schartner, 426 F2q 470 (3rd Cir. 1976)

United States v Signer, 482 F24 394 (6th Cir. 1973)

United States v Windom, 510 F2da 989 (5th Cir. 1975)

United States y Woods, 364 F2d 48] (3rd Cir. 1966)

Vachon v New Hampshire, 414 US 478 (1974)

Van Multke v Gillies, 332 US 708 (1948)

Viereck v United States, 318 US 236 (1943)

Walker v State, 355 So. 2d 755 (Ala. Crim. App. 1978)

Williams v North Carolina, 317 US 287 (1942)

Wilson v Cowan, 578 F2d 166 (6th Cir, 1978)

Wilson v United States, 398 F2d 33] (5th Cir. 1968)

Witherspoon v Illinois, 371 US 570 (1968)

Woodson v California, 428 US 280 (1979)

Constitutional and Statutory Authorities:

United States Constitution, Sixth Amendment

28 U.S.C. §1257(3)

Ga. Code Ann. § 26-1305

§27-1403

§27-2534.1(b) (2)

§27-2534.1(b) (4)

§27-2534.1(b) (7)

§ 38-12]

Supreme Court Rule 34.1(a)

Other Authorities:

ABA Code of Professional Responsibility §DR7-106(c) (4)

ABA Project on Standards for Criminal Justice,

Standards Relating To The Prosecution

Function and Defense Function (App. Draft)

1971,

viii

Page

29, 31, 38

47, 48,49,

50,51,52

863-1700

LAW OFFICES WEIL H. FINK, 1500 BUHL BUILDING, OETROIT, MICHIGAN 40226. (313)

ABA Project On Standards For Criminal Justice,

Criminal Justice Section, Standards Relating

To The Defense Function (App. Draft, 1971)

at 147-148

ABA Standards On Criminal Appeals, 75 (App. Draft

1970)

ABA Standards Relating To The Prosecution Function

(App. Draft, 1970)

§5.8(b)

§5.8(c) & (d)

§5.9

Bazelon, The Defective Assistance of Counsel, 42 U.

Cinn. L. Rev. I, 26 (1973)

Bazelon, The Realities of Gideon ond Argersinger,

64 Geo. L. J. Sil (1976)

Burger, Counsel For The Prosecution and Defense --

Their Roles Under Minimum Stan ards, m. Crim.

. ev.

Burger, Introduction: The ABA Standards for Criminal

Justice, m. Crim. L. Rev.

Burger, The Special Skills of Advocac » 8 J. Contemp.

Daniel, W., Georgia Criminal Trial Practice, §18-12

(1977)

Moenssens, A., Fingerprints and the Law, (1969)

Note, Ineffective Re resentation as a Basis For Relief From

Conviction, 13 Coloa ae os Ae Bee. Prob. 1, 36 (1977)

Restatement (Second) of Torts, §299A (1965)

9,18

OPINIONS BELOW

» 264 S.E.2d 204 (1980).

Ga.

State v Mulligan,

004i-

S96 (C16) ‘otter NYOIHDIn “MOULEG ‘“ONIGIING IHNE COs! “NNI4 “HH “UEN 68291440 MYT

LAW OFFICES NEIL H. FINK, 1500 BUHL SUILDING, DETROIT, MICHIGAN 48226, (313) @63-1700

STATEMENT OF JURISDICTION

This Court's jurisdiction is invoked under 28 USC §1257(3).

Petitioner requests this Court review the judgment and opinion of the

Supreme Court of Georgia rendered on February 20, 1980, which judgment

vacated the sentence of death imposed by the trial court as to Count I of

the Indictment and remanded the case with direction that a sentence of life

imprisonment be imposed, and as to Count II of the Indictment, affirmed the

trial court's imposition of the death penalty, and the Addendum to that

Opinion rendered on June 24, 1980 (R 1-10).

On April 28, 1980, Mr. Justice Powell signed an order extending

the time for filing this Petition For Writ of Ceritorari to and including July 19,

1980,

1. A certified copy of the record has been lodged with the Clerk of this Court.

Reference to the particular pages in the record will be preceded by "R";

when reference is made to the trial transcript there will be a dual reference

to the record page and the trial transcript pag. The trial transcript page

will be preceded by the designation "TT",

LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT. MICHIGAN 4e226. (312) 963-1700

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Sixth Amendment to the Constitution of the United States

provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and District wherein the crime shall

have been committed, ...and to be informed of the nature

and cause of the accusation...and to have the Assistance

of Counsel for his defense [sic].

The Fourteenth Amendment to the Constitution of the United States

provides that:

No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States,

nor shall any state deprive any person of life, liberty,

or property, without due process wu. law; nor deny to any

person within its jurisdiction the equal protection of the laws.

The Criminal Code of Georgia provides that:

SECTION 26-1101 MURDER

(a) A person commits murder when he unlawfully and

with malice aforethought, either expressed or implied,

causes the death of another human being. Express malice

is that deliberate intention to unlawfully take away the

life of a fellow creature, which is manifested by external

circumstances capable of proof. Malice shall be implied

where no considerable provocation appears, and where

all the circumstances of the killing show an abandoned

an2 malignant heart.

(b) A person also commits the crime of murder when in a

commission of a felony causes the death of another human

being, irrespective of melice.

death or imprisonment for life.

Ga. Code Ann. Section 26-1101 (1977).

SECTION 27-2503 PRESENTENCE HEARINGS IN FELONY CASES

(a) Except in cases in which the death penalty may be imposed,

upon the return of a verdict of "guilty" by the jury in any

felony case, the judge shall dismiss the jury and shall conduct

a vresentence hearing at which the only issue shall be the

determination of punishment to be imposed. In such hearing

the judge shall hear additional evidence in extenuation,

mitigation, and aggravation of punishment, including the record

of any prior criminal convictions and pleas of guilty or pleas

of nolo contendere of the defendant, or the absence of any prior

conviction and pleas: Provided, however, that only such

evidence in aggravation as the State has made known to the

defendant prior to his trial shall be admissible. The judge

shall also hear argument by the defendant or his counsel and

xii

7 SC —— —-

LAW OFFICES NEIL H. FINK, 16800 BUHL BUILDING, DETROIT. MICHIGAN 46226, (313) 963-1700

the prosecuting attorney, as provided by law, regarding

the punishment to be imposed. The prosecuting attorney

shall open and the defendant shall conclude the argument.

In cases in which the death penalty may be imposed, the

judge when sitting without a jury shall follow the additional

procedure provided in section 27-2534.1. Upon the conclusion

of the evidence and arguments the judge shall impose the sentence

or shall recess the trial for the purpose of taking the sentence

to be imposed under advisement. The judge shall fix a

sentence within the limits prescribed by law. If the trial

court is reversed on appeal because of error only in the

pre-entence hearing, the new trial which may be ordered shall

apply only to the issue of punishment.

(b) In all cases in which the death penalty may be imposed and

which are tried by a jury, upon a return of a verdict of guilty

by the jury, the court shall resume the trial and conduct a

presentence hearing before the jury. Such hearing shall be

conducted in the same manner as presentence hearings conducted

before the judge as provided in subsection (a) of this section.

Upon the conclusion of the evidence and arguments, the judge

shall give the jury appropriate instructions, and the jury shall

retire to determine whether any mitigating or aggravating

circumstances, as defined in section 27-2534.1, exist and whether

to recommend mercy for the defendant. Upon the findings

of the jury, the judge shall fix a sentence within the limits

prescribed by law.

Ga. Code Ann. Section 27-2503 (1977).

SECTION 27-2534,1 MITIGATING AND AGGRAVATING CIRCUM-

STANCES: DEATH PENALTY

(a) The death penalty may be imposed for the offenses of

aircraft hijacking or treason, in any case.

(b) In all cases of other offenses for which the death penalty

may be authorized, the judge shall consider, or he shall include

in his instructions to the jury for it to consider, any

mitigating circumstances or aggravating circumstances otherwise

authorized by law and any of the following statutory aggravating

circumstances which may be supported by evidence:

(2) The offense of murder, rape, armed robbery,

or kidnapping was committed while the offender was

engaged in the commission of another capital felony,

or aggravated battery, or the offense of murder was

committed while the offender was engaged in the

commission of burglary or arson in the first degree.

(4) The offender committed the offense of murder for

himself or another, for the purpose or receiving money

or any other thing of monetary value.

(7) The offense of murder, rape, armed robbery,

kidnapping was outrageously or wantonly vile, horrible

or inhuman in that it involved torture, depravity of

mind, or an aggravated battery to the victim.

Ga. Code Ann. Section 27-2534.1 (1977).

xiii

LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, oxraoir, MICHIGAN 48226, (313) ®e3-1700

STATEMENT OF THE CASE

The initial federal question presented regarding effective assistance

of counsel has not been raised in the courts below. The reason the question

has not been presented is that the same ineffective lawyer that represented

the Defendant at trial, also represented the Defendant on the direct appeal to

the Georgia Supreme Court. However, this Court "at its option...may consider

a plain error...evident from the record.. -". Supreme Court Rule 34.1(a),

effective June 30, 1980. (The substance of this new rule was formerly contained

in Supreme Court Rule 40(1)(d) (2)).

In Vachon v New Hampshire, 414 US 478, 481 (1974), this Court

has recognized that:

-»-In exceptional circumstances, especially in

criminal cases, apeliate courts, in the public

interest, may, of their own motion, notice errors

to which no exception has been taken, if the

errors are obvious, or if they otherwise seriously

affect the fairness, integrity or public reputation

of judicial proceedings. Silber v United States,

370 US 717, 718 (1962) (quoting United States v

Atkinson, 297 US 157, 160 (1936).

Petitioner urges that if ever a record evidenced clear constitutional

error, it is the record in this case.

The question of the constitutionality of the imposition of the death

penalty in this case in light of Godfrey v Georgia, supra, was raised sua

sponte by the Georgia Supreme Court and decided adversely to the Petitioner.

(R 1-10),

Petitioner was arrested, tried, convicted and sentenced to death

on an Indictment returned during the August term of Court in the year 1974

in the County of Muskogee, in the State of Georgia. The Indictment contained

two counts: Count I alleged in substance, that on April 14, 1974, Petitioner

LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 469226, (313) 963-1700

o™s

along with one Timothy Helms aid masirder one Patrick Doe and as to Count I,

that Petitioner in conce?r-with Timothy Helms, did murder one Marian Jones

Miller. The Indictment as to both counts alleged that the unlawful killings

were accomplished by shooting the victims with a pistol. (R 70).2

Petitioner, was at the time of the shooting, a 20-year-old black

youth with no prior criminal record. 3

The Defendant was represented throughout the trial and the appeal

to the Georgia Supreme Court by one William Fitt who was appointed by the

Court. Mr. Fitt had five to ten years experience in law, the nature of his

practice being general and "mostly criminal" (Judge's Report; R 108).

The Defendant was arrested in New York City on March 20, 1975,

He was extradicted and returned to Columbus, Georgia on March 6, 1976,

(Judge's Report; R 109).

Prior to trial, defense counsel made no pretrial motions on behalf

of the Defendant. The state moved prior to trial to immunize Petitioner's

co-defendant, Timothy Andrew Helms, on the grounds that his testimony was

needed to secure the conviction of Petitioner who the District Attorney labeled

as the "triggerman" in his motion requesting immunity for Helms (R 75-76).

Said motion was granted and the trial court ordered that co-defendant Helms

be given immunity (R 77),

No motion or demand for a list of witnesses was requesed by the

defense attorney in this capital case although authorized by Georgia law.

Ga. Code Ann. §27-1403. The trial commenced on November 2, 1976, in the

¢. The murder indictment was joined for trial with a second indictment allegin

the unlawful taking of a "black Plastic man's wallet of the value of $2 and the

property of Patrick Doe with intent then and there of depriving the owner of

said property. (R72). The conviction resulting from that charge was not

appealed to the Georgia Supreme Court and is in no way relevant to this petition.

3. This information is contained in the Judge's Report which report is required

under Ga. Code Ann. §27-2537(a). This Court in Gregg v Georgia, 428 US 153,

167 (1976), characterized this report as follows:

and, whether, in the trial court's judgment, there was

any doubt about the defendant's guilt or the appropriate-

ness of the sentence, " “ae

LAW OFFICES WEIL H. FINK, 1800 SUHL BUILDING, DETROIT. MICHIGAN 46226, (313) 963-1700

Superior Court of Muskogee County before the Honorable Oscar D. Smith,

Superior Court Judge. The first of three trial days were occupied by the

selection of a jury. The county in which Petitioner was tried was estimated

by the trial judge to be twenty-five to fifty percent black (Judge's Report;

R109). Blacks were on the venire of the panel from which the jury was

selected but none served on the actuai trial jury. (Judge's Report; R 109).

Out of the forty-four veniremen questioned, defense counsel posed

questions to six.

Based almost entirely on the testimony of the immunized co-indictee

Helms, the Georgia Supreme Court, in their opinion, summarized the evidence

adduced at trial:

The appellant became friends with Timothy A. Helms,

his co-indictee, while the latter was stationed with

the United States Marine Corps in Beaufort, South

Carolina. On April 12, 1974, the appellant talked Helms

into driving him to Columbus, Georgia, by offering

Helms a fee of $1,000, During the drive, the appellant

told Helms that he was gding to Columbus, to "ice

somebody". In accordance with the appellant's

Suggestion, the two spent the night of April 12-13 at

a hotel in Columbus registered under false names.

The next day, the appellant and Helms visited with

Patrick A. Doe, an army captain at Fort Benning and

the appellant's brother-in-law. In the afternoon,

they joined Captain Doe in washing the latter's car.

During this activity, the appellant and Captain Doe

argued,

That evening, with the appellant and Helms sitting

in the back seat (the appellant seated directly

behind the driver's seat), Captain Doe drove to the

house of Marian Jones Miller, the Captain's girlfriend,

to pick her up for a party. When Captain Doe left

the car to get Ms. Miller, the appellant announced

to Helms that he would "do it in the next two blocks,"

Following Captain Doe's return to the driver's seat

and shortly after the car had begun to move again,

the appellant held a , 38 special automatic in a .45

frame, which the appellant had earlier borrowed from

the captain, to the captain's head. The appellant fired

Once. He then ordered Helms to grab the now-

abandoned Steering wheel, but Helms was unable to

do so before the car had struck both a stop sign and a

mail box. When Ms. Miller, who was seated in the

front seat next to Captain Doe, cried out for help,

the appellant placed the gun across Helms! back and shot

Ms. Miller as he told her to be silent.

-3-

LAW OFFICES NEIL H. FINK, 1500 SUML BUILDING. DETROrT. MICHIGAN 48226, (313) 863-1700

After Helms finally brought the car to a stop, the

appellant and Helms towelled it off for finger prints

and then ran. As they fled the scene of the crime,

Helms threw away his bloody shirt and Captain Doe's

wallet which he had removed from the body of Captain

Doe at the appellant's instruction. Similarly, the

appellant threw Captain Doe's gun into some bushes

and his own clothes over a bridge.

The autopsy performed on Captain Doe showed that the

bullet had entered the left eye, traveled through the

brain, and exited the right temple. The autopsy

of Ms. Miller revealed that she had been shot four times:

in the left forearm, the left shoulder, the right upper

arm, and the midportion of the back of the skull, with

the exit wound of the last listed shot being the right eye.

The cause of death for both victims was laceration

and hemorrhage of the brain and cerebral trauma.

Several .38 shell casings were found in the captain's

car along with a bullet. The State Crime Laboratory

test indicated that the shell casings and the bullet found

in Captain Doe's car had been fired by Captain Doe's

- 38 pistol. Finally, a latent fingerprint which had been

lifted from the left door window of Captain Doe's car

was found to match a rolled print of the appellant's

left middle finger.

The evidence also revealed that Captain Doe had filed

a divorce action against the appellant's sister and that

Captain Doe had told the’ appellant on the day of the

captain's death, that his divorce from the appellant's

sister would be final soon.

Absent details as consistent with innocence as with guilt, the

state's case rested almost completely on the testimony of Helms.

In attempting to deal with Ga. Code Ann. § 38-121 which requires

corroboration in any case of a felony where the sole witness is an accomplice,

the Georgia Supreme Court held as follows:

Having thoroughly reviewed the present appellate

record, we hold that the testimony of Timothy A.

Helms, the appellant's accomplice, regarding the

history of the appellant's crimes, is amply corroborated

by other evidence, Further, Helms' testimony as

to appellant's identity and participation in the present

crimes is independently corroborated by the testimony

of three witnesses who saw the appellant in the company

of Captain Doe on the afternoon and evening of the day

of the shooting, and, by the appellant's latent finger-

print which was lifted from the left door window of the

victim's car.

LAW OFFICES NEIL H. FINK. 1500 BUHL BUILDING, DETROIT MICHIGAN 48226, (313) 963-1700

Subsequent to closing arguments of counsel and the instructions

of the Court, all of which will be discussed at length in the "Reasons For

Granting The Writ" section of this Petition, the jury retired to deliberate

at 11:05 a.m. Fifty minutes later they returned with a verdict of guilty as to

all counts. (TT 267, 268; R 400, 401). The penalty stage of the proceedings

began after lunch. Neither the prosecutor nor the defense counsel offered

evidence, Both sides argued. The jury returned their recommendation of

the death penalty as to both counts. (R 80-81),

On November 24, 1976, a notice of appeal was filed by trial attorney,

Jay William Fitt (R 67). On February 3, 1977, a motion for a new trial was filed

with the trial court. In a terse statement, Attorney Fitt alleged newly

discovered evidence as the grounds (R 86). The prosecution having filed a

response to the Motion For New Trial (R 88), the Court ordered an evidentiary

hearing to be held on the 19th day of December, 1977, at 9:45 a.m. (R 90). On

December 21, 1977, an ex parte order was entered by the trial judge requiring

the Sheriff of Muscogee County, Georgia and/or his lawful deputy to produce

one James Everet to give testimony at the evidenitets hearing which had

apparently been rescheduled for January 16, 1978 (R 92). On February 16, 1978,

the Court denied Defendant's Motion For a New Trial (R 94),

The Supreme Court of Georgia issued an opinion on February 20,

1980 which vacated the sentence of death imposed by the trial court as to

Count I of the Indictment and remanded the case with directions that a sentence

of life imprisonment be imposed. As to Count II, the Georgia Supreme Court

affirmed the trial court's imposition of the death penalty (R 1-8),

On April 28, 1980, Mr. Justice Powell signed an order extending the

time for filing this Petition For Writ of Certiorari to and including July 19,

1980,

On June 24, 1980, the Supreme Court of Georgia issued an Addendum

to its opinion re-examining this case in light of Godfrey v Georgia, US »

100 SCt 1759 (1980) (R 10) and found that the facts justified the jury verdict

that Ms, Miller's murder was "outrageously or wantonly vile, horrible or inhuman

in that it involved torture, and depravity of mind."

LAW OFFICES WEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

REASONS FOR GRANTING THE WRIT

I, PETITIONER, AN INDIGENT DEFENDANT IN

THE TRIAL COURT, WAS DENIED HIS SIXTH

AMENDMENT RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL DURING HIS

TRIAL AND DIRECT APPEAL TO THE SUPREME

COURT OF GEORGIA BECAUSE OF HIS

COURT-APPOINTED COUNSEL'S FAILURE TO

PERFORM "WITHIN THE RANGE OF COMPETENCE

DEMANDED OF ATTORNEYS IN CRIMINAL

CASES", WHERE COURT-APPOINTED COUNSEL

PROVIDED A PRO FORMA DEFENSE; FAILED

TO PREPARE FOR TRIAL; AND COMMITTED

NUMEROUS ERRORS WHICH INCLUDED, BUT

WERE NOT LIMITED TO, HIS FAILURE TO

OBJECT TO THE CONTINUED OVERZEALOUS

MISCONDUCT OF THE PROSECUTING ATTORNEY

AND FURTHER, FAILED TO ACT AS AN

ADVOCATE DURING PETITIONER'S DIRECT

APPEAL TO THE SUPREME COURT OF GEORGIA.

Because the right to counsel is fundamental to a fair trial,

Gideon v Wainwright, 372 US 535 (1963); Powell v Alabama, 287 US 45 (1932),

this Court should determine what level of competence satisfies the constitutional

imperative especially in a death penalty case. As Mr. Justice White, joined

by Mr. Justice Rehnquist, argued in their dissent from the denial of certiorari

in Marzullo v Maryland, 561 F2d 540 (4th Cir. 1977), cert denied, 435 US 1011

(1978), the present Court should "attempt to eliminate the disparities in the

minimum quality of representation required to be provided to indigent defendants.

In refusing to review a case which so clearly frames an issue that has divided

the Court of Appeals, the Court shirks its central responsibility as the court of

last resort, particularly its function in the administration of criminal justice..."

supra, at 1013,

There is a generally recognized need for a uniform national standard

to measure the competency of counsel. Presently there are three major

tests and innumerable derivations used by federal and state courts to decide

MICHIGAN 48226, (313) 963-1700

: P. 2d 1183 (Nev. . ; State v Bonet, 132 N.J. 186, 333 A.

LOINe, ©

LAW OFFICES WEIL H. FINK, 1800 BUHL eu!

claims of ineffective counsel. Two circuits? and nineteen states” require that

a defendant show that the proceedings were a "farce and mockery of justice".

Five circuits® and ten states ’ subscribe to the view articulated in McMann v

Richardson, 397 US 759 (1970), that the level of representation furnished

the defendant must be within the "range of competence demanded of attorneys

in criminal cases", . Two circuits? and four states!” take a different approach

by requiring that deferse counsel be "reasonably likely to render and actually

be rendering reasonably effective assistance." Other jurisdictions have either

altered these tests!! or have decided standards of their own. /@

4. See United States v Bubar, 567 F2d 192 (2nd Cir.) cert denied, 435

US 872 ; United States v Nelson, 582 F2d 1246 (10th Cir. 1978) ;cert denied,

439 US 1079 (1975).

5. The states retaining the "farce and mockery" standard are as follows:

Walker v State, 355 So. 2d 755 (Ala. Crim. App. 1978); Donnelly v State, 516

° aska, 1973); State v Smith, 112 Ariz. 208, 540 P. 5)

(en banc); Deason v State, -W. 2d 79 (Ark., 1978); Gibson v State,

351 So. 2d 9 a. 1977); People v Murphy, 72 Ill.2d 421, 381 N.E. 77

(1978); Keys v State, ind. » 390 N.E. 2d 148 (1979); Nickel v

Commonisecith- 565 S.W. 24 145 (Ky., 1978); State v Dutremble, 392 A. 2d 42

e., ; State v Miller, 568 P. 2d 130 (Mont. . ; uman v State, 578

tate v Garcia, 85 N.M. ° -<d 394 (1973); State v Sneed, 284.N.C. 606,

-E. 7 (1974); Felts v State, 588 P. 2a 57 kla. Crim. 1978);

State v Pendergrass, 270 S.C. I, 236 S.E. 2d 750 (1977); Jaramillo v Turner,

24 Utah 2d 19, 465 P. 2d 343 (1970); In re King, 133 Vt. 245, 336 A. 2d 195 (1975) ;

Slayton v Weinberger, 213 Va. 690, 194 S-E. 34 703 (1973).

6. United States v Bosch, 584 F2d 113 (Ist Cir. 1978); Moore v United States,

432 rd Cir. ); Marzullo v M land, 561 F 4t r. ;

cert denied, 435 US 101] (1978); United States v Easter, 539 F2d 663 (8th Cir),

cert denied, 434 US 884 (1976); Sooper v Fitsharris, 5 v_Fitzharris, 586 F2d 1325 (9th Cir.)

en banc); cert denied, 440 US 9 °

7. People Vv Blalock, Colo. » 592 P.2d 406 (1979); State v Anon ous,

34 Conn. Supp. 656, 384A. 2d 386 (1978); State v Killpack, 276 N.W, 2d a8

(Iowa, 1979); Commonwealth v Adams, Mass. » 375 NE 2d 681 (1978); +

State v King, inn. 1978); State v Mays, 203 Neb. 487, 279 NW 2d

+ otate v West, 117 NH 343, 373 A. ; Baxter v Rose, 523 S.wW

2d 930 (Tenn. ; State v Thomas, 203 S.E. 2d 445 (W.Va. ; State v

Harper, 57 Wisc. 2d 5 ; -W.2d 1 (1972).

8, McMann v Richardson, 397 US 759 (1969) seems to Suggest this test. In

McMann, this Court reviewed the validity of a defendant's conviction which was

asec on a guilty plea that was in turn based on erroneous advice of counsel,

This Court stated that the issue turns "not on whether a Court would

retrospectively consider counsel's advice to be right or wrong, but on whether

that advice was within the range of competence demanded of attorneys in

criminal cases", supra at 771.

9. MacKenna v Ellis, 280 F2d 592 (5th Cir. 1960), cert denied, 368 US 877 (1961);

Wilson v Cown, 578 F2d 166 (6th Cir. 1978), ee tat

- Pitts v Glass, 231 Ga. 638, 203 S.E. 24 515 (1979); Stewart v State, 576 5.W.

iss. ; State v Kroeplin, 266 NW 2d 537 (N.D., > Flores v State,

576 S.W. 2d 632 (Tex. Grim. App., 1978).

Il. Other standards used by various jurisdictions include: "a reasonable basis

for counsel's actions", see Commonwealth v Bad er, 482 Pa 240, 393 A.2a 642,

644 (1979); "genuine and e ective representation", see Harris v State, 293 A.2d

291 (Del. 1972); Davis v State, 40 Md. App 467, 391 A-2 ; State v

Desrouches, 110 R-. . . A. 2d 913 (1972); "conscientious meaningful repre-

Sentation", see State v Kendall, 167 N.W. 2d 909, 910 (Iowa, 1969).

12. United States v Flemin » 294 F2d 598 (7th Cir.) cert denied, 442 US 93]

(197 a minimum professional standard is required); Coleman v United States,

379 A.2d 710 (D.C.7App., 1977) (substantive defense required); State v Kahalewaj,

54 Ha. 28, 501 P.2d 977, (1972) (criminal defendant asserting ineffective assistance

NEIL H. FINK, 1800 BUHL SUILDING, DETROIT, MICHIGAN 48226. (313) 863-1700

LAW OFFices

Ne See aaa eieetear eee aie wees ~~ i

Such diversity among the various state and circuit courts is

illustrative of the disarray in which this arex of the law currently stands.

Lower courts are dissatisfied with the varying standards and the confusion

they generate. The Eighth Circuit in McQueen v Swenson, 498 F2d 207 (8th

Cir .1974) has noted that the Supreme Court's failure to enumerate clear

standards for the courts to follow has left the circuit courts without guidance,

groping for the correct Prescription to apply, supra, at 214,

Petitioner urges that the test adopted by the United States Court

of Appeals for the First, Third, Fourth, Eighth and Ninth Circuits is the one

most likely to insure an accused the kind of representation demanded by the

Constitution. Petitioner prays that this Court establish guidelines regarding

the minimum standard of representation required by the Constitution. Petitioner

submits, quite simply, that the Court mandate that the minimum threshold

for constitutionally effective representation must, at the very least, be

"within the range of competence demanded of attorneys in criminal cases."

Applying that standard to the case at bar, we will demonstrate that Petitioner -

has been denied the effective assigtance of counsel guaranteed by the Constitutid

The "farce and mockery of justice" test is rapidly being abandoned

because it is inadequate to meet the constitutional requirements of the Sixth

Amendment. As Judge Bazelon has stated, "The mockery test requires such

a minimal level of performance from counsel that it is itself a mockery of the

Sixth Amendment. "!3

Moreover, the test provides little guidance for either

the reviewing court or the practitioner. !4 It offers no guidelines as to what

kinds of practices or omissions are ineffective. P

I2. (continued) has the burden of showing that the representation he

received was so incompetent and inadequate that the total effect was that of

complete absence of counsel); Stevens v State, 560 SW 2d 599 (Mo. App. 1978)

(deprivation of a fair trial); State v Lytle, 48 Ohio St. 2d 391, 358 NE 2d 623

‘'976) (substantial violation of defense counsel's essential duty to his client).

13. Bazelon, The Defective Assistance of Counsel, 42 U. Cinn. L.Rev. 1, 28

(1973). The most outrageous example of an application of the farce and mockery

test appears in United States v Katz, 425 F2d 928 (2d Cir. 1970).° In this case,

the Second Circuit ruled that the efendant had not demonstrated "farce and

mockery of justice" when he alleged inter alia that his attorney had slept throug

portions of the trial. The court rationalized its decision upon the fact that

counsel had only missed testimony of relative unimportance and the statement

by the trial judge that she would have awakened the attorney if any testimony

had occurred, Id at 931.

14, The court which iirst articulated the test, Diggs v Welch, 148 F2d 667 (D.C.

Cir.), cert denied, 325 US 889 (1945), admitted ere are no tests by which it

can be determined how many errors an attorney may make before his batting

nae becomes so low as to make his representation ineffective", supra, at

LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

The test is also much too narrow. Because the defendant must

show that the proceedings were a farce, ‘many mistakes and omissions committed

by defense counsel before trial will elude the attention of the reviewing

court,

The standard adopted by Fifth and Sixth Circuits, which Petitioner

will be bound by if he is required to seek relief by way of federal habeas

6 is likewise unable to assure a defendant his Sixth Amendment right

corpus!

to effective counsel. By requiring that an attorney be "reasonably likely to

render and actually be rendering reasonably effective assistance" a court

actually requires very little. The term "reasonable" can many times be

ambiguous, providing no guidance to reviewing courts!’ Before any Court

weds itself to this test, it should ask itself if it would be satisfied to be

married to a spouse who is reasonably likely to be faithful and is in fact

reasonably faithful.

The reasonably effective standard presents appellate judges with

an accessible escape hatch through which they can rationalize their demonstrated

reluctance to put their fellow attorneys on trial. !8

Because of the shortcomings of the standards, Petitioner respectfully

urges the present court to adopt a test based on the language of McMann which

dictates that the representation furnished defendant be within the "range of

competence demanded of attorneys in criminal cases."

Adoption of this standard would prove advantageous in several ways.

Under the McMann language, a reviewing court is encouraged to scrutinize

specific acts or omissions of defense counsel, rather than to make a generalized

determination of whether the trial was a farce. Instead of basing its

15. Much of the attorney's work is performed before trial, ABA Project On

Standards For Criminal Justice, Criminal Justice Section, Standards Relating

to the Defense Function (Approved Draft, 1971) at 147-148 (hereinafter cited

as Defense Standards), and is consequently not in the record. See, Holloway v

Arkansas, 435 US 475, 489-490 (1978). spc!

- Easter v Estelle, 609 F2d 756 (5th Cir. 1980).

17, though the second plateau appears to mark an improvement, there is, in

Dorothy Parker's phrase, ‘less here than meets the eye the new test is built

on words like 'customary' or 'reasonable', which are themselves empty vessels

into which content must be poured. Such standards beg the question of what is

customary or reasonable for a lawyer to do prior to or at arraignment, plea

bargaining, trial or sentencing." Bazelon, The Realities of Gideon and

Argersinger, 64 Geo.L.J. 811, 820 (1976).

* Many courts are reluctant to put defense counsel on trial before a reviewing

court, see Note, Ineffective Representation as a Basis For Relief from Conviction

13 Colom.J.L.A. Soc. Prob. BY - One court has expres the fear that

active review of ineffective assistance claims would deter attorneys from takin

criminal cases, Mitchell v United States, 259 F2d 787, 793 (D.C.Cir.) cert denied

358 US 850 (1958). rs

-9-

. evaluation of counsel's performance on more personal judgment, the reviewing

court can look to facts within its own knowledge or those that can be

determined by inquiry. Cooper v Fitzharris, 586 F2d 1325, 13291330 (9th Cir.),

cert denied, 440 uS 974 (1978) .!9

Secondly, review under the language used in McMann is not limited

to only the trial. Defense counsel must meet the standard of effectiveness

throughout his representation of the defendant. 2°

Thirdly, use of this test is more consistent with the instant Court's

past "characterization of the substance of the constitutional right to assistance

of counsel", in McMann, supra and Tollett v Henderson, 411 US 258 (1973),

586 F2d at 1330.

The facts underlying the initial reason urged for granting of the

Writ are not pleasant ones to confront. They involve a stereotype of American

justice at its worst. A young indigent black man with no history of criminal in-

volvement is convicted in a rural southern community by an all white jury

and sentenced to die in Georgia's electric chair. This, after what Petitioner

will demonstrate, was a trial during which the prosecutor's unobjected to

overzealous misconduct and the court-appointed defense counsel's inability to

perform "within the range of competence demanded of attorneys in criminal

cases" combined to deny the defendant his Sixth Amendment rights to the

effective assistance of counsel and a fair trial as those rights have been made

applicable to the states through the due process clause of the Fourtéenth

Amendment.

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 40226, (313) 963.1700

19. The normal competency test bears a close resemblance to the standard set

forth in Restatement (Second) of Torts, §299A (1965), for professional competence:

Undertaking in Profession or Trade:

"Unless he represents that he has greater or less skill or

knowledge, one who undertakes to render services in

the practice of a profession or trade is required to

exercise the skill and knowledge normally possessed by

members of that profession or trade in good standing

in similar communities. Marzullo v Maryland, supra,

n.6 at 544, n.9.

20. As the court in Cooper v Fitzharris, has noted: "This rephrasing

['reasonably effective a competent defense representation'] ... focuses

inquiry upon the subject matter of the constitutional guarantee counsel's

performan It avoids the misleading implication that what occurred at trial- [Le

and app on the face of the record is all that is relevant." supra, n.6 at

1329.

CAW OFFICES NEIL H. Fink, 1800 SUHL BUILOING, DETROIT, MICHIGAN 4226, (a18) 263-1700

This Court has taken great pains to insure "that any decision to

impose the death sentence be, and appear to be, based on reason rather than

caprice or emotion." Gardner v Florida, 430 US 349, 357-358 (Opinion of

Stevens, J.) (1977).

In its most recent opinion dealing with the constitutional restrictions

on the imposition of the death penalty this Court has held that "the same

reasoning must apply to rules that diminish the reliability of the guilt deter-

mination." Beck v Alabama, 48 USLW 4801, 4804 (US June 20, 1980).

Petitioner respectfully urges that all of this Court's efforts and

guidance will be of little value to a defendant facing the death penalty if

the states are free to appoint ineffective lawyers to represent indigent tenant

and state prosecutors are free to use any tactics they so choose in seeking

a verdict of death.

Standards of representation should come post haste from this

Court regarding the quality of representation constitutionally required for

an indigent defendant facing the sentence of death.

With the population on the various death rows burgeoning there is

simply no way of knowing how many men similarly situated to Petitioner (in

terms of the unfair trial that we will demonstrate he received) will give up the

battle rather than face the prolonged agony of years on death row. There is

also no reliable way of measuring the number or percentage of death row

inmates similarly situated to Petitioner who will be represented throughout

their various appeals right to the time that they are strapped into the electric

chair by the same attorneys who represented them at trial. Needless to say,

it is hard to believe that such an attorney would be ready and/or willing to claim

that his trial defense was incompetent. That is why this Court should at this

time educate the death penalty states to the fact that when the death penalty

is meted out after a trial in which the defendant was, for all practical purposes,

denied counsel, and the prosecutor was allowed to score "foul blows" Berger v

United States, 295 US 78, 88 (1934), at will, there is substantial doubt that

the decision-making process as to guilt and sentencing was based on "reason

rather than caprice or emotion. " Gardner v Florida, supra; Beck v Alabama,

supra.

-ll-

There follows a series of excerpts from the trial which graphically

demonstrates the merit of Petitioner's claim. The issues of ineffective

assistance of counsel and prosecutorial misconduct are hopelessly intertwined

in this case. This is so, because defense counsel objected to practically

nothing the prosecutor did, no matter how outrageous. Therefore, the

two issues of constitutional dimension will be treated as if they are one.

(13) 863-1700

LAW OFFICES WEIL H. FINK. 1800 SUHL BUILDING, DETROIT, MICHIGAN 49226,

-]2-

A. THE LACK OF PRETRIAL PREPARATION AND

THE COLLOQUY IN THE PRESENCE OF THE

JURY REGARDING DEFENSE COUNSEL'S

DISINTEREST.

The record demonstrates that court-appointed counsel filed no

pretrial motions on behalf of Petitioner nor did defense counsel make the

minimum effort of filing a demand of the prosecutor for a list of witnesses,

although such a list is available pursuant to Georgia law (Ga.Code Ann. §27-

1403). During the course of trial the state called a latent fingerprint expert

to the witness stand. The following amazing colloquy took place in the presence

3 of the jury:

BY MR. WHISNANT:

Q: State your name.

: David Rice.

Q: Mr. Rice, where are you employed ?

A Columbus Police Department.

And what are your duties there, where do you

work?

A: I work in the identification division, fingerprints

and photography.

What is your rank?

Sergeant.

LAW OFFICES WEIL H. Finex, 1800 BUHL BUILDING, DETROIT, MICHIGAN seaze. (9

Ten years.

Q: How long have you been in I.D. work?

Q What training did you have?

A I have been to numerous schools throughout

the southeast, including F.B.I., in fingerprints,

and I have studied under experts who have been

in the department prior to me.

Q: All right, sir; did you take rolled prints of the

defendant, Joseph Mulligan?

A: Yes, I did.

Q: When did you do that?

-13-

ae ! ae

LAW OFFICES WEIL H. FINK, 1800 BUNL BUILDING, DETROIT, MICHIGAN 4eza6, (313) 263-1700

Ee tre ee ene. —

D> 2 > D>

I have it here, Mr. Whisnant.

Do you have the car that you rolled them on?

Yes, I do,

All right, let me see it and mark it.

On the 24th day of August.

All right, I hand you State's Exhibit 34, and

ask you does that contain the rolled prints

that you made of the defendant in this case,

Joseph H. Mulligan?

Yes, it does.

MR. FITT:

If Your Honor please, may we approach

the bench?

THE COURT: Yes, sir.

(A discussion was had off the record at this

time).

MR. FITT:

Your Honor, I want to make an objection that

I have not been apprised either verbally or

in writing, orally or in writing, of the

existence of Sergeant Rice as a witness, and

not having been apprised of his existence,

I'm going to object to his testimony and any

evidence that he might present.

Now, the District Attorney may very well say

that I didn't make a demand. It's the habit and

policy of the District Attorney's office that when

counsel is either announced or appointed in cases,

they were furnished the initial Bill of Indictment

and a list of witnesses.

It seems to me to be an exercise in futility to make

a formal demand for witnesses. We talked about

witnesses, there are some he gave me orally which

I've noted, and this was not one we discussed,

therefore I object to his testimony and any

evidence that might be elicited as a result of his

testimony.

MR. WHISNANT: If Your Honor please, he made no

written demand for a list of witnesses. What the

custom of the office is not the law. I did

try to furnish him a list of witnesses, and last

Friday, I believe it was, I called Mr. Fitt and I

said, "I want to give you all the witnesses I

have,"

I gave him the witnesses, the names of some

witnesses he didn't have, and I said, "Come

down and let's compare the list and see if you

are missing any," and he at that time said,

"Well, I'm not interested," that's the way it is --

-]4-

LAW OFFICES NEIL H. FINK, 1500 BUHL SUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

MR. FITT: That's not what I said.

MR. WHISNANT: That's my recollection of it, and

I say that that's what he said, he said, "I'm going

to try the case, I'm not going to make any objections

about witnesses."

I'm willing to let this witness go down, I'm willing

to tell Mr. Fitt what he's going to say and let him

talk to him before he cross-examines him.

And also at the time the list of witnesses was

furnished to him, we didn't know about this

witness, because no comparison had been made,

comparison hadn't been made until the last month or

so, although we had the latent print from Sergeant

Keller,

MR. FITT: This argument in the presence of the

jury is extremely prejudicial --

MR. WHISNANT: Why didn't you ask for them to

go out?

MR. FITT:. That's what I'm doing.

MR. WHISNANT: All right, let them go out.

THE COURT: I wonder if this wouldn't be an

appropriate time to break this case, suppose you

step back up here, and let's recess for the night.

Step back up here if you will, gentlemen.

(A discussion was had off the record, at this time).

MR. FITT: Your Honor, to further perfect the record,

I would say that the District Attorney offered me the

names of additional witnesses that were not furnished

on this list. He has a copy of every list that he has

furnished, or he should have, and in offering these

additional names that he did not mention Sergeant Rice

or even Detective Keller as I can recall.

MR. WHISNANT: Your Honor, I state in my place that

no written demand has been made on a list of witnesses,

that we furnished them to him as a gratuity, that I gave

him the list, gave him the names of some people that I

recalled, I wasn't looking at a list when I gave him the

names. At that time, I asked him to bring a list and let

us sit down and see if we could get our list together,

and then I talked to him later which I believe yesterday

morning, and told him about Mr. Everet who just

testified, and it was his statement at that time that I'm

not concerned with who's going to testify, I'm just

going to try the case, that was the last thing he said.

THE COURT: In view of the fact there as no demand

for the list, I'm going to overrule the objection.

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LAW OFFICES NEIL H. FINK, 1500 SUHL BUILDING, DETROIT, MICHIGAN 48226. (313) 963-1706

MR. FITT: Your Honor, I would say that the District

Attorney's tender of a list of witnesses is tantamount

to accepting a demand and complying with the demand.

MR. WHISNANT: No demand has been made on me, I did

it as a courtesy to a lawyer, and I don't feel like I'm

bound by that.

THE COURT: All right, go ahead. (TT 226-230;R 359-363).

This colloquy was significant for several reasons. First of all,

it reinforces the record's implication that defense counsel was ill-prepared

Second, this dialogue in the presence of the jury could only be taken by

members of the panel to infer that defense counsel himself had given up on

his client. Thirdly, the very fact that it took defense counsel so long to

realize that this kind of dialogue was "extremely prejudicial" reflects on his

ability to try a felony case of any kind let alone a case involving capital

punishment. Fourthly, the prosecutor's overzealousness comes bounding from

the pages of the transcript as he eagerly seizes the opportunity to "testify"

before the jury about defense counsel's disinterest in preparing the case.

Finally, defense counsel's lapse in not knowing about the fingerprint expert

in advance left him totally unprepared to take on this meaningful and well

prepared expert witness.

The Supreme Court of Georgia placed a great deal of significance

on the latent print discussed by this witness when it listed the latent print

as one of the corroborating circumstances surrounding the accomplice testimony.

Much was made by the prosecutor of the term "fresh print", 7! Adequat

preparation would have led defense counsel to the revelation that the literature

supports the proposition that "experienced technicians can usually tell whether

a latent is an old one or a fresh Oue, but there is no method whereby a

technician can state, with certainty that a print was one day or three days old

or three months or a year old." a3

A motion for discovery of scientific evidence for independent inspection

that could have been made prior to trial would surely have met with success unde

Georgia law. Gilliland v State, 142 Ga App 374, 285 SE 2d 780 (1977). Were

Such a motion to be denied the United States Court of Appeals

él. Both during direct examination (TT 231-234;R 364-367) and closing argument

(TT 250;R383),

22. Moenssens, A., Fingerprints and the Law, (1969), 26-27,

“i

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LAW OFFICES WEIL H. FINK. 1800 SUML BUILDING, OETROIT. MICHIGAN 48226. (313) 963-1700

for the Fifth Circuit in which Georgia sits would have held that to be a

violation of the fundamental fairness required by the due process clause

Barnard v Henderson, 514 F2d 744 (5th Cir. 1975).

During the testimony of Captain Leroy Moultrie the defense

attorney's complete inability to prepare for trial and contact witnesses and

his misplaced reliance on the good faith of the prosecutor again surfaced.

Although Moultrie's testimony added little, to wit: that Petitioner was at

Fort Benning on the day of the murders, the cross-examination underscored

Attorney Fitt's lack of pretrial preparation:

BY MR. FITT:

Q: Did the District Attorney tell you that I

wanted to talk with you?

A: No.

Q: He didn't?

A: Huh, uh.

MR. FITT: I'll state my place I asked for --

{

MR. WHISNANT: I object to that, Your Honor.

MR. FITT: -- permission --

MR. WHISNANT: I object to him making speeches in

front of the jury like that.

THE COURT: Yes, sir.

MR. WHISNANT: I mean he has the right to get out and

hunt witnesses and subpoena them like I do.

Q: Is your telephone number 502 798-2546?

A: That used to be my telephone number until my

family joined me and I moved out of that

apartment and moved into on-post housing ,

the number is now 798-3609 which is an unlisted

number, That one you have is an unlisted

number, too.

Q: You were not informed by the District Attorney

that I would like to have an opportunity to

talk with you before this?

A: No, I was not informed. (TT I17;R 242).

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LAW OFFICES NEIL H. FINK, 1560 SUHL BUILDING, DETROIT, MICHIGAN 48226.

rely on the prosecutor's office to contact these witnesses is beyond imagination.

Draft) (971) 23, court-appointed counsel have a duty to interview potential

The testimony of Lt. Eric A. Barrett was insofar as defense coynsel

is concerned almost an instant replay of Captain Moultrie. Lt. Barrett also

identified Petitioner as having been on the Army base on the day of the murder.

During recross-examination, defense counsel propounded the following questions

and received the following answers:

BY MR. FITT:

Q: Did the District Attorney tell you that I

would like to talk to you before this trial?

A: Would you state that question again?

Q: Did any member of the District Attorney's

office tell you that I wanted to talk to

you before you testified?

A You personally sir?

Q: Yes,

A: No, I was not informed.

Q: You were not informed of that?

A No I was not,

Q Thank you. (TT 125-126;R 250-251).

It should be noted that both Captain Moultrie and Lt. Barrett

were still in the armed services at the time of the trial. Why Mr. Fitt had to

It certainly would not have taken Sherlock Holmes to track them down and attempt

to obtain written statements from them. The fact of the matter is that a motion

for the state to provide funds with which to hire an investigator would seem to

be required by the due process clause. Mason v Arizona, 504 F2d 1345

(9h Cir.), cert denied, 420 US 936 (1974).

Since "investigation and preparation are keys to effective

representation", ABA Project On Standirds For Criminal Justice, Standards

Relating To The Prosecution Function And The Defense Function 224 (App.

y Standards go on to outline the duty to investigate, §4.1] provides:

"It is the duty of the lawyer to conduct a prompt investigation of the circum-

Stances of the case and explore all avenues leading to facts relevant to guilt

and degree of guilt or penalty. The investigation should always include efforts

to secure information in the possession of the prosecution and law enforcement

authorities. The duty to investigate exists regardless of the accused's admission:

or statements to the lawyer of facts constituting guilt or his stated desire to

Plead guilty.

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LAW OFFICES WEIL H. FINK, 1500 SUHL BUILDING, DETROIT. MICHIGAN 48226.

(th Cir.

witnesses and "make an independent examinatien of the facts, circumstances,

Pleadings and laws involved" Van Multke v Gillies, 332 US 708, 721 (1948).

Obviously, defense counsel cannot fullfill this duty if he doesn't even attempt

to discover who the prosecution witnesses will be. Attorney Fitt was consequently

in no position to intelligently evaluate Petitioner's case and this directly

resulted in his ineffectiveness at trial. Defense counsel's failure to prepare for

trial, in conjunction with the many other errors to be delineated, deprived

Petitioner of his right to counsel, “4

B, VOIR DIRE

One of the first indications of counsel's ineffectiveness appears

during voir dire. Attorney Fitts' apparent lack of concern with the case at

bar manifested itself in his failure to actively participate in the questioning

of the venire.

Out of forty-five veniremen, defense counsel only questioned

six, °° The questions he did put to the prospective jurors were cursory”° and

many times, simply a reiteration of those asked by the prosecutor. (TT 40;R 165,

43,R168, 52;R177). When counsel did address the panel he never once mentioned

that Petitioner was presumed innocent under the law. At one point in the

proceedings, counsel admitted he wasn't even listening to the responses of

the veniremen. (TT 50;RI175),

The purpose of voir dire is "...to determine whether the veniremen

are qualified, whether they have prejudged the case, and whether their minds

".+.Should always urge the prosecutor tc disclose the facts even though he

approach the prosecutor at an early stage of their own investigation, except

in unusual circumstances, "

24. For other cases dealing with defense counsel's failure to prepare for trial,

See Ewing v Williams, 596 F2d 391 (9th Cir. 1979); Davis v Alabama, 596 F2d 1214

Cir. 1979); and MacKenna v Ellis, 280 F2d 59 t r. - All of those

cases held that inadequate preparation for trial, when combined with other

errors, (such as the failure to move to Suppress an in-court identification in

Ewing), amounted to ineffective counsel.

- Those that were questioned included: Mrs. Peddicord (TT 21;R146); Ms.

Grant (TT 40;R165); Ms. Burleson (TT 43;R168); Mr. Causey (TT 50;RI175);

Mr. Blanton (TT 52;R177); and Mr. Jones (TT 8;R133),

26. Of those veniremen Mr. Fitt questioned, he only inquired about employment

and past jury experience. (TT 8;R133,40;R165,50;R175, 52;RI177).

GAN 48226. (313) 863-1700

CAW OFFICES NEIL K. FINK, S00 BUHL BUILDING, DETROIT, micH!

are free from prejudice or bias...," Kruether v United States , 376 F2d 654,

656-657 (10th Cir.) cert denied, 390 US 1015 (1967), It is considered to be an

"...integral, vital element of a fair trial," United States v Woods, 364 F2d 481,

483 (3rd Cir. 1966); and an important step in selecting a jury. 27 Thus, it is

difficult to understand defense counsel's inaction. 28 There is no indication

in the record that attorney Fitt's behavior was part of his trial Strategy.

Defendant counsel's performance severely limited the possibility of Petitioner bein

tried by a fair and impartial jury,?

C. THE SO-CALLED INSURANCE MOTIVE

In his opening statement to the jury, the prosecuting attorney

in attempting to ascribe a motive to the allegations against Mulligan made the

following statements:

We're going to show you that the motive in this case

was that this man's sister was getting a divorce from

the Captain, that he had an insurance policy that was

made to his sister, and’ that he came down here to get

rid of him before the divorce was final so that they could

get that insurance money.

We're going to show you that it was a rilling for hire so

far as Doe was concerned, that's what he was talking

about when he said, there's big money in it for us,

I'm going down there and ice somebody. (TT 75-76;R200-201),

This theme was repeated in the prosecutor's closing argument:

All right, let's talk about -- I'm sure you'll think about

it, what was his motive? It had to have something to

do with divorce, with the fact that he was in the Army,

he was interested in money. He was out there that

afternoon when he was washing cars, asking Captain

Moultrie how much does a Captain make. Probably

figuring in his mind how much money his sister would

get when he was dead, if he could get him killed before

that divorce became final, that's what he was after,

So the motive is the money, the insurance he had as

a Captain in the Army, that's what he was after.

Greed. (TT 247,248:R 380, 381).

Of course, it takes no legal authority to recognize that a prosecutor

has the right to introduce evidence of a motive and argue the same to the jury.

However, there was not so much as a scintilla of evidence introduced either as

. am W. Daniel encourages defense attorneys to take advantage of the voir

dire examination. He noted that "The importance of voir dire examination... .cannot

“4 wn in selecting a jury." Georgia Criminal Trial Practice, 218,219, §18-

28. The prosecutor was of course secmeten busy as a bee during this period

disqualifying jurors who held conscientious o jections to the death penalty.

29. The Fifth Circuit dealt with a similar situation in Wilson v United States,

—— ited states

to the existence of an insurance policy or the fact that Mrs. Doe, Mulligan's

sister was the beneficiary on such policy. These objectionable and prejudicial

statements were made both in opening and closing and went in without so much

as a mild whimper from the defense attorney.

If it is argued that the prosecutor in his closing statement reminded

the jury that what he said was not evidence and therefore these comments were

not prejudicial since the jury probably ignored it, we direct this Court's

attention to the trial judge's report wherein he makes the statement that:

The Defendant planned ahead to kili his brother-

in~law before his divorce from defendant's sister

became final in order that she might receive

insurance benefits and inheritance from the deceased

Captain Dole [sic]. (R109).

It's a good theory, unfortunately, there is nothing to support it.

On the contrary, it is a fair inference that if such a policy did exist it would

have been in evidence and paraded before the jury with great vigor.

It was gross error for the prosecutor to refer to facts outside the

scope of the trial. °° "The purpose of an opening statement is to tell the jury

what the case is about and to outline the proofs", United States v Breedlove,

576 F2d 57, 60 (5th Cir. 1978). It should not be used to "...poison the minds

of the jury against the defendant before the jury has heard the evidence, or to

improperly prejudice the defendant in the eyes of the jurors, or to destroy his

credibility", United States v Signer, 482 F2d 394, 398 (6th Cir. 1973).

Ordinarily it is not prejudicial if the prosecutor outlines in his

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) e63-1700

opening the evidence he wishes to present at trial only to later discover that

it cannot be used either because it is inadmissible or unobtainable. 3 If

the prosecutor believes: in good faith that the evidence will be presented and

was challenged as violating the Sixth Amendment because of the defense counsel!

failure to make a voir dire examination of jurors. The Court disposed of the

challenge because the trial record showed that counsel performed his duties with

"zeal and ability, and received the commendation of the trial court..." supra

at 332. This is not the situation in the case at bar. The record shows that

defense counsel met his duties with anything but zeal and ability.

30. The ABA Standards Relating to the Prosecution Punction provide: §5.5

Opening Statement. "In his opening statement the prosecutor should confine

his remarks to evidence he intends to offer which he believes in good faith will

be available and admissible and a brief statement of the issues in the case. It

is unprofessional conduct to allude to any evidence unless there is a good faith

and reasonable basis for believing that such evidence will be tendered and

admitted in evidence." p. 119 (App. Draft, 1970).

31, The usual case is where the prosecutor says he will prove something and

later, because of privilege or inadmissibility, the evidence cannot be produced

< o a Reeves v Warden, 346 F2d 915, Gladden v Frazier, 388 2d 777

th Cir. 8).

29. (continued) 398 F2d 331 (5th Cir. 1968). In this case appellant's conviction '

admissible at trial, no prejudice will be considered to occur. It is when the

prosecutor purposefully includes the evidence in his opening statement when he

has no intention of proving it at trial, that harm is said to arise. Gladden v

Frazier, 388 F2d 777, 779 (9th Cir. 1968).

Any doubt about the good faith of the prosecutor in mentioning

the insurance money in his opening statement is easily resolved by reference

to his closing argument wherein he compounds the error by arguing the same

fact. In spite of his failure to prove the existence of potential insurance money

or its relationship to the instant case, the prosecutor as noted earlier, broached

the subject again in his closing argument. He encouraged the jury to "look

at the...evidence" (TT 242;R375), and argued that "...the motive is the money.

The insurance he had as a Captain in the Army, that's what he was after.

Greed." (TT 248;R 381).

The prosecutor's reference to these unproven and probably

unprovable facts constitutes prejudicial error and is additionally violative of the

American Bar Association Standards. 3¢

In view of the prosecutor's opening and closing statements, the

issue of whether Petitioner was motivated to kill Doe for money was surely

central to the jury's consideration. Logic dictates that they jury relied heavily

on the public official's declarations >? and therefore convicted on facts never

proven at best or non-existant at worst.

33. As the United States Court of Appeals for the Fifth Circuit has stated:

"In considering the impact of what is said the court also must be concerned

the jury that the government's vast investigatory network, apart from the orderly

machinery of the trial, knows that the accused is guilty or has non-~judicially

reached conclusions on relevant facts which tend to show he is guilty." Hall v

United States, 419 F2d 582, 582 (5th Cir. 1969),

ee,

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LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, oxTRoir, MICHIGAN 46226, (313) 96s.

Not unlike the prosecutor in Miller v Pate, 386 US 1 (1976) » who

knowingly represented paint-stained shorts as "bloody", so did the prosecutor

in the present case knowingly refer to facts not in evidence. The court in

Miller ruled that the "Fourteenth Amendment cannot tolerate a state criminal

conviction obtained by the knowing use of false evidence," supra at 7.

Petitioner urges that no constitutional distinction exists where a prosecutor

knowingly used unproven facts to sway the jury.

The failure of defense counsel to object, move for mistrial or

cautionary instruction, or for that matter, seek any remedy is simply

incomprehensible,

D. WITNESS TETER'S IN-COURT IDENTIFICATION

OF DEFENDANT, GAINED AS A RESULT OF

SUGGESTIVE PRETRIAL IDENTIFICATION

PROCEDURES, WENT UNCHALLENGED BY

DEFENSE COUNSEL

Witness Teter, like witnesses Moultrie and Barrett, testified as to

having seen Mulligan at Fort Benning on the day of the murders, 4 However,

witness Teter went further in his testimony, identifying Mulligan as having

_quarreled with the deceased (TT 106;R 231) and also identifying Mulligan as

having a weapon in his possession (TT 107;R232). During cross-examination

defense counsel posed the following questions and received the following answer

CROSS EXAMINATION

BY MR. FITT:

Q: Now this is the first time that you've seen

Mr. Mulligan since that afternoon, is that

right?

A: No, sir,

You talked with me on the telephone last

week and you said you hadn't seen him

since,

A: I saw him yesterday morning in the Courtroom.

Q: You saw him yesterday morning?

A: Yes, I did.

Doe had been with two acquintances at Ft, Benning on

(TT 112;R237), By Helms’ own admission, he was one o

Ft. Benning (TT 134;R 259),

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eet tT. eee oe a

Q: Have you seen some photographs of him

in the meantime?

I saw a snapshot of him.

Q: When did you see the snapshot?

A: I believe it was Monday afternoon about

five-thirty, five o'clock.

Q: That's two days ago.

A: Yes, sir.

Q: Were you shown any other photographs?

A No, sir.

: Q: Just a snapshot of him?

A: Yes, sir.

, Q: Did he explain to you when that snapshot

was taken?

A: Yes, sir.

Q: When was it taken?

It was taken when he was brought back

from New York. (TT 108-109;R 233-234).

At this point defense counsel apparently did not recognize a

viable constitutional issue, to wit: whether or not "the photographic

identification procedure was so impermissibly Suggestive as to give rise to a

very substantial likelihood of irreparable misidentification. " Simmons v United

States, 390 US 377, 389 (1968). Nor was counsel aware of this Court's state-

ment in Simmons that the "danger will be increased if the police display to

LAW OFFICES NEIL H. FINK, 1500 BUHL SUILDING, DETROTT. MICHIGAN 4622

the witness only the picture of a single individual who generally resembles

the person he saw...", Supra at 383, Rather than request a hearing outsidd

the presence of a jury, defense counsel went on with a series of questions that

did more to fortify the identification than challenge it.

Q: So you were shown a photograph of

this man just two days ago and you're

basing your identification on that

photograph.

A: I'm basing my identification on the man

that I saw two years ago.

Q: Two and a half years ago?

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963-1700

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 40226. (313)

A: Yes, sir. You don't see civilians in BOQ's ,

they are not supposed to be around, especially

one that was holding a gun, sticks in your

mind pretty good.

Q: Everyone was dressed in unifrom that morning?

No, sir.

How did you know who was a civilian and who

was not?

A: Because he had a beard, we don't have anyone

in the military with a beard. (TT 109; R234).

These open-ended questions in place of a hearing on admissibility

out of the presence of the jury displayed not only a glaring ignorance of the _

law, but a pathetic inability to cross-examine the state's witness.

Clearly, failure on the part of defense counsel to know existing

law may result in the denial of the effective assistance of counsel. Boyer v

Patton, 579 F2d 284 (3rd Cir. 1978) ; Rhinehart v Brewer, 561 F2d 126 (8th

Civ. 1977). On an issue of constitutional significance such as suggestive

pretrial identification procedures, the failure of counsel to request a hearing

may well be deemed in and of itself the denial of effective assistance of

counsel. Saltys v Adams, 465 F2d 1023 (1972). Petitioner urges that once the

fact was established that the witness Teter who had not seen defendant for over

two years had been shown one photograph of Petitioner two days prior to trial

any reasonably competent attorney would have ended the questioning and

requested a hearing out of the presence of the jury.

E. EXHIBIT 9

During the course of Helms! direct examination, the State elicited

testimony to the effect that subsequent to the murders, Helms had accompanied

Mulligan to Columbia, South Carolina, where Mulligan was looking for friends

to try to establish an alibi. In order to bolster this testimony, the State offered

Exhibit 9 which purported to be a note written by Mulligan to a friend in

Columbia, South Carolina, who was not home. Helms testified that the note

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LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 40226. (313) 963-1700

was left in his car. The note bears the name of Joseph Mulligan and in the

right hand corner carries the date April 14, 1974. The prosecution made no

effort during the course of the trial to match the handwriting on Exhibit 9 to

any known samples of Petitioner.» During his closing argument, the

prosecuting attorney made the following statement to the jury:

Another thing that really puts it on him. Let

me ask you to look, when you get to the jury

room, look at State's Exhibit 9, which is the

Ralston Hotel envelope. It's a note that is dated

April 14 and it's signed Joseph Mulligan. Then

look on the back of the Indictment where Mulligan

signed the indictment and look at those two

signatures when you get in the jury room. They

are the same, he was here. He was in the Ralston

Hotel. He killed this man. (TT 248-249; R 381-383).

What we have here is a prosecutor "testifying" as an expert as to

matching signatures where one of the samples is not even in evidence. As

bizarre as this may seem, and what is even more ludicrous, the defense attorney

did not object. At the risk of dignifying the prosecutor's statements, we feel

we should point out that Exhibit 9 was printed while Mr. Mulligan's signature

on the Indictment is handwritten.

As with other types of personal opinions, a prosecutor may not

assert his belief on issues properly the subject of expert testimony, King v

United States, 372 F2d 383, 394 (D.c. Cir. 1979) , 3 Thus, the prosecutor

exceeded the boundaries of permissible conduct without objection from the

defense.

35. A copy of Exhibit 9 like the other exhibits, was made a part of the trial

transcript and is located at page 316 of the trial transcript (R 448).

36. In King, the prosecutor asserted his belief that because a physical

He falsely based his opinion on the testimony of an expert witness which had

concluded the contrary. The Court in King adjudged the prosecutor's argument

to rest within the knowledge of an expert ane not a prosecutor, and

reversed and remanded the case.

=Piip

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LAW OFFICES WEIL H. FinK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 40226, (313)

F. CLOSING ARGUMENTS

1. Prosecution's Closing Argument --

Guilt Stage

Although any competent attorney would have been on his feet

during most of the state's closing argument, defense counsel did not object

once to the prejudicial and overreaching closing argument of the prosecutor.

In his closing argument, during the guilt stage, as noted earlier, the

prosecutor not only referred to facts which were not admitted into evidence,

be continually used inflammatory language and persistently expressed his

personal opinions in order to persuade the jury to convict.

In referring to Petitioner, the prosecutor repeatedly described

him as a "hit man" (TT 243;R376), butcher (TT 247;R380), "gangster" (TT 243,

249; R 376, 382) and other slanderous names. >"

This conduct was impermissible for two reasons. The general rule

prescribed by this Court dictates that a prosecutor may not rely upon a

defendant's bad character to prove guilt unless the defense has sought to

exculpate him by proof of good character, a v United States, 335 US

469, 479 (1948). Quite obviously, Petitioner Mulligan's good character was not

put into issue because defense counsel failed to present a case on Petitioner's

behalf. Thus, the prosecutor's reference to Petitioner's character was improper

Secondly, the prosecution's language was unallowable because it

was quite simply name calling. As the Court in United States v Windom, 510

F2d 989 (5th Cir. 1975) has explained, "Prosecuting attorneys are no longer

permitted to indulge themselves, or their audiences, in unrestrained, abusive

histrionics, giving their personal evaluations of what a low-down fellow the

defendant really is", Supra at 994. While such characterizations are improper,

they will not provoke reversible error if the characterizations are supported

37. The prosecutor also referred to Petitioner as a "confirmed killer" (TT 243;

R376).

“ by evidence admitted at trial, supra at 994,

In the present case, there was no evidence admitted at trial to

Support the prosecution's references to Petitioner. * The prosecution's

claim that Petitioner was a "hit man" is unsupportable because the state

failed to prove that Petitioner killed for money. Likewise, the contention

that Petitioner was a gangster” is unfounded. The use of these names

were grounded upon the prosecutor's opinion, not on the evidence as it was

presented to the jury.

The likelihood that the prosecutor's name-calling adversely

influenced the jury against the Petitioner is great. As the Court in Hall v

United States, 419 F2d 582 (5th Cir. 1969) explained, the use of uncompli mentary

names "... is especially likely to stick in the minds of the jury and influence

its deliberators." Supra at 587. In Hall, the prosecutor called the defendant

a "hoodlum". The Court of Appeals found the resulting harm to be so great

that it reversed the defendant's conviction,

The prosecutor's use of inflammatory language amounted to

prejudicial error. The prejudice resulting tens the prosecutor's behavior is

Significant, because the issue affected by the misconduct was central to the

issue of guilt or innocence. By claiming Petitioner was a hit man, and that the

murders were horrible, the prosecutor influenced the jury to convict Petitioner

on their emotional reaction to the prosecutor's suggestions rather than on the

facts of the case. 40

LAW OFFICES WEIL H. FINK, 1500 SUKL BUILDING, DETROIT, MICHIGAN 48226, (813) 963-1700

38. When inflammatory remarks are made, the court should, at a minimum ,

sustain an objection and immediately and clearly instruct the jury that the argu-

ment is not supported by the evidence, Hall, supra, n. 33 at 585. United

States v Pepe, 247 F2d 838 (2d Cir. 197). Un ortunately, the minimum was not

met in the present case. While the prosecutor purposefully tried to influence

the jury against the Petitioner, both defense counsel and the trial court remained

silent.

39, "Gangster" is defined as "a member of a gang of roughs, hirelings, criminals

thieves or the like", Lanzetta v New Jersey, 306 US 451 (1939),

40. In United States v Jenkins, 436 F2d 140 (D.C. Cir. 1970) the prosecutor

characterized the accused as a "teenage hoodlum walking the streets of

Washington". The Court noted that this type of statement should be avoided

because the trial of the defendant was for rape, not being a hoodlum, Id.

at 145, Likewise, the Petitioner in the present case is being tried for murder,

not as a hit man or gangster.

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——— LAW OFFICES NEIL H. FINK, 1800 SUHL BUILOCING, DETROIT, MICHIGAN

Additional error was perpetrated by the prosecutor when he vouched

for the-veracity of the government's witness and expressed his personal beliefs

to the jury. a

In his closing argument, the prosecutor attested that Timothy

Helms, the government's witness, was telling the truth. He told the jury that

Helms ",,.was telling the truth, you could just know he was doing it". (TT 246;

R379). And that his ", -- testimony had a ring of truth to it." (TT 246; R379).

Later, the prosecutor stated that Helms "...cooperated with the police throughout

this investigation. And he is a truthful man, you could just tell by the way it

was coming out". (TT 252;R 385). In the same breath the prosecutor repeated

that Helms "...was telling the truth." (TT 252; R 385),

Expression of a personal belief is only tolerated when it is supported

by the evidence at trial, United States v Rodriguez, 585 F2d 1234, 1243 (5th Cir.

1978). Otherwise, "it is impermissible for the prosecution to assert his own

credibility as a basis for conviction", United States v Corona, 557 F2d 1386,

1389 (5th Cir, 1977), 42

The rationale behind this rule is twofold. First, by expressing

his personal opinion the prosecutor usurps the function of the jury. It is the

jury's prerogative not the prosecutor's, to decide if a witness is telling the

truth, United States v Grimm, 568 F2d 1136 (5th Cir. 1978); and if a defendant

is guilty, United States v Morris, 568 F2d 396 (Sth Gir. 1978).

Secondly, implicit in the assertion of a personal belief is the

fact that the prosecutor has based his opinion on something other than the

41. §5.8(b) of the ABA Standards Relating To The Prosecution Function state:

"(b) It is unprofessional conduct for the prosecutor to

express his personal belief or opinion as to the truth or

falsity of any testimony or evidence or the guilt of the

defendant." p. 126 (App. Draft, 1970).

Additionally, the ABA Code of Responsibility provides:

credibility of a witness,...or as to the guilt or

innocence of an accused..." ABA Code of Professional

Responsibility §DR7-106(c) (4).

42. In some jurisdictions, expression of the prosecutor's personal opinion is

reversible per se. See, Greenberg v United States, 280 F2d 472 (Ist Cir. 1960);

United States v Gonzalez Var as, st Cir. 1977); United States v

otter, st Cir. 1970); other jurisdictions ask if there is reason to

believe that the statement affected the ultimate verdict of the jury, Devine v

United States , 403 F2q 93, 96 (10th Cir. 1968), see also, Marks v United States,

Oth Cir. 1958), aa a

LAW OFFICES NEIL HK. FINK, 1800 BUHL SUILDING, DETROIT. MICHIGAN 46226. (313) 963-1700

evidence of record, Gradsky v United States, 373 F2d 706, 710 (5th Cir, 1967). %3

or that by virtue of his experience, knowledge and intellect, the prosecutor

has concluded that the jury must convict, United States v Bess, 593 F2d 749,

755 (6th Cir, 1979). 44

The assertion of the prosecutor's personal opinions in the case at

bar was certainly erroneous for they were not based on the evidence at trial.

Though the prosecutor ostensibly based his opinion on the character and mood

of Helms' testimony, he nonetheless improperly expressed his opinion of Helms’

truthfulness, ©

The Court in United States v Bess, supra, dealt with a situation

similar to the case at bar. There, the prosecutor was careful to say that his

opinion was "...based on the evidence that has been presented to you..."

supra at 753. Yet, the Court in Bess saw through the prosecutor's language

and recognized that his words were simply used as a guise for the assertion

of his opinion. The Court stated that "We do not believe that the use of this

disclaimer should convert improper argument into proper argument. The

adverse impact of personal expressions of opinion is still present, regardless

whether counsel purports to limit the basis of opinion to the facts at trial",

supra at 756,

Vouching for a witness' credibility has been deemed to warrant

reversal of a defendant's conviction by a number of counts. In United States v

Garza, 608 F2d 659 (5th Cir. 1979) the defendant's conviction was reversed

because the prosecutor vouched for his witnesses by stating, "If it wasn't the

43. In Gradsky, the prosecutor vouched for the government's witness. The

Court held this to be prejudicial error which contributed substantially to the

convictions. The convictions were consequently reversed.

44. In Bess, the prosecutor also impermissibly implied that the prosecution

would not have been commenced if the defendant had not been guilty. Asa

result of this and the prosecutor's assertion that he believed the defendant

to be guilty, the conviction was reversed.

45. The Court in United States v Dawkins, 562 F2d 567 (8th Cir. 1977) held

the prosecutor's vouching for the government's witnesses not to be improper.

It based its decision on the ground that the prosecutor merely characterized the

witnesses' testimony as believable in its context. The Court also rationalized

that the comments were acceptable because the prosecution's credibi ty was not

Placed into issue and he did not infer knowledge of information outside the scope

of the trial, supra at 569. This decision is inapposite to the case at bar since

the jury could have inferred from the prosecutor's comments that he knew of

facts not presented at trial.

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NEIL H. FINK, 1500 BUHL SUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

LAW OFFicEs

man, the [the witnesses] wouldn't have any reason to say it", supra at 664. 6

Similarly, in United States v Corona, 557 F2d 1386 (5th Cir. 1977),

a reversal was ordered as a result of the prosecutor's comment that the

government witness "...had the guts to tell the truth..." supra at 1389, “ Like

the comments in these cases, the prosecutor's statements concerning Helms'

truthfulness were highly improper, Again, flagrant error not creeping but

marching into the trial without objection from the defense.

G. PROSECUTOR'S CLOSING ARGUMENT --

PENALTY STAGE

If the prosecutor's closing argument during the guilt stage of

the trial seemed harsh, it is rendered pallid when compared to his closing

argument during the penalty stage. We recognize that any closing argument

requesting a jury to impose the death penalty can hardly be done in a docile

fashion. However, there have to be bounds of decency and wide as those

parameters may be,this prosecutor managed to cross them. Again, without

objection from defense counsel, the following are excerpts from his closing

argument:

Let me say this to you, that the death penalty is

not something that we take lightly in the District

Attorney's Office. I have been District Attorney

now for six and a half years, and I think this is

the fourth time that I have asked a jury to bring in

a death sentence. I think on two other occasions

one of the assistants who tried the case have asked

for the death penalty. So, in a span of six and a

half years, when we tried thousands of cases during

that time, we have only asked for the death penalty

six times. I tell you that so that you know that

it's not something that we take lightly, we don't

pick up a file and say, "Well, I'm going to ask for

the death penalty in this case, this looks like a

good one, and I'm going to ask for it." (TT 274-275;

R 407-408),

* * *

And you saw the pictures, you saw how bad the bodies

of these two people -- mutilated, bullet through his

head and out through his eye, went through the back

of her head and cut through her eye socket, high-

powered gun at close range, shot her four times,

dont; you know that the few seconds that she lived

46. The Fifth Circuit has explained that an attorney may properly state, "I

believe that the evidence has shown defendant's guilt," but he may not state,

"I believe that the defendant is guilty." Likewise, an attorney may say, "no

conflict exists in the testimony of the prosecution's witnesses, but not, "The

prosecution’ s witnesses are telling the truth" or "I believe the prosecution's

witnesses are telling the truth". See, United States v Morris, 568 F2d 396, 402

(5th Cir. 1978). Lasgo

47. Argument going beyond the evidence transforms the prosecutor into a

-3)-

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PETIT a 8 ETE | OR

LAW OFFICES WEIL Hh. FINK, 1800 SUHL SUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

between the time that he shot Doe, before she

died, it must have been just seconds of sheer

horror? It was awful.

* * *

All right, another thing we think about, even

though the crime was horrible, is there any chance

that you can rehabilitate somebody? He is a human

being too, says he is. Is there any chance that

you can do something for him, make him better,

help him some way? What is your answer in this case?

The answer is obviously no. He is a confirmed

killer, a murderer, he has to be. How could you

form an intent to kill somebody, kill somebody for

a few measly dollars, it couldn't have been a whole

lot of money, it might have been to him, but it

couldn't have been a lot of money, ride all the way

thinking about it, sit up there in the hotel room and

drink somebody else's whibkey that he brought you,

drink his Coca-Colas, all the while in your mind

knowing, "I'm just waiting, he's my victim, I'm just

waiting to get him where I can shoot him in the head,

do this job and get back to South Carolina. "

Do you think you could ever rehabilitate anybody like

that? Do you think they have any kind of program

in any prison that could change him? Of course not.

He is a confirmed criminal, a confirmed killer. Could

you rehabilitate anybody who, after he had killed his

intended victims, decide well, there's a woman over

there, she saw it, I have to do something about her.

Bam. "Please don't hurt me." -

"Shut up, woman, let me kill you." Bam, bam, and he

kills her. Do you think you could ever rehabilitate

him? Of course not. So we disposed of those two matters.

Horrible crime, no chance of rehabilitation, (TT 277-278;

R 410, 411).

* * *

And you have said he was guilty. And Mr. Fitt this

morning in his closing argument, when he started out

he said this is a pat case, The State has all the evidence,

it's a pat case for the State, and the evidence for the

State is overwhelming. So you know that in this case

there is plenty of proof, can be no doubt that he is the

one that did it. (TT 279;R 412).

* * *

Then you say, well, I know you're saying it, why

do we have to have the death penalty? Let me Say this

to you. Up until 1960 the death penalty was part of

our criminal procedure, it was an appropriate sentence,

We executed criminals from time to time. Then about 1960,

executions began to drop off, some of the States abolished

the death penalty statute. The last person that was

executed in Georgia was in 1964, twelve years ago. And

for the last twelve years the crime rate has been rising.

Not only the petty types of crime, white-collar crimes,

violent crimes of rape, murder, robbery, they have been

on the rise every year.

47. (continued) witness. His unsworn testimony and personal opinions, can be

extremely influential because of the special regard the jury has for the

prosecutor, thereby effectively circumventing the rules of evidence. See,

MICHIGAN 46226. (313) 963-1700

LAW OFFICES NEIL H. FINK. 1SCO BUHL BUILDING, DOFTROTIT,

I say to you that the reason those crimes have been

rising is because a would-be killer, a criminal, like

Joseph Mulligan, knows that the worst thing that

can happen to him is he would get life, not going

to have to pay the Supreme penalty. So when it

comes down to him going to jail, or knocking off a

witness, like Marian Miller, what does he do? He

kills the witness. There is no percentage in letting

the witness live, that might could put you in the

penitentiary for life, when if you kill that witness,

and the most you can still get if they catch you is

still life. So, there is no reason not to kill a witness.

And when we keep on having murder after murder,

killing after killing, and the point is, why let a victim

live if it's an armed robbery, that type of crime, go

ahead and kill him, stand an even chance of getting

away with it, you don't have any witnesses left.

And until we start giving the death penalty, until

we start executing some of the criminals found guilty

and sentenced to death, it's my opinion, my judgment,

that we're going to continue to have a rise in crime

rate, more murders, more armed robberies. (TT 279-280;

R 412-413),

* * *

Now, let's think about how you are going to feel.

Suppose you go back and vote to put him to death?

I'm sure the question must be in your mind right now,

"If I vote for him to get the death penalty, how is it

going to affect me, how will I feel tonight when I get

home? How will I feel when I have to face my wife,

or my husband and family?" I don't know how you

are going to feel, but I've had to face that question,

I had to face it day before yesterday when we started

this trial. I had to face it this morning when I knew

I was going to stand up and ask for the death penalty.

I say to you, it's not going to bother me. I'm going

home tonight, I'm going to eat supper, I'm going to

sleep. Now, sometimes I don't sleep good, it might be

something that keeps me awake, but it's another case

down in the office that we have to try next week that is

going to worry me, it's not going to be Mulligan's case

that is worrying me tonight. I don't feel like I'm the

one that is putting him to death if he dies in the electric

chair. It's not you who are putting him to death in the

electric chair. Do you know who is putting him to

death in the electric chair? He did it himself. He is

the author of his own undoing. He is the one who decided

I'm going to Columbus and kill Patrick Doe, it wasn't you

that decided that. He knew when he started down here

the risk he was taking. He's a grown man, he's not a

child. (TT 281-282; R 414-415),

+ * *

Don't know much about Marian Miller, except she was

a young 25-year-old woman, who knows what her life

might have been had she been able to live. He took --

he decided whether or not they were going to live. And

if we let him live, he's going -- do you want to put

life and death in the hand of somebody like Muiligan?

And I'm sure you'll say, "Well, he can go to the penitentiary

for life, and he won't hurt anybody."

47. (continued) United States v Cotter, supra at 42,

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ty Fer TO ORO A Os EE. Oy SERIE eS A

LAW OFFICES NEIL H. FINK, 1500 BUHL SUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

How about the guards that have to guard him

down there? They are human, they have

families, they have to be around him every

day. Do you want to expose them to him?

And worse then the guards, how about some

fellow prisoner? Maybe some young person who

is in prison, who can see the light at the end

of the tunnel, knows that in a few years I'll

be out, I can go straight, and my mama and my

daddy are looking for me to get out and come

home and make something out of myself. What's

to keep him from murdering him in prison?

(TT 284; R 417).

* * *

You know, you can compare ~~ this is a pretty

good illustration, it's not original with me, but

I heard it -- you can compare him with having

cancer. Suppose you had cancer on your arm, you

went to the surgeon, and he Says you have cancer,

we're going to have to remove your arm. That's

horrible, terrible, it's going to hurt. But, if you

don't remove your arm, pretty soon the cancer will

kill you. So, you go ahead and allow the surgeon

to cut your arm off to save the body. Joseph

Mulligan, and people like him, are a cancer on the

Society in which we live today, they are destroying

this Country in which we live, these criminals are,

he's one of them. He's the cancer on this Country

and we ought to get rid of him.

And I know it's bad, and I know it's a heavy

responsibility to have to say, "Let's sentence him to

death." But, that's what we need to save the rest

of us. That's what we need to Save society, to do

away with people like him, and that's what the law

is there for. That's what the Legislature enacted the

law for, to take people out of our society forever,

like Joseph Mulligan. (TT 286;R 419)

* * *

Let me say this to you, let me give you one more

illustration, of what I think is life in this Country,

and what has got to be done. I'm sure Mr. Fitt will

stand up and tell you, he's human » be merciful,

protect him, and get life, and all of that kind of

stuff. And I say to you that the only appropriate

sentence in this case is to take him completely out

of society, and the only way to do it is by execution.

During my lifetime, we've had three major wars that

this Country has been engaged in. Each time the

Government drafted young men, as low as seventeen

years of age, and brought them into the Army, trained

them, gave them a rifle, put them behind a machinegun,

and sent them overseas. And that's fine, I was one

of them. I didn't go Overseas, but I was drafted

into the Army, Spent my time in the Army. And

those of us who were home when they drafted those

young men, we equipped them, trained them, gave them

a rifle, and told them to g° Overseas, and when you

aim and look down the barrel of your rifle, if you see

an enemy, pull the trigger and kill him, because he is

an enemy of our Country. And we put that burden

on seventeen year olds, the person he was looking down

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LAW OFFICES NEIL H. FINK, 1800 SUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

the rifle at knew he was a real enemy of his.

Like I say, we've had three wars that we fought,

where we drafted people to fight for us. We're in

another war in this Country. We're in a war against

criminals. We're in a war against the very likes of

Sonny Mulligan there. He's our enemy, he's our

enemy. And if we don't mind asking some 17-year-old

kid to go to Vietnam, and kill a North Vietnamese,

and in Korea, kill a North Korean, and in World

War II, kill a German or a Jap, that he had never

seen, and had never hurt him, is it asking too much

of the twelve of you on the jury to go back there

and say, "Look, we've got to get rid of this enemy

in our society, we're not killing him, but he's put

himself in a position where he ought to be taken out

of society, and we have the backbone and

intestinal fortitude to do it, then we're going to

sentence him to death." I don't think it's too much

to ask to do that. (TT 287-288;R 420-421).

* * *

We have the death penalty on the books. If there

has ever been a case where a person ought to

receive the death penalty, goodness knows, it's

in this case. Here you have a man who is a hired

killer, wearing a holster, carrying a gun, befriended,

partied with his victim, waited until the right moment,

killed him, and killed an innocent witness, for no

reason except money. (TT 292; R 424)

Those arguments by the prosecuting attorney were so wanton

in their disregard of existing law that they should speak for themselves. We

will comment only briefly. §5.8 of the American Bar Association Standards

Relating To The Prosecution Function provides:

to inflame the passions or prejudices of the jury.

(d) The prosecutor should refrain from argument which

would divert the jury from its duty to decide the case

on the evidence, by injecting issues broader than the

guilt or innocence of the accused under the controlling

law, or by making predictions of the consequences of

the jury's verdict.

The prosecutor's closing argument during the death penalty stage

amounted to one lengthy violation of the above quoted standard. The rhetoric

used did not belong in an American courtroom,

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313) 963-1700

The prosecutor's "concern" for the lives of the prison guards and

their families and any fellow prisoners that Mulligan might have if he were

not sentenced to death, was a transparent ploy to arouse the fear of the jury.

An almost identical argument was made in support of the death sentence in

United States v Coppola, 479 F2d 1153 (10th Cir. 1973). In that case, the

prosecutor argued:

If Coppola is permitted to survive, he can continue

doing what he has been doing and you will be

turning him loose back in the prison yard, back

at these witnesses who are courageous enough to come

back here and to gc Dack and set up his evil

crimes again...Unless this man suffers death, no

inmate, and Particularly not those who have testified,

can even lead normal, secure, safe lives.. -Contracts

can be let from prison to the outside as well as the

inside of the walls, supra, at 1163.

Although the Court in Coppola reversed the defendant's conviction on other

grounds, 48 the Court responded to the prosecutor's improprieties by Stating,

"Methods designed to arouse prejudice, passion and use of invective are not

Proper argument", supra at 1163. 4?

The prosecutor also perpetrated prejudicial error by depicting

Petitioner as the enemy of the jury. 30 He stated, "We're in a war against the

very likes of Sonny Mulligan...He's our enemy, he's our enemy...we've got

to get rid of this enemy in our society." (TT 288;R 421). This is clearly

impermissible. The Court in United States v Barker, Supra, commented, "It

is beyond the bounds of propriety for a prosecutor to suggest that unless this

defendant is convicted it will be impossible to maintain "law and order'.,.",

Supra at 1025. The defendant's conviction in Barker was subsequently reversed.

Because there were no efforts to mitigate the harm caused Petitioner

as a result of these comments, they were ultimately instrumental in swaying the

jury toward choosing the death penalty. Since the death penalty issue was

48. Coppola's conviction was reversed and his case remanded primarily because

of the prosecution's introduction of a witness! prior statement in order to

impeach the witness. The Court held this to be prejudicial error since the

Prosecution had prior notice that the witness would deny the truth of the

Statement, 479 F2d at 1158,

49. In Greenberg v United States, Supra, the prosecutor opined that defendant

was unpatriotic because he failed to inancially support the American war effort

by only paying personal income tax of $17.41 in 1943, The Court reversed the

conviction,

50. In Viereck v United States, 318 US 236 (1943) the prosecutor's call to

Patriotism was deem mproper and the defendant's conviction was reversed,

=-36~

EE Saute Pre Wn eet s

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LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313)

central to the disposition of Petitioner's case, the prosecutor's remarks amounted

to prejudicial error. Therefore, Petitioner's conviction must be reversed.

H. DEFENSE COUNSEL'S CLOSING ARGUMENT--

GUILT STAGE

The three page closing argument speaks pathetically for itself.

(TT 254-256;R 387-389). Never a mention of reasonable doubt, never a mention

of the presumption of innocence, never a hint that it was a reasonable brpeteny

from the evidence that Helms was the triggerman. Nothing. If it is possible

for this closing argument to have a low point, it is when the defense lawyer

in effect confesses on behalf of Petitioner by telling the jury that he felt the

case was too pat (TT 254;R387). An essentially one witness case--a case based

on accomplice testimony of an immunized co-indictee, too pat? Indeed.

In United States v Hammonds, 425 F2d 597 (D.C. Cir. 1970), the

Court ruled that defense counsel's futile closing argument, when combined

with the many other errors and omissions, clearly reflected "...a pro forma

defense and a lack of adequate representation in preparation and trial of the

case," supra, at’ 604, 7! Applying the "mockery and farce" test, the Court

reversed Hammond's conviction and remanded the case for a new trial.

I, DEFENSE COUNSEL'S CLOSING ARGUMENT --

PENALTY STAGE

Mr. Fitt's closing argument during the penalty stage was lengthier

than his three page closing argument in the guilt stage. However, it was of littl

51. Additional factors that led to the Hammonds decision included counsel's

failure to conduct any voir dire examination of the jury. 425 F2d at 603.

~S T=

NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 40226, (313) 963-1700

LAW OFFices

more substance. Rather than attempt to persuade the jury not to impose the =e

death penalty, defense counsel, once again, admitted to the jury that the

evidence appeared to be "“overwheuaing " - (TT 299-300;R 431-432). The jury

returned verdicts of death as to both counts.

J. MOTION FOR NEW TRIAL AND THE APPEAL

On November 24, 1976, a notice of appeal was filed by trial attorney,

Jay William Fitt, (R 67). On February 3, 1977, a motion for a new trial was

filed with the trial court. In a terse statement, Attorney Fitt alleged newly

discovered evidence as the grounds. The prosecution having filed a response

to the Motion For New Trial (R 86), the Court ordered an evidentiary hearing

to be held on the 19th day of December, 1977, at 9:45 a.m. (R 90). On December

21, 1977, an ex parte order was entered by the trial judge requiring the

Sheriff of Muskogee County, Georgia and/or his lawful deputy to produce one

James Everet to give testimony at the evidentiary hearing which had apparently

been rescheduled for January 16, 1978. (R92). The hearing was

22. Defense counsel's observation that the state's case seemed to be "pat"

made during his closing argument during the guilt stage and a shocking state-

Mr. Fitt this morning in his closing argument when he started out, he said this

is a pat case. The State has all the evidence. So you know that in this case

there is plenty of proof, can be no doubt that he is the one that did it."

(TT 279;R412). This statement was prefaced by the prosecutor's own personal

opinion.

"Even though the crime was horrible, and even

though there was no chance of rehabilitation, I

wouldn't ask you for the death penalty, I wouldn't

ask you to go back and vote to find this man ought

to be sent to the electric chair unless there was

plenty of proof that he was guilty, and that he was the

one that did it." (TT 278;R4ll),

Again, though the prosecutor purported to ground his comments on the proofs

at trial, he still did nothing more than express his own personal belief about the]

guilt of Petitioner. When prosecutors have made similar comments, as in United

States v Lamerson, 457 F2d 371 (5th Cir. 1972) the Court judged it to be imp “oper

and reversed the conviction. See, United States v Morris, 568 F2d 396, 402

(Sth Cir, 1978); United States v Cotter, 425 F2d 450 (Ist Cir. 1970); United State

v Garza, 608 F2 th Cir, ; Hall v United States, supra, at n.33; an

United States v Schartner, 426 F2d 47 r ir, 5

9¢3-1700

NEIL H. FINK, 1300 BUHL BUILDING, DETROIT, MICHIGAN 40226, (313)

LAW OFFICES

continued on order of the court to January 30, 1978 (R 93). On February 16,

1978, the court denied Defendant's motion for a new trial (R 94). Subsequent

to the denial of the Motion For New Trial, apparently the court reporter's

minutes were lost. The prosecutor filed a motion in the nature of a show

cause requiring the court reporter, one Betty Nixon, to show. cause why she

should not be held in contempt for her failure to produce the transcripts of

the hearing on the Motion For New Trial (R 95). Ms. Nixon filed a detailed

response which alleged that the notes were lost (R 97-99). In place of a

transcript of the Evidentiary Hearing the trial court filed a "Brief of Evidence"

(R 474) which also contained his conclusions of law reaffirming his prior

position denying the Motion For New Trial.

Accepting Judge Smith's Brief of Evidence in place and instead

of the transcript of testimony taken on the Motion For New Trial, the revelations

are fantastic in view of the background of the case. Witness Everet testified

that he had Personally dealt in drugs with the deceased and the immunized

co-indictee Helms prior to April 13, 1974 and had,on occasion, seen the two

of them argue,

The prosecutor's entire attack on any possible hypothesis that

it was Helms, not Petitioner, that had killed Doe and Miller was predicated

on lack of motive which in turn was predicated on a non-existing relationship

between Helms and Captain Doe prior to April 13, 1974,

During the course of trial, the prosecutor had asked co-indictee

Helms the following questions and received the following answers:

Q: Have you ever been to Columbus, Georgia

in your life before April 13?

No I haven't,

Have you ever met Captain Patrick

Doe or Marian Miller in your life before

you came to Columbus, Georgia?

A: No I haven't. (TT 163;R 290),

This theme was expounded during closing argument by the prosecutor:

I'm sure Mr. Fitt is going, to try to say, "Well,

maybe Helms killed him." But what reason did

Heims have to kill Captain Doe? He had never been

93. This defense was obvious to everybody but defense counsel.

LAW OFFICES NEIL H. FINK, 1t800 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 963-1700

to Columbus before, never seen the man before,

he was on his way to a party with him, he helped

him wash his car, he's a twenty-year-old kid a long

way from home, and had the misfortune of falling

in with a man like Mulligan, no more than a gangster.

(TT 249;R383).

The trial court found that the apparently unchallenged testimony

of Everet went only to the impeachment of witness Helms and did not bear

"on the question of guilt or innocence of Mulligan." Even if that were the

case, this impeachment was certainly not on a collateral matter but went to the

core of the question of who was the murderer, Helms or Petitioner? Common

sense dictates that witness Everet's testimony certainly did bear on the question

of guilt or innocence of Mulligan.

Another fact that emerges from the trial judge's Brief of Evidence

is that Attorney Fitt had actually interviewed Everet prior to trial. Why was

he not called before? Why was there no explanation given by Mr. Fitt as to why

he was not called before? And probably the most serious question of all,

why was this viable issue never raised on appeal? This brings us to the appeal

itself,

Defense counsel's appeal of Petitioner's case was pro forma.

Under Anders v California, 386 US 738 (1967) defense counsel, on appeal, is

obligated to "act in the role of an active spree in behalf of his client, as

opposed to that of amicus curiae," Supra at 744, : His role as an advocate

requires that he support his client's appeal to the best of his ability", supra

at 744,

Attorney Fitt's brief to the Georgia Supreme Court was of dubious

value. In his Sseven~page argument, he averred four contentions for the

54.” The ABA Standards On Criminal Appeals follows the Anders decision and

note that "If the lawyer acts as the court would, the position of the appellant

is not at all improved and may be worse." 75 (App Draft, 1970).

NEIL H. FINK, 1800 BUHL BUILDING, DETROIT. MICHIGAN 48226, (313) 963-1700

LAW OFFicEes

Georgia Court to review. Yet, he cited practically no authority to support his

arguments.

The Supreme Court of Georgia did vacate the death sentence

as to Count I based on the conclusion that the evidence did not support a

finding of Ga. Code Ann. §27-2534.1(b) (7) or (4) as an aggravating circumstance

and further that §(b)(7) which the jury predicated the death verdict on

was not even submitted to them as an aggravating circumstance on Count I.

This pyrrhic victory was due to the Georgia Supreme Cour. raising this issue

Sua sponte. In other words, defense counsel did not see fit to raise the

Godfrey issue even though it was one of continuing concern in the Georgia

Supreme Court. See, €-g-,» Harris v State, 237 Ga. 718, 732, 230 S.E.2d 1,

10 (1976); Blake v State, 239 Ga. 292, 236 S.E. 2d 637 (1977).

In effect, Attorney Fitt did nothing to advocate Petitioner's

interest on review. He hardly can be said to have performed to the best of

his ability.

K. INSTRUCTIONS

Defense counsel in this case requested no special jury instructions

and it is hard to imagine such a failure in a case involving life or death,

Included in his omissions were a failure to request a standard instruction on how

the jury should view the testimony of an accomplice (see, e.g. » Tillery v United

ry S- Sie.

States, 4ll F2d 644 (5th Cir. 1969)). Further, no instruction was requested

to the effect that the Defendant's failure to testify in his own behalf cannot be

used in any way to infer or presume guilt. Georgia law requires the court

29. Aside from textual selections of the pertinent statutes involved in the case,

defense counsel only cited a definition from Black's Law Dictionary (see

Argument IV in Attorney Fitt's brief to the Georgia Supreme Court); and one

case. (Argument III). However, the case was cited only so it could be

distinguished.

to give such an instruction upon timely request. Clay v State, 236 Ga. 378,

224 S.E. 2d 14 (1976).

L. EXTRADITION

The prosecution in this case was able to effectively put before the

jury, without defense objection, the fact that the Defendant had fought

extradition while Helms had cooperated fully by coming back to Georgia ea,

waiving his right to fight extradition. In his opening statement, the prosecutor

informed the jury:

So they went out on the air base, the Marine Air

Base, and as luck would have it, they saw the

car that fitted that description and they watched it.

And in a short time, Helms, the young 20-year-old

man came out and got in the car and drove off the

base. When he drove off the base, they stopped

him and asked him to come to the Beaufixt Police

Station. They questioned him and he admitted to

them what had happened, told them about Sonny

Mulligan's participation in it. He waived extradition

and came back to Columbus with them. He carried

them out and showed them where the actual shooting

took place at Nassau Place and Corinth, where they

left the car at Allison's, which was about two and a

half miles away, and where they threw the gun and

the police recovered the gun, we'll have it for you

today, where they threw the billfold, the identification

of Captain Doe, we'll have that to present to you today.

Now, I know you must be wondering , well, why

wasn't this tried earlier. After 1974, he was indicted

in August of 1974. We're going to show you that the

defendant, Mulligan, fled. He wasn't arrested until

March of 1975 and he was arrest ew York,

We're going to show you that extradition proceedings

were started, and it wasn't complet an e wasn't

brought back to re until arch of this year, 1976.

-15; mphasis Supp

Again, without objection, during the direct examination of Helms,

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313) 963-1700

the prosecutor returned to this theme:

BY.MR. WHISNANT:

Q: All right. Now, along about Thursday of the

following week, or Wednesday, no, it was later

than that, the following Sunday or Monday, did

you meet some police officers from Columbus,

Officers Cain and Miller?

(313) 963-1700

LAW OFFICES NEIL H. FINK, 1800 SUHL BUILOING, DETROIT, MICHIGAN 48226,

Yes, I did,

Q: Where did you see them at?

'. They, seen me on the street driving, and

they told me to come down to Headquarters.

Q: All right, did you go to Headquarters with

them?

Yes, I did.

Q: Did you tell them substantially what you

have told the Court here today?

Yes, I have.

Did you come on back to Columbus with them?

Yes, I did.

Se .9-F

You didn't wait to be extradicted, just came

on back?

A: Yes.

(TT 152-153;R 277-278)

This type of evidence and argument is of the kind that makes the

assertion of a legal right costly and, therefore, waters down that legal right.

Griffin v State of California, 381 US 957, 85 SCt 1797(1965);>” United States v

Hughes, 4ll F2d 461 (2nd Cir. 1968), cert denied, 396 US 867,58

Under Article IV, Section 2 of the United States Constitution the

Defendant has the right to challenge extradition proceedings. Roberts v Reilly,

116 US 80 (1885),

The bottom line of the prosecutor's successful effort to interject

the above testimony was to infer to the jury that Helms was a good guy for

waiving extradition and that Mulligan was a bad guy for exercising his legal

right. Improper statements and testimony were admitted without objection

by defense counsel.

‘

56. This particular question also violated the historical rule against the use of

prior consistent statements in order to bolster a witness before his credibility

is attacked. Of course, no objection was made by defense counsel.

57. Error for the prosecutor to comment on the defendant's failure to testify.

58. Error for the prosecutor to comment that the defendant was doubly

vicious because, knowing he was guilty, he demanded his full constitutional rights

including trial at which the victim was required to testify.

863-1700

LAW OFFICES WEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313)

M. DEFENSE OPENING STATEMENT -- THE

ALIBI THAT WAS NEVER PRESENTED

Petitioner's attorney outlined his defense in his 1-1/8 Page opening

statement:

Now, we expect to show the defense of an alibi,

that is, Mr. Mulligan was not here. He was not

in Columbus, Georgia at the time that Mr. Whisnant

or Mr. Helms, who will be the witness, claims he

was, that he was in the breast of his own family

back in Beaufort, that at the time that this event

occurred, on or about Easter Sunday, 1974, which

is a date that's significant, it's not just like any

day of the week or any Sunday or any weekend,

it was a special day, that members of his family

will testify to you that Joseph Mulligan was indeed

home. And, his being at home would preclude

him absolutely from being involved in this.

And we would expect based upon this, that you

would return a verdict of not guilty. Thank you.

(TT 77; R 202).

At the conclusion of the state's proofs, defense counsel rested his

case without calling a witness. Needless to say, the prosecutor made hay

in his closing argument of the defense lawyers unfullfilled promise to provide

an alibi defense.

Now, yesterday Mr. Fitt told you in opening statement

that the defensewas alibi. We invoked the rule as to

witnesses, which means the witnesses have to go outside

of the Courtroom and can't hear the testimony. You saw

the defendant's witnesses who were sitting right out

there where they are now, get up and go to the witness

room. The defendant never put those witnesses on the

witness stand, he didn't do it. (TT 249; R382).

Petitioner recognizes that there are many legitimate reasons a

lawyer may change strategy in midstream. Petitioner is further aware that the

record is silent as to the reasons underlying the decision to abandon the alibi

defense. Based on this record, it would be fair inference that it was just

another example of incompetence and lack of preparation. However, taking this

incident at its best, we will consider it just another question unanswered by

the record, which standing alone, may have required a remand. It was another

bizarre turn in a very bizarre case,

ne A ee? Oe . 7 YS ee

LAW OFFICES NEIL H. FINK, '800 BUHL BUI_DING, DETROIT, MICHIGAN 48226, (313) e63-1700

N. DEFENSE COUNSEL'S FAILURE TO POLL

THE JURY

When the jury announced their verdict of guilty as to all counts

at the guilt stage, defense counsel expressed his desire not to poll the jury,

(TT 268;R 401).

Again, when the jury returned their verdict of death as to both

counts, the court inquired of defense counsel as to whether he wished the

jury polled. Once again defense counsel declined the invitation. (TT 306;R 438),

Was there not a possibility that one of the twelve convicting jurors standing in

the courtroom facing Mulligan would have second thoughts about sending this

man to Georgia's electric chair? As remote as that possibility may be, what in

the world did defense counsel have to lose other than a few minutes? Was he

afraid of alienating the jury at this point? There was nothing more that they

could do. Standing by itself , this act or non-act as you will have it, may not

be significant, but in the context of this trial, it is another glaring example

of the defense counsel's complete indifference to his client's cause.

SUMMARY

The Chief Justice of thie Court has demonstrated for more than

a decade an implacable concern for the quality of representation afforded

59 His courageous stand devoted to the improvement of

indigent defendants.

the trial bar has indeed risked the enmity of the trial bar, however, no

amount of law review articles can take the place of a strong United States

Supreme Court decision setting the minimum standard of representation to

be afforded indigent persons accused of crime and a fortiori those accused of

captial crimes.

Petitioner recognizes that there are questions unanswered by this

record. Petitioner also strongly urges that there are enough undisputed facts

29. Burger, The Special Skills of Advocacy, 8 J. Contemp. L. 163 (1977);

Burger, Introduction: The ABA Standards for Criminal Justice, 12 Am. Crim. L.

Rev. 251 4); Burger, Counsel for the rosecution an efense -- Their Roles

Under Minimum Standards, m. Crim, L. Rev. ‘

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LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 48226, (313) 863-1700

in this record demonstrating that Petitioner was denied the kind of competent

representation expected of lawyers in criminal cases. This is the standard we

urge this Court to adopt. We therefore respectfully pray that this Court

use the approach taken by the United States Court of Appeals for the Fourth

Circuit in Marzullo v Maryland, supra:

If the material facts were in dispute or incompletely

developed, we would remand the case for reconsideration

in the light of the standard that we adopted in Part

II of this opinion. But here the attorney's conduct

at the voir dire and the jury's exposure to the

proceedings involving the first indictment are

undisputed matters of record. We believe therefore

that a remand for an evidentiary hearing on the

habeas corpus petition is unwarranted. 56] F2d at

546.

Like Marzullo, the record is adequate to decide the issue without

resort to any state court remedies or federal habeas corpus.

~46-

II, UNDER THIS COURT'S HOLDING IN GODFREY

V. GEORGIA, PETITIONER'S DEATH SENTENCE

CONSTITUTIONALLY IMPOSED IN

THAT GEORGIA CODE ANN. §27-2534,1(b) (7)

WAS NOT DELIMITED BY THE GEORGIA COURTS;

THE MURDER OF MARIAN MILLER DID NOT INVOLVE

TORTURE NOR WAS IT INORDINATELY DEPRAVED;

AND THE JURY'S FINDING OF AN AGGRAVATING

CIRCUMSTANCE UNDER §27-2534.1(b) (2) IS

INSUFFICIENT TO JUSTIFY RETENTION OF THE

DEATH SENTENCE,

The jury's recommendation of death as to Count II was predicated

on the two aggravating circumstances submitted during the penalty stage of

the proceedings. The aggravating circumstances found were defined in Ga.

Code Ann. §27-2534.1(b)(2)°° and §27-2534.1(b) (7).

Underwriting Petitioner's claim that the trial court's instructions

were inadequate to eliminate the possibility that the jury would invoke the

death penalty for arbitrary and capricious reasons is the confusion which marked

the return of their verdict for death. The jury was charged that it could

impose the death sentence as to Count I of the Indictment if it found an

aggravating circumstance under Ga. Code Ann. §27-2534.1(b) (4) (TT 271;

R404). The jury's verdict of death was based on a different aggravating

circumstance, to wit: §27-2534.1(b) (7) 4 The prosecutor brought this to

the attention of the trial judge (TT 305; R 437), however, the trial judge did

nothing to rectify the situation. Predictably defense counsel was silent then

and on appeal as to this blatant disregard of human life.

LAW OFFICES NEIL H. FINK, 1500 SUHL BUILDING, DETROIT, MICHIGAN 48226. (313) 963-1700

The Georgia Supreme Court Sua sponte, vacated Petitioner's

Sentence as to Count I because the evidence did not support a finding of

§27-2534.1(b)(7) or (4) as an aggravating circumstance. (R 7), However, in

its original opinion and its addendum to that opinion, the state supreme court

incorrectly concluded that the death sentence imposed as to Count II was proper

under Godfrey v Georgia, US » 100 SCt 1759 (1980).

It has long been recognized that the imposition of the death penalty

may not be done in a capricious or arbitrary manner, arising out of passion or

60. §27-2534-1(b) (2) provides: "(2) The offense of murder, rape, armed robbery,

or kidnapping was committed while the offender was engaged in the commission of

another capital felony, or aggravated battery, or the offense of murder was

committed while the offender was engaged in the commission of burglary or arson

in the first degree."

61. Since the jury was befuddled at best or indifferent at worst, regarding the

aggravating circumstances as to Count I of the Indictment, it is a reasonable

inference that their state of mind was the same as to Count II.

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963-1700

LAW OFFICES WEIL H. FINK, 15800 SUHL BUILDING, DETROIT, MICHIGAN 46226. (313)

prejudice; for to do so is violative of the Eighth and Fourteenth Amendments.

Furman v Georgia, 409 US 241 (1972).

In its latest efforts to further this constitutional imperative, the

present Court has taken one more step in delineating the proper procedure

to follow in invoking a sentence of death. The Court in Godfrey v Georgia ,

supra has set forth a two-tiered scheme that must be followed if the Georgia

Courts wish to impose a death sentence based upon a finding of an aggravating

circumstance under Ga. Code Ann. §27-2534.1(b) (7) 07 If the scheme is not

complied with, the sentence of death will be vacated.

The first tier of the scheme encompasses the trial court's instructions

to the jury. Since the language of §(b)(7) failsito imply "...any inherent

restraint on the arbitrary and capricious infliction of the death sentence", the

trial court is required to impose a narrowing construction upon §(b) (7) in its

jury charge. Such a narrowing construction is to be grounded upon the

Georgia Supreme Court's prior conclusions dealing with the application of

§(b)(7).°3

In instructing the jury, the trial court shoulc insure that the

evidence that the offense was "outrageously and wantonly vile, horrible or

inhuman" demonstrate "torture, depravity of mind, or an aggravated battery

to the victim", supra at 1766.

Secondly, for a jury to find "depravity of mind", it must find that

the murderer had the type of mental state that led him to torture or to commit

an aggravated battery before killing the victim, supra at 1766.

6c. $27-2534.1(b) (7) states: "The offense of murder, rape, armed robbery,

or kidnapping was outrageously or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind, or an aggravated battery to the victim."

63. See, Harris v State, 237 Ga. 718, 230 SE 2d 1 (1976) and Blake v State,

239 Ga. 292, 236 SE 2d 637 (1977).

Finally, the word "torture" must be construed in pari materia

with "aggravated battery" so as to require evidence of serious physical abuse

of the victim before death, supra at 1766.

As in Godfrey, none of these standards were used in the present

case to delimit §(b)(7) to the jury. Rather, the trial court simply read the

text of the statute in its jury charge. The practice of repeating the language

of §(b)(7) is clearly inadequate to protect against capricious and arbitrary

decisions. The statute offers a jury no guidance concerning its intended

meaning, supra at 1765, and when the jury is allowed to arrive at a decision

under this practice, its interpretation of §(b)(7) "...can only be the subject

of sheer speculation", supra at 1765.

(313) 963-1700

Quite obviously, the type of reasoned and channeled discretion

envisioned in Furman v Georgia, supra, cannot be obtained through the jury

instructions used in both Godfrey and the case at bar. This realization has

compelled the Godfrey Court to adjudge the practice unconstitional, and

to vacate the sentence of death in that case.

The Court should Similarly act in the case at bar. There was nothing

in the proceedings below to channel the jury's discretion. Nor was there anything

done to guard against a capricious and arbitrary decision. The practice followed

in the present case was violative of the Eighth and Fourteenth Amendments under

the Godfrey test. Therefore, Petitioner's sentence must be invalidated.

The second tier of the Godfrey scheme, and the issue upon which

LAW OFFICES NEIL H. FINK, 1800 SUHL BUILDING, DETROIT, MICHIGAN 48226,

that case apparently turned, involves the role of the Georgia Supreme Court

in its sentencing review. Like the trial court, the State Supreme Court is also

required to delimit §(b) (7) by applying the three definitional Standards, supra

at 1767. If the Georgia Supreme Court fails to do this, the present Court

must ask whether, in light of the facts and circumstances of the case, the

State Supreme Court can be said to have applied a constitutional construction

of §(b)(7), supra at 1767,

Jord Sve picimas 1 eet

The United States Supreme Court was forced to do just this in

Godfrey. Since the Georgia Supreme Court had not limited §(b)(7) in

accordance with the standards set out in the Godfrey scheme, the present

Court had to evaluate the State Court's construction of §(b)(7). It determined

that the construction placed upon §(b) (7) was inaccurate because the "Petitioner's

crimes could not be said to have reflected a consciousness materially mcre

'depraved' than that of any person guilty of murder." supra at 1767. The Court

noted that "there was no principled way to distinguish this case, in which

the death penalty was imposed, from the many cases in which it was not",

Supra at 1767. Accordingly, the death sentence in that case was reversed.

Under the Godfrey holding, the death sentence in the case at bar

must be vacated. The Georgia Supreme Court failed to delimit §(b)(7) in the

manner required by the Godfrey scheme. In light of the facts and circumstances

of the present case, it did not apply a constitutional construction of the statute.

In its review of Petitioner's sentence the Georgia Supreme Court did little to

oe:

delimit §(b)(7). Rather than apply the three criteria set forth by its earlier

decisions, the Court in@ cursory fashion concluded that the death sentence

imposed under Count II was not done so under the influence of passion,

prejudice or any other arbitrary factor. (R 8).

In its Addendum to its original Opinion, issued in light of Godfrey

the State Supreme Court once again failed to narrow the meaning of the statute.

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 46226. (313) 963-1700

While it attempted to align its decision with the Godfrey ruling by concluding

that Petitioner had perpetrated serious physical abuse upon his victim, (R 10)

it nonetheless skirted the gist of Godfrey by misinterpreting the aorning of

"serious physical abuse". When the Court in Godfrey offered examples of

serious physical abuse and torture, it cited situations where the victims had

been beaten, burned, raped, strangled, and other heinous acts, °4

64. The Court referred to McCorquodale v State, 233 Ga. 369, 211 SE 2d 577

(1979). (Defendant burned his victim with a cigarette, sliced her with a razor

blade, cut her with surgical scissors and 'poured salt into her wounds); House

v State, 232 Ga. 140, 205 SE 2d 217 (1979) (defendant choked two 7-year-o

boys after forcing them to submit to anal sodomy); Thomas v State, 240 Ga. 393,

242 SE 2d 1 (1977) (victim was beaten, shot and buried alive); Dix v State, 238

° Ga. 209, 232 SE 2d 47 (1977) (victim was strangled so severely her bloo

hemorrhaged through the pores of her skin, the whites of her eyes and her

. eyelids and defendant severed her throat muscles and carved an "S" into her

, abdomen, all while victim was still alive); Birt v State, 236 Ga. 815, 225 SE 2d

248 (1976) (the two victims, who were both in their seventies, were slowly

strangled with coat hangers over a prolonged period of time).

-50-

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NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 46226, (313) 963-1700

LAW OFFICES

Never did the Court imply that shooting a victim in the arm and shoulder

within seconds of firing the fatal shot (if one believes Helms), as in the present

case, constituted serious physical abuse.

Consequently, the state court's conclusion that Petitioner's victim

was seriously abused is unfounded. The Addendum to its opinion failed to

justify Petitioner's sentence under Godfrey.

Even if the other two criteria of the Godfrey test were applied to

the present case, the shooting of Marian Miller would still not justify

imposition of the death sentence.

Nowhere in the record is there evidence that the killing of Ms.

Miller involved "torture, depravity of mind or an aggravated battery." Though

she was shot a total of four times, there hci indication that she was tortured

Moreover, Petitioner did not commit an aggravated batte: 08

Ms. Miller was not deprived of a member of her body or its usefulness, nor

does the evidence support the conclusion that a member of her body was

seriously disfigured.

It is also clear that Petitioner lacked the state of mind necessary

to be considered "depraved". Although the Georgia Supreme Court believes

that such depravity is evidenced by the fact that Petitioner shot Ms. Miller

simply because she was a witness to the other murder, this conclusion is

unfounded under Godfrey. The Godfrey court focused upon the intent to

torture the victims, not the motive behind the Petitioner's acts. Thus,

Petitioner's reason for shooting Ms. Miller is irrelevant under the Godfrey test.

65. Dr. Joe Martin Weber testified that Ms. Miller had been shot four times:

once in the left forearm (TT 203; R 336), a second in the left shoulder (TT 204;

R 337); a third shot in the upper right arm (TT 205;R338); and the fourth

in the back of the skull (TT 205; R338). Dr. Martin stated that there was no

way to determine the order of the shots (TT 203;R 336). It is quite possible

that Ms. Miller was only wounded in her shoulder and arms before her death.

This is not the type of serious physical abuse or torture envisioned by the

Godfrey Court, see n. 64

66. Re nreveted battery" is a term that is defined in Georgia's criminal statutes.

Ga. Code Ann. §26-1305 states: "A person commits aggravated battery when he

maliciously causes bodily harm to another by depriving him of a member of his

body, or by rendering a member of his body useless, or by seriously disfiguring

his body or a member thereof." It appears that this definition has on at least

one occasion been treated by the state trial courts as controlling the meaning of

the same words in §(b)(7). See, e.g., Holton v State, 243 Ga. 312, 317, n.l.

253 S.E. 2d 736, 740, n.1 (1979),

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LAW OFFICES NEIL H. FINK, 1500 BUHL BUILDING, DETROIT, MICHIGAN 40226, (313) 963-1700 aul

Because the Georgia Supreme Court failed to delimit §(b)7) in

accordance with the Godfrey scheme, it is up to the present Court to determine

whether the State Supreme Court applied a constitutional construction of that

Statute. In light of the facts and circumstances of the case at bar, Petitioner's

shooting of Ms. Miller was not inordinately heinous. Like Godfrey, there is

nothing in the present case that distinguishes it from other murder cases in

which the death penalty was not imposed. Petitioner's crimes cannot be

said to "reflect a consciousness materially more depraved than that of any other

person guilty of murder."

Since the procedure used by the Georgia Courts in handling §(b) (7)

was violative of the Eighth Amendment under Godfrey, the next inquiry is

whether the jury's finding of an aggravating circumstance under §(b) (2)

is, in and of itself, sufficient to justify retention of Petitioner's sentence.

Petitioner respectfully asserts that the answer to this question is clearly no.

The fact that the jury found an aggravating circumstance other than that defined

in (b)(7) does not immunize Petitioner's death sentence from invalidity under

Godfrey.

Pursuant to Georgia procedure, a jury involved in the sentencing

process makes its decision only after its attention has been directed to the

specific circumstances of the crime and the characteristics of the person who

committed the crime, Gregg v Georgia, 428 US at 197. The function of the

Statutory aggravating circumstances _to direction the attention of the jury

to all of the relevant factors of the case, supra at 197-198, 206-207. °7

Even though a jury finds that more than one aggravating circumstance

exists, it is nevertheless free to impose a life sentence. While the finding of one

or more aggravating circumstances permits a sentence of death, the finding of

such circumstances never requires that it be imposed, Bowen v State, 241 Ga

492, 246 SE 2d 322 (1978).

67. See, Fleming v State, 240 Ga. 142, 240 SE 2d, 37 (1977); cert denied

100 SCt 177 975

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Under this scheme, each aggravating circumstance plays an important

role in influencing the jury's decision. However, the weight given each

circumstance by the jury is unclear and can only be the subject of "sheer

speculation", 100 SCt at 1765.

If the jury is impermissibly allowed to base its decision upon a finding

of a §(b)(7) circumstance, it is likewise impossible to determine whether the

jury's decision to invoke the death penalty rested equally upon the improper

finding of §(b)(7) and §(b) (2) is the sole reason for its decision.

This situation, which is present in the case at bar, invokes the rule

that any ambiguity as to whether a judgment rests upon a constitutionally

963-1700

unsound footing requires its reversal. 68 Where the jury, through the trial

court's instructions, is permitted to convict upon alternative legal theories,

one of which is constitutionally permissible and the other of which is not,

the jury's general verdict cannot stand. Stromberg v California, 283 US 359

337 US 1 (1949) 7

, ee he

These fundamental principles of procedural fairness

apply with no less force at the penalty phase of a

trial in a capital case than they do in a guilt-deter-

mining phase of any criminal trial. Pressnell v Georgia,

439 US 14, 19 (1978).

In fact, they should apply with added force, because of the heightened "need

for reliability in the determination that death is the appropriate punishment

in a specific case", Woodson v California, 428 US 280, 305 (1979) , 72

LAW OFFICES NEIL H. FINK, 1s¢o SUHL BUILDING, DETROIT. MICHIGAN 48226, (313)

68. See, e.g., Shuttlesworth v Birmin ham, 382 US 87, 91-92 (1965).

69. The Salenhint in Stromberg was convicted under a statute which consisted

of three disjunctive clauses. The conviction was returned in the form of a

general verdict. The Court held the first clause to be unconstitutional because

it was overly broad. Since the Court could not determine if the defendant

had been convicted on this clause alone, or on the other parts of the staute,

the Court reversed the defendant's conviction, supra at 370,

70. The Stromberg decision was affirmed in Williams when that Court stated

".+++if one of the grounds for conviction is involved under the Federal

Constitution, the judgment cannot be sustained", supra at 292.

71. As in Stromberg a multi-sectional statute in Terminello provided the basis

for the conviction of the defendant. Part of the statute was later deemed

unconstitutional and the conviction was consequently reversed. The reversal

was grounded on the fact that since the jury had returned a general verdict,

a reviewing court was unable to determine if the conviction rested upon uncon-

Stitutional section of the statute, or on the sections of statute that were left

Standing.

72. Woodson makes it intolerable that a death sentence should be carried out

where there is any ambiguity in the record as to whether constitutional require-

. ments for capitz! sentencing have been observed. See also, Witherspoon v Illinois |

’ 371 US 570, 522 n. 21 (1968) (requiring that an excluded venire person's

voir dire examination made "unmistakenly clear" that he or she met proper

oe 9 -53-

, a Maes Sr i 5 a tink: PR Se GENE TO ee ee

Neon @

Because it cannot be said with assurance that the improper finding of

a §(b)(7) circumstance played no part in the jury's decision to impose the

death penalty, Petitioner 's death sentence should be vacated. The jury's

finding of a §(b)(2) circumstance does not serve to exempt the death penalty

in the present case from invalidation under Godfrey.

ee ee ee

LAW OFFICES NEIL H. FINK, 1500 SUHL BUILDING, DETROIT, MICHIGAN 46226, (313) 963-1700

72. (continued) constitutional standards for exclusion) and Andres v United

States, 333 US 740, 752 (1948) (In death cases doubts regarding how defective

jury instructions may have affected the jury's sentencing deliberations should

be resolved in terms of the accused),

-54-

ee ’.

CONCLUSION

For these reasons, a Writ of Certiorari should issue to review the

judgment and opinion of the Georgia Supreme Court.

Respectfully submitted,

NEIL H. FINK

1500 Buhl Building

Detroit, Michigan 48226

(313) 963-1700

Counsel for Petitioner

Dated: July 18, 1980

a a |

LAW OFFICES NEIL H. FINK, 1800 BUHL BUILDING, DETROIT, MICHIGAN 4@226, (313) 963-1700

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.