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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1744%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## Text

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.

3

x

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

xi

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
iv

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)

Vv

16

21,22

5, 41,47, 48,
49,50,51,52,
54

30

29,36

2,52

43

22,28, 38

7, 41,48

9

5]

50

6,7,10, 46

18
27
23

- 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)

vi

53
24

~

‘
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)

21

7

29,31

36

29, 33, 38
30

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
4

29

18

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.
L.

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)

ix

9,18

35
22

45

45

45

10

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",

xi

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.

(c) A person convicted of murder shall be punished by
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.
S

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. ° - 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

n.

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.

A

Q: Mr. Rice, where are you employed ?
A Columbus Police Department.

Q

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.

4
LAW OFFICES WEIL H. Finex, 1800 BUHL BUILDING, DETROIT, MICHIGAN seaze. (9

Ten years.

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

oe

Ee tre ee ene. —

D> 2 > D>

A:

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.

-)5-

‘

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

mayen
: on sam ; oar, PARE OE OS TE
. > e

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).

~]7-

(313) 963-:700

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.

-18-

(313) 963-1700

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
? 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),

ii

ee,

1700

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),

. ‘ = - d
VF wens ebae raeaee

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?

-24-
4
ete . ~~ Di i Mi cn linc —— —
ose TE, Ra it en

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

~28-

> NE

a te 5

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

863-1700

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.

~28-

. - - ~~ : -
om r ; ‘
. fui oy 2 dghads x ve SquteaS = = r | al J in) We ~ = ' aw > ee Je YU
q ; o os ee er eee ee an * Yes -
n ‘yy ~
g eee at Fp)

ee

(313) 963-1700

40226,

——— 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.

-30-

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)-

‘ "es ae 4 re Pe Me ie ete - Sa
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,

-33-

3

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

-34-

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:

(c) The prosecutor should not use arguments calculated

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

863-1700

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1744%3A1. Public record. Not legal advice.