# Petition — Fleming v. Austin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1865%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 910 ## Text RECEIVED APR 1 4 1981 OFFICE OF THE CLERK IN THE SUPREME COURT, US. SUPREME COURT OF THE UNITED STATES October Term, 1980 No. GYo-LS06& SON H. FLEMING, Petitioner Vv. SAM AUSTIN, Warden, Respondent. Petition for a Writ of Certiorari to the Supreme Court of Georgia THIS IS A CAPITAL CASE Alan M. Dershowitz 20 Elmwood Avenue Cambridge, MA 02138 (617) 661-1965 Counsel for Petitioner On the brief: Cynthia Hamilton Alex Makowski April 13, 1981 £ II. IIl. Iv. QUESTIONS PRESENTED Does it violate the prohibition against cruel and unusual punishment to execute a defendant who: A) did not participate in a murder or intend the fatal result; B) was not given the benefit of a proper jury instruc- tion on mitigating circumstances; and C) was sentenced to death under procedures that were applied arbitrarily? Does it violate petitioner's right to counsel for this indigent petitioner, facing the death penalty, to have been unrepresented at his preliminary committal hearing where important rights were not preserved and where he was prejudiced? Does it violate petitioner's constitutional rights for the State to have introduced the testimony of its agent and petitioner's cellmate who allegedly elicited incriminating statements from the uncounseled and confined petitioner; and where the State failed to disclose to the jury the deal it had made with the agent-cellmate for his cooperation and testimony? Were petitioner's constitutional rights violated by the statements of the prosecutor and judge impeaching his exculpatory testimony by arguing that he had remained silent at arrest and arraignment? Is it constitutional to execute a defendant who vigorously asserts his innocence, where the trial judge has acknowledged that the evidence does not “foreclose all doubt respecting the defendant's guilt,” where the defendant's representation below was a textbook study of incompetence, where his co-defendant received a sentence of imprisonment, and where the defendant's constitutional rights were massively violated at every stage in the proceedings below? aie Questions PPE « 6 din' kk oo 5 Blam Cale'c ees 6s one s&s who bok eee TABLE OF CONTENTS Table of COOES och co CeSbb ea Coece wi Seo c so escecstscticdecocsaeane Constitutional Provisions Involved... ..cccsescccccccsccsecce Opinion DOR h oo tc ct ae bb o6 OC CME 46 Ob NEES 6 UHO6 34008040 we Se UPL ORCCLGR 6 6.04 oc 0 0s taos eeereereeeeeeeeeeeeeeeeeeeeeeeeeee eee Statement of the COD so 62 26.0.0 0 bubs. 6696.04.68 Ss CHO 64 OOS A. TRE TOROBETOR 6.vclc hs 0 0s coh 2 0 06 Kab Oe Ree 850 ob Re PaCtUBeccoccccvvescscecoeseese eeeee eoseeeeeeeeereeeeeeeee How the Federal Questions Were Raised and Decided Ie sce é ne bee 6 Ode Sd Sis we HEE e Pee eee Reasons for Granting the WetSa i cicvocchcce es shew + ce eae Coenen I. This Case Presents a Novel and Important Eighth Amendment Issue: Does the execution of a man not proven to have either actually participated in the killing or to have intended the death of the victim violate the prohibition against cruel and unusual punishment found in the Eighth and Fourteenth Amend- ments to the United States Constitution?........seseeeee II. Itt. A. Petitioner was convicted of murder and sentenced to death without a jury finding that he actually participated in the killing or intended the death Of the VICtim. cccccccccccccccccccscccesesscescecess It is a violation of the Eighth Amendment's ban against cruel and unusual punishment to execute someone not proven to have actually killed the victim nor intended his death... ..ceeeesensecccecs The judge's charge to the sentencing jury so empha- sized the statutory aggravating circumstances sought by the State and said so little about the mitigating circumstances presented by the defendant that the jury was effectively precluded from giving full consideration to the relevant mitigating, factors, in violation of the principle of Lockett v. Ohio.......... Petitioner has been sentenced to death under proce- dures that were applied arbitrarily and capriciously, and for a crime that is not distinguishable on a principled basis from crimes that are not punished by death, in violation of Godfrey v. Georgia........... A. Petitioner's Death Sentence is the result of an arbitrary and capricious application of Georgia's capital sentencing procedureS......ceeseescesceccces Petitioner's death sentence must be vacated because “there is no principled way to distin- guish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey v. Georgia... ..cccccccccee seseesesces ii a ~tf- -ee Sae 10 ll 1l 13 14 17 19 IV. Petitioner's lack of Counsel at his preliminary committal hearing violated his Sixth and Four- teenth Amendment right to counsel as set forth in prior decisions of this Court.....cccccccccccccccece 22 V. Petitioner's constitutional rights were violated by the admission into evidence of incriminating statements allegedly made by the uncounseled petitioner to his cellmate-government agent, | and by the prosecutor’s failure to disclose the fact that the cellmate's cooperation and testimony was the result of a deal for | favorable treatment... eeeeeeeeeeeeeeeeeeeeeeeeeeeeeere eee 24 VI. Petitioner's constitutional rights were violated by the statements of the prosecutor and the trial judge impeaching his exculpatory testimony by arguing that he had remained silent at arrest and arraignment...... MWoOnClusioOn..cceccccssccccecs APPONGIH.cccccccsteccccvecs eee eevee ereeeeeeeeeeeeeeree eee eeaeeeneeve 26 eeeeevreeeeeeeeeeeeeeereeeeeeeeeeeeee 27 eeeee eee eeoeeeeeeeeeeeeeeeerteeeeeeee 29 iii TABLE OF CASES Page Bachellar y. Maryland, 397 U.S. 564 (1970)... .cccccccccceese 13 Comer V. Gaorgias,. 433: 0.8. S06 (1977) occ ciccccwcccccctvessee S85 26 Coaemen V.: Araneae, FOF O.Bi: B CASFOP iid sic ccoccccceccoetvecvcet’ an Cramer Pe, U.B. » S25 Use FS TPES) ccccccvccccsccvcescceosscoee AS Doyle -v. Ohio, 426 U.S. 610 (1976)... .ccccccccccccccccccccce 4, 26, 2% Fleming v. Austin, unpublished opinion from the Superior Court..of Tattnall County, Ga.: EL9CO)..ccccccocsccececee 1 TORIES Fs" DERG, FOP Gia BAO CISPR icc cicccccesecsescocia: 2 Gardner v. Florida, 430 U.S. 349 (1977). ..ccccccccccccccccee L? Gideon v. Wainwright, 372 U.S. 335 (1963).......cseeeees eserves. ae Giglio v. United States, 405 U.S. 150 (1972) .....cccccccccee 25 Godfrey v. Georgia, 100 S.Ct. 1759 (1980)..... eocnsecasecease Bp Sena 18, 19, 20, 21 Green v. Georgia, 442 U.S. 95 (1979)...... eeesecesscvcecceens AG Gregg V. Georgias 428 U.B. 153 (1976) wcvccccccsccccccceccccece Se ASe Ee 17, 19, 2 Mem Sten F. Asawa, See Veh. SS CLPER ic cccvcsvcvececscecevens Ban an Holloway v. Arkansas, 435 U.S. 475 (1978) .....cseeeececceevee 22, 23 Henry v. United States, 100 S.Ct. 4183 (1980)........... ecce 20, 25 Lockett v. Ohio, 438 U.S. 586 (1978).........-- reer 14, 15, i Napue v. Illinois, 360 U.S. 264 (1959).......eee000s Sesvcece Oe New York Times v. Sullivan, 376 U.S. 254 (1964)........2++.-- 13 Peek v. State, 239 Ga. 422 cert. den., 439 U.S. 882 (1978)... 19 Rose v. Moffitt, 417 U.S. 600 (1974)... cccceccnceececeeveees SO Sandstrom v. Montana, 442 U.S. 510 (1979). ....eeeeeeeeeeeeee 13 Spivey v. State, 241 Ga. 477, cert. den. 439 U.S. 1039 (197B) wc ccccccccccccccvcesccesccscccscceseesesceceseeees 16 State v. Hightower, 236 Ga. 58 (1976)... eeeeeeeeeneeeeveee 22 State Ve Houston, 234 Ga. 721 LASTS cacevecceceavescetsesese 22 Stromberg v. California, 382 U.S, 359. (1931) .....eeeeeeeeeee 13 Terminiello Vv. Chicago, 337 a # 1 C2OES) ic ccccesecvccesecces 13 United States v. Butler, 565 F.2d 885 (9th Circuit, 1978)... 25a -iv- White y. Maryland, 373 U.S. 59 GRPOOR occwesegecisogecocessse Smee Williams y. State of North Carolina, 317 U.S. 287 (1942).... 13 Willis v. State, 243 Ga. 185, cert. den. 100 S.ct. 178 PES wELME NOES 00th beds eee SOD ReEWE HS eee wb ccheneedné Woodson v. North Carolina, 428 U.S. 280 (1976)........cceces Yates v. United States, 354 U.S. 298 (1957)... cc ccc cc ccc ccc State Statutes: Ga. Code Ann. § 27-2534.1 ee ee eeee oeee ee eee eeeeee Feseeeeereeee U.S. Const. Amend. VV. eeeee we eeeeeeee eee eee eee ee eee eee eens . AMONG. VI .ccccccccccces er eoccccccccccccce ° SUMS. WEEE cvsavcestsvsveuyausetvecioanes sane coe -V- — S| en Constitutional and Statutory Provision Involved United States Constitution: Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Amendment VI: 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the Witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Georgia Code: Petitioner's case involves Ga. Code Ann. §27-2534.1. The text of this statute is included in the Appendix. -vi- IN THE SUPREME COURT OF THE UNITED STATES October Term, 1980 No. SON H. FLEMING, Petitioner Vv. SAM AUSTIN, Warden, Respondent. Petition for a Writ of Certiorari to the Supreme Court of Georgia The petitioner Son H. Fleming respectfully prays that a writ of certiorari issue to review the order of the Supreme Court of Georgia entered in this proceeding on October 21, 1981. The order denied petitioner's appli- cation to appeal a decision of the Superior Court of Tattnall County, Georgia, refusing a writ of habeas corpus. Petitioner has been sentenced to death on a charge of first degree murder. =e OPINION BELOW No opinion was rendered by the Supreme Court of Georgia. Copies of the Supreme Court's orders jeuueites the request for habeas corpus, and the opinion by the Superior Court of Tattnall County (not reported), appear in the Appendix hereto. Also included in the ‘\ppendix are the opinions of the Supreme Court of Georgia on November 8, 1977, affirming petitioner's conviction and January 24, 1979, affirming the petitioner's death sentence. JURISDICTION Petitioner was convicted on a charge of first degree murder on January 26, 1977, in the Superior Court of Lanier County, Georgia, and sentenced to death by electrocution. On November 8, 1977, the judgment of the Supreme Court of Georgia was entered affirming the conviction, vacating the sentence, and ordering a new trial on the question of punishment. Petitioner was again sentenced to death on December 9, 1977, after a change of venue to the Superior Court of Cook County, Georgia. On January 24, 1979, the judgment of the Supreme Court of Georgia was entered affirming the sentence. A timely petition for a rehearing was denied on February 14, 1979. A petition for writ of certiorari was denied by the United States Supreme Court on October 1, 1979. On July 1, 1980, petitioner's application for a writ of habeas corpus was denied by order of the Superior Court of Tattnall County, Georgia. The Supreme Court of Georgia entered an order denying petitioner's application for a certificate of probable cause to appeal the Superior Court's decision on October 21, 1980. A timely motion for reconsideration was denied on November 14, 1980. On January 29, 1981, the Honorable Lewis Powell of the United States Supreme Court granted an application for an extension of time to file a petition for writ of certiorari to and including April 13, 1981. The juris- diction of this Court is invoked under 28 U.S.C. §1257(3). STATEMENT OF THE CASE A. Introduction This case, involving an innocent black defendant awaiting execution on Georgia's death row, raises the most fundamental constitutional questions about the administration of capital punishment in Georgia. Defendant is on death row awaiting execution, 1) despite an acknowledgement by the trial judge himself that the evidence in this case does not "foreclose all doubt respecting the defendant's guilt" ;-/ and 2) despite the fact that petitioner's far more culpable co- defendant was sentenced to life imprisonment for his far greater role in the crimes at issue. There are grave doubts in this case about the defendant's involvement in the murder of James Giddens. Indeed the only certainties reflected in the record below are that defendant's constitutional rights-- pre-trial, during trial, and post-trial--have been massively violated, and that for this defendant to be executed on the basis of this record would make a mockery of the claim that "when a defendant's life is at stake, the Court has been par- ticularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia 428 U.S. 153, 187 (1976). The pre-trial, trial, and post-trial proceedings in this capital case are a textbook study of incompetence, sloppiness and casual disregard of basic rights. This case would be a mockery of justice even if it were not a capital one. As a capital case, it cannot be permitted to reach its deadly result. This Court must intervene and grant review to save Son Fleming from an unjust and unconstitutional death. */7 The trial court so stated in its official Report (pg. 4) concerning petitioner's second sentencing trial. (Attached at Appendix G). For a déscription of the important role this report is supposed play in facilitating review of the constitutionality ofa death sentence, see Gregg vs Georgia, 428 U.S. 153, 167-68‘ (1976). gy rn green > Defendant was convicted and sentenced to death on the basis of a jury instruction which invited the jurors to convict him of murder and sentence him to death even if they concluded that he did not fire the fatal shot nor intend the fatal result. Moreover, the only evidence that the defendant ; personally participated in the actual killing--evidence which the jury was not obligated to believe in order to convict or sentence to death--was a supposed "confession" allegedly made by the defendant to a white inmate who the defendant had never previously met. That inmate volunteered, obviously in exchange for his immediate freedom, to assist the prosecution in eliciting incriminating information from his cellmate and then to testify. The jury was never apprised of this deal, and the inmate was freed immediately after his testimony and has never been heard from since. Defendant vigorously denies that he ever made any "confession" to the inmate and has constantly maintained--both before the alleged confession and afterwards--that he did not shoot the victim or intend the fatal result. Moreover, the prosecutor was allowed to argue to the jury--in plain violation of this Court's holding in Doyle v. Ohio, 426 U.S. 610 (1976)--that the exculpatory testimony given by defendant at his trials should be disbelieved, since he had not offered his explanations to the arresting officers at the time of his arrest. It is not surprising, however, that despite his innocence, the defendant--a semi-literate black--was convicted and sen- tenced to death, since his "defense", both before and at trial, constituted a massive violation of his 6th Amendment right to counsel. The defendant, facing the punishment of death, was not represented by counsel at the pre-trial committal hearing--a crucial stage in the Georgia criminal process. His defense attorneys did not conduct an investigation of the circumstances surrounding the case; filed no discovery motions; were unaware until trial of the existence of ail but one of the prior statements made by the defendant to law enforcement officials; did not obtain a copy of the statement — —— LOL) a I Fe eee rR rrr ere ee ee pee en + ge nr ee -_ Or -4- tt i ee ee i i a i i i i ee ee ee Bell i -— pare Re i a, eee _ —— of which they were aware before trial; did not know before trial whether any of the pre-trial statements was accompanied by a waiver of rights; failed to object when the trial judge asked the defendant--really gave judicial testimony--about a prior hearing, in a manner designed to persuade the jury that the petitioner was lying; actually argued to the jury that petitioner was lying in part of his testimony, thereby abandoning their client's interests; presented two contradictory theories of defense to the jury, as a result of their failure to investigate or discover the circumstances of the case and their resultant surprise at the evidence at trial; and did not offer any evidence of mitigating circumstances at the sen- | tencing trial, though much was available’ Because of this massively inadequate representation, both at trial and on direct appeal, the defendant is facing execution without having had his day in court. He is represented before ‘this Court by volunteer out-of-state counsel--who is ' Serving without fee or expenses--because petitioner has been unable to secure representation by a Georgia lawyer, and because this Court makes no provision for the appointment of counsel at the critical certiorari stage, even in capital cases. Russ _v. Moffitt, 417 U.S. 600, 617 (1974). z, “Now, they [the prosecution] have said much about on's not telling the truth. I don't know but what I agree with them. . . I don't think Son was beat by those policemen. I don't believe it, not one bit in this world." Tr. 2, at 465. The following abbreviations for transcript references will be nsed. "Tr. 1": for the transcript of petitioner's first trial encompassing conviction and sentence. _ “Args. of counsel": for the transcript of the arguments of counsel at petitioner's first trial. “Tr. 2": for the transcript of petitioner's second sentencing trial. **/ In addition, trial counsel did not request a change of venue in spite of prejudicial pre-trial publicity and community hostility to the d:fcndant; did not request a hearing on Mr. Fleming's competency to stand trial or any testimony concerning his mental condition; failed to voir dire prospective jurors meaningfully and agreed to excuse jurors with scruples about the death penalty who were not legally excusable for cause; did not object to the prosecutor's repeated references, questions and argument concerning crimes that defendant might have committed, for which he had never been arrested or charged; 8nd allowed the case to go to the’ juryon incorrect theories of law without objection. i all Even if defendant's conviction were not constitution— ally tainted--which it most certainly is--his capital sentence cannot stand since the trial court's instruction to the jury invited it to impose the death penalty even if it found that defendant neither fired the fatal shot nor intended the fatal result. The instruction on mitigating circumstances was also constitutionally inadequate. Moreover, the Georgia capital punishment statute itself is unconstitutional, since it provides a harsher penalty--execution--for the killing of a policeman than for the killing of an ordinary citizen; our Constitution does not tolerate a class or caste system under which the livesof certain special citizens are deemed to be more valuable than the lives of other ordinary citizens. Finally, the facts of this case--even taken in the light most favorable to the State, which is not the standard for reviewing capital sentences--do not make out the kind of extraordinarily heinous murder warranting the most extreme penalty. The murder in this case was less heinous than the one at issue in Godfrey, and this defendant's role in the murder--even assuming the accuracy of the disputed “confession” to his cellmate--was no more heinous than Godfrey's role in that murder. Petitioner's co-defendant received a life sentence for his far more substantial participation in the same events. Thus, the roulette wheel of injustice--a roulette wheel unfairly skewed against petitioner in this case--has landed him on death row, while granting his co-defendant the right to live. In sum, therefore, it must be emphasized that this defendant vigorously asserts his innocence of the crime for which he has been sentenced to die. The trial judge agrees that the evidence--including that presented at the trial and at both sentencing proceedings--does not “foreclose all doubts respecting the defendant's guilt.* Significant Constitutional issues are presented by this petition as well--issues going to the validity of the conviction and sentence. Our nation prides itself on never executing innocent persons, and on being “particularly sensitive -}- to insure that every safeguard is observed" when life is at stake. Here we have a defendant whose vigorous assertion of innocence is supported by the record and by the trial judge's acknowledgement that there are lingering doubts about his guilt. Mere we have a defendant whose safeguards were massively violated by the almost casual manner in which his defense and trials were conducted. He has exhausted all review--both direct and collateral--in the State court system. If this defendant is allowed to be killed without review by this Court, these boasts will become hollow mockeries. B. facts Petitioner Son H. Fleming is a 43-year-old semi-literate black male who has been tried and sentenced to death for his alleged role in the murder of James Giddens, the white police chief of Ray City, Georgia. Fleming has spent all of his life in rural southwestern Georgia, where he worked as a common laborer. Prior to the events of this case, his criminal record was limited to convictions for misdemeanors and other minor charges. On the night of February 11, 1976, two black men robbed a grocery store near Adel, Cook County, Georgia. Shortly after the robbery, Chief Giddens spotted a car that aroused his suspicions. He followed the car, radioed that he was stopping it for investigation, and was never heard from agair Giddens’ empty patrol car was found by the side of the road a few minutes later. Two hours later the suspect car was spotted again, travelling at a moderate rate of speed a few miles from Ray City. Two policemen stopped the car, and ordered the three occupants out. One of them was the petitioner, who was driving the car. The other two were the petitioner's nephew, Larry Fleming, and a friend of the nephew, Henry Willis, both of whom were later identified as the men who had committed the robbery. The policemen asked where Giddens was, and the three replied they didn't know. The policemen then searched the car, found a bag of money and two handguns, and arrested the three men. Giddens' body was found the next day. In January of 1977, Son Fleming was tried for his role in Giddens’ death. The only evidence linking Fleming with the Giddens killing was the inconsistent testimony of two men who claimed to have been taken into Fleming's confidence. One was Sheriff Ray Alderman, who had known Fleming for 30 years. Alderman testified that he had talked with Fleming, at Fleming's request, several days after his arrest. Fleming allegedly told Alderman that his two passengers “had Overpowered Giddens after the police chief had ordered their car to the side of the road. Fleming had pleaded with the two to spare Giddens' life, but to no avail. The other man testifying to an alleged confession from Fleming was Ira Bass, a white male serving concurrent sentences for child molestation. Bass, who had never met Fleming prior to their incarceration in the Cook County jail, claimed that Fleming sought him out within hours of his incarceration; that Bass then offered to help the prosecution; and that Fleming eventually confessed, among other details, that he had fired the first (and non-fatal) shot at Giddens. Bass's testimony relating Fleming's alleged confession was the only evidence to show that Son Fleming actively participated in the shooting of Giddens. Without Bass's testimony, the evidence supports petitioner's contention that he is totally innocent. Without the uncorroborated and inherently suspect hearsay testimony of the cellmate-agent, there is no evidence that petitioner participated in the original robbery of the store in Adel, Georgia. Two men--Henry Willis and Larry Fleming--went into the store brandishing the .22 caliber pistol that was later used in the killing. Without the cellmate-agent's testimony, the only evidence is that petitioner was in the car when it was stopped by Officer Giddens; that he pleaded with the others not to kill Giddens; that Giddens ran from the car and was wounded first at a distance of 40-50 feet by a shot from his own gun; and that Giddens was then killed at Close range by Willis who followed Gidden into the pond. The gun used belonged to Willis and had been brandished by him earlier that night. Willis' clothes were found in the trunk of the car. They were wet. Petitioner's clothes were dry. Under these facts, petitioner is simply not guilty of the crime of murder, for which he stands convic ed and for which he was sentenced to die. The jury found Son Fleming guilty of the murder of James Giddens. At the subsequent sentencing hearing the jury found that the government had proved two aggravating circumstances-- that the victim was a police officer in the performance of his duties, and that the death occurred in the course of a capital felony (kidnapping with bodily injury)--and recommended the death penalty. That sentence was overturned by the Georgia Supreme Court because the trial judge failed properly to instruct the durors that they should disregard portions of the prosecutor's closing arguments and that they could sentence petitioner to life imprisonment even if they found the existence of an aggravating circumstance. At the second trial held to re-sentence Son Fleming, much of the same evidence was presented to the new jury. Ira Bass, however, was not available to testify. He had been released on probation within days after his testimony at Fleming's first trial, on the recommendation of both Fleming's prosecutor and presiding judge. The Georgia police were unable to locate him to testify at the new sentencing hearing, and his present whereabouts are unknown. The transcript of Bass's testimony from the first trial was read to the jury at the second. The same aggravating circumstances were charged, and Son Fleming was again sentenced to death. Additional facts are set out where appropriate in the body of this petition. -10- HOW FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW ZI., 222. The arguments that petitioner's death sentence II. IV. vi. was excessive (the Lockett issue) or disproportionate to the penalty imposed in similar or less serious cases (the Godfrey issue) were rejected by the Supreme Court of Georgia following the second sen- tencing trial. Fleming v. State, 243 Ga. 120, 123 (1979). The arguments were then raised in petitioner's application for habeas corpus, but rejected by the Court. Fieming v. Austin, unpublished opinion from the Superior Court of Tattnall County, pages 8-9, (1980). At the second sentencing trial, petitioner's counsel objected, once the jury had retired to begin their deliberations, to the emphasis on aggravating circum- stances created by the judge's choice of language and the use of the court-supplied forms for reporting aggravating circumstances. No corrective instructions were issued. (Tr. 2, pages | 492-493.) The issue was also raised on appeal to the Supreme Court of Georgia following the second sentencing hearing and again in the petition for habeas corpus to the Superior Court of Tattnall County. It was rejected by both courts. 243 Ga. 120, 122. Tattnall County opinion, pages 9-10 (1980). The failv.* to provide petitioner with counsel for his committal hearing was raised as soon as new counsel replaced the original court-appointed counsel in the petition for a writ of habeas corpus. It was denied in the court's order. Tattnall County opinion, page 28-29. The claim that the use of Ira Bass's testimony was constitutionally improper because the jury was not informed of the arrangements made to secure the witness's testimony was raised in petitioner's request for habeas corpus, and dismissed by the Court's order. Tattnall County opinion, page 25. The argument that any use of the Bass testimony was a violation of petitioner's Sixth Amendment rights to counsel was not raised below. Direct appeals and the application for a writ of habeas corpus both occurred before the United States: Supreme Court handed down its decision in Henry v. United States, which is controlling on the use of government informants in prison. Objections to the prosecutor's and judge's references to petitioner's post-arrest silence were raised on petition for habeas corpus; the conduct of the judge was addressed in the order denying the petition, Tattnall County opinion, page 19. & -li- REASONS FOR GRANTING THE WRIT I. This Case Presents a Novel and Important Eighth Amendment Issue: Does the execution of a man not proven to have either actually participated in the killing or to have intended the death of the victim violate the prohibition against cruel and unusual punishment found in the Eighth and Fourteenth Amendments to the United States Constitution? In Lockett v. Ohio, 438 U.S. 586 (1978), the plurality opinion of this Court expressly reserved the following question: whether, "the death penalty is constitutionally disproportionate for one who has not been proven to have taken life, to have attempted to take life, or to have intended to take life." Id. at 609 n. 16. The facts of this case place that issue squarely before the Court. The issue is not only of crucial importance to petitioner, but may well mean the difference between life and death for many other defendants, for as Justice White noted in his separate opinion in Lockett, ", . .approximately half of the States have not legislatively foreclosed the possibility of imposing the death penalty upon those who do not intend to cause death.” Id. at 625. A. Petitioner was convicted of murder and sentenced to death without a jury finding that he actually participated in the killing or intended the death of the victim. The trial court in this case instructed the jury that it could convict the defendant of intentional murder on the basis of accessorial liability growing out of a conspiracy theory. He instructed the jury as follows: "Where a conspiracy is shown, the act of one becomes the act of all, insofar as the furtherance of the conspiracy is concerned, and each is as fully responsible for the act of the other in carrying out the common purpose as if he, himself, had committed the act.” (Tr. 1 at 5ll). After the jury had begun their deliberations, they asked the judge to explain again the law as to conspiracy. Tr.} at516. The judge complied by repeating the charges he had previously given as to aiding and abetting and conspiracy. (Tr. 1 at 516.) The prosecutor also repeatedly emphasized that "what one did, the other is guilty of" in both his opening and closing arguments to the jury in the guilt phase of the first trial. (Args. of "Counsel", 14, 28, 34.) It is equally clear that the sentencing jury need not have found that petitioner himself killed Giddens to sentence him to death. The first statutory aggravating circumstance found by the jury related only to the identity of the victim, the fact that he was a police officer. The second statutory aggravating circumstance was that the murder was committed while the petitioner was "engaged in the commission of another capital felony,” the kidnapping of and bodily injury to Giddens. Ga. Code Ann. 27-2534.1(b) 2, 8. Since the jury was never instructed as to what constituted "bodily injury", they could quite easily have assumed that the shooting done by Larry Fleming and Willis constituted the bodily harm, This is particularly possible because the prosecutor once again argued, in both his opening and closing statements, that "The act of one is the act of all." (Tr. 2 at 44, 425)-/ Moreover, the bulk of the state's evidence demonstrated that petitioner did not in fact participate in the actual killing of James Giddens.—/ In light of the trial court's instructions, the arguments of the prosecutor, and the evidence presented, it must be presumed that petitioner has been convicted of murder and sentenced to death even though he himself did not kill Giddens and neither jury believed that he did. Neither jury was required to find that petitioner himself committed #7 The same of course can be said for the verdict of the first sentencing jury, as they found the same two aggravating circumstances, were not charged as to the definition of "bodily harm", and heard the prosecutor argue that ~ what one did they all did” (Args. of Counsel at 71.) **/ §=See supra at p. 8, 9. -13- the killing, and neither jury did so find. Since the jury's verdicts do not reveal whether or not they believed that petitioner killed or intended death, the constitution- ality of petitioner's sentence must be reviewed on the assumption that they did not. Bachellar v. Maryland, 397 U.S. 564, 569-571 (1970) oS this principle applies with special force when someone has been sentenced to die, for "...the qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Lockett v. Ohio, 438 U.S. 586, 604 (1978). B. It is a violation of the Eighth Amendment's ban against cruel and unusual punishment to execute someone not proven to have actually killed the the victim nor intended his death. As noted above, this Court in Lockett explicitly reserved the question of whether death is a disproportionate punishment for one not proven to have actually killed or intended death. However, the Court's opinions, both prior and subsequent to Lockett, have strongly implied that the penalty of death would be unconstitutionally disproportionate for one who has not himself killed or intended to kill. In Gregg v. Georgia,428 U.S. 153 (1976), the Court stated that ", . « when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime.” Id. at 187 (footnote omitted) (emphasis added). In Coker v. Georgia, 433 U.S. 584 (1977),the Court held that the death penalty ". . .is an excessive penalty for the rapist who, as such, does not take human life" Id. at 598 (emphasis added). In Lockett itself, the Court held that */ A deeply rooted principle of law ". . .requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is ig ae to tell which ground the jury selected." Yates v. U.S. 354 U.S. 298, 312 (1957). See Sandstrom v. Montana, 442 U.S. 510, 526 (1979); Street v. New York, 394 U.S. 585-87 (1969); New York Times v. Sullivan, 376 U.S. 254, 284 (1964); Terminiello v. Chicago, 337 U.S. 1, 5 (1949); Cramer v. U.S.,325 U.S. 1, 36 n. 45 (1945); Williams v. State of North Carolina, 317 U.S. 287, 292 (1942); Stromberg v. California, 382 U.S. 359, 368 (1931). -14- the sentencing authority cannot be precluded from considering any relevant mitigating factor, and specifically identified "the absence of direct proof that the defendant intended to cause the death of the victim” and "the defendant's compara- tively minor role in the offense" as factors the unconstitu- tional sentencing procedure had excluded from consideration. Lockett v. Ohio, supra 438 U.S. at 608. Finally, in Green v. Georgia, 442 U.S. 95 (1979), the Court vacated a death sentence because evidence that the petitioner himself had not participated in the murder had been excluded as hearsay. The Court termed this evidence ". . .highly relevant to a " critical issue in the punishment phase of the trial. . . Id. at 97 (emphasis added). See also Lockett v. Ohio, supra 438 U.S. at 613-616 (opinion of Blackmun, J.); id. at 619-620 (opinion of Marshall, J.); id. at 624-628 (opinion of White, J.} The decision of the Supreme Court of Georgia to let petitioner's death sentence stand without proof that he either actually killed or intended the death of the victim is in direct conflict with the implications of these decisions. If death is an excessive punishment for a rapist, who commits the "ultimate violation of self" short of homicide, Coker v. Georgia, supra, 433 U.S. at 597, it is even more excessive for one who has been sentenced to die under a theory of vicarious liability. II. The judge's charge to the sentencing jury so emphasized the statutory aggravating circumstances sought by the State and said so little about the mitigating circum- stances presented by the defendant that the jury was effectively precluded from giving full consideration to the relevant mitigating factors, in violation of the principle of Lockett v. Ohio. In Lockett v. Ohio, supra, 438 U.S. at 604, this Court quoted from Woodson v. North Carolina, 428 U.S. 280, 304 (1976), saying “in capital cases the fundamental respect =iS« for humanity underlying the Eighth Amendment. . .requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflic- ting the penalty of death." In Lockett itself, the Court held that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital cases, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 438 U.S. at 604 _ (footnotes omitted). The judges’ instructions to the sentencing jury (Appendix H) effec- tively precluded this constitutionally required consideration of mitigating circumstances. The judge never mentioned the specific mitigating circumstances urged by the defense,_’ and in fact only spent two sentences discussing mitigating circumstances at all. One sentence gave a general definition of “mitigating circumstances" (Tr. 2 at 484), and the other charged the jury ". ..[to] consider evidence as to the miti- gating circumstances which the Defendant contends exist in this case." (Tr. 2 at 486) .—/ In contrast, the judge gave a detailed recital of the statutory aggravating circumstances sought by the State (Tr. 2 at a/ The specific mitigating circumstances proffered by the defense were petitioner's lack of involvement in the actual killing, his low intelligence, and his exemplary conduct in jail. (Tr. 2 at 468-70, 477, 479.) we / The judge mentioned the words "mitigating circumstances" In two other places, one when stating that "The law provides that the Judge shall instruct the jury concerning mitigating or aggravating circumstances. . ." (Tr. 2 at 484), and the other in connection with another part of the charge concerning the jury's consideration of statements made by a defendant. (Tr. 2 at 481). y “=iée 485). He also provided the jury with forms containing the wording of the suggested statutory aggravating circumstances and gave detailed instructions upon the use of the forms. (Tr. 2 at 485, 487-491).-’ He finally stated to the jury "Now, you have two aggravating circumstances. You could find one or two or both, but which ever one you find or if you find both you have to write it in here the ones you find.” (Tr. 2 at 490) (emphasis added). SUCh a lopsided charge in effect tells the jury that the judge gives short shrift to the proffered miti- gating circumstances and thus leads to the practical elimination of this "constitu- tionally indispensable part of the process of inflicting the penalty of death," Woodson v. North Carolina, supra, 428 U.S. at 304. Georgia law specifically states that "the judge . .. 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 the evidence. . ." Ga. Code Ann. §27-2534.1(b) .—-/ (emphasis supplied). This Court approved the Georgia statute in Gregg v. Georgia, 428 U.S. 153 (1976) in part based upon an understanding that "“th[is] statute permitted the jury ‘to consider any aggravating or mitigating circumstances.'" Lockett v. Ohio, supra, 438 U.S. at 606. For the judge to fail to charge the jury as to any of the specific mitigating circumstances presented by petitioner not only contravenes the statute, but makes a mockery ef the expectations of this Court that were voiced in Gregg and Lockett. ad Georgia law requires that "the statutory instructions As determined by the judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation.” Ga. Code Ann. §27-2534.1(c). ee} Despite this plain mandate of the statute, the Georgia “Supreme Court has ruled that the trial court need not charge the jury as to the specific mitigating circumstances proffered by the defendant. Spivey v. State, 241 Ga. 477, 246 S.E. 2d 288, 291 (1978), cert. den. oD (1978). ‘The rationale for this ruling was that *. . .Georgia law nowhere defines mitigating circumstances. . . The conclusion is inescapable that the legislature meant to empower the jury to consider as mitigating anything they found to be mitigating, without limitation or definition." Id. at 290-291. This reasoning would seem to lead, however, to the further conclusion that the trial court is required to instruct the jury on all the mitigating circumstances argued by the defendant, Father than not required to instruct them on any. -j}- III. Petitioner has been sentenced to death under procedures that were applied arbitrarily and capriciously, and for a crime that is not distinguishable on a principled basis from crimes that are not punished by death, in violation of Godfrey v. Georgia. In Godfrey v. Georgia, 100 S.Ct. 1759 (1980), this Court stated that it "is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion." Id. at 1767, quoting from Gardner v. Florida, 430 U.S. 349, 358 (1977). Two corollaries of this principle were soatticeed te Godfrey. The first is that a State “has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty." Godfrey v. Georgia, supra, 100 S.Ct. at 1764. The second is that "“[a) capital sentencing scheme must, in short, provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it isnot.'" Id., quoting from Gregg v. Georgia, 428 U.S. 153, 188 (1976). Because these constitutional mandates have been violated in petitioner's case, this Court must vacate petitioner's sentence of death. A. Petitioner's Death Sentence is the result of an arbitrary and capricious application of Georgia's capital sentencing procedures. In Godfrey v. Georgia, supra, this Court said that a State ". . .must channel the sentencer's discretion by ‘clear and objective standards' that provide ‘specific and detailed guidance' and that 'make rationally reviewable the process for imposing a sentence of death.'" Id. at 1764-65 (footnotes omitted). In striking down the overly broad application of one of Georgia's aggravating circumstances to Godfrey, the Court stated that "(t]he other statutory aggravating circum- stances upon which a death sentence may be based. . .are considerably more specific or objectively measurable than -18- [the aggravating circumstance at issue in Godfrey.) ." Id. at 1762, n. 2. Even if the other statutory aggravating factors may appear to be “specific” and "measurable", the random manner in which Georgia has applied them has sesulted in the totally arbitrary infliction of the death penalty upon the petitioner, as is demonstrated by comparing petitioner's case with those of his co-indictees--as well as with the facts in the Godfrey case. In this case, three defendants, petitioner, Henry Willis, and Larry Fleming, were separately tried for and convicted of the murder of James Giddens. The jury in Larry Fleming's case was charged as to three aggravating circumstances. The first was that the victim was a police efficer, the second was that the murder was committed to avoid lawful arrest, and the third was that the crime was “outrageously or wantonly vile. . ." Ga. Code Ann. 27-2534.1(b) 7, 8, and 10. The jury made no finding as to the existence of any of these aggravating circumstances and sentenced Larry Fleming to life in prison. Petitioner, on the other hand, who from all the evidence in the record was far less culpable than Larry Fleming, was sentenced to die by another jury for committing--at worst--the same crime. Petitioner's jury found as an aggravating circumstance that the victim was a police officer (not found by Larry Fleming's jury although the victim was the same) and that the murder was committed in the course of another capital felony, an aggravating circumstance not even presented to Larry Fleming's jury. Such procedures and results in the same case are stark evidence that Georgia has not fulfilled its “constitutional responsi- bility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. "-/ Godfrey v. Georgia, Supra at 1764. o7 In the case of the third defendant, Henry Willis, who was the actual gunman who personally “executed” Giddens, the jury was charged as to the same three aggravating circum- stances that were presented in Larry Fleming's case. Willis' jury found the existence of all three and sentenced Willis to die. Willis v. State 243 Ga. 185, 253 S.E.2d 70, cert. den. 100 S.Ct. 178, reh. den. 100 S.ct. 475 (1979). — A comparison of the facts of petitioner's case with those in Godfrey itself “underscores this arbitrariness. After a telephone argument with his estranged wife, Godfrey took his shotgun to the trailer where his wife was playing cards with his mother-in-law and his ll-year-old daughter. He proceeded to shoot his wife in the head, strike his young daughter with the gun, and shoot his mother-in-law in the head. Id. at 1763. The total arbitrariness of the Georgia capital punishment scheme is shown by the fact that in Georgia, a murder may be punishable by death if it ". . .was committed while the offender was engaged in the commission of another capital felony." Ga. Code Ann. 27-2534.1(b) (2). The two murders in Godfrey occurred within such a short period of time of each other that it seems clear that under Georgia law, one murder could have served as an aggravating circumstance for the other. See, e.g. Peek v. State 239 Ga. 422, 238 S.E. 2d 12, cert. den., 439 U.S. 882 (1978 ) (second murder was aggravating circum- stance for first murder). If Godfrey had been convicted of one murder and sentenced to death on two aggravating circum- stances, instead of being convicted of two murders and sen- tenced to death on one aggravating circumstance, he might now be dead. However, the judge apparently did not charge the jury that this aggravating circumstance could be found, and in any case, it was not so found. Godfrey, supra at 1764. Surely life and death should not, and under Furman cannot, hang on such chance or discretionary use of aggravating factors. B. Petitioner's death sentence must be vacated because “there is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey v. Georgia, supra at 1767. In Gregg v. Georgia, supra, this Court stated that "...the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Id. at 184 (footnote omitted). The Court emphasized its belief that the “extreme sanction [was] suitable to the most extreme of crimes,” id. at 187, by reaffirming in Godfrey that “[a] capital sentencing scheme must, in short, provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.'" Godfrey v. Georgia, supra, 100 S.Ct. at 1764, quoting Gregg v.- Georgia, supra, at 188. No such meaningful basis exists in this case. There is nothing in the facts of this case to make it any more heinous or deserving of the extreme penalty than in the facts of the approximately 20,000 murders and 100 murders of policemen that occur in this country every year. Every killing is a tragedy; every killing of a police officer is a tragedy. This case did not involve lingering torture, multiple murder, or other factors which would make it more monstrous than the vast majority of murders that are not punished by death. Indeed, the Supreme Court of Georgia described the crime in this case as "...an uncomplicated murder of a police officer...°-/ The fact that the victim was a police cfficer cannot, by itself, constitutionally transform this crime into one deserving of death. It is a fundamental tenet of the U.S. Constitution--and of American society in general--that all people are equal. We eschew castes, classes and statuses. Punishment may not differ on the basis of the race, gender or religion of either the perpetrator of the crime or his victim. Yet the Georgia capital punishment statute carries, in effect, a different penalty for the murder of a policeman than for the comparable murder of an ordinary citizen. This is a return to the discredited days of the vergelt, under bd Willis v. State, 243 Ga. 185, 253 S.E.2a 70, 71, cert. en. 100 S.Ct. 178, reh. den. 100 S.Ct. 475 (1979). -21- which the lives of different persons were valued differently. The lives of all people in this country are worth precisely the same, regardless of status, wealth or occupation. It cannot constitutionally be a more serious crime--or a crime punishable by a more serious punishment, especially the punishment of death--for a defendant to murder a policeman than to murder an “ordinary” citizen.—/ Moreover, there are no compelling social reasons for such a distinction. The fact that policemen are engaged in the risky occupation of protecting the public cannot justify the distinction; indeed the distinction, if permissible, would seem to operate in precisely the opposite direction. The policeman's family--if there is a family--is far better prepared, both emotionally and financially, to cope with the death of their breadwinner than would be a comparable family, not affiliated with the police, whose breadwinner were to be murdered. Provisions are made for insurance and other benefits for the survivors of policemen killed in the line of duty; no such provisions are typically made for non-policemen.—/ If the murder in this case had involved an ordinary citizen, rather than a police officer, it would clearly come within the principles of Godfrey. The fact that it involves a police officer cannot permit a different result. But even if the killing of a police officer could convert a non-capital A If a state could punish the murder of a policeman more rshly than the murder of an ordinary person, could it establish a series of graded punishments depending on the occupations, worth, educational status, etc. of the victims? Surely such a caste system, employed in other countries and at other periods of history, would be repugnant to equal protection. **/ Likewise, the fact that the jury found that petitioner was engaged in another capital felony at the time of the murder does not distinguish this case from the vast number of murders that are not punished by death. The State did not even bother to present this aggravating circumstance to the juries that tried the other men indicted for the same crime. (See Supra at 18 ). Such an apparently random selection of this factor belies any contention that its invocation provides a “principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Godfrey v. Georgia, supra, at 1767. -22- crime into a capital crime, the state must justify why this particular police killing is more deserving of death than the many police killings that do not result in execution. This case was, in the words of the Georgia Supreme Court, "an uncomplicated murder of a police officer..." Willis v. State 243 Ga. 185, 253 S.E. 2d 70, 71, cert. den. 100 S.Ct. 178, reh. den. 100 S.Ct. 475 (1979). Indeed, the facts of this very case--where one of the co-defendants in the very same crime received a sentence of life imprisonment for his more substantial participation in the identical killing of the same police officer--vividly illustrate the roulette wheel nature of Georgia's process of imposing death. Iv. Petitioner's lack of Counsel at{"iis preliminary committal hearing violated his Sixth and urteenth Amendment right to counsel as set forth in prior decisions of this Court. The record establishes that petitioner was unrepresented at his preliminary committal hearing in this capital case, thus requiring automatic reversal under the governing case law. An adversarial preliminary hearing is a critical stage of criminal prosecution. Consequently, the Sixth and Four- teenth Amendments to the United States Constitution guarantee the right to counsel to the accused at the hearing. Coleman v. Alabama, 399 U.S. 1 (1970). The Georgia Supreme Court has recognized that Georgia's preliminary committal hearing is a critical stage of the prosecution, at which counsel must be appointed for an indigent defendant. State v.Hightower , 236 Ga. 58, 222 S.E.2d 333 (1976); State v. Houston, 234 Ga. 793; 2a0 8:38.26 32 44970) < In Hamilton v. Alabama 368 U.S. 52 (1961), this Court held that when a capital defendant is denied counsel at a critical stage in the proceedings against him, his conviction will be reversed without inquiry as to whether or not prejudice resulted. Id. at 55. See also White v. Maryland, 373 U.S. 59 (1963). These holdings were reaffirmed in Holloway v. Arkansas, 435 U.S. 475 (1978), where the Court stated ". . . when a defendant is deprived of the presence and assistance K, of his attorney, either throughout the prosecution or during -23- a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59 (1963)." Id. at 489 (emphasis added). Petitioner was arrested on February 12, 1976, and was detained thereafter without bond. On May 14, 1976, a committal hearing was conducted against him and against the two other men who had been indicted for the same crime, Larry Fleming and Henry Willis. Larry Fleming and Henry Willis were represented by retained counsel, attorney Millard Farmer. Petitioner was represented by no one.—/ On August 12, 1976--3 months after the committal hearing-~ attorney Reece Franklin was appointed, but he did not represent Mr. Fleming, and the record is silent as to why not. On August 24, 1976, attorney Edward Parrish was appointed for the peti- tioner. Beginning on September 12, 1976, attorney Benjamin Zeisman began assisting Mr. Parrish at the request of the petitioner's mother. Thus Mr. Fleming first received counsel over six months after he was arrested and over three months after he was forced to stand alone at the committee hearing. Therefore, under the standards enunciated in Hamilton v. Alabama, supra, and Holloway v. Arkansas, supra, petitioner's conviction aa/ must be reversed. — *7 Exhibit I in the Appendix contains the title page from the transcript of the committal hearing. Although Millard Farmer is listed as "Attorney for Defendants", Mr. Farmer has at no time represented petitioner. **/ It is apparent that petitioner in fact suffered substantial harm because he was unrepresented at the hearing. It was at the committal hearing, and only there, that the District Attorney allegedly tendered a copy of Mr. Fleming's prior statement to law enforcement officers about the crime (Tr.1,332)Since petitioner was not represented by counsel, neither he nor his subsequently appointed attorney received copies of the statements. Petitioner's attorneys first learned of the existence of all but one of the statements during the trial, and had not prior to that time seen the contents of any of them, including the signed waivers of rights. (Tr. 1, 313-14, 331, 414). In addition, witnesses who later testified at petitioner's trial testified at the committal hearing. Inconsistencies between their statements, which could have been used to impeach them at trial, were lost to the defense. Finally, of course, the extent to which an attorney could have developed and preserved evidence favorable : to petitioner can never be known. ~24- V. Petitioner's constitutional rights were violated by the admission into evidence of incriminating statements allegedly made by the uncounseled petitioner to his cellmate-government agent, and by the prosecutor's failure to disclose the fact that the cellmate's cooperation and testimony was the result of a deal for favorable treatment. Witness Ira Bass was a white male who had been incar- cerated in the Cook County, Georgia jail in September, 1975 following his arrest and indictment for two counts of child molestation. (Tr. 2 at 215). On February 9, 1976, he pleaded guilty and was sentenced to serve two concurrent four year prison terms, followed by three years probation. (Tr. 2 at 214). On February 13, 1976, Son Fleming was committed to the same general inmate area where Ira Bass was held. (Tr. 2 at 297). The following morning, February 14, Ira Bass sent the jail warden a note that he had information on the death of Chief Giddens (Tr. 2 at 287). His first meeting with jail officials came that same afternoon (Tr. 2 at 287); the next day, February 15, he met with the police and district attorney who were investigating Giddens' death. (Tr. 2 at 315). Over a period of "several days" (Tr. 2 at 285) Fleming allegedly provided Bass with a detailed description of the night of February 11. There were no witnesses to the purported conversations: Bass testified that Fleming would stop the conversation whenever another inmate drew near. (Tr. 2 at 287). Petitioner denies that any of the purported conversations with Bass ever occurred. There was no corroboration either of the claim by Bass that the conversations occurred or of the incrimin- ating content of the purported admissions allegedly made by petitioner to Bass. Once Bass met with government authorities on February 14, the day after petitioner's incarceration, to discuss the infor- mation he could obtain about Giddens’ death, he acted as a * de facto government agent and informant .—/ This brings his: 4 At trial, the government failed to distinguish between ) information that Bass allegedly secured in the brief one-day interval between Fleming's incarceration and the first meeting with prison officials, and 2) information allegedly obtained during the following two weeks before Bass was removed from the Cook County jail. Therefore, all of the Bass testimony suffers from the same constitu- tional infirmity. -25- testimony squarely under the rule established by the Supreme Court in United States v. Henry, 100 S.Ct. 2183 (1980). A second constitutional defect created by the introduction of Ira Bass's testimony at Son Fleming's first trial was the government's failure to apprise the jury of the arrangements made with Bass to secure his assistance and testimony. Bass was asked on the witness stand what promises the government had made in exchange for his testimony. He responded that the only promise tendered for his co-operation was that he would not be sent to the State prison at Reidsville, where he feared reprisals for testifying against a black inmate. (Tr. 2 at 289). In fact, Bass was released from custody ou: probation within days after Fleming's first trial was concluded (Tr. 2 at 195). The recommendation for parole was made by the same Georgia district attorney who prosecuted Son Fleming and called Ira Bass to the witness stand (Tr. 2 at 202). The release was supported by the judge that presided at Son Fleming's trial (Tr. 2 at 202). When factors affecting the credibility of government witnesses are withheld from the jury, the government violates the defendant's due process rights secured by the Fourteenth amendment to the United States Constitution. Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972). The timing and circumstances of Bass's release--and subsequent disappearance --establish a clear presumption that his testimony at Fleming's trial was delivered in the expectation of favorable treatment by the government. — Since Georgia could not locate Bass to testify at Fleming's second (sentencing) trial (Tr. 2 at 217-218)--a convenient and highly suspicious disappearance--there had been no opportunity for the peti- tioner to question him regarding the particulars of his conversations with the government and subsequent anomalous probation. The defense should not, however, be penalized for the government's inability to produce its key witness, “xs especially in the circumstances of a case like this.’ Footnotes */ and **/ appear on following page. -25a- */ The State of Georgia has argued that the early release of Bass, serving concurrent sentences for child molestation following earlier convictions and incarceration for armed robbery, was a routine probation decision that was uncon- nected with his testimony at Fleming's first trial. However, the Record from Fleming's second (sentencing) trial, following Bass's discharge from custody, demonstrates that Bass's release was anything but routine. On the witness stand, the probation officer charged with Bass's supervision following his release described his first contact with Bass: A. Well this was an unusual situation. We received Mr. Bass in our office on February 9. We did not have any prior notice that he was coming in. Q. How did he get to your office? A. He was sent to our office from the Adel Probation Parole Authorities. Q. Yeah, but how did he travel? A. I don't know, sir. Q. Did he just walk in your office? A. He appeared in our office-- Q. He was not in the custody of any officer? A. Bo; She; Q. But you do know that although it is the ordinary thing for you to be furnished with a record of the crimes that he's been committed of and the sentences that he's served heretofore, you were not furnished that in this case? A. We did not receive it immediately, no, sir, and I-- Q. Have you ever received it? A. --I don't find it in his file, sir. *eenevee Q. Do you remember how long he said he'd been out of the Cook County jail--when he first went to your place? A. No, sir. When he first came in he said that he had been put on parole in Adel and he had some paperwork from Adel. It was an unusual situation. I've never encountered it before and I called Atlanta to ascertain what the situation was. I was advised that this was not a common occurrence but that this sentence had been remitted to probation rather ‘an being placed on parole. This does happen from time to time; however, I had never experienced it before. Tr.2 at 207-208. **/ Furthermore, it should not be necessary for the petitioner to prove that the government exchanged clear promises with its witness. In United States v. Butler, 567 F.2d 885 (9th Circuit, 1978), the court remanded for a new trial in spite of government testimony that no promises of leniency had been made. The opinion quoted the observation of the District Court: [w]e know from experience that the Government, the Government agents and counsel for the Government have ways of indicating to defen- dant's counsel that benefits are likely to result from cooperation. That can be indicated without making a bald promise that the charge is going to be reduced or that the case is going to be dismissed. Id., at 888. =26- Since Bass's testimony was the only evidence introduced by the government to show that Fleming participated in the actual killing of Sheriff Giddens, it was obviously crucial. Either of the two constitutional infirmities cited above for Bass's testimony would warrant reversal of Fleming's guilty verdict. The only appropriate remedy is a new trial where Bass's testimony is barred altogether (in the event he is conveniently re-discovered) for its violation of Fleming's right to counsel, or only admitted with accompanying evidence of the arrangements the government made to secure Bass's cooperation. VI. Petitioner's constitutional rights were violated by the state- ments of the prosecutor and the trial judge impeaching his exculpatory testimony by arguing that he had remained silent at arrest and arraignment. Both the prosecutor and the trial judge violated the holding of this Court in Doyle v. Ohio, 426 U.S. 610 (1976). In discussing petitioner's claim that he did not shoot the policeman, but that the others did, and that he had tried to get the others not to kill him, the prosecutor made the following argument to the jury: "Even when he saw Willie Jones [the arresting officer] he could have said that. He didn't." (Args. of Counsel, at 40-41). In addition, the trial judge himse] at the second sentencing trial, sought to impeach petitioner's testimony by informing the jury that petitioner had been silent at the arraignment (where he was unrepresented by counsel). In questioning petitioner about his claim that a confession had been beaten out of him, the judge asked the following rhetorical "question": "Why didn't you tell me about all this other though at that time when I was talking tc you." (Tr 2 at 380)."That time” referred to the arraignment hearing at which petitioner was unrepresented by counsel. The prosecutor followed up on this in his closing argument to the jury: "They say he beat him [but] did he tell the Judge that? Did he tell anybody that?. . . He did not." The prosecutor also argued as follows: — aXFa Well, what is the truth?...Oh, I begged them not to kill him... When did he make his first complaint to anyone?...If he was innocent and didn't actually want to take part in that murder... [H]e cannot be excused for not making an outcry when Deputy Sheriff Willie Jones commanded him to get out of that car that night. He did not make an outcry,,. (Emphasis supplied). (Tr. 2 at 425-27)-— 2 This Court has held that the use of a defendant's silence at arrest cannot be used to impeach his subsequent claim of innocence or his subsequent exculpatory explanation ws of the events At issue. Doyle, supra. Surely in a capital case, involving a defendant who was unrepresented during crucial stages of his case, the statements of the prosecutor and trial judge violated petitioner's rights. This important issue should be reviewed by this Court. CONCLUSION When this Court upheld the constitutionality of the death penalty, it imposed a series of sacred trusts and duties upon itself: to assure that no possibly innocent person is ever executed; to require "a greater degree of reliability” than in non-capital cases; to assure that only those most deserving the extreme penalty are executed; to assure that no person is executed whose pre-trial and sentencing procedures have not complied with the highest standards of constitutionality; to assure that no one is executed who did not personally commit a crime deserving of that unique and irrevocable penalty. This case--involving a poor, semi-literate, black man from rural Georgia--invokes those trust and duties. Son Fleming forcefully maintains his complete innocence of the killing of Chief Giddens. The trial judge has formally acknowledged that all doubts about his guilt have not been foreclosed. His co-defendant, whose involvement in the crime far exceeded that of petitioner, was sentenced to imprisonment. The defendant raises the most The prosecutor also listed other opportunities that petitioner allegedly had to make his “outcry” of innocence to others. =~2§~ fundamental constitutional challenges to the processes by which he was convicted and sentenced to death as well as to the substance of those determinations. The proceedings which resulted in his death sentence were so fundamentally flawed by the sloppiness of the trial counsel and trial court that the verdict and sentence do not even contain the degree of reliability that should suffice for a sentence of imprisonment. Surely they do not satisfy the "greater degree of reliability" required in a capital case. Petitioner is entitled to review by this Court and reversal of his conviction and death pb submitted, Qfan M. Dershowitz 20 Elmwood Avenue Cambridge, MA 02138 (617) 661-1965 sentence. Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit o 4 w Vg =39- APPENDIX Denial of Motion for Reconsideration by the Supreme Court of Georgia, dated Nov. 14, 1980. Denial of Application for a certificate of probable cause to appeal by the Supreme Court of Georgia, dated Oct. 21, 1980. Denial of Petition for a Writ of Habeas Corpus by the Superior Court of Tattnall County, Georgia, dated July 1, 1980. Fleming v. State, 243 Ga. 120 (1979). Fleming v. State, 241 Ga. 42 (1977). Ga. Code Ann. 27-2534.1. Report of the Trial Judge, Second Sentencing Trial, Dated Oct. 24, 1978. Trial Judge's Charge to the Jury, Second Sentencing Trial, Tr. 2 pp. 480-493. Title page from Transcript of Committal Hearing, dated May 14, 1976. oh | Applic. No. 1333 o EXHIBIT A 0) ; RECE}y ED wow NOY 2 1 1980 SUPREME COURT OF GEORGIA ATLANTA, November 14, 1980 The Honorable Supreme Court met pursuant to adjournment. The following order was passed: SON H. FLEMING V. SAM AUSTIN, WARDEN Upon consideration of the Motion for Reconsideration filed in this application, it is ordered that it be hereby denied. SUPREME COURT OF THE STATE OF GEORGIA, CLERK’s OFFICE, ATLANTA, ° I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. Kyl é. Maseford » Deputy Clerk. weer = - —- -—- —+-- - - —~ ( EXHIBIT B Application “No. 1333 RECEIy SUPREME COURT OF GEORGIA ED OCT 2 7 1899 vrtanra, October 21, 1980 The Honorable Supreme Court met pursuant te adjournment. The following order was passed: SON H. FLEMING V. SAM AUSTIN, WARDEN Upon consideration of the application for a certificate of probable cause to appeal filed in this case, it is ordered that it be hereby denied . All the Justices concur, except Hill, J., dissents. SUPREME COURT OF THE STATE OF GEORGIA, CLERK'S OFFICE, ATLANTA, I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. ~ Lhe B. Witbams ee: A EXHIBIT C U IN THE SUPERIOR COURT OF TATTNALL COUNTY STATE OF GEORGIA SON H. FLEMING, : Petitioner, : CIVIL ACTION NO. 80-41 Vv. : HABEAS CORPUS SAMUEL W. AUSTIN, * (DEATH PENALTY CASE) WARDEN, y Respondent. & ORDER OF THE COURT The above-styled habeas corpus petition is the result of a death sentence which the Petitioner received for the murder of Ray City Police Chief James Giddens. 4 Petitioner has had two trials on this charge, the first in the Superior Court of Lanier County in which a sentence of death was imposed, but was later reversed by the Supreme Court of Georgia due to a deficiency in the sentencing instruction during the penalty phase of the ,_ trial. Fleming v. State, 240 Ga. 142, 240 S.E.2d 828 (1977). Petitioner's trial for resentencing was removed from Lanier County to Cook County. Petitioner once again received a death sentence. This sentence was later “pheld by the Supreme Court of Georgia. Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979), cert. den., U.S. » 62 L.Ed.2d 115 (1979). The first issue this Court will address is the request for a continuance which was filed by Petitioner's counsel on lf A stay of execution accompanied this petition for writ of habeas corpus, said stay having been granted by this Court on March 10, 1980. Filed in Office this I day of gh 0 a Time: La ut Auten. Cle oT A. _— —— the morning of the hearing set for this matter, March 27, 1980. At that time this Court denied the request for a continuance. Petitioner argues that he was not allowed to a a evidence because le cin not prepared and needed the continuance. For reasons set forth Petitioner did not show an adequate basis upon which a continuance should have been granted. This was not the first time this matter was set for a hearing, as there was an earlier petition, No. 79-146 which was dismissed without prejudice by another attorney who then represented the Petitioner. The first petition was dismissed on March 1, 1980. This Court notes that the stay granted under petition No. 79-146 was dated December 4, 1979, with the Court at that time setting the matter down for a hearing on January 25, 1980. The January, 1980 hearing was continued at Respondent's request due to a schedule conflict. The Petitioner did not contest the continuance at that time. The reason the first petition was dismissed was because the attorney who had represented the Petitioner pro bono accepted employment outside the State of Georgia, and was not able to meet the rescheduled hearing date. A new execution date following the dismissal of the first petition was set by the trial court for March 14, 1980. Petitioner's new attorney who is presently representing him is not a member of the State Bar of Georgia, but proceeds with this Court's approval following her filing a petition to proceed pro hac vice. It appears to this Court that this attorney accepted this case at a time when she was already experiencing a heavy work load. Nevertheless, approximately two weeks elapsed from the time that the stay was granted by this Court until the hearing date. The request made upon this Court on the morning of March 27, 1980, for a continuance was an unreasonable request, in that Petitioner's counsel requested a three month continuance. Contrary to the Petitioner's contentions at the time this Court denied the request for a continuance the Court,was fully aware of the Petitioner's right to have a full and fair | state evidentiary proceeding. Townsend v. Sain, 372 U.S. 293 (1963). This Court finds that the Petitioner was not denied his right to a full and fair state evidentiary hearing, particularly based upon the documentary evidence presented to the Court during that hearing on the issues raised in the petition and amended petition for habeas corpus. Specifically, this Court finds that counsel for Petitioner made no offer of proof that any witnesses whom she may have desired to subpoena would have been pnable to come to the hearing on March 27, 1980, but would have been able to come at a later date. There was no showing whatsoever by Petitioner's counsel that she had contacted any witnesses and as such, the request for a continuance was unsupported by any good faith effort, even though ‘local counsel in this matter had been secured, that being an attorney from Savannah, Georgia. While Petitioner's counsel is not a member of the State Bar of Georgia, nor does she reside in the State of Georgia, there was no showing whatsoever that co-counsel could not have proceeded with the contacting of any witnesses whom the Petitioner might have wished to have present at the hearing. More importantly, this Court specifically finds that based upon the material contained in the trial transcripts of the proceedings in Lanier and Cook Counties that additional testimony from witnesses would not have altered the findings of fact and conclusions of law which this Court will make later on inthis order. Next, this Court finds that in the request seeking a three month continuance the Petitioner had asked this Court in connection with this request for funds with which to pay certain experts on the issues of the impact of pretrial media coverage as well as to explore the possibility that there nee have been some infirmity 2 in the composition of the grand and petit jury pools. / Petitioner's 2/ This specific issue will be dealt with separately in the later portion of this order. attorney made absolutely no showing whatsoever that any infirmity existed in any of the areas sought to be explored through the appointment of experts and funds to support ‘anes’ expiet. In- short, pétitioner sought a continuance not founded on fact, but upon speculation in hopes that evidence in support of a general hunch could be supported. This Court concludes that this is not a sound nor is it a legally sufficient basis for the granting of a continuance in this case. The fact that the Petitioner is under a death sentence does not set forth a different constitutional standard in determining whether a motion for a continuance should be granted. This Court further finds that the denial of Petitioner's request for a continuance was proper, in that the fifty-two issues raised in the petition and amended petition can be answered by examining the trial transcripts in both the Superior Courts of Lanier and Cook Counties and the records and other documentary evidence which was introduced at the hearing on March 27, 1980. These documents have convinced this Court that the issues raised by the Petitioner can be resolved from examining the contents of these documents, or as a matter of law can be decided without the necessity of a further evidentiary hearing, or for that matter,” without having the matter continued. ?/ It is also the finding of this Court that the Petitioner's attorney in this habeas corpus proceeding had an excellent knowledge 3/ A specific finding on each of the issues contained in the petition and amended petition will follow the discussion concerning the denial of the motion for a continuance. ~ of the issues which were raised in both the petition and amended petition, this Court basing its finding upon the lengthy discussion with which said counsel went through each of whe tecabe contained in the petition and amended petition. As noted earlier, this Court has found that the issues contained in the petition for writ of habeas corpus and its amendment can be addressed by examining the documentary evidence introduced at that hearing. Consequently, for these reasons this Court finds that its initial pronouncement to deny the continuance is amply supported by the findings which the Court now enters concerning the denial of the motion for a continuance. This Court has since the hearing on March 27, 1980, had a sufficient opportunity to examine the voluminous documents which were introduced at that hearing, documents which include the trial transcripts of the proceedings held in the Superior Courts of Lanier and Cook Counties. Based upon that examination, this Court enters the following Findings of Fact and Conclusions of Law: VOLUNTARINESS OF INCRIMINATORY STATEMENTS MADE BY PETITIONER FOLLOWING HIS ARREST Petitioner has alleged in his habeas corpus complaint that he did not make a knowing, intelligent and voluntary waiver of his right to appointed counsel at the time of his arrest, and subsequently his later statements to the police were not made with a knowing and intelligent waiver of his right to have counsel present before making such incriminatory statements. Petitioner also argues that he suffers from a serious speech impediment, and that he was not mentally competent at the time of his arrest or at the time of his trial. It is the finding of this Court that at the hearing on March 27, 1980, Petitioner offered no evidence in support of his contention that he was "effectively illiterate," or that he was mentally incompetent. This Court has examined Respondent's Exhibit No. 7 which is the ‘transcript of the first trial which occurred in Lahier County in January of 1977. From this Court's examination of this exhibit the Court finds that the trial court's inquiry into the voluntariness of a statement made by the Petitioner is supported by the evidence which resulted from a hearing conducted in accordance with the United States Supreme Court's decision in Jackson v. Denno, 378 U.S. 366 (1964). Specifically, this Court finds that at pages 315-356 and at pages 410-442 in Respondent's Exhibit No. 7, the State has clearly established the voluntariness of the waiver of counsel and the ensuing incriminatory statements made by the Petitioner. The Court further finds that even though the State was not required at the resentencing procedure in Cook County to go into the jutentebioces of the statements, the matter having been determined at the first trial, the trial court nevertheless directed the state to hold another inquiry into the voluntariness of the Petitioner's statements. This material was contained in Respondent's Exhibit No. 2 at pages 230-248. It is therefore the conclusion of this Court that the evidence presented at both these hearings supports the trial court's finding of voluntariness by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477 (1972); High v. State, 233 Ga. 153 (1974). This Court further notes that the voluntariness of Petitioner's statements were not challenged at trial, although counsel for Petitioner did file a motion to quash those statements. See, Record at pages 30-32. This Court having found that the voluntariness of the various statements rendered by the Petitioner is supported by a prepondernance of the evidence will not at this time relitigate the voluntariness of these statements, particularly in the absence of there being a showing of actual prejudice. See, Wainwright ALLEGED JURY PREJUDICE IN IMPOSING DEATH SENTENCE This Court finds that the contention that the ‘juries which imposed the Petitioner's death sentence acted andiile the influence of passion, prejudice or any other arbitrary factor is without merit. Specifically, this Court finds that the jurors who tried the Petitioner in both cases had not formed any preconceived notions as to the guilt or innocence of the Petitioner. This Court specifically bases this finding of fact upon its examination of the voir dire proceedings in both the Superior Courts of ‘Lanier and Cook Counties. Moreover, this Court finds that the Supreme Court of Georgia in reviewing the imposition of the death penalty in this case specifically found that the sentence of death in this case had not been imposed under the influence of passion, prejudice or afiy other arbitrary factor. Fleming v. State, “243 Ga. at 123. More specifically, this Court by way of an appendix to this opinion, which is adopted and made a part of this Court's Order and Findings of Fact and Conclusions of Law establishes that an impartial jury was assembled in both the Superior Courts of Cook and Lanier Counties. Also without merit is the Petitioner's claim that when he was retried following the setting aside of his first death sentence that the same jury which determined his guilt or innocence should have been the jury which resentenced him, The Supreme Court of Georgia has settled this question adversely to the Petitioner, Fleming v. State, 243 Ga. 120 (1979), and consequently, this Court will not in the absence of any intervening law change its decision by ruling to the contary. See, Phillips v. Hopper, 237 Ga. 68 (1976). The Petitioner also contends that the imposition of the death penalty in his case was unconstitutional because the death penalty statute in Georgia does not specifically delineate mitigating circumstances. Petitioner also argues that the death penalty ee statute is unconstitutional as it allows prior convictions to be used for aggravation, and because the aggravating circumstances are not contained in the indictment, and that the Seath penalty is applied arbitrarily and capriciously by geographic locations. Petitioner ‘also argues that the manner in which the death sentence is actually carried out is unconstitutional,and that the death penalty has been rejected by contemporary standards of decency and dignity by society. This Court finds that all of these contentions are unmeritorious. Specifically, the Supreme Court of Georgia has said in numerous opinions that it is not required that the specific mitigating circumstances be singled out by the court when it gives its sentencing instructions. Collier v. State, 244 Ga. 553, 569 (1979); Potts v. State, 241 Ga. 67 (1978). Mitigating circumstances should be anything that the jurors so desire to consider as mitigating circumstances, and to specifically place in a statute those things which would constitute mitigating circumstances would more than likely meet with constitutional problems in view of Green v. Georgia, U.S. , 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) and Lockett v. Ohio, 438U.S.586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Our Supreme Court has also held that aggravating circumstances need not be alleged in the indictment. Goodwin v. Hopper, 243 Ga. 193 (1979). Also without merit is the Petitioner's argument that the death penalty is unconstitutional because it permits considera-~- tion of prior convictions as aggravating circumstances. This argument has absolutely no merit to these proceedings since this aggravating circumstance was not sought by the State, nor was it found by the jury. This Court further finds that there is no merit to the contention that the death penalty is administered and applied in an arbitrary and capricious fashion. Specifically, this Court finds that no evidence was presented on any of these matters. While the Petitioner did request a continuance, a matter which has been addressed earlier, this Court finds that there was no o*fer of proof made whatsoever to establish that the death penalty is imposed arbitrarily because of geographic locations. Lastly, r- the Petitioner's argument that the death penalty is cruel and — unusual ‘punishment or is against the contemporary standards of decency in the United States was rejected in Gregg v. Georgia, 428 U.S.°153 (1976). Also without any basis whatsoever is the Petitioner's allegation that the jury which sentenced him to death did not believe that the Petitioner would in fact be executed. This ‘amounts to nothing more than speculation on the Petitioner's part. Perhaps at best, this is wishful thinking, but wishful thinking is not a basis upon which to allege that there has been a constitutional deprivation. The Petitioner's earlier attempts to secure a continuance so that evidence could be gathered on this matter establishes the weak basis upon which the motion for a continuance was requested, since the Petitioner obviously sought to use this continuance as a expedition to see if evidence could be supported to back up this assertion. There was no offer of proof, nor has there been any showing by the Petitioner that his theory has any basis in this case, or that any continuance would establish evidence in support of this contention. Neither has Petitioner established that this theory has been recognized by the courts. Also without merit is the allegation that the trial judge failed to adequately charge the existence and consideration of mitigating circumstances as against the aggravating circumstances which the State needed to prove beyond a reasonable doubt. This specific contention was the basis upon which the Supreme Court | of Georgia first set aside Petitioner's death sentence in 1977. Fleming v. State, 240 Ga. at p. 146. In reviewing the retrial ‘for sentencing which again imposed the death sentence,the Supreme Court of Georgia found the trial judge had properly complied with its earlier holding in Petitioner's first trial, as well as finding that the trial court had specifically addressed the issue as to mitigation. Hawes v, State, 239 Ga. 630 (1977). This Court also finds that there is no merit so the allegation that the trial judge improperly filled out his report or that the report which is to be filed after a death sentence is imposed is unconstitutionally inadequate. Once again, no evidence was presented, nor did the Petitioner point out where the report was deficient. Certainly, a continuance was not needed to point out any alleged deficiencies or unconstitutional aspect of the trial judge's report. This Court further finds that there is no merit in the contention that the Georgia Death Penalty Statute denies one the right of effective assistance of counsel since the statute does not provide an indigent with sufficient resources to develop a defense. Once. again, no evidence was presented, nor was a continuance needed to make this contention develop in a different manner. This matter is resolved as a question of law, and a matter which is resolved adversely to the Petitioner by this Court, See Gregg v. United States, supra. WITHERSPOON CONTENTIONS Petitioner contends that during the jury esiéetion process in both tfials potential jurors were improperly struck for cause even though they were “unalterably opposed" to the death penalty, and would not impose it regardless of the evidence presented during the trial. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Supreme Court of the United States held that potential jurors who expressed a view which renders them unalterably opposed to the death penalty regardless of the evidence presented is a proper basis for striking those potential jurors for cause. See also, Lockett v. Ohio, supra. In Witherspoon, supra, the Supreme Court of the United States held that merely because one had a religious scruple against the death penalty would not be a basis for striking him, but if that individual would not vote to uphold the death penalty regardless of the evidence presented because of his views on the death penalty, then that individual could properly be stricken, because the individual in that case would not be considering a punishment in terms of the evidence presented. That is, the individual had already prejudged a sentence regardless of the evidence presented in the case. An examination of Respondent's Exhibits 2 and 7 fails to establish that any potential jurors were improperly excused under the Witherspoon standard. Finney v. State, 242 Ga. 580 (1978); Douthit v. State, 239 Ga. 8 (1977); Corn v. Hopper, 244 Ga. 28 (1979). In the Cook County trial in 1977, ten potential jurors were challenged for cause and excused because they would vote against the imposition of the death penalty regardless of the evidence. These potential jurors were Sharon T. Flythe (T. 5-6) (all references refer to Respondent's Exhibit No. 7); Joe Holmes (T. 608); Ms. Lucious Hill (T. 10-11); Robert Pitts (T. 17-18); Johnnie Mae Jenkins (T. 18-19); Mary Suggs (T. 19-20); Theodis Williams (T. 20); Charles Mae McCormick (T. 28); and, Alva Head (T. 35-36). elie In the original trial in 1977, in Lanier County, the following individuals were challenged for cause in accordange with the guidelines set down in Witherspoon, supra: Sylvia 0. Quinn (T. 9)3 Ms. Foster (T. 10); Louvenia Williams (T. 10-11); John H. Sanders (T. 61); Nell Foster (T. 61); Deloris Woodward (T. 62); and, an unnamed juror (T. 108). Petitioner's allegation concerning Witherspoon violations is totally unsupported by the evidence before this Court. JURY COMPOSITION Petitioner attacks not only the composition of the grand and traverse juries, but the method by which jurors were picked for jury service. As noted in an earlier discussion of this order, Petitioner had requested a continuance so that research could be done into determining whether the manner in which the juries were selected contained any constitutional deficiencies. As noted earlier, this Court found that without any offer of proof, or that other evidence existed which would tend to indicated that this claim could be substantiated, a continuance was not in order. This Court further finds that the Petitioner's contention that young people, specifically that individuals eighteen through thirty were left off both the grand and traverse jury lists fails to state a claim, since this is not a recognized class for the purposes of jury composition. Hudson v. State, 240 Ga. 70 (1977). Petitioner also challenges the provision of Georgia law which allows women to apply for a special exemption if they have children under the age of fourteen. See, Ga. Code Ann. § 50-112(b). Petitioner says this violates Duren v. Missouri, 439 U.S. 357 (1979). In Willis v. State, 243 Ga. 185, 188(3) (1979), our Supreme Court held: "We hold that the Georgia statute authorizing the trial judge to excuse the juror who is a housewife ~t™ with children fourteen years of age or under does not violate the Sixth and Fourteenth Amendments to the United.states Constitution.” Id. _ pie Petitioner in arguing his jury composition allegations says his attorney was ineffective because he did not challenge the composition of the grand jury. Under Georgia law a challenge to the grand jury composition must be made prior to indictment, and any later challenge would not have been timely. Young v. State, 239 Ga. 295 (1974); Goodwin v. Hopper, 243 Ga. 193 (1979). Additionally, there must be a showing of actual prejudice resulting from the jury's not having been challenged, as well as cause for there not being a challenge. Absent such a showing counsel cannot be said to have been ineffective. Francis v. Henderson, 425 U.S. 536 (1976); Steward v. Ricketts, 451 F.Supp. 911 (M.D. Ga. 1978); Spencer v. Hopper, 243 Ga. 532 (1979). The classes of people which the Petitioner contends were left out in both the grand and petit juries, such as poor people and teachers in addition to those between the ages of eighteen and thirty does not establish a recognizable class of individuals for the purposes of challenging jury composition. Cobb v. State, 244 Ga. 344 (1979). Petitioner has also made a conclusory allegation that the prosecutor had a role in picking the grand jury which indicted the Petitioner. Here there has been no evidence to support this allegation. Also without merit is the contention that the district attorney exercised his peremptory challenges in striking blacks and women. It is well recognized that an accused has no right to a jury composed of a particular race, nor is it improper for a district attorney to use peremptory challenges to strike on the basis of race or sex. Swain v. Alabama, 380 U.S. 202 (1965); Jordan v. State, 235 Ga. 732 (1975). -13= DISTRICT ATTORNEY'S CLOSING ARGUMENTS AND CONDUCT DURING BOTH TRIALS IN GENERAL. Petitioner makes several allegations concerning the alleged prejudicial arguments made by the district attorney in both the Lanier and Cook Counties’ trials. These contentions are unfounded. This Court finds that references to previous brushes with the law which the Petitioner had were brought out on cross-examination by the Petitioner's counsel during the examination of State's witness Terry Coney. See, Respondent's Exhibit No. 2, page 79. On redirect, questions were asked of witness Coney concerning the questions brought out on cross-examination, since the Petitioner's lawyer had opened the door to those questions. Respondent's Exhibit No. 2 at page 81. Further evidence as to the Petitioner's character was brought out again in recross~ examination by the Petitidner's lawyer. Responéent's Exhibit No. 2 at pages 83-84. During the district attorney's closing arguments references to witness Coney's testimony on cross-examination by the Petitioner's lawyer appears on page 421 in Respondent's Exhibit No. 2. Sub judice, where defense counsel elicits the complained of testimony on cross-examination he cannot later complain. Lemon v. State, 235 Ga. 74(2) (1975); Lunsford v. State, 145 Ga. App. 446 (1978); Huff v. State, 144 Ga. App. 764 (1978). Consequently, this Court may find that the references to prior scrapes with the law which the Petitioner had were brought out on cross-examination by the Petitioner's counsel, and not by the State, and as such, the Petitioner cannot now complain. Again on cross-examination Petitioner's counsel brought out his characte regarding previous arrests, and the supposed taking of money from a cab driver. -14- Respondent's Exhibit No. 2 at page 348. See, Shepherd v. State, 239 Ga. 28 (1977). Moreover, the fact that’this was a referenced in oral argument by the State's attorney does not - - provide a basis for habeas corpus relief, particularly since there was no objection. Reid v. State, 137 Ga. App. 495 (1976). Petitioner's references of the district attorney commenting upon the injury to the Petitioner's jaw as alleged veiled references that the Petitioner was on welfare, and supposed comments on the failure of the Petitioner to call his fellow accused is unsubstantiated by the trial transcripts. See Smith v. State, 245 Ga. 205, 207(4) 1980. Petitioner also states that the prosecutor improperly used as an aggravating ¢ircumstance during his argument reference to a taxi driver's accusation of robbery by the Petitioner which did not result in a formal charge. See page 421 of Respondent's Exhibit No. 2. This, again refers to testimony which was brought out through cross-examination by the Petitioner's attorney, as is the reference to a sheriff's statement that the Petitioner had been involved in fighting and drinking. The same goes for the reference to co-defendant Willis. A prosecutor is permitted to draw deductions from the evidence, and these deductions may be illogical, unreasonable or even absurd. Owens v. State, 120 Ga. 209 (1904). The prosecutor's inference that the Petitioner had driven the get-away~ car during the robbery which occurred before the murder is a reasonable inference which can be gleaned from the evidence. While the district attorney's argument may have been strong, it was in line with the evidence presented throughout the trial. It is also important to note that the Supreme Court of Georgia when it reviewed the Petitioner's second proceeding - -15- on sentencing specifically stated, "We find no evidence that the sentence of death was imposed under the influence of passion, r prejudice, or any other arbitrary factor." Fleming v. State, 243 Ga. Supra at 123. Petitioner further states that in the closing argument by the district attorney that there are improper references concerning the fact that the death penalty is a deterrent to crime when there are no facts to support it! Petitioner further argues that improper argument occurred when the district attorney said that a State's witness had disappeared because he had testified against the Petitioner, but no evidence to support this fact was introduced at trial. These allegations are also unmeritorious. At page 444 in Respondent's Exhibit No. 2, which is the resentencing proceeding in the Superior Court of Cook County, this Court finds that it is not improper or unreasonable for a prosecutor to argue that the death penalty is a deterrent to crime. Furthermore, this is merely the statement of the prosecutor, which is not evidence, since the jury was later charged as to what circumstances they must find beyond a reasonable doubt before they could impose the death penalty. Neither does this Court find based upon its examination of page 442 of Respondent's Exhibit No. 2, that the district attorney stated that State's witness Ira Bass was not at trial. The inference that he may have disappeared because he had first testified is not an unreasonable inference which can be taken from the evidence. Furthermore, there was no objection to the district attorney's argument in this regard. This amounts to a waiver. See Reid v. State, 137 Ga. App- 495 (1976). Petitioner states that his right to confrontation was denied because of the prosecutor's references to facts not in evidence or facts which were contrary to the evidence. As noted in an earlier discussion, most of the district attorney's argument was unobjected to and therefore any objections were waived. -16- Furthermore, the prosecutor's arguments contained reasonable JS inferences that could be drawn from the evidence’in the record. “ae The Petitioner also alleges that the use at the second trial of the prior testimony of witness Bass denied him his right of confrontation. This matter was addressed by the Supreme Court of Georgia in headnote 6 concerning the Petitioner's trial for resentencing. 243 Ga. 120, 123. P Next, Petitioner argues that the prosecutor during the resentencing proceeding in Cook County improperly stated that an aggravating circumstance was the fact that the police chief left behind a widow and small children. As noted earlier the Georgia Supreme Court when it reviewed the new trial for sentencing purposes in Cook County found that the imposition of the death penalty was not imposed under passion, prejudice or any other arbitrary factor. Fleming v. State, 243 Ga. supra. Moreover, a district attorney's argument is not the law, but merely his version of the evidence, and it was not an unreason- able inference or deduction that because the victim left behind a wife and two small children that this would establish the heartless and senseless killing of the victim by the Petitioner and his cohorts. See, Respondent's Exhibit No. 2 at pages 419 and 421. References to the wife and the children are reasonable inferences which can be drawn from the evidence. Furthermore, at page 420 in Respondent's Exhibit No. 2 the district attorney specifically said, “You'll not have this one as one of the statutory aggravating circumstances, but the State is entitled to show you, to argue to you how violent, how horrible, this crime was when they may leave a mother helpless and a widow and leave three children, small children all of them." It should also be noted that the Petitioner argues that the @istrict attorney said that the children were made orphans, and yet there is no reference to this whatsoever in the prosecutor's argument. This assertion of prejudicial axoisent st the delineation of an aggravating circumstance not provided for in the statute is totally unfounded. See Respondent's Exhibit No. 2 at. p. 485. -18- CONDUCT OF TRIAL JUDGE y Sf Petitioner has alleged that during his retrial for sentencing in Cook County the trial judge acted improperly when he asked the Petitioner certain questions concerning his earlier testimony that he had been physically abused by law enforcement officers. Petitioner says this violated his Fifth Amendment right to remain silent. Petitioner's contention is a reference to the United States Supreme Court holding in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle the Supreme Court held that the prosecutor improperly cross-examined the defendants about their failure to tell a story that they had been framed when they were arrested. Sub judice, the trial judge at the resentencing trial on pages 379 through 380 asked the Petitioner a question or two as to why he had not, several months prior to arraignment, mentioned that he had been allegedly beaten by law enforcement officers. This type of questioning is far different from that which appears in Doyle, since in this case the question of guilt or innocence of the Petitioner had already been determined. In Doyle the prosecutor's cross- examination of the defendants occurred during the guilt or innocence phase of the trial, and substantially effected their right to remain silent following their arrest, and their right to talk with an attorney before they made any divulgences of the fact that they had allegedly been framed. In Doyle post- arrest silence was used to impeach, and in this instance the Court's questions to the Petitioner were not designed to impeach the Petitioner. See, Hall v. State, 241 Ga. 252 (1978). This Court finds this contention to be without merit. -19- Next, the Petitioner argues that because the trial Judge after the first trial placed State's witness Ira Bass on probation that he should have excused himself from presiding over the second trial which dealt solely with punishment. Petitioner argues that the judge's action in probating Bass' sentence is evidence of his bias towards the Petitioner. All of this has been totally unsubstantiated by the Petitioner. Petitioner has failed to point to any conduct on the trial judge's part that would even hint of a bias towards him, -20- VOIR DIRE Petitioner argues that the failure of the trjal judge to conduct an individual sequestered voir dire, that is where each potential juror was questioned outside the presence of the others, violates his constitutional rights. There was an individual examination of each juror as provided for in Ga. Code Ann. § 59-705. The matter of whether to have a sequestered individual voir dire rests within the discretion of the trial judge, and there is nothing in this case to show the trial - judge abused his discretion, or that a request for an individual sequestered voir dire was made. Finney v. State, 242 Ga. 580, 582 (1978). EVIDENTIARY CONTENTIONS There is an allegation that the admissibility into evidence of two pistols, some wet clothing, a paper sack and a cup were improperly placed into evidence because they were the result of an unlawful search and seizure. In this case they followed the execution of a consent form. The testimony concerning ; the execution of this consent form appears on pages 278 through 280 in Respondent's Exhibit No. 7, which is the transcript of the first trial. That testimony establishes that Petitioner fully and readily gave his consent to that search. (T. 280). No objection was made as to the voluntariness of this procedure, nor was there any objection to the admissibility of the above-referenced matters. The absence of any objection at the time the evidence is admitted bars the right to raise and present such an issue in a collateral proceeding. Estelle v. Williams, 425 U.S. 501 (1976); St. John v. Estelle, 544 F.2d 894 (Sth Cir. 1977), aff'd, 563 F.2d 168 (1977). Moveover, even if the officers had not obtained a written consent from the Petitioner, the search would have been permissible as being incident to an arrest in a motor vehicle. See, Carroll v. United States, 267 U.S. 132 (1925). Chambers v. Marooney, 399 U.S. 42 (1970). Next, it is alleged that the prosecution improperly bolstered the credibility of one of its own witnesses, that peing witness Ira Bass. This is alleged to have occurred at the first trial. Again, fire was no objection to this testimony, and the failure to make a timely objection as to its admissibility forecloses habeas review. See, Wainwright v. Sykes, 433 U.S. 72 (1977). There is also an allegation that the Petitioner was unable to properly cross-examine and confront certain experts who testified on behalf of the State in the areas of ballistics and pathology because he was indigent. For the same reasons as mentioned in the discussion above this contention is unmeritorious. See, Spencer v. Hopper, 243 Ga. 532 (1979). See also, Pulliam v. Balkcom, 245 Ga. 99, 100 (1980). =22@ INSTRUCTIONAL ISSUES Petitioner states that his constitutional rights were violated in his trial for sentencing in Cook County because of the trial court's charge on credibility in general, as well as credibility and impeachment of witnesses. This Court finds that there was no objection to this instruction. Before a court will grant habeas corpus relief on an unobjected to instruction, the error must be so egregious so as to rise to the level of constitutional violation, or be so prejudicial that it rendered the trial fundamentally unfair. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. Henderson v. Kibbee, 431 U.S. 145 (1977). The sentencing court's charge on credibility taken as a whole is a correct statement of the law concerning credibility. See, Braxton v. State, 240 Ga. 10, 12 (1977). Petitioner also alleges that this instruction is improper because the jurors were not instructed on the difference between felony offenses involving moral turpitude and misdemeanor offenses, or in summary the instruction did not include sufficient definitive words. As a general rule, the failure to request a more complete charge when the charge in itself is adequate fails to state a causefor relief. Jackson v. State, 239 Ga. 40 (1977). I find the trial court's instruction to be a correct statement of the law which is not subject to a collateral attack because of the failure to give an additional definition within the charge. See, Talbott v. State, 148 Ga. 171, 173 (1978). -23- Neither do I find any merit concerning the instruction on credibility as being in error because it tended to as Petitioner states, "had the effect of Suakcoctine’ the jury that it had a positive duty to disregard Petitioner's testimony in its entirety if it found that he had been ‘impeached.'" This charge is taken from Ga. Code Ann. § 38-1806. It has previously been upheld by the appellate > courts in our State. Jeffers v. State, 145 Ga. 74, 77(1) (1916); Henderson v. State, 146 Ga. App. 114, 115(2) (1978). This particular charge appears on page 483 of Respondent's Exhibit No. 2. Petitioner also alleges that the trial court should have given an explanation of the word "impeachment." For the reasons stated earlier, a failure to request a more complete instruction or to provide a definition for a particular word will not serve as a basis to set aside a conviction. Spear v. State, 230 Ga. 74 (1973). In enn the court's instruction on credibility when taken as a whole is not so harmful so as to constitute a denial of the Petitioner's constitutional rights. See, Jackson v. State, 239 Ga. 44 (1977). Next is the argument by the Petitioner that at the Cook County trial the court failed to charge the jury on the elements of kidnapping with bodily injury in connection with the second aggravating circumstance, to wit: "The offense of murder was committed while the defendant was engaged in the commission of another capital felony, to wit: kidnapping of and bodily injury to James Edward Gidden, a human being." A review of the record in the new sentencing trial fails to show that any requests for a definition of kidnapping with bodily injury were requested, or that the jurors did not understand the meaning of the words kidnapping with bodily injury. See, Goodwin v. Hopper, 243 Ga. 193, 196(4) (1979). DISCOVERY ALLEGATIONS s In various counts of the petition it is alleged that severe itene of a supposed exculpatory nature were withheld from Petitioner. Petitioner for example alleges that there was a desi with the district attorney between witness Ira Bass and the State concerning agreements which the State had made with Mr. Bass in return for his testimony. During the testimony of witness Ira Bass it was brought out by the State that the only agreement made between the State and witness Bass in return for his testimonywas that witness Bass would not have to go back to Georgia State Prison following his court appearance in this case. See, Respondent's Exhibit No. 7, at pages 289, 291. During the hearing on March 27, 1980, Petitioner's attorney argued that after Ira Bass testified his sentence was reduced to a period of probation. This the Petitioner's attorney suggests shows that the complete terms of the agreement for Bass' testimony were not given to the jury so that they could properly assess this individual's credibility, and that as such this violates the Supreme Court's holdings in Giglio v. United States, 405 U.S. 150 (1972). The only assertion that there is any deal beyond that which appears in the trial transcripts is a naked assertion from Petitioner's counsel. Petitioner's counsel could have obtained a certified copy of any adjusted sentence, if any existed, and filed it as an exhibit with the Court. Counsel for Petitioner failed to so do, and in light of the evidence presented in the trial transcripts this contention is unfounded. In Fleming v. State, 236 Ga. 434 (1976), the Supreme Court of Georgia held that there was no evidence of any agreement in return for testimony even though subsequent disposition of charges pending against certain State witnesses took place after the trial. Sub judice, there is no evidence of any agreement other than that which appears in the trial transcript. Petitioner states that the district attorney failed to disclose and provide him with copies of the statenénts taken from a capa a eco mama Initially, there has been no showing that such statements existed. Furthermore, there is nothing showing that these statements contain exculpatory material. The mere fact that there are witness statements in a prosecutor's file does not mean that they are discoverable unless they contain exculpatory material. Spain v. State, 243 Ga. 15 (1979); Chambliss v. State, 149 Ga. App. 659 (1979). The State does not have to do a defendant's discovery for him. Rini v. State, 236 Ga. 715, 718 (1976). Petitioner also argues that the State failed to make available the results of. any paraffin tests which it may have made of the Petitioner concerning the firing of the murder weapon. Petitioner further argues that the State did not identify the name of a woman dispatcher who had earlier been talking with the victim, as well as not providing a copy of the dispatcher's log. The mere possibility that favorable evidence might exist which could affect the jury's verdict does not establish materiality in the constitutional sense. United States v. Agurs, 427 U.S. 97 (1976). In Moore v. Illinois, 408 U.S. 786, 795 (1972), the Supreme Court held that there is, "(No constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Id. In this ma‘ter there ijs no showing that any paraffin tests were run, and the fact that there may have been one does not indicate that exculpatory evidence has been withheld. The same goes for the contentions surrounding the identity of a female dispatcher and the fact that the State aid not produce at trial the complete dispatcher's log. The Petitioner has not made any showing that any of these matters contain exculpatory evidence. The burden rests with the Petitioner to show that -26- beneficial evidence was withheld denying him a fair trial. Dickey v. State, 240 Ga. 634 (1978). This he has failed $o carry. f There is also the contention that the district attorney failed to send or provide a copy of Petitioner's confession to his attorneys and that this constitutes a suppression of exculpatory material. There is no constitutional requirement that in the absence of a request for a statement made by an accused that the prosecutor turn it over sua sponte, particularly if it does not contain exculpatory material. Clearly, by the nature of a confession its substance is incriminatory versus exculpatory. While Federal Rule 16, Federal Rules of Criminal Procedure requires a federal prosecutor to turn over any statements nite by a defendant, such is not the case in state practice. The record at pages 30 through 31 shows counsel for Petitioner was aware of the confession. See also, Hearing Transcript of January, 1977, pages 19 through 20. =27< ng COMMITTAL HEARING Petitioner argues to this Count that a committal hearing was conducted without the benefit of counsel to assist the Y Petitioner, this being in violation of Coleman v. Alabama, 399 U.S. 1 (1970). In Coleman, supra, the United States Supreme Court said that failure to provide counsel at a preliminary hearing unconstitutionally denies a defendant the assistance of counsel, but also stated that the dai should be remanded for a determination as to whether the denial of the right of counsel was harmless or prejudicial error. Id. In this case, the question as to whether there was a preliminary hearing is a matter which is not entirely clear from the ptensedings. At page 314 te Respondent's Exhibit No. 7, which is the transcript of the first proceeding in the Superior Court of Lanier County, the district attorney makes reference to a committal hearing by stating that at that time he gave a copy of the Petitioner's statements to the Petitioner's counsel. Appointed attorney Edward Parrish stated that he was not present at a committal hearing, since his client had not demanded it and he did not see any need to be there, although he was in and out of the proceedings at different times. (T. 314, 333). The district attorney says that such a hearing was held on May 14, 1976 (T. 332). If there was such a hearing then it was apparently a joint committal hearing involving all three co-defendants. (T. 332). While Mr. Parrish may have been present at the committal hearing in May of 1976, as he stated on page 222 in Respondent's Exhibit No. 7, the record indicates that he was not appointed until August 24. 1976. (R. 18). Another attorney by the name of Reece Franklin was appointed to represent the Petitioner on August 12, 1976. (R. 14). -28- PO aaa oro CO a a a eee The trial judge's report shows that counsel was appointed to represent the Petitioner in March of 1976 and again in August of 1976... Pa The Supreme Court of Georgia in the case of State v. Houston, 234 Ga. -721 (1975), recognized that a preliminary hearing was a "critical stage" in the prosecutorial process in Georgia similar to that which was found to exist in the A\abama proceedings referenced in Coleman v. Alabama, supra. However, in State v. _Houston, the Supreme Court of Georgia said the fact that counsel was not present at a preliminary hearing does not equate with the holding of prejudicial or harmful error, and unless it can be shown that the lack of counsel at the hearing contributed to the conviction it will..be deemed to be harmless error. State v. Hightower, 236 Ga. 58 (1976); Tarpkin v. State, 236 Ga. 67 (1976). Assuming arguendo that a preliminary hearing was held on May 14, 1976, this Court finds based upon the material contained in the trial judge's report,that an attorney had been appointed to represent the Petitioner in March of 1976, and as such it could be assumed that the attorney was present at the preliminary hearing. Furthermore, even if the other assumption is made that there was no counsel present, there has been no [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_1865%3A1. Public record. Not legal advice.