Petition — McElroy v. United States

Tas. 29, 195%

81 615 RECEIVED

151

a FEB1 1982

Orie . oe dove RK

IN THE SUPREME cA"m

SUPREME COURT OF THE UNITED STATES

October Term, 1981

JAMES CUNNINGHAM, JR.,

Petitioner,

,<

STATE OF GEORGIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF GEORGIA

RANDY HERTZ JOHN CHARLES BOGER

704 Sth Street, S.E. 10 Columbus Circle

Washington, D.C. 20003 New York, New York

10019

JACK GREENBERG

JAMES M. NABRIT, III (212) 586-8397

JOEL BERGER

DEBORAH FINS ATTORNEY OF RECORD

JAMES S. LIEBMAN

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

New York University School of Law

New York, New York 10012

ATTORNEYS FOR PETITIONER

— —UU—ẽääêaĩ— —

CUESTIONS PRESENTED

1. Whether the procedures for selecting the grand jury

and traverse jury violated the Sixth or Fourteenth Amendments

by discriminating on the basis of race or sex?

2. Whether the denial of State-paid investigative

services violated the Sixth Amendment or the due process

or equal protection clauses of the Fourteenth Anendment?

TABLE OF CONTENTS

Page

Questions Presented ee ¶ͤë e ¶ꝙ O % eee 1

Citation to Opinion Below „ 6% %% % % ĩ we „„ „%% %% %%% „„ „„ „6 „ „ „ „ „„ 1

Jurisdiction COSCOSSEESSHSSOSSSSHSHSHSHSHSHSHSHSHLOHESHESEHABSEOFEE®E 1

Constitutional provisions Involved 2

Statement of the Case Ceoeeeseeseeeseeeesseeseeeeeeeseseeeseee 2

How the Federal Questions Were Raised

and Decided Below 6 % G e % % %¼ % % To e e % „% „% „% „%%% „%%% %%% % % % „ „ „ „ „ „ „ „„ 6

Reasons for Granting the Writ „ % % % ο O — ‚⏑—ffep „eee 8

I. The Court Should Grant Certiorari To

Consider Whether the Procedures For

Selecting the Grand Jury or Traverse

Jury Violated the Sixth or Fourteenth

Amendments by Discriminating on the

Basis of Race or Sex „ % % % %emnö e „ „ „ „„ „„ „ „ „ „ „ „„ „ „ 8

II. The Court Should Grant Certiorari To

Consider Whether the Denial of State-

paid Investigative Services Violated

the Sixth Amendment or the Due Process

or Equal Protection Clauses of the

Fourteenth Amendment „ 2 6 „ „ %„%%˖%« it %%% „„ „„ „„ „ „ 12

Conclusion G G e % % %, )Qç⸗ n % „ „ „„ „ „ „ „ „ „„ „ „ „41 *

Appendix A

ii

TABLE OF CASES

Page

Alexander v. Louisiana, 405 U.S. 625 (1972) ...-++++- 9

Carter v. Jury Commission, 396 U.S. 320 (19700) 10

Castaneda v. Partida, 430 U.S. 482 (197777 „« 8,10, 12

Coleman v. Alabama, 377 U.S. 129 (19646)))))) 8

Duren v. Missouri, 439 U.S. 357 (1979 %/%ůỹjr 9

Eubanks v. Louisiana, 356 U.S. 584 (1958) «..seeeeees 10

Foster v. Sparks, 506 F.2d 805 (Sth Cir. 19759) 9

Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977),

vacated and remanded on other grounds,

576 F.2d 1045 (Sh Cir.), cert. denied,

439 9.8. 1119 (1978) eeeeeeveee eer eee h % „„ 13

Green v. County School Board, 391 U.S. 430 (1966) 11

Hernandez v. Texas, 349 U.S. 475 (1934³³ 10

Lee v. Habib, 137 U.S. App. D.C. 403, 424 F.2d 891

(D.C. cir. 1970) eeeeveeeee —— — — —‚—‚⏑—f—fEfkt( eee ç⏑TPm—‚ q ‚ — ——τ‚ 13

Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974),

cert. denied, 420 U.S. 936 (1975) “ee „ „ „ „ „ „ 13

Moore v. United States, 432 F.2d 730 (3d Cir. 1979)

(en banc ) 4 „ % G % O „ „% „% „% %% % %% % % % % % %% %% „%% „„ „„ „„ „„ „„ „„ „6 „6 12

Rose Vv. Mitchell, 443 U.S. 545 (1979) “ee „ çF = h „„ 8,9

State v. Second Judicial District, 85 Nev. 241, 453

P.2d 421 (1969) eeseeeeeeeorerseeoreeeeeeereeeeeeeeeerere ee 13

Swann Vv. Adams, 385 9.8. 440 ( 1967) „ % % „ „„ „ „ „ „ „46 11

Taylor v. Louisiana, 419 U.S. 522 161970) 9

Turner Vv * Fouche * 396 U * 8 * 346 ( 1970 ) e*eeeweeveeeeeeveeeeee * 1 0

United States v. Germany, 32 F. R. D. 421 (M.D. Ala.

1963) „ 0% h % ⏑ % P ¶ —————K⏑KFf— ⏑—fff „eee 13

Other Authorities:

ABA Standards Relating to the Defense Function,

Commentary „ G O o o % % „% „% „% % %% % % %%% eee en % „%P9Zꝗ•EtH % „„ „„ „% „„ „„ „ „4 „466 22

Kairys, Kadane & Lehoczky, Jury Representativeness:

A Mandate for Multiple Source Lists," 65

Calif. L. Rev. 776 (1977) „ % % % —— R — — 9,10

J. Van Dyke, JURY SELECTION PROCEDURES (1977 / 10

iii

No. 81-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1981

JAMES CUNNINGHAM, JR.

Petitioner,

„

STATE OF GEORGIA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF GEORGIA

Petitioner James Cunningham, Jr., respectfully prays

that a writ of certiorari issue to review the judgment of the

Supreme Court of Georgia in this case.

CITATION TO OPINION BELOW

The opinion of the Supreme Court of Georgia is

reported at Ca. __, 284 8. E. 2d 390 (1981), and is attached

hereto as Appendix A.

JURISDICTION

The judgment of the Supreme Court of Georgia was

entered on November 13, 1981. A timely petition for rehearing

was denied on December 1, 1981. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1257(3), petitioner having

asserted below and asserting herein deprivations of rights

secured by the Constitution of the United States.

CONSTITUTIONAL PROVISIONS

INVOLVED

This case involves the Sixth Amendment to the Constitution

of the United States, which provides in relevant part:

8 In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

and to have the Assistance of

Counsel for his defence;”

the Eighth Amendment to the Constitution of the United States,

which provides in relevant part:

Excessive bail shall not be required,

nor excessive fines imposed, nor cruel

and unusual punishments inf licted: “

and the Fourteenth Amendment to the Constitution of the United

States, which provides in relevant part:

= {NJor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.”

STATEMENT OF THE CASE

Petitioner James Cunningham, Jr., was convicted and

sentenced to death in October, 1979, for murdering William

Crawford in the course of an armed robbery.

The State's evidence at trial consisted primarily of

petitioner's confessions to the police. In his first and

second confessions, petitioner admitted that: on January l,

1979, he and his wife went to the house of William Crawford,

which contained Mr. Crawford's small store and residence

(T. 226-27, 273); after conversing briefly with Mr. Crawford,

petitioner struck him nine times with a pipe wrench until

Mr. Crawford was unconscious (T. 226, 273-74); petitioner

then went into Mr. Crawford's bedroom, and took 4 pocketbook

containing $ 3330.00, In his third confession, petitioner

informed police officers of the location of his blood-stained

clothing, the pipe wrench, and Mr. Crawford's wallet, and led

the police to these items. (T. 275-76.) In his final con-

fession, petitioner stated that he and his wife had planned

the robbery together, and that it was his wife who took the

money from the bedroom (T. 284-85).

The medical examiner testified that Mr. Crawford died of

brain damage, inflicted by multiple blows to the head with a

heavy meta) object. (T. 150.) The State's other witnesses

provided circumstantial evidence tending to link petitioner

to the killing. Witnesses testified that petitioner and his

wife were walking in the direction of Mr. Crawford's house

shortly before the killing occurred (T. 176, 182). Acquain-

tances of the petitioner testified that he sought to borrow

money shortly before the night of the killing (T. 171-72,

290-91), while other witnesses told of the petitioner's

possessing a substantial amount of money after the time of

the offense (T. 193, 198). Finally, witnesses testified that

petitioner and his entire family left Georgia after the

killing and went to New Jersey. (T. 189-90, 196-97, 200-01.)

During the sentencing hearing, the defense's presentation

of mitigating evidence included testimony by petitioner's

mother that he had never before been involved in any type of

trouble (T. 380), and testimony by two former employers that

petitioner had demonstrated trustworthiness during his employ-

ment (T. 374-75, 377, 383). The petitioner himself took the

stand and told the jury that: he and his wife had not gone

to the house with any plans to kill Mr. Crawford, and he had

not intended to kill the deceased (T. 391-94); they had been

driven to commit the robbery by their desperate need for money

to prevent their losing their mortgaged trailer home (T. 387,

389); and he was drunk at the time of the killing, and was

not fully aware of his actions (T. 388, 392).

Prior to the trial in this case, petitioner's counsel

filed a “Motion to Quash Indictment Because Grand Jury

Unlawfully Composed" (R. 53), and a “Challenge to Array of

Traverse Jury" (R. 60). Both pleadings ~hallenged the local

jury selection procedures as unconstitutionally discriminatory

on the basis of race and sex. In a pretrial evidentiary

hearing, petitioner presented the following statistics on the

population of Lincoln County, Georgia, and the degree of

under-representation of Black people and women on the grand

jury and traverse jury:

(1) General population statistics for Lincoln County:

(a) Racial breakdown:

Black -- 46.12 %

White -- 33.79 %

(b) Composition sex:

Women -- 50,86 %

Men -- 49.14%

(T. 18, 32.)

(2) Statistics concerning Grand Jury representation:

(a) Proportionate representation:

Blacks -- 28.67 %

Whites -- 76.30 %

Women -- 34.27 %

Men -- 65.03 %

(b) Degree of under-representation:

Under-representation of Blacks -- 37.84 %

Under-representation of women -- 32.62 %

(T. 33-34.)

(3) Statistics concerning Traverse Jury representation:

(a) Proportionate representation:

Blacks -- 29.60 %

Whites -- 70.86 %

Women -- 34,03 1

Men —é 66.43 *

(b) Degree of under- representation:

Under-representation of Blacks -- 35.82 %

Under-representation of women — 33.09 %

(T. 33-34.) In the evidentiary hearing, a jury commissioner for

Lincoln County testified that in his opinion, there were

sufficient qualified Black jurors and female jurors in the

county to make up grand and traverse juries that were propor-

tionately representative of these groups. T. 24-26. The

parties stipulated that three other jury commissioners would

have expressed the same opinion if they had taken the stand.

T. 29. In rebuttal to the petitioner's presentation, the

State elicited testimony from a jury commissioner that jury

selection was conducted in accordance with a 1973 federal

court order requiring that the commissioners select every

fifth name from the voter registration list for the traverse

jury list, and select every third name from the voter list

for the grand jury list. T. 27. After hearing the evidence,

the trial court denied petitioner's claims, on the grounds

that the jury commissioners’ compliance with the federal court

order established the lack of any discrimination, and that

moreover, this Court is at the present time without any

power or authority to set aside the Federal court order.” T. 36.

prior to trial, petitioner's counsel sought court-ordered

funding to retain an investigator. Counsel filed an Affidavit

of Poverty (R. 23), and a “Motion for Funds to Hire An Investi-

gator to Aid in the Preparation of Defendant's Defense,”

requesting $ 1,000 - $ 3,000 for investigative assistance.

R. 35. In the motion, counsel stated that there were several

witnesses who needed to be interviewed, including witnesses

who were “located in widely disparate areas of the State and

North Carolina.” R. 36. Counsel further stated that petitioner

lacked the finances to privately retain an investigator to

interview these witnesses, and that counsel could not perform

the task because he lacked the expertise and because he could

not take time away from preparing the legal aspects of the

case. Id. The trial court summarily denied petitioner's

request. R. 46.

At the conclusion of the sentencing hearing, the court

instructed the jury to determine whether to impose a sentence

of life imprisonment or death on each of the two counts

charged armed robbery and murder. T. 426-27. The judge

then instructed the jury to determine the applicability of

the following two aggravating circumstances:

(1) The offense of murder and/or armed

robbery and/or kidnapping was committed

while the offender was engaged in the

commission of another capital felony or

aggravated battery, (2) The offense of

murder and/or armed robbery and/or kid-

napping was outrageously or wantonly

vile, horrible, or inhuman, in that it

involved torture, depravity of mind, or

an aggravated battery to the victim,

T. 428. The jury found that both of these aggravating circum-

stances were present (T. 432), and returned sentences of

death on both the count of armed robbery and the count of

murder. T. 432-33.

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

1. Prior to trial, petitioner filed a “Motion to Quash

Indictment Because Grand Jury Unlawfully Composed" (R. 53) and

a "Challenge to Array of Traverse Jury” (R. 60). In each of

these motions, petitioner argued that the local jury selection

procedures discriminated on the basis of race and sex, in

violation of the Sixth Amendment and the due process and equal

protection clauses of the Fourteenth Amendment. R. 55, 62.

After a pre-trial evidentiary hearing on these issues, the

trial court denied the motions, ruling that the jury selection

procedures could not be deemed discriminatory in that they

complied with a 1973 federal court order establishing random

selection procedures for the county. Id.

On appeal to the Supreme Court of Georgia, petitioner

‘

1

argued that the trial court's denial of these motions violated —

his Sixth and Fourteenth Amendment rights. Brief of Appellant,

at 11-12. The Georgia Supreme Court rejected this :claim,

ruling that the petitioner's showing was insufficient to make

out a prima facie case of discrimination in that petitioner

had not shown that the source was tainted” and that opportu-

nity for discrimination existed from the source. Cunningham v.

State, Ga. , 284 S.E.2d 390, 393. The state supreme

court further denied the motion to quash the indictment on

the procedural ground that the petitioner had not complied with

the local requirement that such motions be filed prior to

indictment. Id. at 392.

2. Petitioner filed a pre-trial “Motion for Funds to

Hire an Investigator to Aid in the Preparation of Defendant's

Defense.” R. 35. In the motion, petitioner explained that the

assistance of an investigator was required, because there were

several witnesses who needed to be interviewed, including

out-of-state witnesses. R. 36. Petitioner stated in the

motion that he lacked the finances to privately retain an

investigator (id.), and petitioner also filed a separate

Affidavit of Poverty (R. 23). The trial court denied the

motion in a summary order. R. 46.

On appeal to the Supreme Court of Georgia, petitioner

argued that the trial court's denial of investigative assistance

violated due process and equal protection. Brief of Appellant,

at 30-31. The Georgia Supreme Court rejected this claim, aig t6

that:

the grant or denial of a motion for funds

to employ an investigator lies within the

sound discretion of the trial judge and

will not be overturned unless an abuse of

discretion is shown... . The case against

the defendant was factually simple and did

not depend on a large volume of evidence of

a technical nature. We find no abuse of

discretion in the trial court's denial of

the motion for funds to hire an investigator.

Cunningham v. State, supra, 284 S. E. zd at 395.

REASONS FOR GRANTING THE WRIT

I.

THE COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER THE PROCEDURES

FOR SELECTING THE GRAND JURY OR

TRAVERSE JURY VIOLATED THE SIXTH OR

FOURTEENTH AMENDMENTS BY DISCRIMINATING

ON THE BASIS OF RACE OR SEX

The substantial under-representation of Blacks and women

in the grand jury and traverse jury violated the Sixth Amendment

fair cross-section requirement and the Fourteenth Amendment

guarantee of equal protection.—-/ Under this Court's

well-established standards for assessing discrimination in

jury selection,

The first step is to establish that

the [under-represented] group is one

that is a recognizable, distinct class,

singled out for different treatment

under the laws, as written or applied....

Next, the degree of underrepresentation

must be proved, by comparing the propor-

tion of the group in the total population

to the proportion called to serve as

grand jurors, over a significant period

of time.... Finally, ... a selection

procedure that is susceptible of abuse

or is not racially neutral supports the

presumption of discrimination raised by

the statistical showing. Once the

defendant has shown substantial under-

representation of his group, he has made

out a prima facie case of discriminatory

purpose, and the burden then shifts to

the State to rebut that case.

Castaneda v. Partida, 430 U.S. 482, 494 (1977); Rose u.

17 In rejecting petitioner's challenge to the composition of

the grand jury, the Supreme Court of Georgia both denied the

claim on the merits, and invoked the procedural ground that the

petitioner had failed to comply with a local rule requiring that

such challenges to grand jury composition be filed prior to

indictment. Cunningham v. State, supra, 284 S.E.2d at 392-93.

However, despite ower court's invocation of this procedural

ground, this Court is still free to review the merits of the

grand jury claim. When the state courts consider the merits of

a claim despite the existence of a procedural bar, then this

Court is similarly free to examine the substantive merits of

the claim. Castaneda v. Partida, 430 U.S. 482, 485 n. 4 (1977);

Coleman v. N ° . (1964). In the present case,

the trial court considered the grand jury composition claim

on the merits (T. 35-36), and indeed permitted a full evidenti-

ary hearing on the claim. The prosecuting attorney at trial

did not in any way raise the procedural objection, and the trial

judge did not invoke the procedural bar. Although the Georgia

Supreme Court cited the procedural rule, it went on to consider

the grand jury claim on the merits. See Cunningham , State,

supra, 284 8. E. 2d at 392-93. :

Mitchell, 443 U.S. 545, 565-66 (1979). The first criterion

is clearly satisfied in the present case: "Negroes... are

members of a distinct class capable of being singled out for

different treatment under the laws" (Rose v. Mitchell, supra,

443 U.S. at 565), as are women (Duren v. Missouri, 439 U.S.

357, 363 (1979); Taylor v. Louisiana, 419 U.S. 522, 531

(1975)).

In applying the second criterion, the most commonly

employe’ and reliable test of under-representation is the

comparative disparity standard, which measures the percentage

by which the probability of serving is reduced for members of

the cognizable class. See, 2. . Alexander v. Louisiana,

405 U.S. 625, 629-30 (1972); Foster v. Sparks, 506 F.2d

805, 811-37 (Sth Cir. 1975); Kairys, Kadane & Lehoczky,

“Jury Representativeness: A Mandate for Multiple Source Lists,”

test, the percentage of under representation is analyzed with

the following calculation:

Proportion of the Proportion of source

population that is - or pool that is in

in cognizable class cognizable class

Proportion of population in class z 408

Incorporating the statistics develched at the trial level,

one derives the following figures:

Grand Jury Traverse Jury

(1) Under-representation of (1) Under-representation of

Blacks: Blacks:

* = 0 * = 2 -60 —

46.12 28.67 „ 100 = 37.84 8 6.052 9-60 x 100= 35.82

(2) Under-representation of (2) Under-representation of

women: women:

In prior decisions, this Court has indicated that prima facie

cases were established upon showing disparities of 23 % (Turner

v. Fouche, 396 U.S. 346 (1970), 33 % (Carter v. Jury Commission,

396 U.S. 320 (1970), 25 % and 33 & (Eubanks u. Louisiana,

356 U.S. 584 (1958)), and 14 & (Hernandez v. Texas, 349 U.S.

475 (1954)). Commentators have suggested, on the basis of

caselaw and Civil Rights Commission standards, that any

disparities exceeding 15 - 20 % require governmental rebuttal

and justification. See J. Van Dyke, Jury Selection Procedures

98 (1977); Kairys, Kadane & Lehoczky, supra at 799 & n.24.

Accordingly, the under-representation statistics in this

case were sufficient to establish a prima facie case of

discrimination in violation of the Sixth and Fourteenth Amend-

ments. In ruling that a prima facie case had not been shown,

the Georgia Supreme Court stated that "[t]here was no evidence

that the source was tainted in that there was no showing that

an »pportunity for discrimination existed from the source of

the jury list.” Cunningham v. State, supra at 393. But, as

this Court has made clear, statistical disparity alone is

sufficient to make out a prima facie case, and the challenger

of the jury system is not required to show opportunity for

discrimination in the source list. Castaneda v. Partida,

supra, 430 U.S. at 494-95 ("a selection procedure that is

susceptible of abuse or is not racially neutral supports

the presumption of discrimination raised by the statistical

showing,” but statistical showing is sufficient: “Once the

defendant has shown substantial underrepresentation of his

group, he has made out a prima facie case of discrimination...").

Since a prima facie case of discriminatory jury selection

had been established, the burden fell upon the State to rebut

the prima facie case. In rebuttal, the State showed that the

current selection procedures conform to a 1973 federal district

court order establishing certain random selection criteria.

The State maintained that since the federal court adopted this

é 6 «

procedure to attempt to ensure impartial jury selection, and

since the currently employed procedures comply with the federal

court order, the procedures therefore do not infringe upon the

defendant's Sixth and Fourteenth Amendment rights. The flaw

in this logic is readily apparent. Although the 1973 court

order was intended to establish impartial jury selection

processes in Lincoln County, the empirical evidence has now

shown that the procedure does not satisfy that goal. Even a

procedure which was originally designed to protect a consti-

tutional right must be abandoned when it is demonstrated that

the procedure violates the very constitutional right it was

supposed to protect. Cf. Swann v. Adams, 385 U.S. 440 (1967)

(invalidating apportionment plan constructed to effectuate the

constitutional mandate of one-person-one-vote, because the

apportionment plan produced unconstitutional inequalities);

Green v. County School Board, 391 U.S. 430 (1968) (striking down

local procedure for implementing Brown v. Board of Education

because empirical evidence demonstrated that the procedure

failed to produce the requisite goal of a nondiscriminatory

school systen) .—-2-/

2/ The trial court in this case rejected petitioner's challenge

to the selection procedures in part because it concluded that

it was “at the present time without any power or authority to

set aside the Federal court order that pertains to this county

on composition.” T. 36. The Georgia Supreme Court did not rely

on this principle of deference, apparently because, as the state

supreme court's opinion recognizes, the federal court order

expressly provided for a means by which the county jury comis-

sioners could modify the selection procedures. Cunningham v.

State, supra, 284 S.E.2d at 393. See Order, Twilight Improvement

Ass'n v. Jury Com'n of Lincoln County, c. A. 1658 (S.D. Ga.

January 8, 1973) (Alaimo, J.)("Prior to any change in the

procedures set forth in paragraph 2 of this order, the Jury

Commissioners shall give notice of same to the Judge of the

United States District Court for the Southern District of

Georgia and to all counsel of record for plaintif f.) R. 58-59.

In any event, even if the federal court decision had precluded

action by the state courts, obviously this Court has the power

to rectify the inequalities created by the selection procedures.

„ 1

Thus, petitioner's prima facie case of discrimination

was not rebutte?, and the jury selection procedures accordingly

must be struck down as violative of the Sixth and Fourteenth

Amendments. Castaneda v. Partida, supra, 430 U.S. at 499.

This Court should grant certiorari to ensure that capital

convictions are not secured through unconstitutional jury

selection procedures.

II.

THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE DENIAL OF STATE-PAID

INVESTIGATIVE SERVICES VIOLATED THE SIXTH

AMENDMENT OR THE DUE PROCESS OR EQUAL

PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT

Thorough and extensive factual investigation is critical

to the presentation of an adequate defense at trial. It has

been widely recognized that:

[Rlepresentation involves more than the

courtroom conduct of the advocate. The

exercise of the utmost skill during the

trial is not enough if counsel has

neglected the necessary investigation

and preparation of the case or faiied to

interview essential witnesses or to

arrange for their attendance.

Moore v. United States, 432 F.2d 730, 739 (3rd Cir. 1979) (en

banc). The American Bar Association's standard for defense

counsel expressly recognize a “duty to investigate” because

it is axiomatic among trial lawyers and

judges that cases are not won in the

courtroom but by the long hours of laborious

investigation and careful preparation and

study of legal points which precede the

trial. In our system of justice a trial is

not an inquiry to expose previously unknown

facts. . . Investigation and preparation

are the keys to effective representation ....

It is impossible to overemphasize the

importance of appropriate investigation

to the effective and fair administration of

criminal justice.

ABA Standards Relating to the Defense Function, Commentary,

o 22 «

— —

at 224-25; see id., Standard § 4.1 (Duty to Investigate).

Although this Court has not as yet ruled on the question

of an indigent defendant's constitutional right to State paid

imestigative assistance, several lower courts have concluded

that indigent defendants are entitled to such services under

the equal protection clause of the Fourteenth Amendment, or in

order to satisfy the Fourteenth Amendment's requirement of

fundamental fairness and the Sixth Amendment's requirement of

effective assistance of counsel. See Mason v. Arizona,

504 F.2d 1345, 1351 (9th Cir. 1974), cert. denied, 420 U.S.

936 (1975) (Sixth and Fourteenth Amendment right to effective

assistance of counsel encompasses right to State-paid investi-

gative services); Lee v. Habib, 137 U.S. App. D.C. 403, 411,

424 F.2d 891, 899 (1970) (Wright, J.) (equal protection); United

States v. Germany, 32 F.R.D. 421, 423-24 (M.D. Ala. 1963)

(Johnson, J.) (effective assistance of counsel); State v.

Second Judicial District, 85 Nev. 241, 453 P.2d 421 (1969)

(equal protection); cf. Gibson v. Jackson, 443 F. Supp. 239,

250 (M.D. Ga. 1977), vacated and remanded on other grounds,

578 F.2d 1045, 1054-55 (Sth Cir.), cert. denied, 439 U.S. 1119

(1978) (constitutional right to access to the courts confers

entitlement to State-paid investigative services in habeas

corpus proceedings).

In the present case, defense counsel sought investigative

resources on behalf of his indigent client, in order to prepare

for trial, and particularly, in order to interview witnesses,

some of whom were located in widely disparate areas of [the]

State and North Carolina." Motion for Funds to Hire an Investi-

gator, R. 35, 36. In rejecting petitioner's claim that he was

constitutionally entitled to such assistance, the Georgia

Supreme Court stated that the trial judge's denial of funding

was not an abuse of discretion because: The case against the

defendant was factually simple and did not depend on a large

4 230

— — —

volume of evidence of a technical nature." Cunningham v. State,

supra, 284 S.E.2d at 393. Although the transcript does indeed

reflect a very brief and simple trial, the inadequacy of the

defense's attack upon Government witnesses and the paucity of

defense evidence may well have been due to the absence of

adequate defense investigation of this case.

Indeed, the record reflects several ways in which proper

investigation could have aided the defense. The State's case

rested almost exclusively on the confessions of petitioner,

and investigation would have greatly enhanced the defense's

chances of suppressing these confessions. An investigator

conceivably could have found guards or other prisoners from

the North Carolina jail to support the defense's allegation

that at the time of the first confession, petitioner was

suffering from lack of sleep and was in such a poor physical

and mental condition as to render the confession uncons ti tut ion-

ally involuntary. An investigator also might have been able

to provide evidentiary support for defense counsel's allegations

that the third confession was unconstitutionally coerced through

police officers’ deliberate misrepresentations, and that all

of the confessions had been unconstitutionally obtained in

violation of petitioner's Sixth Amendment right to the presence

of already appointed counsel. Moreover, an investigator could

have interviewed the various police officers involved in

taking the confessions, and provided impeachment material to

use in attempting to suppress the confessions on grounds of

failure to comply with Miranda requirements.

Furthermore, investigative assistance could have substan-

tially bolstered the defense's other legal challenges. For

example, an investigator could have helped amass more substantial

factual bases for the attack upon the discriminatory jury

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selection procedures (R. 53, 60), and for the request for

change of venue on grounds of prejudicial pre-trial publicity

(R. 16). An investigator also could have aided in preparing for

the capital sentencing hearing, by seeking additional

mitigating witnesses, and by supplying the statistical and

factual bases for an argument on proportionality.

Accordingly, the record demonstrates several ways in which

adequate investigative resources could have substantially im-

proved the efficacy of defense counsel. This Court should

grant certiorari to determine whether the trial court's denial

of such resources deprived petitioner of equal protection and

effective assistance of counsel.

CONCLUSION

For the foregoing reasons, the writ of certiorari should

be granted.

Respectfully submitted,

Chant

CHARLES BOGER

10 Columbus Circle

New York, New York 10019

(212) 586-8397

ATTORNEY OF RECORD

RANDY HERTZ

704 Sth Street S.E.

Washington, D.C. 20003

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

DEBORAH FINS

JAMES S. LIEBMAN

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

New York University School of Law

New York, New York 10012

ATTORNEYS FOR PETITIONER

Dated: New York, New York

January 29, 1982

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