# Petition — McElroy v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 965

## Text

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

a 24 «

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1828%3A1. Public record. Not legal advice.