# Appendix — Linahan v. Machetti

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0066%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1127

## Text

TABLE OF CONTENTS

Page

Order denying Petition for Rehearing from the

United States Court of Appeals for the

VON Ms cau tec kk ba Lewiaee sh6 vccees 3a
Opinion of the United States Court of Appeals

for the Eleventh Circuit...............cec cece 5a
Order of the District Court denying habeas

SE NS 4760 Via os ease cain be¥.c0esa baled ss 19a
Order of the state habeas corpus court

SINE PONUNED Wi 7a's 5 vb each a'eis ba oo vv v's ape 29a

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[U.S. Court of Appeals, Eleventh Circuit, Filed
August 24, 1982. Norman E. Zoller, Clerk]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 81-7614

REBECCA A. MACHETTI, a/k/a
REBECCA A. SMITH,
Plaintiff-A ppellant,
versus

L. Q. LINAHAN, Warden, Georgia Women’s
Correctional Institution,
Defendant-A ppellee.

Appeal from the United States District Court for the
Middle District of Georgia

ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion June 25, 11 Cir., 1982, F.2d >,

Before INGRAHAM*, HATCHETT and ANDERSON,
Circuit Judges
PER CURIAM:

( X ) The Petition for Rehearing is DENIED and no
member of this panel nor Judge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc (Rule 35, Federal Rules of Appel-
late Procedure; Eleventh Circuit Rule 26), the suggestion
for Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED and the
Court having been polled at the request of one of the

*Judge, 5th Circuit Court of Appeals, sitting by designation.

da

members of the Court and a majority of the Circuit
Judges who are in regular active service not having voted
in favor of it (Rule 35, Federal Rules of Appellate Pro-
cedure; Local Eleventh Circuit Rule 26), the suggestion
for Rehearing En Banc is also DENIED.

( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en
banc, and a majority of the judges in active service not
having voted in favor of it, rehearing en bane is DENIED.

ENTERED FOR THE COURT:

/s/ JoserpH W. HatcHett
United States Circuit Judge

REHG-6

5a

Rebecca A. MACHETTI, a/k/a Rebecca
A. Smith, Plaintiff-Appellant,

v.

L. Q. LINAHAN, Warden, Georgia
Women’s Correctional Institution,
Defendant-Appellee.

No. 81-7614.
United States Court of Appeals,
Eleventh Circuit.
June 25, 1982.

Habeas petitioner appealed from a decision of the United
States District Court for the Middle District of Georgia,
Wilbur D. Owens, Jr., Chief Judge, 517 F.Supp. 1076,
denying her petition. The Court of Appeals, Hatchett,
Circuit Judge, held that state jury selection procedure
that permitted any woman who did not wish to serve on
a jury to opt out merely by sending notice to the jury
commissioners deprived petitioner of her right to an im-
partial jury trial.

Reversed and remanded with directions.

1. Habeas Corpus 25.1(3, 4)

Generally, a federal court will honor a valid state pro-
cedural rule that a defendant’s failure to object to a grand
or petit jury before or during trial constitutes waiver of
that objection as a basis for habeas corpus relief. 28
U.S.C.A. § 2254.

2. Habeas Corpus 45.1(4)

Where state habeas court entertains federal constitu-
tional claims on the merits, the federal habeas court must
also adjudicate the merits. 28 U.S.C.A. § 2254.

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3. Grand Jury 21%
Jury 33(1.1)

Constitutional guarantee of the right to an impartial
jury also embraces a right that grand and petit juries be
selected at random so as to represent # fair cross section
of the community. U.8.C.A.Const.Amend. 6.

4. Constitutional Law 213.1(1)

Prima facie case of an equal protection violation may
be rebutted by proving an absence of discriminatory pur-
pose or that such purpose did not have a determinative
effect. U.S.C.A.Const.Amends. 5, 14.

5. Jury 33(1.1)

Since systematic disproportion alone establishes a prima
facie claim that a jury did not represent a fair cross sec-
tion of the community, rebuttal evidence focuses on the
significant state interest which justifies the imbalance.
U.S.C.A.Const.Amend. 6.

6. Grand Jury 2%

Jury 33(1.5)

Evidence that the traverse jury list from which habeas
petitioner’s jury was drawn was composed of only 18 per-
cent women and that the grand jury list contained only
12 percent women, although the county’s population was
comprised of 54 percent women, constituted an adequate
prima facie showing that the jury did not represent a fair

cross section of the community. U.S.C.A.Const.Amend.
6; 28 U.S.C.A. § 2254.

7. Habeas Corpus 85.5(12)

Habeas petitioner’s proof sufficiently established that
the underrepresentation of women in the jury selection

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process in her case was due to a state jury selection pro-
cedure that permitted any woman who did not wish to
serve on a jury to opt out merely by sending written notice
to the jury commissioners. Ga.Code, § 59-124 (Repealed);
U.8.C.A.Const.Amend. 6; 28 U.S.C.A. § 2254.

8. Jury 33(1.5)

State jury selection procedure that permitted any wom-
an who did not wish to serve on a jury to opt out merely
by sending written notice to the jury commissioners de-
prived habeas petitioner of her right to an impartial jury
trial. 28 U.S.C.A. § 2254: Ga.Code, § 59-124 (Repealed);
U.S.C.A.Const.Amends. 6, 14.

Appeal from the United States District Court for the
Middle District of Georgia.

Before INGRAHAM*, HATCHETT and ANDER-
SON, Circuit Judges.

HATCHETT, Circuit Judge:

This appeal requires a review of the principles of con-
stitutional law governing the fair cross-section require-
ment of jury composition. We hold that Georgia’s jury
selection procedure violated appellant’s sixth and four-
teenth amendment right to an impartial jury trial and
reverse and remand to the district court, 517 F.Supp.
1076, with directions to issue the writ of habeas corpus.

*Honorable Joe M. Ingraham, U. 8. Circuit Judge for the Fifth Cir-
cuit, sitting by designation.

ta
I. BACKGROUND

Appellant, Rebecca Machetti, seeks federal habeas
corpus relief under 28 U.S.C. § 2254 (1977), from two
consecutive death sentences. The sentences were imposed
by the Superior Court of Bibb County, Georgia, follow-
ing her February, 1975, jury conviction for two murders.
On appeal, the Supreme Court of Georgia affirmed the
convictions and sentences and denied her petition for re-
hearing. Smith v. State, 236 Ga, 12, 222 8.E.2d 308, cert.
denied, Smith v. Georgia, 429 U.S. 932, 97 S.Ct. 339, 50
L.Ed.2d 302 (1976), rehearing denied, 429 U.S. 1055, 97
8.Ct. 771, 50 L.Ed.2d 772 (1977). The Bibb County
Superior Court denied Machetti’s petition for declara-
tory relief and/or a new presentence hearing and for a
stay of execution. After staying her execution pending
appeal, the Supreme Court of Georgia denied the appeal
and a motion for rehearing. Smith v. Stale, 238 Ga. 655,
235 S.E.2d 375, cert. denied, Smith v. Georgia, 434 U.S.
878, 98 S.Ct. 232, 54 L.Ed.2d 159, rehearing denied, 434
U.S. 961, 98 S.Ct. 496, 54 L.Ed.2d 323 (1977). Georgia’s
high court then issued remittitur to the Bibb County
Superior Court, which slated January 20, 1978, as the
date of Machetti’s execution. She then filed a habeas cor-
pus petition in the Superior Court of Baldwin County,
Georgia, which stayed the execution but later denied the
petition. In July, 1979, the Georgia Supreme Court de-
nied her application for a certification of probable cause
to appeal and denied her motion for reconsideration.

After exhausting her state remedies, Machetti filed a
petition for writ of habeas corpus in January, 1978, in
the district court for the Middle District of Georgia.
That court stayed her execution ‘‘until such time as her
action has been finally decided in the courts of the United
States.” After reference to a magistrate, the district court

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denied Machetti’s petition. Machetti v. Linahan, 517
F.Supp. 1076 (M.D.Ga.1981).

Machetti was convicted on February 28, 1975, of two
counts of murder in the brutal slaying of her ex-husband,
Joseph Ronald Akins, and his wife, Juanita. Machetti
planned the murder so that her thre: teenage daughters
might reczive the benefits of their father’s insurance: pol-
icies. At the sentencing hearing, Machetti’s attorn»+y in-
troduced no new evidence but begged the jury to find
mitigating factors without suggesting any such cireum-
stances. The jury recommended death on both counts,
and the court sentenced Machetti to two consecutive
death sentences.

Evidence received at the state habeas hearing showed
that the triverse jury list from which Machetti’s jury
was drawn was composed of only 18% women, despite a
1970 census showing that women comprised 54% of Bibb
County’s adult population. The grand jury list con-
tained only 12% women. Thus, the absolute disparity
between the adult female population of Bibb County and
the grand jury list was 42%, and 36% with respect to the
traverse jury list.? Appellee, L. Q. Linahan, Warden of
the Georgia Women’s Correctional Institution, concedes
the accuracy of these statistics. At the time of jury s2lec-
tion, Ga.Code Ann. § 59-124 (repealed 1975) provided
that any woman who did not wish to serve on a jury
could ‘‘opt-out’”’ merely by sending written notice to the

' Appellant was convicted and sentenced by a twelve-member petit
jury which included one woman.

* Absolute disparity is one method used to calculate disparity. Ab-
solute disparity measures representativeness by the difference between
the proportion of the population and the proportion of the underrep-
resented category in the jury box. Kairys, Kadane & Lehoczky, Jury

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jury commissioners.* Potential women jurors in Bibb
County automatically received cards allowing them the
opportunity to exempt themselves from service.

II. ISSUE

We must decide whether appellant was indicted and
convicted by juries drawn from a venire which unconsti-
tutionally exeluded and underrepresented women.

Ill, JURY COMPOSITION

[1,2] Machetti’s counsel first raised the jury compo-
sition issue at the state habeas corpus hearing.‘ She con-
tends that the operation of section 59-124 systematically
excluded women from the venire; and therefore, she was
indicted by a grand jury and convicted by a traverse jury
drawn from jury boxes in which women were unfairly
underrepresented. Machetti thus contends that the Geor-
gia jury selection procedure deprived her of her right to

Representativeness: A Mandale for Multiple Source Lists, 65 Cal.L.
Rev. 776, 790 (1977).

§ Ga.Code Ann. § 59-124 (1965) (repealed 1975) provided:

Exemption of women who do not desire to serve.—Any woman of
this State who does not desire to serve upon juries shall notify the
jury commissioners of the county in which she resides in ge to
that effect, and thereupon the jury commissioners shall not place
the name of such woman in the jury box for said county. 1953 Ga.
Laws Nov.Sess., pp. 284, 288 (repealed 1975).

4 Generally, a federal court will honor a valid state procedural rule
that a defendant’s failure to object to a grand or petit jury before or
during trial constitutes waiver of that objection as a basis for habeas
corpus relief. Francis v. Henderson, 425 U.S. 536, 541-42, 96 S.Ct.
1708, 1711, 48 L.Ed.2d 149 (1976); Stewart v. Ricketts, 451 ¥'.Supp.
911, 913-14 (M.D.Ga.1978). A Georgia decisional rule force at the
time of appellant’s trial in February and March, 1975, mandated that
result. Where, however, the state habeas court entertains the federal
constitutional claims on the merits, as in the instant case, the federal
habeas court must also adjudicate the merits. Lefkowitz v. Newsome,
420 U.S. 283, 292 n.9, 95 S.Ct. 886, 891 n.9, 43 L.Ed.2d 196 (1975);
Newman v. Henderson, 539 F.2d 502, 504 (5th Cir. 1976).

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a fair trial by jury of a representative segment of the com-
munity. The district court upheld the selection process.

[3] Fundamental to our system of justice is the prin-
ciple that the sixth amendment grants criminal defen-
dants the right to an impartial jury. This guarantee also
embraces a right that grand and petit juries be selected
at random so as to represent a fair cross-section of the
community. Taylor v. Louisiana, 419 U.S. 522, 527-30, 95
S.Ct. 692, 696, 42 L.Ed.2d 690 (1975); United States v.
Perez-Hernandez, 672 F.2d 1380, at 1384 (11th Cir. 1982).
Also relevant to our inquiry is the notion that

the two sexes are not fungible; a community made up
exclusively of one is different from a community com-
posed of both; the subtle interplay of influence one on
the other is among the imponderables. To insulate the
courtroom from either may not in a given case make
an iota of a difference. Yet a flavor, a distinct quality
is lost if either sex is excluded. The exclusion of one
may indeed make the jury less representative of the
community than would be true if an economic or racial
group were excluded.

Ballard v. United States, 329 U.S. 187, 193-94, 67 S.Ct.
261, 264, 91 L.Ed. 181 (1946) (footnote omitted). More-
over, as the Supreme Court more recently stated, “[w|han
any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from
the jury room qualities of human nature and varieties of
human experience, the range of which is unknown and
perhaps unknowable.” Peters v. Kiff, 407 U.S. 493, 503,
92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972).

In Taylor, the Supreme Court held unconstitutional
a state “opt-in” statute which automatically excluded
women from the jury list unless they chose to be included
by filing a written request for jury service. Taylor estab-

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lished that the “jury wheels, pools of names, panels, or
venires from which juries are drawn must not systemati-
cally exclude distinctive groups in the community and
thereby fail to be reasonably representative thereof.’’ 419
U.S. at 538, 95 S.Ct. at 702, quoted in Smith v. Balkcom,
660 F.2d 573 (5th Cir. 1981). In contrast to the statute
involved in Taylor, Ga.Code Ann. § 59-124 was an “opt-
out” statute that automatically included women unless
they opted not to serve. The Georgia legislature repealed
this statute shortly after the Court decided Taylor,

In January, 1979, one year after the filing of Machetti’s
federal habeas corpus petition, the Supreme Court in
Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d
579 (1979), held unconstitutional a state opt-out statute
which also exempted women from jury service on request.
In setting forth the elements of a prima facie violation of
the fair cross-section requirement, the Court required the
defendant to show

(1) that the group alleged to be excluded is a “‘distinc-
tive” group in the community; (2) that the represen-
tation of this group in venires from which juries are
selected is not fair and reasonable in relation to the
number of such persons in the community; and (3)
that this underrepresentation is due to systematic ex-
clusion of the group in the jury-selection process.

439 U.S. at 364, 99 S.Ct. at 668.

In this case, the magistrate suggested that Machetti
met the first two criteria required by Duren. The magis-
trate further suggested, however, that Machetti failed to
satisfy the third requirement of establishing that the un-
derrepresentation of women was due to their systematic
exclusion in the jury selection process. Nevertheless, the
magistrate stated that the operation of Georgia’s opt-out

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statute caused the disproportionate representation of
women in Machetti’s case. The magistrate suggested that
Machetti had failed to satisfy the third prong because it
was not until 1979 that the Supreme Court in Duren de-
clared that states could not constitutionally permit all
women to opt out from jury duty solely on the basis of
sex. He thereby implied that the Duren holding that Mis-
souri’s opt-out statute constituted ‘‘systematic exclusion”
was not retroactive. Alternatively, we read this finding
to assume that the opt-out statute alone is insufficient
prima facie evidence of systematic underrepresentation.
The magistrate thus stated that Machetti failed to pre-
sent any other evidence establishing that the sexual im-
balance in Bibb County’s venire was due to systematic
exclusion of women in the jury selection process.

The district court held that Duren could not be applied
retroactively on collateral review and that Machetti was
therefore not entitled to relief. The court noted that be-
cause Duren is not applicable to Machetti’s collateral
attack, that it was not necessary for the magistrate to
consider whether the circumstances of this case satisfied
the Duren requirements. Although declining to adopt the
magistrate’s recommendations on this issue, the district
court adopted the magistrate’s suggestion that Machetti
failed to show that anything other than Georgia’s opt-
out statute contributed to the underrepresentation of
women on the jury list. The court thus implicitly acknowl-
edged that Machetti demonstrated that section 59-124
caused the unconstitutional exclusion of women.

Machetti argues that the district court erred because
Duren, decided some four years after her trial, must be
applied retroactively to her case. In Lee v. Missouri, 439
U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979) (per

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curiam), the Supreme Court held that Duren is retro-
actively applicable to a jury sworn after the decision in
Taylor because Duren did not establish any new princi-
ples of constitutional law not already settled by Taylor.
439 U.S. at 462, 99 S.Ct. at 711. Appellee concedes that
Lee requires the retroactive application of Duren to this
collateral attack. Appellee, however, requests this court
to remand the instant case to the district court for con-
sideration of whether the facts herein meet the three-
prong test of Duren.

We find no just reason for a remand under the present
circumstances. Machetti has remained on death row for
seven years pending the resolution of these legal proceed-
ings. Appellee has admitted that no questions of fact
remain, that no additional relevant factual evidence exists,
that no evidence controverts the facts established by Ma-
chetti, and that the statistics presented are accurate. The
only questions remaining are whether, as a matter of law,
the disparity herein violates the sixth amendment and
whether the operation of Ga.Code Ann. § 59-124 consti-
tuted “systematic exclusion.’”’ We thus examine whether,
as a matter of law, Machetti established a prima facie
fair cross-section claim based on the exclusion of women.

[4-6] It is undisputed that women are a recognizable,
distinct class under the first element of the prima facie
case. There is no doubt that the relevant statistics satisfy
the second criteria of unfair underrepresentation. The
absolute disparity between the percentage women in the
general adult population (54%) and on the 1975 petit
jury list (18%) is 36%, whereas a 42% disparity existed
with respect to the percentage of women on the grand
jury list (12%).* The Supreme Court has never fashioned

5 Although the census figures relied on were five years old at the
time of appellant’s trial, the Supreme Court has previously accepted

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precise mathematical standards for gauging systematic
exclusion. See Alexander v. Louisiana, 405 U.S. 625, 630,
92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972). Neverthe-
less, Supreme Court and Fifth Circuit precedent provide
some guidance as to the magnitude of disparity needed
to establish a prima facie cross-section claim. The vari-
ance here is sufficiently disproportionate to fall within the
approximate boundaries delineated in cases holding that
the statistical disparities established prima facie viola-
tions.* See, e.g., Duren, 489 U.S. at 360, 99 S.Ct. at 666
(88%); Turner v. Fouche, 396 U.S. 346, 90 8.Ct. 532, 24
L.Ed.2d 567 (1970) (23%); Hernandez v. Texas, 347 U.S.
475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Porter v,
Freeman, 577 F.2d 329 (5th Cir. 1978) (20.4%); Preston

six-year-old data as adequate proof of the percentage of the distinctive
class in the community. Duren v. Missouri, 439 U.S. 357, 365 & n.24,
99 S.Ct. 664, 669 & n.24, 58 L.Ed.2d 579 (1979); Alexander v. Louisi-
ana, 405 U.S. 625, 627, 92 S.Ct. 1221, 1223, 31 L.Ed.2d 536 (1972).
Furthermore, no evidence exists in the record to indicate that the
1970 census data “significantly distorted” the percentage of women
in Bibb County at the time of vrial so that the figures were of ques-
oe relevance. Duren, 439 U.S. at 357, 99 8.Ct. at 664, 58 L.Ed2d
Joi.

* Some of the cases relied on for establishing the benchmark per-
centages to raise a prima facie claim of discrimination in jury selec-
tion involved equal protection challenges. The standard for proving a
prima facie violation is virtually identical under both the fair cross-
section and equal protection analyses. United States v. Perez-Hernan-
dez, 672 F.2d 1380, at 1384 n.5 (11th Cir. Apr. 15, 1982).

Different evidence, however, is relevant to rebutting each challenge.
A prima facie case of an equal protection violation may be rebutted
by proving an absence of discriminatory purpose or that such pur-
e did not have a determinative effect. Castaneda v. Partida, 430
8. 482, 493-95, 97 S.Ct. 1272, 1279-1280, 51 L.Ed.2d 498 (1977).
Discriminatory purpose is irrelevant toa fair cross-section claim which
focuses solely on the composition of the venire. Since systematic dis-
proportion alone establishes a prima facie cross-section claim, the
rebuttal evidence focuses on the significant state interest which
justifies the imbalance. Duren v. Missouri, 439 U.S. at 367-68 & n.26,
99 8.Ct. at 670-671 & n.26.

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v. Mandeville, 428 F.2d 1392 (5th Cir. 1970) (13.3%). We
hold that appellant’s statistical evidence constituted an
adequate prima facie showing for the purpose of estab-
lishing a fair cross-section violation.

As to the third requirement, the magistrate’s recom-
mendation stated that Machetti failed to establish that
the underrepresentation of women in the final pool was
due to their systematic exclusion in the jury selection
process. As noted above, the magistrate impliedly based
this finding on the erroneous premise that the declaration
in Duren that states could not constitutionally permit all
women to opt out from jury duty solely on the basis of
sex did not apply to this case. The magistrate conducted
a Duren analysis, yet refused to apply its holding on the
ground that Duren is not retroactively applicable. The
magistrate also distinguished Taylor, decided one month
prior to appellant’s trial, which involved a statute that
automatically excluded women from jury lists because
they failed to opt-in whereas this case involved an opt-
out statute, as in Duren. Lee, however, indicates that
Duren merely clarified Taylor and that the constitutional

standards enunciated in Taylor retroactively apply here,
even though Duren was decided approximately four years
after Machetti’s jury trial.

Moreover, the magistrate explicitly found that ‘‘[t)here
can be no doubt that the underrepresentation of women in
{Machetti’s] case was caused by Ga.Code Ann. § 59-124.”
In stating that the magistrate need not have decided the
constitutionality of the jury composition under Duren
because it was not retroactively applicable to this collat-
eral attack, the district court never repudiated this pro-
posed finding. In fact, the court implicitly agreed that
Machetti met the third-prong in Duren by adopting the
portion of the magistrate’s proposed finding that Ma-

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chetti “failed to show that anything other than Ga.Code
Ann. § 59-124 contributed to the underrepresentation of
women in said jury boxes.” 519 F.Supp. at 1080. Not
only did the district court agree that the disparity result-
ed solely from the operation of Georgia’s opt-out statute,
but at oral argument appellee concurred in this view,
conceding that no further evidence exists of the cause of
the disproportionate representation of women.

(7, 8] We hold that the Machetti’s proof sufficiently
established that the underrepresentation of women re-
sulted from their systematic exclusion in Georgia’s jury
selection procedure. Her undisputed showing that this
significant disparity occurred over a period of twenty
months, from February, 1974, through September, 1975,
unmistakably indicates that the cause of the imbalance
was inherent in the jury selection procedure under Ga.
Code Ann. § 59-124. Duren established that the existence
of an opt-out system, as embodied by statute, in conjunc-
tion with the resulting disproportionate and consistent
exclusion of women from the final jury pool was prima
facie evidence of systematic exclusion of women. 439 U.S.
at 366-67, 99 S.Ct. at 669-70. Moreover, appellee intro-
duced no evidence to rebut Machetti’s case. We there-
fore conclude that the Georgia jury-selection system in
effect at the time of Machetti’s trial deprived her of her
sixth and fourteenth amendment right to an impartial
jury trial.

Because the jury composition issue is dispositive, we
need not reach the additional issues presented.’

7 Machetti has also presented issues involving the effective assist-
ance of counsel at the sentencing phase; the validity of Georgia’s
death penalty statute as applied to appellant; and whether the death
penalty was applied arbitrarily and discriminatory on the grounds of
race and poverty.

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IV. CONCLUSION

We do not establish absolute limits on jury composi-
tion which would automatically authorize finding a con-
stitutional violation. We merely hold that the percentage
of women on the Bibb County jury lists should more
closely approximate the percentage of women in the adult
community and that 36% and 42% absolute disparities
resulting from the operation of Georgia’s opt-out statute
are unconstitutionally excessive. We therefore reverse and
remand to the district court with directions to issue the
writ of habeas corpus.

REVERSED AND REMANDED WITH DIREC-
TIONS.

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[Filed at 11:20 A.M., June 29, 1981, Helen F. Newberry,
Deputy Clerk, U.S. District Court,
Middle District of Georgia. |

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

REBECCA A. MACHETTI, a/k/a
REBECCA A. SMITH,

Petitioner, CIVIL
vs. ACTION
L. Q. LINAHAN, Warden, Georgia NO.
Women’s Correctional Institution, 79-210-MAC
Respondent.

OWENS, District Judge:

Petitioner seeks federal habeas corpus relief under 28
U.S.C.A. § 2254 (1977). She requests that this court grant
a writ of habeas corpus or, in the alternative, hold a full
evidentiary hearing on all issues which she has presented
and then grant a writ of habeas corpus.

This case has been under consideration in one form or
another by state and federal courts in excess of a total of
six years. Petitioner was convicted of two counts of mur-
der in the Superior Court of Bibb County on March 1,
1975. Following a jury trial she received two consecutive
death sentences. On direct appeal her sentences and con-
victions were affirmed by the Georgia Supreme Court.
Smith v. State, 236 Ga. 12 (1976), cert. denied, Smith v.
Georgia, 429 U.S. 932 (1976). A petition for rehearing was
denied on January 10, 1977. On January 13, 1977, peti-
tioner filed a petition for a declaratory judgment and/or
presentence hearing and stay of execution in the Bibb
County Superior Court. This petition was denied, and
the denial was affirmed by the Supreme Court of Geor-
gia. Smith v. State, 238 Ga. 655 (1977), cert. denied, 428

20a

U.S. 910 (1977), rehearing denied, 429 U.S. 87 (1977).
Petitioner, on January 9, 1979, then filed a petition for
a writ of habeas corpus in the Superior Court of Baldwin
County, Georgia. After a two-day hearing that petition
was denied on May 9, 1979. A notice of appeal was filed
by petitioner on May 30, 1979. Her application for a cer-
tificate of probable cause to appeal was denied by the
Supreme Court of Georgia on July 10, 1979, and a motion
for reconsideration was denied by that court on July 17,
1979. The petition under consideration was filed in this
court on August 30, 1979, and referred to the United
States Magistrate who issued proposed findings of fact
and conclusions of law on March 24, 1981. Thereafter
petitioner filed her objections to those proposed findings
of fact and conclusions of law.

The record before this court among other things con-
tains transcripts of the petitioner’s trial (over 1,200 pages)
and state habeas corpus hearing (over 300 pages); a
ninety-two-page order of the Honorable Joseph B. Duke
denying petitioner’s state habeas petition; various depo-
sitions and affidavits offered by petitioner as supportive
of her contentions; over 1,200 pages of a transcript of an
evidentiary hearing in People v. Moore; and, briefs of the
parties regarding the instant petition.

This court has carefully considered each contention
made by the petitioner. The record has been scrutinized
to determine if any of the elements of § 2254(d) ' which

1 28 U.S.C. § 2254(d) provides:

In any proceeding instituted in a Federal court by an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination after a hearing on the
merits of a factual issue, made by a State court of competent juris-
diction in a proceeding to which the applicant for the writ and the
State or an officer or agent thereof ee parties, evidenced by a

2la

would overcome the statutory presumption of correctness
accorded the state court determination and entitle peti-
tioner to a hearing exists. The court has been unable to
find anything which would warrant such a hearing. Upon
review of the petition, the record before the court, and
the report of the United States Magistrate, the court finds
that the allegations of deprivation of constitutional rights
contained in the petition are of no merit.

Except for the Magistrate’s suggestions as to whether
petitioner established a prima facie case of unconstitu-
tional jury box composition as delineated by the Supreme
Court of the United States in Duren v. Missouri, 439 U.S.
357 (1979), this court approves and adopts the Magis-

written finding, written opinion, or other reliable and adequate
written indicia, shall be presumed to be correct, unless the applicant
— establish or it shall otherwise appear, or the respondent shall
mit —
(1) that the merits of the factual dispute were not resolved in
the State court hearing;
(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at
the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter
or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel
to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate
hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law
in the State court proceeding;
(8) or unless that part of the record of the State court procced-
ing in which the determination of such factual issue was made,
pertinent to a determination of the sufficiency of the evidence
to support such factual determination, is produced as provided
for hereinafter, and the Federal court on a consideration of such
part of the record as a whole concludes that such factual deter-
mination is not fairly supported by the record.

22a

trate’s proposed findings of fact and conclusions of law
in their entirety. The court makes the following addi-
tional comments and findings as to the issues of (1) in-
effective assistance of counsel, (2) jury box composition,
and (3) application of the death penalty.

(1) Ineffective Assistance of Counsel

Petitioner contends in her objections to the “Proposed
Findings of Fact and Conclusions of Law” of the United
States Magistrate (Objections) that the state habeas
court’s decision as to the effectiveness of her counsel was
based on an invalid standard, and thus must be recon-
sidered in the light of a recent United States Supreme
Court case establishing the standard to be used in deter-
mining whether there was effective assistance of counsel.
Specifically, petitioner contends that the state habeas
court used the old standard which made a distinction
between retained and appointed counsel, with retained
counsel being subject to a less stringent standard. In
Cuyler v. Sullivan, 446.U.8. 335 (1980) the Supreme Court
stated that the use of different standards depending on
whether counsel was retained or appointed is improper;
retained counsel should be subject to as stringent a stan-
dard as appointed counsel. As petitioner has noted, this
standard has since been utilized by the Fifth Circuit in
Kemp v. Leggett, 635 F.2d 453 (5th Cir. 1981) (Objections
p. 12).

Even assuming that Cuyler applies retroactively to this
case, a careful reading of Judge Duke’s order in the state
habeas proceeding shows that his decision as to the effec-
tiveness of petitioner’s counsel was not based on the im-
proper dual standard. It is true that Judge Duke referred
to the dual standard which he stated was found in fed-
eral decisions. His decision however did not rest on these
cases or on the now disapproved of less stringent standard

23a

for retained counsel. Prior to making reference to this
practice in the federal courts, Judge Duke cited Pitts v.
Glass, 231 Ga. 638, 203 S.E.2d 515 (1974) as delineating
the standard in Georgia for determining the effective
assistance of counsel (‘‘counsel reasonably likely to ren-
der and rendering reasonably effective assistance”). He
then stated that the “Fifth Circuit Court of Appeals in
MacKenna v. Ellis, 286 F.2d 592, 599 (5th Cir. 1970),
interpreted this standard more fully to mean ‘not error-
less counsel and not counsel judged ineffective by hind-
sight, but counsel reasonably likely to render and render-
ing reasonably effective assistance.’’’ (Order of Judge
Duke at p.51). Both of these Fifth Circuit cases dealt with
appointed counsel, not retained counsel. As explained
supra, under the old dual system the standard for deter-
mining the effectiveness for appointed counsel was more
stringent than that for retained counsel. Consequently,
by citing Pitts and MacKenna as the applicable standard
for determining whether petitioner had effective assistance
of counsel, Judge Duke applied the harder ‘‘appointed
counsel” standard to Mr. Hawkins, even though Mr.
Hawkins was not appointed. If anything, this would tend
to militate in petitioner’s favor; thus, there can be no in-
ference that Mr. Hawkins “got off easy” by being
judged effective under a dual system subsequently dis-
credited by the Supreme Court of the United States.

(2) Jury Composition

Petitioner alleged in Paragraph 90-92 of her petition
that she was indicted and convicted by grand and traverse
juries drawn from jury boxes from which women were un-
constitutionally excluded. The Magistrate suggests that
there is no merit to these claims. In her objections peti-
tioner contends that she was deprived of constitutionally

24a

adequate representation in said jury boxes of her peers—
women — because of a state statute allowing women to
opt out of jury service; she says that statutory procedure
was a “clear denial of Basic Due Process rights and the
right to a trial by a representative jury.”’ According to
petitioner, the fact that the relevant statute (Georgia
Code Ann. § 59-124, Repealed by Acts 1975, pp. 779, 780)
was not attacked prior to the U. 8. Supreme Court deci-
sion in Duren v. Missouri, 439 U.S. 357 (1979) does not
make that statute any less unconstitutional as to her and
said jury boxes. Finally, petitioner contends that Duren
“merely clarified’? Taylor v. Louisiana, 419 U.S. 522
(1975).

In considering petitioner’s contention as to the compo-
sition of the jury boxes —as far as women are concerned —
it is important to look at the chronology of events from
1975 to the present: In January of 1975, the United States
Supreme Court in Taylor held that a statute automat-
ically excluding women from jury service unless they opted
to be included by filing a written request for jury service,
was unconstitutional. In February 1975, petitioner was
tried and convicted, and on March 1, 1975, she was sen-
tenced to death. Georgia Code Ann. § 59-124 was re-
pealed by Acts 1975, pp. 779, 780. After exhausting her
avenues of direct appeal, petitioner on January 9, 1978,
filed a petition for writ of habeas corpus in the Superior
Court of Baldwin County. On January 9, 1979, the United
States Supreme Court in Duren decided that a state stat-
ute which allowed women by request to opt out of jury
service was unconstitutional.

As suggested by the Magistrate, Taylor —although de-
cided before this case came to trial—is not applicable
because it does not reach the question at issue here. The

25a

statute struck down in Taylor was an “opt-in” statute;
i.e. women were automatically excluded from the jury list
unless they opted to serve. Georgia Code Ann. § 59-124,
was an “opt-out” statute, meaning that women were au-
tomatically included unless they opted not to serve. It is
this “opt-out” type of statute which was held unconsti-
tutional in Duren. Consequently, the issue presented here
is whether Duren, decided approximately four years after
petitioner’s trial, will be applied retroactively to her case.

In determining whether or not Duren should be applied
retroactively to this case, the court need only look to a
case decided by the Supreme Court six days after Duren.
In Harlin v. Missouri, 489 U.S. 459, 58 L.Ed.2d 733, 99
S.Ct. 709 (1979) a case involving a statute like Ga. Code
Ann. § 59-124, Justice Powell in his opinion concurring
in the judgment expressed the view that the wisest ap-
proach in fashioning a satisfactory retroactivity doctrine
“contemplates ... that courts apply a new rule retro-
actively in cases still pending on direct review, whereas
cases on collateral review ordinarily would be considered
in light of the rule as it stood when the conviction became
final.”’ 439 U.S. at 460 (citation omitted).

In the present case the “new rule” is the Duren deci-
sion, which rendered invalid opt-out statutes like Ga,
Code Ann. § 59-124. It would apply to petitioner’s case
if her case was ‘‘still pending on direct review.” (emphasis
added). However, there can be no argument that peti-
tioner’s case is before this court on collateral review, and
it was in that posture at the time the ‘‘new rule’’ (Duren)
was made. As a result it must be considered “in light of
the rule as it stood when the conviction became final.”
439 U.S. at 460. When petitioner’s conviction became
final the rule was that although “opt-in” statutes were

26a

unconstitutional, “opt-out” statutes were constitutionally
sound.

Because Duren is not applicable to petitioner’s case it
was not necessary for the Magistrate to consider whether
or not the three elements of a prima facie case established
by Duren had been met. This court is in agreement with
and adopts the remainder of the Magistrate’s proposed
findings as to this contention, including the finding that
petitioner has failed to show that anything other than
Georgia Code Ann. § 59-124 contributed to the under-
representation of women in said jury boxes.

(3) Application of the Death Penalty

In his proposed findings and conclusions the Magis-
trate recommended that petitioner’s claims that the death
penalty as applied in her case is unconstitutional be de-
nied. Petitioner now contends that the Magistrate mis-
takenly relied on Spinkellink v. Wainwright, 578 F.2d 582
(5th Cir. 1978). Petitioner claims that “‘[t}hat case is no
longer good law but has been effectively overruled by
Godfrey v. Georgia, 446 U.S. 420 (1980)” which, accord-
ing to petitioner, ‘entirely destroys the legal premise
upon which Spinkellink was based.” A reading of both of
these cases does not call for the conclusion demanded by
the petitioner. Spinkellink is obviously in harmony with
Godfrey and consequently remains good law.

Other Contentions

On Pages 28 and 29 of her objections to the proposed
findings and conclusions petitioner lists five contentions
which she claims the Magistrate failed to address ‘‘to any
meaningful degree” to wit: (1) the death sentence is un-
constitutionally cruel and unusual punishment as applied

27a

to her, a co-conspirator non-trigger person in Florida at
the time of the killings; (2) petitioner’s consititutional
rights were violated by a conviction-prone jury; (3) peti-
tioner’s constitutional rights were violated in that she did
not receive a noncapricious sentencing process; (4) peti-
tioner received the death penalty in a manner which dis-
criminated on the basis of race, geography, and poverty;
and (5) the jury which convicted and sentenced petitioner
did not believe that she would be executed.

After reading the record of the proceedings below, and
after considering petitioner’s brief as to these contentions,
this court is convinced that these contentions are not ac-
curate statements of what occurred in her conviction and
sentencing proceedings, and that they are without pos-
sible merit. At best they are arguments pertaining to
matters not found in this record.

Based upon the proposed findings of fact and conclu-
sions of law of the Magistrate which are adopted by this
court, and upon the considerations and determinations
above-stated, the court concludes that petitioner is en-
titled to neither an evidentiary hearing nor to a writ of
habeas corpus.

Accordingly, Rebecca A. Machetti’s petition for habeas
corpus relief is hereby DENIED IN ITS ENTIRETY.

SO ORDERED, this 26th day of June, 1981.

/s/ WiLsur D. Owens, JR.
Wivsur D. Owens, JR.
United States District Judge

28a

[Filed at 11:45 A.M., June 29, 1981.

Helen F. Newberry, Deputy Clerk, U.S. District Court,
Middle District of Georgia]

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

REBECCA A. MACHETTI, a/k/a
REBECCA A. SMITH,

Petitioner, CIVIL
vs. ACTION
NO.
L. Q. LINAHAN, Warden, Georgia 79-210-MAC
Women’s Correctional Institution,
Respondent.
JUDGMENT

Pursuant to the Opinion and Order of this Court dated
June 26, 1981 and filed June 29, 1981, and for the reasons
stated therein, the petition for a writ of habeas corpus
of REBECCA A. MACHETTI, a/k/a REBECCA A.
SMITH, is denied in its entirety.

This 29th day of June, 1981.
Grrarp W. Hawkins, Clerk

By: /s/ HELEN F. NEwBERRY
HELEN IF’. NEWBERRY
Deputy Clerk

29a

IN THE SUPERIOR COURT FOR THE COUNTY
OF BALDWIN, STATE OF GEORGIA.

REBECCA A. SMITH a/k/a )
REBECCA A. MACHETTI,
Petitioner. Civil Action

v. File No. 13548,
HAROLD L. HURLEY, Acting Habeas Corpus.
Warden, Georgia Women’s
Correctional Institution,

Respondent, }

ORDER

The above styled case came on for hearing on Febru-
ary 1, 1978, and March 1, 1978, in the Superior Court of
Baldwin County, Georgia. Upon consideration of the pe-
tition and evidence presented, it appears as follows:

FINDINGS OF FACT

The Petitioner, Rebecca A. Smith, a/k/a Rebecca A.
Machetti, is presently incarcerated in Georgia Women’s
Correctional Institution in Milledgeville, Georgia. On
March 1, 1975, the Petitioner was sentenced to death
following her conviction for the murders of Joseph Arnold
Akins and Juanita Knight Akins, in the Superior Court
of Bibb County, Georgia, by Judge C. Cloud Morgan.

The Petitioner appealed her conviction to the Supreme
Court of Georgia. On January 6, 1976, the Supreme Court
of Georgia affirmed the convictions of the Petitioner in
Smith v. The State, 236 Ga. 12 (222 8.E. 2d 308) (1976).

The Petitioner filed for a writ of certiorari in the United
States Supreme Court on September 11, 1976. On No-
vember 1, 1976, the United States Supreme Court denied
the Petitioner’s petition for writ of certiorari in Smith v.
Georgia, ——U.S._._., 97 S.Ct. 339. On January 10,

30a

1977, the United States Supreme Court in Smith v. Geor-
gia, US. , 97 S.Ct. 771, denied Petitioner’s peti-
tion for re-hearing.

On January 13, 1977, the Petitioner petitioned the Su-
perior Court of Bibb County, Georgia, for a declaratory
judgment and/or a pre-sentence hearing and a stay of
execution. The Superior Court of Bibb County, Georgia,
denied the petition. The Petitioner then appealed this de-
cision to the Supreme Court of Georgia, which stayed
the Petitioner’s execution pending appeal. The Supreme
Court of Georgia denied the Petitioner’s appeal on April
7, 1977, and denied the motion for re-hearing in Smith v.
The State, 238 Ga. 655 (235 8.E. 2d 3751).

On July 15, 1977, the Petitioner filed a petition for writ
of certiorari in the Supreme Court of the United States.
On October 3rd, 1977, the United States Supreme Court
denied the petition for writ of certiorari in the case of
Smith v. Georgia, _._U.S...—., 98 8. Ct. 232. On No-
vember 14, 1977, the United States Supreme Court fur-
ther denied Petitioner’s petition for re-hearing in the case
of Smith v. Georgia, U.S. 98, 8. Ct. 496.

On January 9, 1978, the Petitioner filed in this Court
a petition for writ of habeas corpus. The Respondent,
Harold L. Hurley, Acting Warden, Georgia Women’s Cor-
rectional Institution, was duly served on January 11,
1978. The Respondent filed his answer in this Court on
February 1, 1978.

Remittitur in Petitioner’s case was issued to the Su-
perior Court of Bibb County on December 2, 1977, and
filed on January 4, 1978. Petitioner’s execution was set
for January 20, 1978.

On January 9, 1978, this Court issued an order staying
the execution of the Petitioner, Rebecca A. Smith a/k/a

3la

Rebecca A. Machetti, which stated: “On application for
a stay of execution of the sentence of death imposed upon
the Petitioner by the Superior Court of Bibb County,
Georgia, and scheduled to be carried out at the Georgia
State Prison on January 20, 1978, it is hereby ordered,
that the application for a stay is hereby granted, and the
Petitioner’s execution scheduled for January 20, 1978, is
hereby stayed until further order of this Court. It is fur-
ther ordered that the Clerk shall give immediate notice
by telephone and by telegraph to the Respondent War-
den, and to the Attorney General of the State of Georgia,
that the Petitioner’s execution is stayed by the order of
this Court.”

On February 1, 1978, a hearing was held in this Court
concerning the Petitioner’s motions for appointment of
experts authorized for investigation, and continuance,
and motion for costs and expenses to pursue habeas corpus
relief. On February 8th, 1978, nune pro tunc as of Febru-
ary 1, 1978, this Court denied the Petitioner’s motion for
appointment of experts authorized for investigation, and
motion for costs and expenses necessary to pursue habeas
corpus relief. However, this Court did grant on February
8, 1978, nune pro tunc as of February 1, 1978, Petitioner’s
motion for a continuance, and it was ordered that the
netition for writ of habeas corpus be heard on March 2nd,
1978, in this Court.

After the hearing on March 2, 1978, the matter was
taken under advisement. Counsel of Record for Petitioner
and Respondent requested time to submit argument by
briefs after the transcript of the hearing had been com-
pleted, which was accomplished and filed on April 3, 1978,
in the Office of the Clerk of the Superior Court of Bald-

32a

win County, Georgia. A Post-Hearing Brief on behalf of
Petitioner was filed on or about May 31, 1978. Thereafter
An Additional or Supplemental Post-Hearing Brief on
behalf of Petitioner on recent decisions of Lockett and
Bell was filed on July 10, 1978, and no Response Brief on
behalf of Respondent was filed thereto.

As stated, the Court agreed to take the case under
advisement and has since been delayed in completing and
filing this order due to heavy caseload and trial docket of
the Courts in this multi-county Circuit, and also due

*~* *

It appears to this Court that the provisions of 27-2518,
supra, will require the setting of a new date within the
lime limits therein provided once all of the appeal, habeas
corpus and other remedies have been exhausted. It ap-
pears to this Court that the execution was not carried out
on the 15th day following receipt in the trial court of the
remittitur from the Supreme Court of Georgia, and that
this is at this point, a moot allegation. A moot case is one
that seeks to determine an abstract question, which does
not arise upon existing facts and rights. Byrd v. Equitable
Life Assurance Society, 185 Ga. 628 (196 8. EF. 63). There-
fore, this contention of the Petitioner is moot, and with-
out merit.

XI.

The next issue raised by Petitioner is that the imposi-
tion and execution of Petitioner’s death sentences violates
the Sixth and Fourteenth Amendments to the Constitu-
tion of the United States and Art. I, Sec I, Paragraphs I,
XI, and XI of the Constitution of the State of Georgia, by
denying her trial by representative way. The Petitioner
alleges that she was deprived of her fundamental right to

33a

indictment and trial by a jury selected from a representa-
tive cross-section of the community, and the failure of her
trial counsel to object to the composition of the traverse
or grand jury pools deprived her of her right to the effec-
tive assistance of counsel. In her petition for writ of habeas
corpus the Petitioner alleges the following facts: (1) The
sentences were imposed pursuant to the verdict of a jury
selected through procedures that systematically excluded
from jury service all persons having conscientious or
religious scruples against capital punishment, without
sufficient individualized examination of the beliefs of each
particular excluded venireman; (2) The sentences were
imposed pursuant to the verdict of a jury from which all
persons having conscientious or religious scruples against
capital punishment were systematically excluded, with
the result that the jury did not constitute a representative
cross-section of the community; (3) All persons having
conscientious or religious scriples against capital punish-
ment were systematically excluded from the jury which
determined Petitioner’s guilt or innocence, thereby de-
priving Petitioner of a vital constitutional right, her right
to a jury selected from a representative cross-section of
the community, without furthering any permissible state
interest; (4) She was convicted and sentenced to die by
a jury that did not reflect a representative cross-section
of the community and was not impartial in fact, but was
unrepresentative and biased in favor of the prosecution
on the issue of Petitioner’s guilt of the crimes with which
she was charged; (5) Under Section 59-112 of the Georgia
Code, women who are housewives with children 14 years
of age or younger may be excused from jury duty merely
by request; men in a similar status do not have a com-
parable right. The test which must be applied was set out
by the Supreme Court of Georgia in Pass v. Caldwell, 231

34a

Ga. 192 (1973) (200 S.E. 2d 720), which held: “It was
held in United States v. Hyde, 448 F.2d 812, 824 that the
defendant always has the burden of showing jury discrimi-
nation. Evidence of ‘spectacular’ underrepresentation
meets the burden, making a prima facie case of discrimi-
nation. The burden of going forward then shifts to the
government to explain the figures in a non-discriminatory
way. The requirements for making out a prima facie case
of jury discrimination are two fold. First, appellant must
prove that an opportunity for discrimination on account
of race existed on the grounds that the source from which
the potential jurors was drawn was racially biased, and
second, that the use of such an ‘infected source’ produced
a significant disparity between the percentages of blacks
found present in the source and those actually appearing
on applicant’s grand and petit jury panels.”” Also see:
Whitus v. Georgia, 385 U.S. 545 (87 S.C. 643, 17 L.E. 2d
599); Wright v. Smith, 474 F. 2d 349, 351 (5th Cir. 1973);
and Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42
L.Ed. 2d 690, in which the Supreme Court said: “It should
be emphasized that in holding that petit juries must be
drawn from a source fairly representative of the com-
munity we impose no requirement but that petit jury
actually chosen must mirror the community and reflect
the various distinctive groups in the population. Defen-
dants are not entitled to a jury of any particular compo-
sition. Foy v. United States, 342 U.S. 261, 284 (867 S.Ct.
1613, 1625, 91 L.Ed. 2d 2043) (1947); Apadaca v. Oregon,
406 U.S. at 414, 92 S.Ct. at 634 (Purality Opinion); but
the jury rules, pools of names, panels, or venires from
which the juries are drawn, does not systematically ex-
clude distinctive groups in the community and thereby
fail to be reasonably representative thereof.” The evi-
dence presented at the habeas corpus hearing of the Pe-

35a

titioner shows that the traverse jury was composed of
the requisite twelve members, of whom one was a female,
and three were black. Both Mr. Adam Greene, Clerk of
the Superior Court of Bibb County at the time the jury
utilized in the Petitioner’s trial was established, and Mr.
K. B. Hardwick, Jr., foreman of the jury commission who
established the jury box utilized in Petitioner’s trial, were
present at the Petitioner’s habeas corpus hearing and tes-
tified concerning the establishment of this jury box. The
jury commission at the time was composed of six male
jury commissioners, two of whom were black. The jury
commission set forth steps to be used in revising the jury
box in 1973 which was admitted into evidence at the
habeas corpus hearing. Mr. K. B. Hardwick, Jr. testified
at the habeas corpus hearing concerning the specific pro-
cedures utilized in compiling the grand and traverse juries.
Virst, he testified that the names of prospective jurors
from the outgoing box would be drawn and then from the
voter registration list the commissioner would obtain as
many names as possible and send out questionnaires for
prospective jurors. In addition to the voter registration
list, the jury commissioners also used personal knowledge,
the city directory and telephone calls, to supplement this
list and insure a representative cross-section. He stated
that only the females that requested exclusion were elim-
inated from the jury list. In addition to other supplemen-
tation, the jury commission would make spot checks of
the list to determine if blacks and females were repre-
sented in fair proportion. The five commissioners were
divided in teams to compare the male-female and black-
white ratio to see if the jury list was running in proper
balance. Petitioner’s Exhibit No. 3 reveals that in order
to prove the black ratio, the following was done: “‘(a) The
voter list was gone over for names of apparently qualified

36a

blacks to whom questionnaires were sent but who did
not return it: ‘Setup’ cards were made up and included.
(b) Some ‘borderline’ whites were pulled.” The evidence
shows that the jury box in effect at the time of the Peti-
tioner’s trial was established on February 27, 1974. The
evidence also shows that the entire traverse jury box was
selected from the registered voters list, and that a survey
of the number of blecks and women in the box was made
only about three-fourtis of the revision of the names. At
the time of the survey, the box was composed of 19%
blacks and 18% women. In 1970 census reported 34%
blacks in Bibb County, and 54% of Bibb County’s popu-
lation was female. It appears to this Court from the tes-
timony and evidence presented that the Petitioner has
now shown that an opportunity for discrimination existed
from the source of the jury list, and secondly, though they
show some disparity between the percentages of blacks
and women in the traverse and grand jury boxes and the
percentages of blacks and women in the population, the
Petitioner has not shown the significant disparity neces-
sary for finding that a jury was non-representative. As
to the ineffective assistance of counsel claim, it appears
to this Court that since there was no illegality in the com-
position of the juries, Counsel was not ineffective in fail-
ing to challenge the juries as being non-representative.
Therefore, this Court concludes from the testimony and
evidence presented, that the contentions of the Petitioner
are without merit.

XII.

The next contention raised by the Petitioner is that
she was convicted on the basis of information obtained
in violation of her privilege against self-incrimination
under the Fifth and Fourteenth Amendments to the

37a

Constitution of the United States, and Art. I, Sec. I,
Paragraph XIII of the Constitution of the State of Geor-
gia. The Petitioner contends: (1) Evidence was offered
against the Defendant at the trial consisting of state-
ments made by the Defendant to law enforcement offi-
cers; (2) The said statements of the Defendant to law
enforcement officers were incriminatory as to the ques-
tion of the existence of aggravating circumstances and to
the question of guilt, in that statements were introduced
regarding the Defendant’s knowledge of the existence of
certain insurance policies and statements were introduced
regarding the Defendant’s providing the officers with an
alibi for persons accused of the actual act of killing; (3)
The said statements were made involuntarily to the offi-
cers and without the proper warnings regarding the Con-
stitutional rights of the Defendant with respect to self-
incrimination and representation by counsel. This Court
has made a thorough examination of this allegation of the
Petitioner. From the testimony and evidence presented
to this Court, this Court cannot find any violation of
Petitioner’s privilege against self-incrimination under the
United States Constitution or the Constitution of Geor-
gia. Therefore, the contention of the Petitioner is with-
out merit.

After hearing all the evidence in this case, and based
upon the findings of fact and conclusions of law in this
order, this Court concludes that none of Petitioner’s con-
stitutional rights were violated and that Petitioner’s con-
viction and death sentences are lawful and Petitioner
is not being illegally held nor detained without proper
authority.

THEREFORE, IT IS CONSIDERED, ORDERED,
AND ADJUDGED, because of the above stated reasons,

38a

that Petitioner’s Motion for Writ of Habeas Corpus, be,
and the same is hereby, denied, and Petitioner is remand-
ed to the custody of Harold L. Hurley, Acting Warden,
Georgia Women’s Correctional Institution, Respondent,
for further action appropriate to law.

It is further ORDERED that the stay of execution
entered by this Court on January 9, 1978, is hereby dis-
solved, and that a copy of this order be served upon the
Honorable C. Cloud Morgan, Judge, Superior Courts,
Macon Judicial Circuit, and Honorable Donald Thomp-
son, District Attorney, Macon Judicial Circuit.

SO ORDERED, this 9th day of May, 1979.

/s/ Joseru B, Duke
Joseru B. Duke
Judge, Superior Courts
Ocmulgee Judicial Circuit

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0066%3A2. Public record. Not legal advice.