Petition — William a. Brooks v. Walter D. Zant

no. ge 5090 [Received

IN THE SUPREME COURT OF THE UNITED STA JUL 21 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S,

October Term, 1981 =

WILLIAM ANTHONY BROOKS,

Petitioner

~against-

WALTER b. SANT,

Superintendent

eorgia Diagnostic

Classification

Center

Respondent,

PETITION FOR A WRIT OF CERTIORART TO THE

SUPERIOR COURT OF BUTTS COUNTY, GRORGIA

STEPHEN b. BRIGHT

Suite 202

419 Seventh Street, N. u.

Washington, D.C, 20004

(202) $30-4798

Groot u. KENDALL

CANAN, BURNS & O'TOOLE, v. c.

1521 Sixteenth Street, N. u.

Washington, D.C. 20036

(202) 328-3100

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

(1) Whether the trial count's failure to grant petitioner's

motion for a change of venue, in the face of overwhelming prejudicial —

pretrial publicity, denied petitioner a fair and impartial jury 46

guaranteed by the Sixth and Fourteenth Amendments to the United

States Constitution?

(2) Whether the pronounced and pereietent misconduct by the

prosecutor's in hie closing argument during the sentencing phase of

petitioner's capital trial violated petitioner's Bighth and

Fourteenth Amendment rights?

(3) Whether the penalty of death ie invalid in Light of the

failuce of the trial court to properly guide the discretion of the

jury ae required by the Bighth and fourteenth Amendmente of the

Constitution?

11

Table of Authorities „„„%%ł

Opinion Ct. Fee erererrerrrrrrerrererrrrrerereriite

TUPLOGLOEMONs cccccccceeerccccccccccccscecescccceseee

Constitutional and Statutory Provisions

THVO] VOR. ccccccccecrcccccccccccceccccceecccesese

Statement of the COBO „„ „„ „„ „„ „„

How the Federal Question Was

Presented and Decided Dee. eee eee ee eee eee eee eee

Reasons for Granting the WEI Ce ccccccccccccccccccccce

Thie Court should review the

deciaion below to correct the

denial of a requeet for a change

of venue in the face of over-

whelming prejudicial pretrial

publici eee eee ee ee eee ee ee eeeeeeeeeeeeeeee

Thies Court should review the

decision below to determine

minimum etandards which the

osecution must satisfy in making

te closing ar t in the sentencing

phase of a tal i- | | PPPrrrrererererereLiLi „60

The Georgia courte continue to

conatrue ite death penalty statute in

av and overboard manner in

4 let with applicable decisions

th o Cour te ccccvcccccccccccsccceceescesccce

CONCLUBION. ccccccccccccsccccccccccccccccececccescees

~iii-

iv

12

16

Appendix

Opinion of the Superior Court of

Butts Count 447777

Order of the Georgia Supreme Court

denying application for probable cause

to appeall......t.t.t.t..t.t.t.t.t..t..t......

Order of the Georgia Supreme Court denying

Motion to reconsider denial of application

for probable cause to appeal.

af fiddavit of Dr. Lawrence E. Noble, J

Closing Argument of Prosecutor During

Sentencing Phase of Petitioner's x 1a

13

la

27a

28a

42a

TABLE. OF AUTHORITIES

CASES

Alin v. Smith, 474 r. Supp. 54 (W.D.N.Y. 197999 ũ⁊ 6

Berger v. United States, 295 U.S. 78 (11939.

Brown v. Estelle, 468 F. Supp. 42 (N.D. Tex.

187 8), 41223. 591 r. 2d 372 (Sth Cir. 1978....

Commonwealth v. Clark, 185 A.2d 764 (Pa. 1936)

Embry v. State, 214 So.2d 567 (Ark. 1969 .

Pinny v. G. C. Murphy Co., 161 K. 20 385 (Pa. 1960)....

Furman v. Georgia, 408 U.S. 238 (19% .

v. State, 244 Ga. 587, 261 S.E. 2d 349

(1 • 899999 h 1j 66

Gardner Ve Florida, 430 U. 8. 349 611977

v. State, 536 p. 2d 929 (Okla. Crim,

App. 1975) cc ccccceeeeseeeeerereseeeeeeeeeeeeee

Godfrey v. Georgia, 446 U.S. 420 (19606 .

Gregg v. Georgia, 428 U.S. 153 (1976 et

Hall v. United States, 419 F.2d 562 (5th Cir. 1969)...

Houston v. Estelle, 569 r. 20 372 (Sth Cir. 1978)..++.

Irvin v. Doud, 366 U.S. 717 (196 E

. City of Bakersfield, 20 P. 2d 788,

i ct. App. 1933) 05

McGautha v. California, 402 U.S. 183 1977.

People v. Bernette, 197 k. k. 2d 436 (111. 1960)

People v. Love, 17 Cal Rptr. 481, 366 p. 2d 60999.

People v. White, 72 Cal. Rptr. 873, 446 b. 2 993.

Presnell v. Georgina, 439 U.S. 14 (1,77%)

Rideau v. Louisiana, 373 U.S. 723 119563 ..ꝑ

v. City of Birmingham, 382 U.S. 87

11956105 „46

Alex v. State, 417 p. 2d 803 (Okla. Crim.

App. 197

State v. Jordon, 294 p. 2d 677 (Ariz. 19566.

State ve Jones, 251 8. E. 425 (N.C. 19799: d ««

State v. Mount, 152 R. 2d 343 (u. J. 19599

Page(s)

12

14

12,13,15

15

12

15

17,18,19

19

12,16

12

4,17,18,.9

12,17,18,19

13

12

10,11

15

14

15

12

14

19

10,11

19

15

15

14

14

— —

State v. Owen, 253 p. 2d 203 (ida. 1953), overruled

„ 486P.20 64

(Ida. 1971 „7

Tumey V- Ohio, 273 U. 8. 310 (19277 ꝶ· ꝶnꝛ7ꝛ

v. Fisk, 538 F.2d 750

(7th Cir. 1976), Cert. denied,429 b. 8. 1064

(1977) nun 44% %%%

United States v. Chrisco, 493 P.ed 232 (8th Cirsds

cert denied, 419 U. 8. 947 (7777

Uni ted states u., Somers, 496 F. 2d. 723 (3rd Cirsds

Cert. denied, 419 U. 8. 832 (1974) ccccccecceeee

West v. State, 150 S.W. 24 363 (Tex Ct. Civ. App

Wa. 6 %%%j %% %%%

Williams v. Henderson, 451 r. Supp. 326 (E. D. N. 1.

17% % „ „ „ 6 6 6 6 6 6 6 %%% %%% %%% %%%

v. State, 492 8. u. 2d 488 (Tex. ct.

Crim App- 1973) 44

Woodson v. North Carolina, 429 U.S. 280 (19760)

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Consti tution

15

15

14

14

14

15

15

12

19

Sixth Menden

United States Consti tution

Eighth Amendment..cecccceceeeeeeeresereerrerreere®

United States Constitution

Pour teenth Amendment“

28 U. 8. C. 1257 (3) 119766 7

Ga. Code Ann. 26—110ꝶę urnrxnrnrn..V 777

Ga. Code Ann. 27-2534.1(b) (2226

Ga. code Ann. 27-2534.1(b) ( 75Z•ꝶ „„

2,16

2,16

No. 81-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

WILLIAM ANTHONY BROOKS,

petit ton.

-against-

WALTER D. ZANT,

Superintendent

Georgia Diagnostic

Classifice

Center

Respondent.

me decision of the Superior Court of Butts county api nde

to this petition at la. It was not reported. The Supreme Court of

Georgia denied an application for a certificate of probable cause to

appeal, three judges dissenting, thereby declining to review the

decision of the Superior Court of Butts County. ‘The or det he

Georgie Supreme Court denying the application and a mot ö to

reconsider the denial are appended at 268 and 27a. |

— — „ — ——̃ — — — — I ————

— 2 = 9 „2

The decision of the Superior Court of Butts County was entered

Yebruary 2, 19862. Petitioner sought review of the decision by the

Supreme Court of Georgia. That court denied an application for

Supreme Court of Georgia also denied an application for

reconsideration of its denial on May 18, 1982. Appendix at 27a.

Said denial of an application for probable cause to appeal operates

to deny petitioner any review of the decision of the Superior Court

of Butts County by a state court of Georgia. Jurisdiction of this

Court is invoked under 28 U. 8. C. Sec. 1257 (3), petitioner having

asserted below and asserting here a deprivation of rights secured by

the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the Constitution provides in relevant

parts:

In all criminal prosecutions, the accused shall

enjoy the right toa edy trial, by an impartial

jury of the State a district wherein the crime

shall have been committed,....-

The Eighth Amendment to the Constitution provides:

Excessive bail shall not be required, nor excessive

fines imposed nor cruel and unusual punishments

inflicted.

The Fourteenth Amendment to the Constitution provides in

relevant part:

"Nor shall any State deprive any person of life,

3 or property, without due process of

BWece

This case also involves the second and seventh aggrevating

circumstance of Georgia's death penalty statue, Ga. Code Ann

27-2534.1(b) (2) and (by (7), which provide for the death penalty

where:

(b) (2) The offense of murder... was commit ted

while the offender was ged in the

commission of another capital felony. .

(b) (7) ‘the offense of murder. . . was out-

* or wantonly vile, horrible, or

i that it involved torture,

depravity of mind, or an aggrevated battery

to the victia.

probable cause to appeal on April 21, 1962. Appendix at 26a. me

STATEMENT OF THE CASE

William Anthony Brooks asserts that he was convicted of murder,

kidnapping, rape and armed robbery and sentenced to death in the

Superior Court of Muscogee County in violation of rights guaranteed .

by the Constitution of the United States, and asks that this Court

review the denial of his petition for a writ of habeas corpus and

vacate his conviction and sentence.

The charges against Mr. Brooks arose out of the abduction of

Carol Jeanette Galloway, a piano teacher and director of the chior at

the Methodist Church, from her home on July 15, 1977. Because of the

prominence of Ms. Galloway and fact that her murder was the

twenty-third non-domestic murder which occurred in the Columbus area

in a twenty-month period, news of the incident received extensive and

sensationel coverage in the local media. The abduction of Ms.

Galloway, the search for her, the discovery of her body, the reaction

of her family and friends, her funeral, the investigation of the

crime, the search for the killer, the arrest of Mr. Brooks in Atlanta

on August 11, 1977, his return to Columbus for trial ande ‘ous

pretrial proceedings in the case were very prominently covers . che

local newspapers, radio and television.

Some of the pretrial publicity was presented to the trial court,

the Honorable John Land presiding, at & hearing on a motion for a

change of venue held on September 30, 1977. ‘The trial judge, while

agreeding at the conclusion of the hearing that this is one that

should not be tried in Muscogee County," Tr. of September 30 hearing

at 34, nevertheless denied the motion, but promised an extensive voi:

dire.

The trial was the first criminal trial in Georgia in which

television and other cameras and recording equipment were permitted

in the courtroom. Although 25 to 50 percent of the population of the

county in which petitioner was tried were of the same race a6

petitioner, no members of his race were on the jury. Report of the

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W a

Trial Judge te the Supreme Court of Georgia at 6, Section E.

At the conclusion of the trial the jury returned verdicts of

guilty as to all four offenses. Following the verdict, a sentencing

hearing was conducted, The state produced only one witness, &

probation officer who testified that the peitioner's reputation was

bad. Tr. 836-640. ‘he defense presented petitioner's mother and two

sisters who attempted to testify about his premature birth and the

abuse he received as a child from his stepfather admit frequent

objections by the prosecutor and admonitions by the court. Tr.

641-58.

The jury was instructed that it could impose death if it

determined that the offense of murder was committed while petitioner

was engaged in the commission of either or both of two other capi tal

felonies, rape and armed robbery, Ga. Code Ann. Sec. 27-2534.1(b)

(2), or if the offense of murder was “outrageously or wantonly vile,

horrible or inhuman in that it involved an aggravated battery to the

victia."” Tr. at 8865-86 lemphasis added). ‘The jury recommended

death, stating its finding of the following aggravating

circumstances: “armed robbery, and rape, and the offense of murder

was outrageously or wantonly vile, horrible or inhuman in that it

involved depravity of mind to the victim.” Tr. at 980 [emphasis

added) .

The Supreme Court of Georgia upheld the conviction and sentence

upon direct appeal. Brooks v. State, 244 Ga. 274, 261 8. k. 2d 379

(1979). ‘This Court vacated and remanded for further consideration in

light of its decision in Godfrey v. Georgia, 446 U. 8. 420 (1980).

Brooks v. Georgia „ 64 L. £4.24 621 (1980). On

remand, the Supreme Court of Georgia reaffirmed the death penalty.

Brooks v. State, 246 Ga. 262, 271 8. f. 2d 172 (1980). This Court

denied certiorari. _ U.S. , 68 L.Bd 20 312 (1981).

Thereafter, Mr. Brooks filed the petition for a writ of, habeas

corpus in the Superior Court of Butts County. A hearing on the

-4-

petition was conducted in November 12, 1961. Petitioner presented

the testimony of three expert witnesses to support his claim that the

trial court erred in not granting his motion for a change of venue;

that the voir dire conducted during jury selection was wholly

inadequate to feret out community prejudices sgainst him; and that J

the des th penalty vas being applied in the state of Georgia in an

arbitrary and capricious manner.

The Superior Court of Butts County entered an order on February

2, 1982, denying the petition for a writ of habeas corpus.

Petitioner filed a timely notice of appeal on Februsry 10th before

the Georgia Supreme Court. That court declined to revicw

petitioner's case, three judges dissenting.

—

HOW THE FEDERAL QUESTION WAS

PRESENTED AND DECIDED RELOW

Petitioner alleged in paragraph 10-15 of his petition for a writ

of habeas corpus that the trial judge erred in not granting

petitioner's timely motion for a change of venue. Petitioner alleged ,

that this denial precluded any meaningful opportunity to receive a

fair and impartial jury as guaranteed by the Sixth and Fourteenth

Amendments to the Constitution of the ut ted States. At the hearing

before the Butts CountySuperior Court, petitioner further presented

expert opinion, exhibits and later filed a detailed legal memorandum

addressing this issue. The Butts County Court denied this claim,

finding that the issue had already been addressed by the Georgia

Supreme Court on direct appeal. ‘he court further found that the new

evidence offered by petitioner amounted to merely “an opinion that

the trial court was wrong." See Appendix 5a-6a.

In paragraphs 48-50 of his petition, petitioner alleged that the

closing argument given by the prosecutor offended his Eighth and

Fourteenth Amendment rights in numerous respects. Petitioner filed

before the Butts County court legal memoranda which listed at least

seven examples of grossly improper argument, any of which standing

alone violated petitioner's rights. In its review, the Butts County

court found that the argument, as a whole, did not Way the passions

of the jury and ruled that it was not improper. See Appendix at

18a-19a.

In paragraphs 51-58, petitioner alleged that the failure of the

trial court to properly guide the discretion of the jury with clear

instruction offended his Eighth and Fourteenth Amendments in support

of this contention. The Butts County court rejected this contention

on the basis of the holding of the Georgia Supreme Court on direct

appeal. See Appendix at 20a-21la.

_ Por the reasons which follow, this Court should issue a writ of

certiorari to review the decision of the Georgia Supreme Court.

I. THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER THE TRIAL ~

COURT'S FAILURE TO GRANT PETITIONER A CHANGE OF VENUE, IN THE

PACE OF OVERWHELMING PREJUDICIAL PRETRIAL PUBLICITY, DENIED

PETITIONER A FAIR AND IMPARTIAL JURY AS GUARANTEED BY THE SIXTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

Even after the limited and inadequate presuntation of evidence

in suport of the motion for a change of venue was presented to the

Muscogee County Superior Court, that court observed that “this is one

that should not be tried in Muscogee County." Tr. of September 30

venue hearing at 34. Had the facts been effectively presented, it

would have been clear that petitioner's trial was nothing more than a

hollow formality which took place after he had been convicted in the

press in a climate of fear and frustration in a community beseiged by

an extraordinary number of celebrated unsolved crimes. Thus,

petitioner was tried in violation of his right to a fair trial by an

impartial jury guaranteed by the Sixth, Eighth and Fourteenth

Amendments to the Constitution of the United States.

The record of petitioner's trial tells only a partial story of

the unusually prejudicial pretrial publicity that occurred in

Columbus between the time of the abduction of the decedent, a

prominent piano teacher and director of the Methodist Church choir,

and the trial of Mr. Brooks.

At the hearing on the habeas corpus petition, petitioner

presented the testimony of Lawrence E. Noble, Jr. an associate

professor of political science at Atlanta University and an expert in

content analysis of media coverage of news events. Petitioner also

proferred an affidavit of Dr. Nobel containing additional analysis of

the pretrial publicity about which Dr. Nobel was prepared to testify.

Careful analysis of the evidence petitioner has presented indicates

that because of the pretrial publicity and the tensions in the

-J-

( \

community, petitioner could not receive a fair trial in Muscogee

County regardless of the voir dire procedures employed by the court.

The Columbus newspapers gave prominent coverage on theilt front

pages to every development in the Brooks case. By the time of trial,

the Columbus papers had put the case together against Mr. Brooks and

convicted hia.

The stories ahout the abduction of Ms. Galloway, the search for

her, the reaction of her family and friends to her death and her

funeral were given prominent and extensive coverage on the front

pages.* Ms. Galloway was described as an honor student, 4 college

graduate, a piano teacher, choir director, and someone who was liked

by all who knew her. Pictures of her were featured in at least two

front page articles. ‘The papers reported in detail on the reaction

of the congregation at her church to her death and on her funeral,

which was attended by 500 persons.

From the outset the papers reported each development in the

police investigation as the case against Mr. Brooks was put together.

A map of the area where the body was found and comments of the police

and coroner regarding the case were included in the first stories

about Ms. Galloway's abduction. The identification of Mr. Brooks as

the killer was the lead front-page story in the July 25, 1977,

Columbus Ledger under a five-column headline. The next day the

Ledger reported on its front page that Morris Comer had told police

he had given Mr. Brooks & ride after Ms. Galloway was slain.

"witness Gave Ride to Suspect After Jeannine Galloway Was Slain,”

The Columbus Ledger, July 26, 1977, page A-l.

The papers also reported that Mr. Brooks’ fingerprints were

found on the victim's car in a front page story in which a “source”

described the strength of the fingerprinting evidence as follows:

vou need seven points of similarity to take it to court... They

stopped counting at 35." “Pugitive Suspect's Fingerprints Found",

*/ These articles were introduced as petitioner's exhibit 4 at

the habeas corpus heating. 88, Ss f "abducted Women I Still

Missing.* ng ao July 16, 1977, at A-13

*abducted Girl Found Slain Near Her Columbus Home,” The Sunday

Ledger-Enguirer, July 17, 1977 at I: "Police Hunt Girl's Killer,’

„ July 18, 1977 at M17 "Congregation Weept

tor its Slain Young Choir Director,“ "The Columbus Ledger, July 18

1977 at I, "Silence, Confusion Pervade Choir Director's funeral,

The Columbus Enguirer, July 19, 1977 at 8-11 "500 Attended Jeanni:

Galloway's Funeral,” The Columbus Ledger, July 10, 1977 at B-l.

The Columbus Ledger, July 20, 1977, at Wi. Stories the next day in

the two papers reported that Mr. Brooke had fled to Atlanta and had

been indicted for rape and armed robbery by a grand jury in ful ton

County. “Informants Say Killer Pled Rox th, The Columbus Lecger,

July 29, 1977, “Galloway Suspect Indicted in Fulton," The Columbus ~-

Ledger, July 29, 1977, at NI.

Coverage continued in August with the arrest of the petitioner,

his return from Atlanta to Columbus and pretrial proceedings.

Petitioner's confession was the lead story on the front page of the

Sunday paper on August 14. "petective Testifies Brooks Admitted

Killing woman," Sunday Ledger-Enquirer, August 14, 1977 at 1. It

is apparent from the trial judge's comments at trial that other media

also gave prominent coverage (o the confession.

In the articles included in petitioner's exhibit 4, the Columbus

papers picture Mr. Brooks as an extremely dangerous criminal who had

fled to Atlanta armed with at least two guns. It was reported that

he would not surrender without a fight and had vowed to kill @

policeman. It was reported that Mr. Brooks has served time for

robbery, was a suspect in the Atlanta lovers lane killings, was

wanted for rape and armed robbery in Atlanta and would have committed

murder in that incident if he had not been interrupted, and that he

had shot and paralyzed a Columbus cab driver with the same weapon

with which he killed Ms. Galloway.

It is difficult to imagine how pretrial publicity could be any

more extensive or any more prejudicial to a criminal defendant than

that surrounding the Galloway slaying and the police investigation

and other proceedings leading to Mr. Brooks’ trial. But, in addition

to the pretrial publicity surrounding his case, petitioner was

prejudiced by the community's reaction to an extraordinary series of

murders which had created a climate of hysteria in the community by

the time of petitioner's trial. Even before the first of the

celebrated murders of prominent Columbus women by the “Silk Stocking

Strangler®, the community appeared to be under seige due to a bizzare

series of murders, On August 23, 1977, The Columbus Enquirer carried

a story, included in petitioner's exhibit 4, listing 24 non-domestic

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murders which had occurred in the preceeding 20 months,

The situation went from bad to worse in the two months

immediately before petitioner's trial with publicity regarding the

killing and sexual abuse of four prominent older white residents of

Columbus by the "Silk Stocking Strangler." In his affidavit, Dr.

Nobel traced the publicity surrounding the killings and the

increasing sense of panic and fear in the community. A front page

box on September 27 stated: “The recent killings have thrown

thousands of Columbusites ~ especially women ~- into a state of

nagging, unknowing fear." A story inside was headed "Nagging Fear

Sweeps City," and the lead editorial was titled “Fear not panic.“

Affidavit of Lawrence E. Nobel at 13. Letters to the editor

advocating lynchings, public hangings, martial law, the death penalty

and other measures to deal with the problem and other articles about

community attitutes are described in the affidavit of Dr. Nobel at

11-14.

Claims founded on prejudicial pretrial publicity must be

assessed in accordance with the due process standards established in

Irvin v. Dowd, 366 U.S. 717 (1961), a habeas corpus proceeding in

which this Court vacated a conviction and sentence of death tx 8e

of pretrial publicity and community attitudes remarkably similar to

those presented here.

In Iryin, the Court found the then current community pattern of

thought as indicated by the popular news media" to establish a clear

and convincing “build-up of prejudice." Id at 725. The Court found

that a ba cage of newspaper headlines, articles and pictures revealed

details of the background of Irvin, including references to his

criminal record and alleged participation in other crimes, and

announced that he had been placed at the scene of the crime, had

confessed and had been indicated.

This court's decision in “Rideau v. Louisiana, 373 U.S. 723

(1963), is also instructive. There, a tape of the defendant

confessing to the crime was televised three times prior to his trial.

The Court concluded that after such prejudicial pretial publicity the

subsequent court proceedings were nothing but “a hollow tot nal it /.

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'

i

i

|

Id. at 726.

Applying the principles set out in Irving and Rideau to the

facts of this case, it is clear that petitioner was denied due

process of law by the failure of the trial court to grant a change of

venue. me jurors chosen to try this sensitive case involving as

black man accused of the rape and murder of a prominent white woman

came from a community which had been saturated by sensational

coverage of this and other murder cases. The nature of the

prejudicial publicity and its extent is almost identical to that in

Irving and more extensive than that in Rideau. And the vior dire

employed at petitioner's trial was completely inadequate to cure the

nature and extent of media coverage in this case.

Potential jurors were not even asked about much of the

prejudicial publicity that has been discussed in this memorandum.

What information was elicted in voir dire only confirms that there

was extroardinary knowledge among people in the community about the

facts of the case from the pretrial publicity. Because of the nature

of the pretrial publicity in this case, one must conclude here, as

did th.s Court in Irving and Rideay, that conclusory statements of

impartiality by the prospective jurors must be given “little weight,"

/ and that the due process clause required that petitioner be tried

in an atmosphere undisturbed by such extensive, sensational and

highly prejudicial pretrial publicity. This case, as the trial judge

stated at the venue hearing, was one that should not have been tried

in Miscogee County. Tr. of September 30 at 34. Because it was tried

there, petitioner's Sixth and Fourteenth Amendments rights were

infringed.

Because the holdings of the Georgia courts in this case conflict

with applicable decisions of this Court and further because

petitioner's life is at stake, this Court should grant review of the

peition.

*/ Irving v. Dowd, supra at 728.

—11—

11. TRIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER THE

PRONOUNCED AND PRESISTENT MISCONDUCT IN THE PROSECUTOR'S CLOSING

ARGUMENT DURING THE SENTENCING PHASE VIOLATED PETITIONER'S

EIGHTH AND POURTEENTH AMENDMENT RIGHTS.

Review of the closing argument given by the prosecutor in the

penalty stage of petitioner's trial indicates that the Georgia courts

allow practices routinely condemned in other jurisdictions. Because

of the important constitutional considerations present in a death

penalty case, this Court should review the decision below and decide

whether the argument presented here was below the minimal standards

required by the Eighth and Fourteenth Amendments in capital trials.

The closing argument given by the prosecutor at the sentencing

phase of petitioner's trial was a catalogue of virtually every

improper, irrelevant, inflammatory and prejudicial argument which can

be made in a criminal trial.*/ It contained "a host of infirmities

calculated to arouse passion and prejudice® that are more than

sufficient to justify a writ of habeas corpus even in a non-capital

case. See Mie v. Smith, 474 r. Supp. 54, 60 (M. D. Mu. 1. 1979). Under

the due process clause of the Fourteenth Amendment alone, habeas

corpus relief is required when a prosecutor has engaged in

"pronounced and presistent misconduct*® during closing argument.

Brown v. Estelle, 468 F. Supp. 42, 49 (N.D. Tex. 1978) a Aff'd 591

F.2d 1207 (Sth Cir. 1979); see slag: Houston v- Estelle, 569 F.2d

372, 385 (Sth Cir. 1978). ‘The closing argument in this case cannot

satisfy any due process standards or the more rigorous Eighth

Amendment requirements set forth in Gardner v. Elorida, 430 U.S. 349,

358 (1977) (plurality opinion), because it consists almost entirely

of a series of arguments that have been recognized as being #0

prejudicial that each alone requires that petitioner's sentence be

vacated.

/ Petitioner has summarized and quoted some of the more flagrant

examples of improper and ejudicial argument in his habeas corpus

petition at paragraphs 48-50, 24-31. The argument appears in the

trial transcript at pages 859-73. See Appendix at 42.

~12-

the death penalty as one of the possible penalties, and

would you vote for it if the facts and circumstances of

thie case authorized it, or warranted it. Of course, you

didn't know what the facts and circumstances were at that

time. But, each one of you said you would, And, ve're

asking you again to go back to the jury room and to deliberate,

and to talk about the facts and circumstances of this case.

Talk about how at eight-thirty in the morning she went out

to tne edge of the yard in broad open daylight, and how

he was just walking along with a pistol in his pocket, and

decided, “Well, I'll make a hustle," to use their language,

his language. And then after he did that, “Well, I'll rape

her,” so he carried her down in the woods, and raped her,

and shot her, and left her there bleeding to death, Those

are the facts and circumstances we were talking about Tuesday,

when we asked you if, under certain circumstances, you would

vote for the death penalty.

I believe you'll vote for che death penalty. I

want you to go out and discuss it, take all the time that you

need, and we ask you to bring back a verdict on the punishment

phase, and that he be put to death in the electric chair,

THE COURT: Mr. Sanders,

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going to save society and save civilization, then we've

got to remove them from society.

And, you knov, it's one thing that people who

oppose capital punishment they can't dispute, if he's put

to death, he'll never commit another crime, he'll never kill —

anybody else, never rape anybody else,

Now, we ask you, and you'll have written

instructions going out with you, and in order to impose the

death penalty, you must first find that while the murder was

committed that he was engaged in certain her crimes, one

is kidnapping, certainly he was engaged in that when he

comeitted the murder, he carried her away from her hone

against her will. You recall that sho had an appointnont

to eat breakfast; she had no idea she would be going anywhere

other than to Shoney's,

The other thing is, he robbed her, committed an

armed robbery, if you find that he committed the nurder while

he was engaged in either one or both of these two crimes that

I've mentioned, the kidnapping or armed robbery, then you are

authorized to impose the death penalty. And, let me talk to

you about that a minute, Tuesday when we were examining you

as prospective jurors, I asked each one of you the question,

i “Are you conscientiously opposed to the death penalty?" And

every one of you on this jury said no, that you were not. I

went one step further, and I asked you if you would consider

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to do something about it.” Well, you have an opportunity

to do something about it right now, The police have

investigated the case, we've prosecuted ic the best we

know how, and you're in the position of Harry Truman, who

had on his desk a sign that said, “The buck stops here.”

The buck stops with you today. And you can do something

about it, You can bring back the death penalty and you can

tell William Brooks, and you can tell every other cririnal

like him, that if you come to colunbus and Muscogee County,

and you commit a crime, and it’s one of those crimes that's

punishable by death, and if the appravating circwastances

are there, you're foing to get the olectric chair, that's

what you can do, And, I believe that will stop some of the

crime, |

Now, I know it’s going to be a hard decision, it's

not easy, it’s never easy. You can think about it this way

when you get back there, you know from time to time if you

were 4 surgeon, and you have people coming to you and maybe

they have a cancer on their arm, and you look at it, and you

say, “Well, the only way to save your life is to take your

arm off, and that's bad to have to remove soneone's arn.

Or caybe he's got cancer of the eye, you have to take his

eye out. Sure, that’s terrible, but it's done because you

save the rest of the body. And, I submit to you that Willian

. Brooks is a cancer on the body of society, and if we're

are sa °.°?

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af.

this country, except it's not a foreign nation, it’s against

the criminal element in this country, that's who we are at

war with, and they're winning the war, is what's so bad, and

if you don't believe they're winning, just look about you,

You don't dare get out on the streete at night and valk

around, you don't dare leave your house unlocked. In fact,

most everybody I know has added more locks to their house,

and burglar bars, and burglar alarms. And, we've got a man

here in town who makes a living with guard dogs, And, if

you go to the hospital to see sowe of your friends, you've

got to get by a security place up there, and you see security

guards everywhere, Why are they there? Decause of the

criminal element in this country. It's winning.

And, 1f we can send a 17-year-old young man

overseas to kill an enemy soldier, is it asking too much to

ask you *o go back and vote for the death penalty in this

case against William Brooks, and I submit to you that he's

an enemy, and he's a member of the criminal element, and he's

our enemy, and he's an enemy of the law-abiding citizens

and the people who want to live peacefully in this country,

and who want to be secure in their persons and their homes.

You know, lot of times you see people on the street,

and they are always stopping us and saying, ‘You know,

something's got to be done about this crime wave, what can

we do, Mr, Whisnant; what can we do, Hr. Smith, we've got

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now, that a man escaped from a prison in Tennessce that

no one had ever escaped from before, 80, you've always

got the possibility that he might escape and be out on the

streets, and who knows who it will be next time, whose

daughter will it be next time? It was Mrs, Galloway's

daughter this time, Bobby Murray's girl friend; whose

girl friend or daughter will it be next time if he's outt,

And this is -- I'm going to say this, and maybe

you don't agree with me, and I'a sure I'll be accused of

being materialistic in saying it, but why should -- if he's

given life, it costs money to keep him, thousands of dollars

a year to keep a prisoner housed, fed and clothed, and

medical care, why should the taxpayers, and that’s you folks,

all of us, why should che taxpayers have to keep up sonebody

like William Brooks the rest of his life, when he’s done what

he’s done? Why should we?

Let ne say this to you, during my lifetime this

country has been in three wars, each war we've taken our

young men down to the age of seventeen, we've trained then,

we've put guns in their hands, we've taught them how to kill

the enemy and we've sent then overseas, and they have killed

other hunan beings who vere enemies of our country, and when

they did a good Job of killing them, we decorated them and

gave them citations, praised them for it.

Well, I say to you that we're in a war again in

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f

All right, I'm sure that the defense is going

to make this argument to you, wo don't have to take his

life, you don't have to take hie life, just lock hia up,

put him away somewhere where he'll never be in society

again, where he'll never harm anybody again, that's

punishment enough, spare his life, Just put him away forever,

Let's think about that. Coing back to what I said 4 while

ago, the first thing te you've got to give appropriate

punishment to fit the crime, and letting his live is not

appropriate for the crimes that he committed, that's the

first thing. And the next thing is, he has demonstrated

that he’s a killer, Anybody who can kill a poor defenseless

person, or murder a poor defenseless person like he did

will kill again, He doesn't care, life doesn't mean anything

to him. So, you put him in prison. low about those guards

that have to guard him? They have families depending on

them, how do you know he won't kill one of them?

And, even worse than that, how about oe

prisoner, or some other prisoner who is in prison with hin,

who is there trying to make his time, trying to be rehabilicated

so he can go back to his family, back to society? He could

kill him, kill a fellow prisoner.

How about if he escapes? And, I'm eure they're

going to say, “Oh, he couldn't escape.” But, it was the

early part of this year, or late last year, I don't recall

312

penalty, he believes in executing people, Ne carried Carol

Jeannine Galloway down in those woods out of sight of

everybody. Carol Jeannine Galloway didn't have a battery

of lawyers around her, she didn't have a judge sitting there

ruling on evidence, she didn't get twenty strikes when the

jury was selected, she didn't have any Courtroom with cameras

12 „

so chat the whole world could see that she got a fair trial.

He Just stepped back at point-blank range within three feet

of her and killed her, shot her, So, he believes in the

| death penalty, he executed her, a lot more horrible than

the electric chair which is a quick thing, brings death on

real quickly. She lay there perhaps an hour and a half or

two hours before she bled to death,

And then, somebody ie going to say, can we

sympathize, what about sympathy, can't we be sympathetic

| toward him?” The only answer to that is show him the same

type of sympathy that he showed Carol Jeannine Galloway, the

same sympathy that he showed her, left her laying there,

after he had robbed her, taken her car, and satisfied his

lust, he still killed her, Not one spark of sympathy, not

one bit of sympathy did he show for her. His only thought

then was to yet Way, and he did got away. He got his shoes

muddy, and went and bought him some new shoes with the money

he took off her, No remorse at all. So, he has no sympathy

dus him, and we ask you not to show hin any.

oe ae

|

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)

investigated this case and who apprehended William Brooks,

they're not taking his life; the Recorder's Court Judge who

heard the evidence in the preliminary hearing, are you going

to sey he's responsible for taking his life? Of course not.

How about the Grand Jury who listened to che evidence and

indicted him for murder; are the Grand Jurors responsible

for his life, can you say they're about to take his life?

Of course not. How about me and my staff, we put the case

together and we prosecuted him, and we're here now asking

you to bring back the death penalty, do we feel responsible?

I don’t, 1 don't think anybody in my office does,

How about the man, if he's electrocuted, who actually

pulle the switch, is he responsible for taking his life? ot

course not. The person who is responsible for his life is

William Brookes himself, and if the switch is pulled and he's

put to death, he pulled the switch che morning that he was

walking along Saint Mary's Road when he put the gun in the

back of Carol Jeannine Galloway and kidnapped her, that's

when he took his own life, He's a grown man, and he knew

what he was doing.

Now, I'm sure that argument ie going to be made,

either by Mr. Araguel, or maybe some member of the jury

that, “Well, the death penalty is bad, maybe we can do

something else.” Well, let me say this to you; I told you

I believe in ic, William Brooks believes in the death

~49a-

3

like that. Our society and our law was never designed to

accept anything like that, and ic's ridiculous, and I don't

believe that you'll accept it, I don't believe that you'll

buy it,

Now, I'm sure they're going to say, “He's a young

person, just twenty-two years old, let him live.” Well,

he's no child, he's not fifteen, he's a grown man, Now, you

can vote when you're eighteen years old, you can go in and

buy a beer when you're eighteen years old, you can serve on

the juries, have property in your name when you're eighteen,

He's four years beyond that, he's a grown, mature man.

And, another thing, he ie young, and if you look

around and I'm sure you have, that's the group that's

committing crimes in this country, are the young people,

and if you don't punish young people, then you're not

punishing the people who are committing the crimes, e's «a

mature man, and he doesn't deserve any credit or any sympathy

from you just because he's twenty-two years old,

Now, I'm sure another question that might be

going through your mind at this time is, when I get back to

that jury room, and we have to vote, and I vote to takes

somebody's life, can I do it? I know it’s rough, it would

be hard for me to do, Can I take somebody's life? Well,

the truth of the ratter is, you're not taking his life, you're

not pulling the switch in the electric chair; the police who

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ee ee

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ia st a

r reeeee:

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erer Slee oe Sere

for the death penalty, and I'm sure you're going to hear

this from the defense, is rehabilitation. Is there any

chance that the defendant might be rehabilitated? And we

thought about that in this case. And, I submit to you that

there's no chance that William Anthony Brooks will ever be

rehabilitated. Let's look at what he did. He's been in

trouble since he was a child, His own sisters told you that

he was a car thief when he was a young child, And, they

talked to you about him being beaten by his stepfather, but

they never did say what his stepfather was beating hin for,

maybe he needed it. There's nothing wrong with whipping a

child, some of them you have to whip harder than others.

And there's been children who have been abused and beaten,

but they don’t turn to 4 life of crine on account of ic,

Goodness * got whippings when I was a ehild, I thought

my daddy used to beat me, and he did, but that doesn't give me

an excuse to go out and commit a crime, The fact that he got

a beating when he was ten or eleven years old, does that

give him the right te stop at somebody's house and put a

gun in their back, and drive them down to the woous, strip

them and rape them, and then after his lust is satisfied,

murder them? That's what they want you to buy, that's what

they want you to accept. Just because he got some severe

whippings when he was a child, that you ought to forgive him

for that, or that he ought to have a right to do something

Aa-

‘

rapes her, and then after he's setisfied his lust, what does

he do; he turns around and shoots der down like you would a

dog, a stray dog. And, he didn’t kill her then, he said

she was screaming and he shot her, and she fell, and was

still trying to scream, so he said in his statement, but

the sound wouldn't come out, and she bled to death, very

slowly, drip by drip, drop by drop. I pray that she was

unconscious, That's the kind of condition he left that

lady in, You wouldn't do that, as I said, to a stray animal

that you wanted to get rid of, you wouldn't creat it like

that. But, that’s what William Brooks did to Carol Jeannine

Galloway. If you sat down and tried to think up a horrible

crime, could you think of anything more horrible than what

you've heard here this week, that this defendant comsitted

on this young lady? Could you think of anything more horrible’

All right, and another thing that we consider before

we come to you and ask for the death penalty is the proof in

the case, not that we just prove him guilty beyond a

reasonable doubt and you find him guilty, but I mean,

overwhelming proof, and you have that in this case. You've

already found him guilty, and I'm sure you agree with what I

said this morning that the evidence in this case against

William Brooks is overwhelming, he did it, there's no question

about ic, and it was a horrible crime.

And, another thing that ve consider before we ask

ee ee

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Now, we don't ask for the death penalty -- I' ve

been District Attorney for seven and a half years, and we

don’t take this business of asking for the death penalty

lightly. We don't come up here on every murder case that

we try and say, “Give the man the electric char. In the

seven and a half years I've been District Attorney, I

believe we've only asked for it lese than a dozen tines, I

think it's nearer eight or nine, but I know it’s less than

twelve. So, we take it seriously. We ask you to take it

seriously. It is a serious matter,

Now, what do we consider before we come to you

and ask you to impose the death penalty? Well, one of the

things that we consider are the facts of the case that's

being tried, Was it a horrible crime that was committed?

And let's stop there and look at the facts of this case, and

look at what type of crire this was, Here was Carol Jeannine

Galloway on a surmer Friday morning, petting ready to go

have breakfast with her friend, she sees a garbage can

outside there and decides, "Well, I'll pick it up and put

it up for my mother so she won't have to do it, or my father,"

whoever was going to pick it up. And, along comes William

Anthony Brooks, probably never seen her before and didn't

know her, but he had that pistol in his pocket, he puts it

on her, makes her get into the car, drives her out there,

takes her down into the woods, makes her take her clothes off,

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surrounded by his lawyers, and you've seen him. Let's

talk a minute about the person who is not here, about Carol

Jeannine Galloway, What kind of person was she? We know

that she was a pretty young lady, a beautiful young lady.

We know that she was about twenty-three years old, she was

not married, that she still lived with her mother and father,

and we know that she was a person of high morals. We know

that she was a considerate person, She went out picking up

the garbage can to save her mother or father from having to

do that, We know that she was a thoughtful person, she was

going to treat her friend to breakfast before her friend

left town,

So, when Mr, Araguel, or Mr, Sanders, whoever makes

the argument on that side, etarts talking about Willian

Brooks’ life, and about Willian Brooks, about what a young

person he is, his family, think about the Galloway family.

And think about Carol Jeannine Galloway, who 1% not here in

the Courtroom today, and who will never be here again,

Now, they're going to tell you, don’t cake William

Brooks’ life, locking him up is enough, don't put death on

him, don’t make hie family go through with that, What has

the Galloway family gone through, what have they gone through?

Next week when it's Thanksgiving, and they are sitting arowumd

the table, Carol Jeannine won't be there, and never will be

there again.

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5 to etm

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kind of punishment fits that crime, whether he gete life

imprisonment, or death in the electric chair, And, we say

in these circumstances that the only appropriate punishment

is death in the electric chair, We're going to have sore

more to say about that before I sit dow,

Now, I know you've heard discussions about the

death penalty, you were asked numerous questions about it

last Tuesday when we were trying to select a jury and you

were prospective jurors, Let me tell you here at the outset

that I am for capital punishment, If you've got to take

sides, I take the side of capital punishment. I believe

in the death penalty. I think it's necessary. And some

people, I'm eure Mr, Araguel is going to tell you that there

is no proof that the death penalty deters crime, you can't

prove ic, But, I can tell you this; the last person in

Georgia was electrocuted in 1964, and since that date, crime

has increased year by year, time after time, everytime the

statistics come out, we have an increase in crime rate. We

didn’t have that when we had capital punishment. We didn't

have this kind of murder, these kind of crimes you've heard

about here this week, when we had capital punishment, if

they were they were very seldom, we heard about them somewhere

else, but not around here,

Now, let's think about this, you have looked at

William Anthony Brooks all week, he's heen here and been

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N

CLOSING ARGUMENT OF THE PROSECUTION DURING

THE PENALTY PHASE OF PETITIONER'S TRIAL

MR. WHISNANT: May it please the Court, and you,

ladies and gentlemen of the jury, I thank you again for

| your patience, and this is the last stage of the trial, this

is the last time you'll have to hear me or Mr. Araguel talk

to you, I know that you're tired of hearing us, But, this

is an important part of the trial, just as important as the

— -

guilt or innocence stage of the trial, and we ask you to

treat it as just as important as the first phase of the trial.

By your verdict, or at noon today, you have found

this defendant guilty of vurder, kidnapping, armed robbery

and rape, and we're at the stage of the trial now where we

fix his punishrent, you fix his punishment, on the murder

charge.

Punishment has a two-fold purpose, one purpose is

to punish the guilty offender; the other purpose is to deter

others of a like mind committing the same type of crime, In

| other words, if somebody elee is thinking about murder, if

--

you punish this man it's supposed to deter the other person

from committing ic. So that's the two-fold purpose of

punishoent,

Now, let me talk about the first phase of it, to

punish the guilty. Punishment is supposed to be adequate

and appropriate. In other words, the punishment is supposed

——

to fic the crime, and the crime in this case is murder, He

i took the life of a person, So, you've pot to decide what

i

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trial. ‘Two days before that trial in the Sunday paper, there was a boxed letter that

a Columbus bank president had written to Governor George Busbee urging the Governor

not to allow the Board of Pardons and Paroles to have the apatite to commute my

Geath sentences.

This long catalog of newspaper material that appeared in the Columbus papers

in the pretrial period about community fear, the need for the death penalty, set as

the period was in the midst of a shocking series of fatal attacks on white women alleged

Gone by a black person, gives some indication four years later of what the prospective

jurors were living through just before they were called to sit on the Brooks jury.

With such newspaper coverage, there is little doubt about how inflammatory the elec-

tronic coverage was in the same period.

25) The amount and nature of the newspaper publicity, along with what we

know about electronic media and their handling of such news, makes it clear to me that

prospective jurors exposed to such publicity inthe venue would strongly have tended

to form prejudgments about the case from exposure to the publicity. Those prejudg-

ments would most likely have been very negative to the interests of the defendant

and would have mace it unlikely that the defendant could effectively be presumed

to be innocent until proved guilty by the state beyond a reasonable doubt. In such a

venue where the jury pool has been contaminated by publicity likely to cause prejud--

ment, which publicity was primarily originated by government sources, and where authori-

tative figures in the community such as editorial writers, preachers and bankers

were publicly calling in general dor the use of the death penalty, where the life of

the defendant was on the line, it is clear to me that in the interest of giving the

Gefendant the fairest trial possible, the venue should have been changed.

2 to and subscribed before me 1

[Hany of Novesber, 1981.

tt 3 * * . ,

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On September 27 The Enquirer had a front page story about rewards in

The Strangler cases, and a second story headed “Fear Stalks Neighbors.” On mg B-1

there was an 80 column inch feature story headed . Crime Wave Sparks Interest

In Pape.”

On the same day, September 27, The Ledger ran a front page box: “The recent

killings have thrown thousands of Columbusites - especially women - into a state of

nagging, unknowing fear. For the story, see B-3." The B-3 story was headed "Nagging

Fear Sweeps City,” and was a 45 inch piece about the two recent sex killings, not

then called Strangler in the press. The lead editorial that day, titled “Fear Not —

Panic” urged concern. A letter to the editor was headed “Women, Demand More Protectim,*

The next day a letter complained of the reporting techniques of the lead

crime reporter, who it was claimed used inflammatory language. The Galloway death

reporting was used as an exarple. .

The television murder trial in Miami was also being reported on during

ches. period, and the decision to televise the present trial naturally aroused curiosity

and interest in the community that might not be present in any trial that was not tale

. wised. A decision to televise focuses the attention of citizens in the pretrial pe riod.

In early October the Patrick trial was held and he was convicted and

sentenced to death. During this period two women soldiers were found-killed at Fart

Benning. 0

When a story about the third Strangler killing was reported, a story headed

"City Has the Jitters” appeared on The Ledger front page, October 24.

On October 26 The Enquirer reported the fourth Strangler killing and

on the sawe front page ran a story entitled “Stunned Friends Tremble in Rain.”

The next day The Ledger had an editorial urging the city not to celebrate

Halloween, and there was a letter to the editor calling for marial law. There were

three letters to the editor the following Gay, headed Respectively: “Pear Can Destroy

Us,” “Don't Spend Money on Dogs,” “Pray Killer Out of Hiding.”

on October 30 the Ledger ran a long editorial answering the many sugges-

tions about what the city should do about the crisis. One suggestion had been to

use troops. Letter writers began to criticize the police department, other letters

answered with defenses of the police department. On November 9 a Ledger letter appeared

headed “Death Penalty is Advocated.“ This was five days before the start of the Bracks

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On July 20 and July 21 two other Ledger editorials, referred to above in

paragraph $21, called for citizen involvement in assisting police, one of them again

mentioning the Galloway death. An 8556 1 editorial preieed the police chief upon

his election as President of Georgia Chiefs of Pblice.

On August 17 The Enquirer ran a letter to the editor saying the death penalty

is biblical, and that God had “demanded” the death penalty.

The next day The Ledger ran a W. F. Buckley colum “Opinion Favoring

Death Penalty,” which was the day after the indictment of Brooks was reported.

An August 19 letter in the Enquirer titled “Reader Wants Public Hangings”

referred to the Galloway death and opined that the lack of the death penalty “breeds”

criminals.

on August 22 a front page story in The Ledger headed “Slayings Create

Climate of Fear,” about assaults on five women in ten months (another assault of a

woman reported in the same page), included two paragraphs on the Galloway death, and

stated: “This carnage against women which started last summer has prompted fear in

many Columbus women, especially young women, and especially single women.”

The Gates case was reported in 22 — Gates was sentenced

to die, a black youth convicted of raping ané murdering the white wife of a soldier.

The Ledger of August 31 carried a lead letter headed “Minister Supports

Death Penalty,” by a local Presbyterian parson. He praised the Buckley column on the

death penalty, extensively quoted the Bible, and assured readers that the word of

God supports the death penalty.

On September 2 The Enquirer ran a front page lengthy story, featuring a

large photograph of the electric chair, about desth sentences in four cases, Gates,

Griggs in Thomaston, Drake in Danielsville, and a case in Birminghan.

On September 2 and 3 the papers reported the resignation as public defender

by defendant's counsel, who later reported that he had a lot of pressure pvt on him

dy his friends after he took on Brooks as a client. This community pressure obviously

contributed to Brooks’ loss of counsel at a critical juncture, and reflected emphatical];

the hostility inthe community against the defendant.

On September 6 The Ledger ran 6 letter entitled “Hangings Are Urged.”

On September 16 The Enquirer had a letter entitled “Shall We Try

Lynching?", since other approaches are not effective.

The Ledger had an editorial on September 20 entitled “Senseless Loss,” on

what was the first Strangler murder.

* -39a-

23) Most of the publicity was generated by the government. ‘ This was

true of all of the material except the pieces about the victim's funeral and family,

and the article about the reaction of Brooks’ fanily. And in each of those articles

there was government-generated material. The most damaging single government~-generated

story was the report of the so-called confession statement from the pretrial hearing.

The prosecution and the court in that hearing, allowing as they did such material

to be made public, were in effect deliberately contaminating the prospective jurors

against the defendant. The material on Brooks’ alleged criminal record, his alleged

connection with numerious capital crimes in Fulton County, the reports of witnesses

in Columbus identifying him as the killer of Miss Golloway, the finding of his fingerprin

on Miss Galloway's car, topped off by his alleged confession, all of this coming from

government sources, esavietal Brooks in the media, effectively obviating the necessity

for atrial. This use by the government of willing media to convict the defendant de

facto before the formal trial put a very heavy burden on the prospective jurors

if they were to come to the trial as they should as being neutral and impartial.

24) From July to November, 1977, Columbus newspapers told the story of

violent crime in Muscogee County, and in the nat zu also. The Son of Sam case in New

" York was featured during that period. John Spenkelink in Florida was appealing his

Geath sentence and this was played up by the Columbus papers. Columbus bad endured a

series of murders and other killings over an extended period of time. The Gates case

was tried, the Patrick case was tried. Then the so-called Stocking Strangler killings

began in September. Four of those had occurred before the trial of Georgia v. Brooks.

The media was asking for citizen involvement to solve crimes, for the death penalty,

for the community to be concerned but not panicky. This evolving climate of alarm

in the venue over the weeks and months before the Brooks trial is reflected in the two

* The following material was noted while doing a search for other articles

on the Brooks case which might not have been included in the material furnished by

counsel. Most of the material came from’ the Ledger.

On July 19 The Ledger carried en editorial "On Believing Crime Views"

which mentioned the Galloway death: “an attractive and popular young woman in Colurbus

is abducted from her home, then her assailant ends her life with a gun in a wooded ares.

The editorial called for “a hard stance in handing out sentences to make them fit the

crime.”

11

. 7. -38a-

Brooks did not utter a word during the hearing. ... his attorney for

the preliminary hearing entered a plea of innocent for the defendant.

The burly defendant, whose brother was a former policeman, stood

with his hands cuffed in front of him. Brooks was flanked by Sgt. L.A.

Jacks and Warren Myles, two of the largest officers in the department.

Detective Frank Simon testified fingerprints were taken fiom the

Galloway car which matched Brooks’ prints.

Brooks’ statement began by saying he was going to a friend's house

to work on a car and was dropped off by his sister on St. Mary's Road.

He said he began walking down the road and “saw a white girl in her yeard."

"She was picking up a trashcan and I walked up behind her. ... she

saw me and she was scared. I asked her if anyone else was home, and she -

said her mother and father,” the statement said.

Brooks’ statement said that a woman came out of the house and

called the younger woman by name, although he forgot what her name was

and that the woman he had accosted told the other woman to go back

into the house. .

“x pushed her out of the utility room and told her to drive down

Dawson Road (now called North Star Drive.) ... I told her to drive down

a dirt road behind the school,” the statement says.

“she was continually asking me to let her go to take her money

and the car and let her go,” the statement says.

The statement said that Brooks took the woman into the woods, 1

told her to take her clothes off. She said no, and I yelled at her to

take them off. 17 :

0 Brooks said the woman took all her clothes off and he told ber to

lie on the ground where he raped her. The statement says Brooks then

told her to get dressed which she did. We then asked her if that “was the

first time she had sex,” the statement says.

"She said yes, and I said I didn't believe it. She started

screaming and wouldn't stop and I pulled out my gun so she'd know I

was serious ... she kept screaming and the pistol went off,” Brooks

reportedly said.

"She kept trying to scream but she couldn't get (or hear) her voice,”

the detective quoted Lynn (sic) as saying. .

The statement then -ays Brooks asked three people to use a phone

and that he hitched a ride to South Dixon Drive, Brooks’ statement said

he told a friend of his that he knew police were looking for him for Miss

Galloway's killing but that he didn't do it, so the friend took him to

Atlanta.

Brroks’ statement says he and his brother sold the .357 Magnum used

to kill the woman to two men on a used car lot in Phenix City, that he had

obtained the gun in a burglaiy, and that he had used it to shoot a cab

@river on Cusseta Road.

There is little Goubt that such a presentation in the media, and referred to in several

other later reports, one saying the Brooks stood by “passively” as the statement was

presented at the hearing, contaminated the jury pool to an absolute extent. The

cap stone of the prejudicial publicity was this statement of alleged confession.

-JJa-

10

One small clue may be all that is needed to collar the killer.

The next day in an editorial entitled "Getting Involved,” The Ledger urged citizens

to help police in the current anti-pornography and 893 tation drive in Columbus.

In the public mind such issues are related to the crime of rape, however erroneously.

These urgent calls for citizens, which includes prospective jurors, to become involved ©

in crime detection, generally, and in particular in the present case, coming a they

Aid from editorial writers, et tative voices in a community, are extremely signifi-

cant. Such calle enlist citizens on the side of the police, of the prosecution, and in

effect ask prospective jurors to become a part of the police and prosecution team.

Especially in sensational cases such as the present one, it is extremely difficult

if not impossible for prospective jurors who are persuaded by such calls to later

shift to the position of impartiality and neutrality which are demended by the cane

of due process.

22) Perhaps the most damaging theme of the publicity for the defendant was

the report of a pretrial hearing. In a page one story in the Ledger of August 14,

headlined “Detective Testifies Brooks Admitted Killing Woman,” it was reported that the

defendant freely confessed. This was before the indictment, and it was later repor ted

that the alleged confession was read to the grand jury. Because this story 1 60

compromising to the defendant's receiving a fair trial in the venue, it is quoted here

in full: : 0

William Anthony rats“ Brooks told Columbus police officers he

raped and killed Carol Jeannine Galloway, a detective testified Saturday

at Brooks’ preliminary hearing. ;

Detective Ronald Lynn testified in Recorders’ Court that Brooks

nee ae right. 1 did it. Y'all put it (the case) together. I

Lynn read into the record a written statement which he said Brooks

signed which gave a detailed account of the July 15 rape and killing.

Columbus Recorder Edward Murrah ordered Brooks, 22, jailed without

bond to await grand jury action.

Dist. Atty. Mullins Whignant said the car theft, kidnapping, rape

and murder charges against Brooks will be presented to a grand jury

Tuesday. Whisnant, who reiterated he intends to ask for the death

penalty, estimated Brooks would be tried within 60 days.

Police said prosecutors will also seek indictments against

Brooks for armed robbery, aggravated assault, and car theft in

connection with the shooting and paralyzing of a Columbus cab

driver two months ago.

. Everyone entering the courtroom for the hearing was frisked by hand

and checked with a metal detector. Brooks’ father, whom those near „in

said head been drinking, was escorted out of the courtroom by officers.

Brooks, you're gonna fry,’ came the calls from prisoners already inside the jail."

This ie blatantly crude and prejudicial journalism. In the same story the district

"attorney confirmed that he would seek the death penalty tox the defendant.

' Hence Brooks is reported factually as having a record, factually as

having killed Miss Galloway and factually as having raped and robbed a woman in Atlanta,

None of the usual precautionary media language is used, Brooks is simply labeled as

positively to have done these deeds. This type of journalism is heavily prejudicial

and pictures the defendant as clearly and definitely a criminal and positively the killer

of Miss Galloway.

20) The theme of the police efforts in the case was emphasized in most t

the matexial. Police went door to door at 3000 houses in Columbus. Working with police

were military police, military helicopters, dogs, Boy Scouts. When the suspect was

identified the police search spread nationwide. Columbus police went to the Baltimore

area to get information. They went to Atlanta, Atlante area police joined the search.

The FBI was called in to assist. In the early stages of the search in Columbus almost

the entire police force was assigned to the case. Obviously any person subject to such

a hunt would appear to the media users as described, dangerous, an assumed killer, a

man with a criminal record who had served tine, who had raped, and robbed recently

in Atlanta. This theme was clearly prejudicial to the interests of the defendant.

21) The theme of community involvement is a critical one. Prospective

jurors are part of the community. Police were reported as "begging" for assistance

from the community in searching for and identifying the criminal. Wo editorials

in the newspaper called for citizen involvement. One, entitled “Police Hot Line,"

urged such a system and asked citizens to call in with information about crime.

The present case was mentioned as an example. The editorial stated that almost every

time there is a serious crime in Columbus “an undercurrent of fear and anguish settles

over the community.” (Ledger, July 20) ‘The same day the Enquirer had an editorial

entitled “Disturbing Quiet,” in which the present case was detailed and in half of

which citizens were.asked to. come 8 and help police if they have informaticw

But there must be someone, somewhere who could provide a

key to the crime.

If there is, a sense of public involvement, of human

@ecency must prevail and that information provided to

_ the police.

reporting even resulted in these stories having derogatory material about the defendant.

The arraignment story, six inches in length, contained 30 derogatory references. The

story about Brooks’ family was headed “Murder suspect“ Family Is Bitter,” was 20 inches

and had 46 derogatory references. - .

19) ‘The criminal record and other alleged criminal activites of he ‘

defendant were highlighted. Brooks was described as having served time in Maryland

for armed robbery. le was reported as being indicted in Fulton County for rape and

emneé robbery. Me was also reported as a suspect in a series of Atlanta murders

called the Lovers Lane killings. He was also reported as a suspect in another shooting

in Muscogee County. Authorities deseribed him as being heavily axwed and very dangerous.

These detailed descriptions of the defendant as a known criminal appeared in ten of

the newspaper pieces. In one piece the composite sketch of the suspect was described

as “Sketch of Killer.” A later story about Brooks was headlined “Informants Say Killer

Filed worth. We was labeled the killer even before he was arrested. In a story before

the arrest, detail was given about Brooks’ Cingerprints being found on the victia's

car. ‘Two police experts compared the prints on the car with Brooks’ prints.

“The two men obtained prints which seemed to correspond with Brooks’. ‘You need

seven points of similarity to take it to count,’ one source said, ‘They stopped count

ing at 8. In a story headlined "Galloway Suspect Indicted in Fulton," located

across the top of the front page, the following paragraph appeared: .

Columbus and Atlanta detectives believe Brooke may have

fled to Baltimore where.he knows people and where he was

arrested and convicted or robbery with a deadly weapon in

1973. Brooks was sentenced to five years, but was released

on September 15, 1976, records show.

There were numerous such references to the defendant's previous criminal record. An

especially damaging story was headlined “Murder Suspect Also Sought In Atlanta Rape,”

and reported that a woman was robbed and raped “by s man fitting Brooks’ description

who repeatedly threatened to ‘blow her head off,’ police said.” Five paragraphs later

the story reports: “Detectives working on the case believe Brooks might have killed

his victim if the e Hence the Steen evolved inte d Sheen

that Brooks had done the deed, positively. The story concluded: “Brooks carries a

.357-Magnum and 6 .45 caliber automatic handgun, police believe, and is considered

extremely dangerous. One officer familiar with Brooks’ habits, said he doubts whether

the desperate suspect will give up without a fight." When Brooks was arrested an

brought to the Columbus jail, the story featured the following: “'They got you,

Each one of these themes was analyzed and will be reported on below.

17) The victim in this case was a young woman of talent and promise who

was very interested in the organized church. ; She was an honor student, a college

graduate, and was very popular with her peers and elders. Naturally the publicity

about such a person would be extensive, and it was. ‘the victim was described as young,

popular, piano teacher, choir director, slender, best friend, sweet, having a quick

wit, Such descriptions evoke heavy sympathy in the readers. There were three long

stories in the paper about the victim's funeral. The reporters went into great detail

about the sermons given and the hymns sung, all very emotionally impressive among a

church~-going population. Another story was devoted to how the victim's family felt

about the victim and about how the family was grateful to the community for the support

given. Her friends were establishing a scholarship in her honor at the college. "She

was frail and thin, she looked like a fawn running through the forest,” stated her brother.

The victim was also described as being a heroine by the police and by her family and

friends, and by the media. Her actions upon the abduction to try to ptotect her

mother from also becoming a victim were detailed many times, and were described as

heroic. * 5

The coverage of this thene amounted to one-eighth of the material. ~ such

Getailed attention to the victim, and sympathetic treatment of the victim, is preju-

Gicial to the interests of the defendant. Prospective jurors who receive such treat-

ment of the victim by the media will quite normally form prejudgments about a person

who would harm such a fine person with so much potential in the community.

' 48) Defendant Brooks was pictured inthe media material as being a

criminal type with a criminal record, who had served time. One policeman was quoted

as saying Brooks had vowed to kill a policeman, and that he would fight to defend

himself with arms when apprehended. Brooks allegedly has a tatoo on one arm 4.6.“

There was actually speculation in the press stories that the J. 8.“ might refer to

Jeannine Galloway, the victim. Such inflammatory recklessness by the press is ex-

tremely prejudicial. In the newspaper material the defendant's name was used 161

times. This massive coverage assures name recognition among prospective jurors and

associates the name with the person so heavily daraged in the news stories through

prejudicial material. There were two stories that had some favorable material about

the defendant. One story reported his plea of not guilty at the arraignment. the

other story was a report of his family’s reaction to his plight. The nature of news

-33p-

Brooks Indicted in Rape, Slaying

Detective Testifies Brooks Admitted Killing Woman

Fourteen of these headlines Wanne front pages, three appeared

on the front pages of the second section of the papers, and one on page D-4.

15) For purposes of analysis I use a concept called the derogatory

reference. A derogatory reference is any word or group of words in the publicity that

puts the person in a bad light, that reflects negatively on the person's character or

background, that associates the person with the crime, the search, the investigation

or with any part of the criminal justice process. In the newspaper material there were

2,135 derogatory references to the defendant and his interests. This is an average

of some three derogatory references per column inch, or about one derogatory reference

every eleven words of each news story about this case. My research has also shown

that the electronic media has a higher derogatory reference rate than the print media.

Based on that research experience, and on the count in the newspapers, the rate with

which the media reported this case against the interests of the defendant was very high.

Examples of derogatory references in this case include these words: murder, slaying,

. Fape, armed robbery, kidnapped, abducted, search, fugitive, dangerous, killer, suspect,

fingerprints, charged, indicted, arrest, gun, shot, funeral, killing, forced, gunpoint,

bled to death, confession, admitted, jail, prison, penitentiary, death penalty, crime,

getaway, body, dead, warrant, homicide, shot inthe throat. For instance, there were

221 uses of the word surder and its synonyms. Kidnapped or abducted and related words

were used 111 times. Rape or rapist were used 62 times. Shot in the throat was

used 19 times. The crime in this case was heinous and inflammatory, and the media

used appropriate language to write about the case. Much of this was sound reporting.

The point is not the accuracy of these emotion laded words. The point is that the use

of these words would tend to cause prejudgment about the case in the minds of the

prospective jurors: The high rate of use clearly had a tendency to reflect negatively

on the defendant.

16) ‘The material was examined on the basis of themes in the publicity.

A theme is a prominent emphasis that is in the content. The major themes were:

Concern for the Victia

Background and Character of the Defendant

0 Criminal Record of the Defendant

Police Efforts in the Case

Community Involvement

Alleged Confession by the Defendant

Governnent-Generated publicity

-32a-

newspapers were capable of reaching all of the Prospective jurors in Muscogee County.

The major part of the newspapers’ circulation was in Muscogee County. ,

13) The 33 Pieces of newspaper material covered 661 column inches. This

included an estimated 24,120 words, the amount of words in a 60 page paperback book,

or in an 80 page typed legal document. Also included were ten Photographs, two of

the victim, one of the crime scene, two of the composite sketuh of the suspect, and

five pictures of the defendant. a

14) Newspaper headlines are simple messages that convey the main point

of the news Story to the readers. They are written in bola Print, and research .

shows that many readers often read only the headlines of many stories. In addition,

the electronic media are often referred to as headline media because of their’ lack of

facility for in depth coverage. Headlines in newspapers also tend to emphasize the

most sensational *spects of stories. Some headlines about the incidents in this case

include: 0 ,

Abducted Girl Found Slain Near ner Columbus Home in

Congregation Weeps for Its Slain Young Choir Director

Silence, Confusion Pervade Choir Director's Puneral °

500 Attend Jeannine Settee Puneral

Pamily Touched by Community's Grief

Police Search Door to Door For Columbus Woman's Killer

Sketch Is Added To Hunt For Killer

Suspect Is Identified in Galloway Slaying

Witness Gave Ride To Suspect

Murder Suspect Also Sought in Atlanta Paper

Pugitive Suspect's Fingerprints Found

Atlanta Police Also Seek Galloway Killing Suspect

Galloway Suspect Indicted in Fulton

Arrest Made in Galloway Murder Case

Brooks Returns Por Murder Trial

Brooks Indicted ror Galloway Slaying

. 312

me to the Columbus media at a period of high crime activity in Muscogee County. This

period was also the time of the publicity and pretrial activity in Georgia v. Brooks,

although I was not woeking on the publicity in that case at the time. The Patrick

case pretrial publicity was very prejudicial tc ne Gefendant, and I was generally

critical of how that case was handled in the press.

10) In 1977 the local media reaching most people in Muscogee County

consisted of two daily newspapers, three commercial television stations, and ten radio

stations. Although I was given no electronic media material to analyze, it is important

to know of the news coverage given by such an array of media in Muscogee County.

Research shows that the U.S. public gets 65 percent of its news from television, and

radio is the most ubiquitous news medium in our society. Radio's ability to follow

citizens to and from work in cars, to be present at the work place, and to be in

many parts of the home, makes its reach very significant. The electronic media do

not keep their records for public inspection for extended periods, as dco newspapers,

hence such electronic material is seldom available for analysis after a period of

four years.

11) In Georgia v. Brooks the media's coverage was 23 news days. A news

Gay is a day when a major development in a case takes place, resulting in coverage

in all of the media on that day. There was news coverage of this case on more than

23 days in the newspapers, but some Gevelopments were not of character to be major

enough for coverage in all media. Newspapers in our society produce the most thorough

coverage of news, and the most coverage in great depth. The electronic media gets

much of its news from the print media. Using a conservative estimate, on each of

the 23 news days the television stations would have four newscasts each, the AM radio

stations eight newscasts each, and the FM radio stations four newscasts each. This

means that on each newsday the electronic media had some 76 newscasts in Muscogee

County, for a total during the 23 news days of some 1848 newscasts. Hence the

prospective jurors in Muscogee County vere exposed to news about the incidents of Georgia

v. Brooks a conservatively estimated 1648 times on television and radio. This is

massive coverage.

12) In 1977 the daily newspapers had the following circulation: The

Columbus Enquirer, 34,215; The Columbus Ledger, 31,975, the papers combined on Saturdays,

62,434; the papers combined on Sundays, 66,623. At an estimated two readers per news-

peper, a newspaper was being read daily by over 120,000 readers. ‘The 1977 census f gure

~30a-

9 0 ‘es

Appeal, 1936-1968", “The South's Standard Newspaper: The Atlanta Constitution in

the 1960's", “Political Attitudes in Letters to the Editor Colurns of Urban Daily

Newspapers in Eleven Southern States in the Sixties”. at present I have concluded a

content analysis of eleven Southern urban daily newspapers, coverage of the news in

the 1960's, to be published by the Southern Regional Council.

7) 1 have prepared content analyses of newspaper and electronic coverage

of specific criminal incidents for defense counsel in many criminal cases heard in

Georgia Superior Courts in Baldwin Coun ty, Fulton County, Muscogee County, Sunter

County, Oglethorpe County, Lanier County, DeKalb County, Tattnall County and Terrell

County. In most of these cases a hearing was held regarding the impact of publicity :

on voir dire and venue issues. In each of these instances I was qualified as an expert

and testified to the results of these studies. I have prepared content analyses for

cases i) Weakley County, Tennessee; Houston, Texas; Pike County, Kentucky; Boone County,

Ky.; Pinellas County, Florida; Hartford, Conn.; Boston, Ma.; and Chattanooga, Tenn.

In cases in the Federal Court system I have prepared content analyses in the Northern,

Middle, and Southern Districts of Gkorgia, the Columbia division of the South Carolina

district court, the Middle District of Flerida, the Middle District of Tennessee,

the Eastern District of Virginia, and the Eastern District of North Carolina.

8) I have been asked by defense counsel to analyze newspaper pretrial

publicity in the case of Brooks ** Georgia. The material consisted of 31 newspaper

pieces from The Columbus Enquirer and The Columbus Ledger, the two daily papers in

Columbus. In addition, on August 19, 1981, I traveled to Columbus and spent seven hours

reading the microfilm copies of the newspapers from July 15, 1977, the first day of

coverage in this case, through November 14, 1977, the day before the trial began.

This study produced two more pieces of coverage, for a total of 33 pieces for analysis.

I was not given any radio or television material to analyze. This library research

in Columbus also reveeled the details of crime coverage in Columbus media during A

period of public hysteria generated by a series of local murders.

9) By coincidence, 1 add an analysis of pretrial publicity in Georgia v.

Patrick, a capital case in Muscogee County. 1 traveled to Columbus twice on that

case, on August 19, 1977, and on September 9, 1977, once to do research on the publicity

in the public library, and once to testify in a pretrial hearing. In addition, I was

guest speaker on September 23, 1977, at a meeting of the Columbus Press Club, on the

subject of coverage of crime stoxies by the media. This work in Columbus introduce

-2-

-29a-

STATE OF GEORGIA )

COUNTY OF DEKATH )

AFFIDAVIT OF LAWRENCE k. NOBLE, JR.

*

LAVRENCE E. NOBLE, IR., being duly sworn, deposes and says:

1) I am an Associate Professor of Political Science at Atlmta Uniersity

where I teach course on the following subjects to graduate students: The Judicial

Process; The Jury; U.S. Constitutional Law; The Constitution and Civil Liberties;

Techniques of Political Control: The Mass Media; Techniques of Political Control:

The Economic and Political Power of the American Legal Profession; Public Opinion

and Propaganda; The U.S. Supreme Court; and Prison, Prisoners, and Prisoners’ Rights.

2) I received a Bachelor of Arts degree in 1950 from the University of

Missiesippi, a Masters of Arts degree in Political Science in 1953 and a Ph.D. degree

in Political Science in 1955 from Duke University. I taught at Centre College of

Kentucky from 1954 to 1962, University of Mississippi 1962 to 1963, Drew University

from 1963 to 1966, Southwestern at Memphis from 1966 to 1968 and Atlanta University

from 1968 until present.

3) I am a retired LCDR in the U.S. Naval Reserve (communications intelli-

gence) 1

4) I am a member of the National Jury Project, Inc., located at 1502

Healey Building, Atlanta, Georgia 30303. ‘The Mational Jury Project is a not-for-

profit corporation specializing in the study of jury systems and voir dire procedures.

The organization has three other regional offices in Oakland, Ca., Boston, Ma. and

Minneapolis, Mn.

5) I also serve es « jury consultant to Team Defense, Inc. in Atlanta,

Georgia, and to local Atlanta and other lav firms in the state of Georgia and in other

states.

6) One of my areas of expertise as a jury consultant is the thematic analy-

sie of the content of newspaper and electronic coverage. My research and writing

includes many studies analyzing the quantity and evaluative content of newspspers.

I have written and delivered papers reporting the results of the studies of news-

papers on the following topics: “The Editorial POlicy of the Memphis Commericial

4 ~28a-

Application Ne 2001 0

SUPREME COURT OF GEORGIA

” ATLANTA, Hay 18, 1982

The Honorable Supreme Court met pursuant to ad fournment.

The following order was passed:

WILLIAM ANTHONY BROOKS V. WALTER D. ZANT, WARDEN

Upon consideration of the Motion for Reconsideration

filed in this Application, it is ordered that it be hereby

denied. All the Justices concur, except Hill, P.J., Smith

and Gregory, JJ., dissent.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

Age 7 lufee. , Deputy Clerk.

-27a-

{ {

Application No. 2001

SUPREME COURT OF GEORGIA

“ aruaxta, April 21, 1982

The Honorable Supreme Court met pursuant te adjournment.

The following nder was passed:

WILLIAM ANTHONY BROOKS V. WALTER D. ZANT, WARDEN

Upon consideration of the application for a certificate of

probable cause to appeal filed in this case, it is ordered that it

denied . All the Justices concur, except

be hereby

Hill, P. J., Smith and Gregory, JJ., dissent.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK’s Orrice, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

= . A

~26a- „

heaving been found to be without merit, the Petition

is denied.

So ORDERED, this ant u of February, 1982.

JUDGE SUPERIOR COURTS

FLINT JUDICIAL CIRCUIT

23a

convincing to show arbitrary and cepricious epplicetion

of the death penalty in Georgia. Furthermore, Petitioner

has not demonstrated any Intentional discrimination

against him in the Imposition of his death sentence.

Smith ». Balkcom, 660 F. 2d 573 (1981).

Accordingly, this claim for relief Is found to

be without merit.

26-79

In paragraphs 76-79, Petitioner ettecks the

statutory provisions and practices governing appellate

review of death sentences generally and as applied in

his case.

Georgia's capital sentencing statute has been

held constitutional. Gregg v. Georgia, supra; Smith

v. Balkcom, supre.

Accordingly, this allegation Is found to be

without merit.

80-82

In paragraphs 80-62, Petitioner attacks the

means by which his death sentence will be administered,

The Court finds this allegation to be without

merit.

WHEREFORE, 211 allegations In the Petition

-24-

-24a-

adversely to Petitioner. Brooks v. State, 244 Ga.

at 583(5).

The Court hes already concluded the prosecutor's

electaa argument In the sentencing phase was not

Improper (see paragraphs 48-50) and that the Jury

charge was not Improper (see paragraphs 51-58).

Accordingly, the claim for rellef in paragraphs

59-64 Its found to be without merit.

65-68

The Supreme Court has expressly upheld: the.

application of the (b)(7) aggravating circumstance.

Brooks v. State, 246 Ga. at 262

In paragraphs 69-75, Petitioner claims his

death sentence Is being exacted pursuant tos pattern

and practice of arbitrary and capricious infliction

in the Stete of Georgia.

FINDINGS OF FACT

Petitioner offered expert testimony to the effect

thet the death penalty is being erbitrarily imposed in

Georgia (#.T. 79-109), but the Court finds the evidence

unconvincing.

CONCLUSIONS OF LAV

*

Georgia's death penalty statute Is constitutional.

Gregg v. Georgia, 428 U.S. 153, 96 8. ct. 2909, 49 626

859, reh den 429 U.S. 875, 97 S.Ct. 197, 198, 50 1.64.26

158 (1976). The Court does not find the evidence Is

at the sentencing portion of trial. (R. 25-26).

CONCLUSIONS OF LAW

Georgia's death penalty statute requires the

sentencer to consider “any mitigating circumstances or

aggravating circumstances otherwise authorized by

law and any of the following statutory aggravating

circumstances which may be supported by the evidence..."

Ga. Code Ann. 827-2534.1(8). This includes prior

criminal convictions and pleas of guilty or nolo

contendere of the defendant, provided the State has

given the defendant notice prior to trial. Fair v.

State, 245 Ga. 868, 873-74 (1980). Cf. Ge. Code

Ann. 827-2503.

As to the admissibility of a defendant's general

character, there is statutory authority for allowing

this kind of evidence In the presentencing hearing,

subject to prior notice by the State. Dudley v.

stete, 228 Ga. S11 (1972); Feir v. State, supra. Cf.

Agnor's Ge. Evid. 8i0-5.

Further, where character Is put In Issue, the

direct examination must relate to general reputation,

whether good or bad, May v. State, 185 Ga. 335, 339 (1938),

Horton v. State, 228 Ga. 690, 697 (1972), as was done

by the State In this case. (T. 838-839).

As to Petitioner's allegation thet the trial

court limited his presentation of mitigating evidence,

the Supreme Court has already ruled on this Issue

CONCLUSIONS OF LAW

The Supreme Court has already concluded the

(b)(7) aggravating circumstances was properly applied.

Implicit in this holding Is the conclusion that the

jury charge sufficiently channeled the Jury's discretion.

Mitigating circumstances are not required to be

singled out. Thenes v. State, 240 Ga. 393 (1977).

However, the trial judge clearly, defined mitigating

circumstances and told the Jury whet the functions

of mitigating circumstances would be In their

deliberations. The charge meets the requirements

laid out In Spivey v. zent, 661 F.2d 464 (1981).

Accordingly, these allegations are found to be

without merit.

59-64

In paragraphs 59-64, Petitioner claims he was

dented a fair hearing on the Issue of punishment in

violation of his constitutional rights. Specifically,

Petitioner challenges the admissibility of # prior

conviction and evidence of general bad character;

the rulings of the triel court which allegedly limited

Petitioner's offer of evidence In mitigation; the

closing argument of the prosecution; and, the portions

of the jury charge on (b)(7) and mitigating circumstances.

FINDINGS OF FACT

Prior to Petitioner's trial, the State gave him

notice of Its Intent to Introduce s prior conviction

and evidence of his general bad character In aggravation

51-58

In paregraphs 51-58, Petitioner contends the

portions of the Jury charge In the sentencing phase

as to the Ga. Code Ann. $27-2534.1(b) (7) aggravating

circumstance ond as to mitigating circumstances

deprived him of his Eighth and Fourteenth Amendment

rights.

FINDINGS OF FACT

The Supreme Court hes expressly upheld the

application of the (b)(7) aggravating circumstance.

Brooks v. State, 246 Ga. at 262.

As to mitigating circumstances, the trial

court charged the jury:

"in arriving at your

determination, you are

authorized to consider

all evidence received

throughout this trial,

presented by both the

State and the defendant.

You are authorized to

include in your

consideration the facts

and circumstances, if any,

in mitigation and

aggravation.

Hitigating circumstances are

those which do not constitute

a justification or excuse

for the offense in question,

but which In fairness and

mercy may be considered

as extenuating or

reducing the degree of

moral culpability or blame."

(Tt. 886-887).

-20a-

CONCLUSIONS OF LAW

A prosecutor may argue for a death sentence

and offer plausible reasons for his position. Allen

v. State, 187 Ga. 178, 182 (1938); Strickland v.

State, 209 Ga. 675(2) (1953); Chenault v. State, 234

Ga. 216, 224 (1975). He may urge severe punishment.

Bailey v. Stete, 153 Ga. 413(4)(1922); Chenault v.

State, supra. Protection of the community Is one

consideration @ jury Is entitled to entertain in

determining an appropriate sentence. Chenault v.

State, supra.

The Court bas examined the prosecutor's

closing argument (T. 859-873) and found nothing

Improper. Leutner v. State, 235 Ga. 77, 84 (1975);

Chenault v. State, supra, Redd v. State, 242 Ga.

876(4) (1979).

Accordingly, this allegation is found to be

without merit.

19

charge on a lesser included offense would have been

found In Petitioner's confession. The trial judge

apparently considered this evidence Insufficient

to warrant a charge on a lesser crime. Petitioner

has not shown the trial court abused its discretion.

Petitioner has also objected to a portion of the "

charge on reasonable doubt which provided, "...nelither

does it mean a possibility that the defendant may be

Innocent." (T. 824). The Supreme Court rejected

this challenge in Bruster v. State, 228 Ga. 651 (2)

(1972).

Accordingly, the claim for relief in paragraphs

44-47 is found to be without merit.

48-50

In paragraphs 48-50, Petitioner alleges the

prosecutor made an improper, Inflammatory closing

argument In the sentencing phase which violeted

Petitioner's constitutional rights.

FINDINGS OF FACT

In conducting its sentence review, the Supreme

Court concluded Petitioner's death sentence was not

Imposed under the influence of passion, prejudice,

or any other arbitrary factor. Brooks v. State,

244 Ga. a. 584.

“

— mnt, ——— — — er

— — — — — —-—- — — — 22 . — BE

Err ²ẽůͥn».—ͥfp ͥͤ̃˙²˙1;!̃!̃ ⁰ͤ ww ⁰• ²•ẽůùu˙auÜ6uöä e

( i

For this reason 8 the Court denies

relief.

The Court also refuses to hold Counsel were

Ineffective for faiting to object to the charge

as given.

9 A

In paragraphs 44-47, Petitioner alleges thet

the trial court's refusal to charge on 1 Included

offenses and its Instruction on reasonable doubt: in

the guilt/innocence phase violated his Fourteenth

Amendment rights.

FINDINGS OF FACT a :

The trial court refused to charge the jury on

voluntary and Involuntary manslaughter, which defense

counsel had requested in writing, because the requests

were hot adjusted to this evidence.” (tT. 788).

CONCLUSIONS OF LAW

The trial judge may In his discretion charge

on the lesser crime of that Included in the Indictment

or accusation. State v. Stonaker, 236 Ga. I, 2

(1976). fFallure of a trial Judge to do so, despite

a written request, is not error If the evidence

does not warrant such a chafge. 14.

Here, Petitioner did not testify except during

the Jackson-Denno hearing outside the presence of

the Jury. (. 731). Therefore, any evidence to support @

“t7e

172

„

n

n

Accordingly, this claim for relief ts without

merit.

ho-43

In paragraphs 40-43, Petitioner contends

that the jury charge on malice and intent In the

guilt/innocence phase were impermissibly burden-shifting,

thereby violating his constitutional rights.

FINDINGS OF FACT

The Court has examined the portions of the jury

charge on Intent (T. 825-826) and malice (T. 831-832).

CONCLUSIONS OF LAW

There is no question that the charge is erroneous

under present law. Mullaney v. Wilbur, 421 U.S. 684,

95 S. ct. 1881, 44 1. 4. 20 508 (1975); Sandstrom v.

Montana, 442 U.S. $10, 99 8. ct. 2450, 61 L.Ed.2d 39

(1979); esch v. State, 246 Ga. 417, 420 (1980).

At the time the charge was given, however, the

charge was not erroneous under existing state law.

Patterson v. State, 239 Ga. 409(4) (b) (1977).

The issue of whether Sandstrom should be

given retroactive effect ts undecided. Tyler v.

Phelps, 622 F.2d 172, 175 „. 4 (Sth Cir. 1980);

Lackey v. State, 246 Ge. 331, 338 „. 3 (1980).

In view of the unsettled nature of this rule,

the Court rules that the principle of Sandstrom

does not apply.

~l6a-

be drawn by the evidence and did not amount to &

personal opinion. Shy v. State, 234 Ge. 816, 824

(1975); Shirley v- State, 245 Ga. 616, 617 (1980).

in that the Court has concluded the prosecutor

did not exceed the permissible bounds of argument,

the Court does not find Counsel were ineffective

in failing to object.

38-39

In paragraphs 38-39, Petitioner alleges that

the failure to transcribe at! bench conferences

dented him his Sixth Amendment right to counsel

and Fourteenth Amendment right to due process

and equal protection of lews.

FINDINGS OF FACT

Counsel filed @ Motion for Complete Recordation

of all Proceedings. (n. 21). The motion was mutually

agreed upon by the prosecutor, defense counsel, and

the trial court. (n. 7.3).

CONCLUSIONS OF LAW

The court reporter's failure to transcribe

all bench conferences In @ death penalty case does

not constitute reversible error per se where the

appellant does not demonstrate any harm or prejudice

therefrom. Davis v- stete, 242 Ge. 901 (1979).

Petitioner has not demonstrated any prejudice

or harm resulting from the fallure to record all bench

conferences.

-15-

-15a-

of sworn testimony.

Accordingly, the allegations in peragraphs

32-34 are found to be without merit.

35-37

In paragraphs 35-37, Petitioner contends the

prosecutor made improper opening and closing arguments

during the guilt/innocence phase which violated

Petitioner's constitutional rights.

FINDINGS OF FACT

The Court has examined both the opening and

closing arguments of the prosecution in the gullt/

Innocence phase of trial. (T. 464-478; 801-820).

CONCLUSIONS OF LAW

A prosecutor may comment on @ defendant's

failure to produce evidence. Wood v. State, 234

Ga. 758(2) (1975); White v. State, 242 Ga. 21(5)

(1978). Thus, the prosecutor's comment upon defense

counsel's failure to outline a defense was not

improper.

Petitioner has also claimed the prosecutor

expressed his personal opinion as to the veracity

of a witness, but the Court does not agree. In

thet Captain Graham's testimony (7. 701-712) and

Hs. Brooks’ testimony (T. 767-768) were conflicting,

the Jury would ultimately belleve one witness and

not belleve the other. Such an Inference could

106

142

and state thet he never told me there was anything

wrong with this statement, I'm willing to swear to

thet. 417. 654).

CONCLUSIONS OF LAW

in view of the fact that the requirement that

the triel judge administer oaths to jurors was not

in effect at the time of Petitioner's trial, the

Court finds Petitioner's claim of harm arising from

the administration of the oath to Jurors by the

prosecutor to be without merit.

The prosecutor's reference to Petitioner as

“the prisoner at ber“ during voir dire was not

improper. Cf. Ga. Code Ann. §59-806; Collier v.

State, 232 Ge. 282 (1974).

Petitioner has made no showing of harm or

prejudice resulting from the failure to record all

bench conferences. Davis v. State, 242 Ge. 901

(1979).

Finally, under Georgla law, attorneys are

officers of the court, and @ statement by an

attorney to the court “in his place” Is prime

facie true and needs no further verification unless

the same Is required by the triel court or the

opposing party. Caldwell v. McWilliams, 5 Ga.

100 (1880); Whitehead v. State, 96 Ga. App. 382

(1957). Thus, the prosecutor's statement made In

his place was not opinion but was the equivalent

-13-

~l3a-

Accordingly, this allegation is found to be

without merit.

32-34

In paragraphs 32-34, Petitioner alleges that

the trial was conducted In such @ manner as to

deprive him of his right tos fundamentally fair

trial. Specifically, Petitioner complains of the

oath being administered to jurors by the district

attorney, the prosecutor's referring to Petitioner

as “prisoner” during voir dire, bench conference

between the prosecutor and trial judge, and the

prosecutor's statement following testimony of a

prosecution witness.

FINDINGS OF FACT

Petitioner's triel occurred tn November, 1977.

Gea. Code Ann. $59-704.1, requiring the trial judge to

administer oaths to Jurors, became effective July 1,

1979.

During volt dire, the district attorney asked,

“Have you eny prejudice or bias resting on your mind

either for or against the prisoner at bar?" (T. 397).

After defense counsel had elicited Inconsistent

statements from e prosecution witness on cross-examination,

the district attorney pled entrapment and was permitted

to cross-examine the witness. (I. 648). Following

his cross-exemination of the witness, the prosecutor

stated, “If Your Honor please, | stand In my piece

122

his preliminary hearing.

Under former Ge. Code Ann. $59-806(1), Jurors

could be excused for forming or expressing an opinion

from having heard testimony under oath. Johnson v.

State, 209 Ga. 333(2)(1952). The Court finds thet

Petitioner's statemant reported from his preliminary

hearing was the equivalent of testimony under oath,

so that Jurors nevine read the confession had, In

effect, read testimony given under oath. The trial

court apparently determined for itself that the

reading of this detailed confession destroyed any

Impartiality a Juror may have had. United States

v. Davis, $83 F.2d 190, 196-87 (Sth Cir. 1978).

Finally, Petitioner claims the trial court

prevented meaningful voir dire. The Court finds

this allegation to be without merit.

Accordingly, the allegations in paragraphs

23-26 are found to be without merit.

27-31

in paragraphs 27-31, Petitioner claims the

admission Into evidence of his statement to police

violated his Fifth, Sixth, and Fourteenth Amendment

rights.

The Supreme Court hed already concluded the

Stete carried its burden of proving the admissibility

of Petitioner's confession. Brooks v. State, 244 Ge.

at 581.

~lla-

9

assistance by failing to file a timely challenge

to the grand jury composition and failing to

present evidence in an effective manner upon

their challenges to the traverse jury composition.

Failure to challenge arrays of grand and

traverse jar les is not „ ground of ineffective

assistance or “cause” within the meaning of Ga.

Code Ann. §50-127(1). Goodwin v. Hopper, 243 Ga.

193 (1979). Accordingly, Petitioner's challenge

to the grand jury composition is deemed waived.

As to the traverse jury, Petitioner would °

have the Court find Counsel ineffective for not

prevailing on their traverse jury challenge. Yet,

Petitioner has not demonstrated that the jury pool

from which the pane! was drawn was impermissibly

composed or thet the selection process was less than

neutral, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct.

1272, 51 1. t. 2d 498 (1977), Im order to establish

actual prejudice.

In thet Petitioner has not shown a challenge

to the traverse jury could have been successful,

the Court cannot find Counsel were Ineffective for

not succeeding on their two challenges.

Petitioner has also claimed the trial court

used an Improper standard for excluding Jurors for

cause. The “commitment”, of which he complains,

was to exclude any Juror who hed read Petitioner's

statement which the press had recorded In detall at

10a

As to Petitioner's alleged confession, the

Police Department had given the details of the

confession to the newspapers. (T. 4S). Petitioner's

preliminary hearing In the Recorder's Court was

held In open court with the press present, and the

press “recorded his alleged confession in detail."

id. The trial judge explained thet “Just because

the newspapers print some alleged statement by the

defendant, will not necessarily be grounds for

excusing for cause. But, | did commit myself to

Mr. Cain, Sr. in his motion for change of venue

thet any juror who said they read the alleged

statement of this defendant In the paper, 1 would

excuse for cette. . (T. 46).

CONCLUSIONS OF LAW

The right to object to the composition of «a

grand or traverse jury los habeas corpus proceeding

under Georgia lew will be deemed waived unless

Petitioner shows In the Petition and satisfies the

Court that cause exists for his being allowed to

pursue the objection after the conviction and

sentence have otherwise become final. Ge. Code Ann.

$50-127(1). Under federal law, an additional showing

of actual prejudice Is required. Francis v- Henderson,

128 U.S. $36, 96 8. ct. 1708, 4B 1.6%. 2 149 (1976).

The “cause” asserted by Petitioner In this

case Is thet his trial counsel rendered Ineffective

CONCLUSIONS OF LAW

in that both Jurors Indicated they could not

vote to Impose the death penalty under any circumstances,

the Court finds no violation of Witherspoon.

Accordingly, this claim for relief is found to

be without merit.

23-26

in paragraphs 23-26, Petitioner claims he was

denied his right tos representative, impartial jury

by the jury selection procedures. Specifically,

Petitioner alleges Blacks were excluded from grand

and petit jury venires, thet the trial court used

an Improper standard for determining challenges

for cause, and that the trial court prevented any

meaningful voir dire to develop challenges for cause.

FINDINGS OF FACT

Counse! twice challenged the array of traverse

jurors during voir dire, but the challennes were

overruled. (T. 11-12; 404). In denying the first

challenge, the trial judge explained that he

hed drawn the nemes out of the Jury box pursuant

to provisions of the law, without any knowledge

of each Individual’s race, and that It was “just e

*

circumstance” that few Blacks were on the panel.

(7. 12).

Accordingly, the claim for relief in paragraphs

10-15 is found to be without merit.

16-19

in paragraphs 16-19, Petitioner alleges that the

exclusion of jurors having conscientious or religious

scruples against the death penalty violated his right

to e representative, Impartial jury as guaranteed by

the Sixth, Elghth, and Fourteenth Amendments and

Sections 2-101 and 2-111 of the 1976 Georgle

Constitution.

This argument has been rejected in Witherspoon

„ IIe, 391 U.S. 510, 8B S.Ct. 1770, 20 L.Ed. 776

(1968), and Smith v. Balkcom, 660 F.2d 573 (1981).

Accordingly, this allegation Is found to be

without merit.

20-22

in paragraphs 20-22, Petitioner claims two

jurors were Improperly excluded under Witherspoon v.

I}inols, supra, thereby violating his Sixth and

Fourteenth Amendment rights.

FINDINGS OF FACT

Jurors Holmes (T. 421) ond Nix (T. 424) Indicated

they could not vote to Impose the death penalty no

matter whet the facts or circumstences of the case

*

would be.

-TJa-

Amendments and under the Georgia Constitution.

FINDINGS OF FACT

The Supreme Court has already decided this issue

adversely to Petitioner. Brooks v. State, 244 Ga.

at 756.

Petitioner presented expert testimony on the

Issue of pretrial publicity in this case. (H.T. 20-61;

Affidavit of Lawrence E. Noble, Seeks The Court finds

that the opinion offered by the expert amounts to an

opinion that the triel court was wrong.

CONCLUSIONS OF LAW

The finding of the Supreme Court on this Issue

is binding upon this Court for the purposes of review.

Elrod v. Ault, 23) Ga. 750.

Petitioner has claimed Counse! were ineffective

for not presenting additional expert evidence on the

change of venue Issue, Including expert testimony like

that presented here. The Court is not convinced

thet such evidence, If presented, would have made any

difference In the decision to deny @ change of venue.

The decision whether to have presented expert testimony

falls within the realm of trial tectics and strategies

which are the exclusive province of the lawyer after

consultation with his client. Reld v. State, 235 Gea.

378 (1975). The Court cannot conclude Counsel! were

Ineffective on this ground.

contention, Petitioner offered expert testimony to

the effect that voir dire here was not in-depth enough

to establish a sufficient basis from which to exercise

challenges. (H.T. 61-78). The Court is not persuaded

by Petitoner's evidence and does not find Counsel

ineffective for this reason.

Petitioner has also claimed Counse! were

Ine fective for falling to present evidence 19

mitigation In an effective manner during the sentencing

phase. Petitioner complains of Counsel's calling 3

family members to testify and of not using expert

witnesses. However, Petitioner has made no showing

that other evidence or witnesses were avallable..

or would have been helpful. |

Finally, Petitioner charges that Counsel were

Ineffective in consenting to television coverage of

Petitioner's trial. Petitioner consented to the

coverage. (Volume re Cameras at Trial, November 16,

1977). He has made no showing of any prejudice or harm

arising from the coverage.

Accordingly, the claim for rellef in paragraphs

7-9 is found to be without merit.

10-15

In paragraphs 10-15, Petitioner contends the

failure of the trial court to grant e change of venue

violated his right to a fair trial by an impartial

Jury a8 guaranteed by the Sixth, Eighth, and Fourteenth

the sentencing phase (T. 841; 847; 855); and made

closing arguments In dotb the gullt/innocence and

sentencing phases (J. 789; 874).

CONCLUSIONS OF LAW

The Sixth Anmendment right te counsel means

„ „not errorless counsel, and not counsel judged

ineffective by hindsight, but counsel reasonably

likely to render and rendering reasonably effective

assistance." MacKenna ». Ellis, 280 F.2d 592 (Sth

Cir. 1960): Pitts vw. Glass, 231 Ga. 638 (1974).

Counsel here easily meet the test. They prepared

for and advocated Petitioner's cause in @ reasonably

effective manner. The effort they put forth was

certainly reasonably effective within the meaning

of the standard. g

Petitioner has cited specific instances in which

he contends Counsel were ineffective. Several of these

instances are related to claims raised elsewhere in

the Petition and will be addressed below. (for

ineffectiveness as to: change of venue motion,

see paragraphs 10-15; challenge to array of petit

jurors, see paragraphs 23-26; prosecutor's arguments,

see peragraphs 35-37 end 48-50; jury charge on malice

and Intent, see paragraphs 40-43; and, State's evidence

In aggravation, see paragraphs 59-64).

Petitioner has also claimed Counsel failed to

conduct o proper voir dire. in support of his

**

~4a-

Among the pretrial motions filed by Counsel

were a Motion for Continuance; Motion for Change of

Venue; Hot lon for Individual Voir Dire; Motion to

Prohibit Jury Dispersal; Motion for Complete

Recordation of All Proceedings; and Motion to

Compe! Disclosure. (R. 16-24). The Motions for

Individual Voir Dire and Sequestration, Prohibiting

Jury Dispersal, and Complete Recordation were

consented to by the prosecution and the trial court

and thus were granted. (M.T. 3). . The Motion for

Change of Venue was denied. (M.T. 34).

During voir dire Counsel twice challenged the

array of traverse jurors on the ground that Blacks

were underrepresented, but the challenges were.

overruled. (T. 11-12; 404). Counsel also renewed

the Motion for Change of Venue, but the Motion was

dented. (T. 354-355).

At trial, Counsel reserved the right to make

an opening statement until the presentation of

Petitioner's case. (T. 478); cross-examined State's

witnesses (T. 489; 496; 509; 516; 525; 534; 539; 547;

554; 565; 570; 576; 582; 602; 612; 618; 628; 633; 643;

653; 657; 662; 668; 681; 689; 700; 710; 724; 748; 761;

839); offered 3 witnesses during the guilt/innocence

phase (J. 766; 771; 777); presented 3 witnesses during

2 0

not l ont Hearing Transcript of September 30, 1977.

-3-

Ja-

262 (1980). Certiorarl was denied by the Supreme

Court of the United States.

The Petition, as amended, coat o las 83 numbered

paragraphs, of which 76 contain substantive claims

for relief (7-82). The Court will rule on these

claims for relief by paragraphs rbb ee dag numerically

to the paragraphs in the Petition.

The record in this case consists of the transcript

of the proceedings before this Court on November 12,

1981; the affidavits of Peter v. Tague and Lawrence

E. Noble, Jr.; and the transcript and record of

Petitioner's trial in Muscogee County Super lor Court.

2-3

In paragraphs 7-9, Petitioner claims he wes

dented the right to effective assistance of counsel

as guaranteed by the Sixth, Eighth, and Fourteenth

Amendments and corresponding provisions under the

Georgia Constitution.

FINDINGS OF FACT

Petitioner was represented at trial and on appesl

by several attorneys. Mr. William 5. Cain, Sr., was

Initially appointed to represent Petitioner; at his

request, Mr. William $. Cain, Jr., was appointed to

serve as co-counsel. (. 15). Mr. cel, Sr., withdrew

prior to trial; Mr. Patrick J. Araguel, Jr., and Hr.

Jerry 0. Sanders replaced him. (. 2, 45).

STATE

4

WILLIAM ANTHONY BROOKS,

PETITIONER

vs.

WALTER d. ZANT,

WARDEN, GEORGIA

DIAGNOSTIC AND

CLASSIFICATION

CENTER,

RESPONDENT

This habeas corpus challenges the constitutionality

of Petitioner's restraint and the Imposition of the

u - - © © c fe

— —

IN THE SUPERIOR COURT OF BUTTS COUNTY

OF GEORGIA

HABEAS CORPUS

FILE NO. 5142

death penalty by the Superior Court of Muscogee

County. Petitioner was convicted of murder, kidnapping,

rope, and armed robbery.

for murder, to life for kidnapping and rape, and to

twenty years’ Imprisonment for armed robbery. The

Supreme Court affirmed his convictions and sentences.

Brooks ». State, 244 Ge. 574 (1979).

Court of the United States vacated the death sentence

and remanded the case for further consideration In light

of Godfrey. Upon reconsideration the Supreme Court

reaffirmed the death sentence.

He was sentenced to death

Brooks ». Stete, 246 Ga.

r

53871 v. Georgin, S46 U.S. 420, 100 S.Ct. 1759, 64 6.26

12

The Supreme