# Petition — Douglas v. Wainwright > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0778%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 468 U.S. 1212 ## Text - “ . . ey eee ee — ( is 3 3 i Gg 3 3 Office - Supreme Court, U.S FILED NO. DEC 16 1983 IN THE SXANDER U. STEVAS. Supreme Court of the United: States « October Term, 1983 HOWARD VIRGIL LEE DOUGLAS, Petitioners, vs. LOUIE L. WAINWRIGHT, Secretary, Florida Department of Corrections, and DAYID H. BRIERTON, Superintendent of Florida State Prison, Respondent. On Cross-Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF OF PETITIONERS ON JURISDICTION ELLIOTT C. METCALFE, JR. LARRY HELM SPALDING STEVEN M. GOLDSTEIN Office of the Public Defender 2070 Main Street Sarasota, Florida 33577 QUESTIONS PRESENTED 1. WHETHER A CRIMINAL TRIAL MAY BE CLOSED TO THE GENERAL PUBLIC UPON THE REQUEST OF THE PROSECUTION OVER A DEFENDANT'S OBJECTIONS WITHOUT ANY DEMONSTRATION THAT CLOSURE WAS NECESSI- TATED BY SOME OVERRIDING GOVERNMENTAL INTEREST. 2. WHETHER A CRIMINAL TRIAL COURT MAY NEGATE A UNANIMOUS JURY VERDICT AT THE PENALTY PHASE OF A CAPITAL TRIAL BY CONSIDERING INVALID PKIOR CONVICTIONS. 3. MAY A DEATH SENTENCE BE CONSTITU- TIONALLY IMPOSED BY A CRIMINAL TRIAL JUDGE AFTER A JURY HAS RENDERED A LIFE VERDICT. TABLE OF CONTENTS TABLE OF AUTHORITIES......eeee0. OPINIONS BELOW. eeeeeeeeeeeeeeeee JURISDICTION. eeenweeeseeeeeeeeneeee CONSTITUTIONAL AND STATUTORY ) 8 ot 000 FPP eae STATEMENT OF CASE... .eseeee cers BASIS OF FEDERAL JURISDICTION... REASONS FOR GRANTING THE WRIT... CONCLUSION... ccccccccscsscssces APPENDIX TABLE OF AUTHORITIES Cases Page Arizona v. Rumsey COTt .granted.wccccccccsecscecse 32,43 Barclay v. Florida 462 U.S. pp) eer 39 Beck v. Alabama S67 G.8. Bee Cases vctciscccs Benton v. Maryland 395 U.S. 784 (1969)....... oe as Bullington v. Missouri 451 U.S. 430 (1981)......... 32,40 Burch v. Florida 343 Go.a8 Osi CFIA. B97 ccs 28 Chambers v. Florida 339 So.2d 204 (Fla. 1976)... 28 Coker v. Georgia 433 U.S. 593 (1977) .cccccece 35 Cole v. Georgia U.S. S.Ct. 83-321 Cert.granted...cccccccesseee 26,43 Davis v. United States 249 F. 394 (8th Cir. 1979)... 19 Douglas v. State 373 So.2d 895 (Fla. 1979)... 11,30 Cases Douglas v. State TABLE OF AUTHORITIES 328 So.2d 18 cert.den. 429 U.S. CONTINUED (Fla. 871 1976) (1976) .cccccccccccccccvecccs Douglas v. Wainwright 714 F.2d 1532 (llth Cir. ROEn i. veo bets e660 b606 6h46e%8 Douglas v. Wainwright 521 F.Supp. 790 (M.D.Fla. Duncan v. 1981)... 391 U.S. 455 U.S. Louisiana eeeeseieeeeeeeeeneneeneeee#e 145 C29GCl cccscccece 104 Enmund v. 458 U. Estes v. 381 U. Eddings v. Oklahoma (1982)... ccceee Florida Ss. Texas Ss. (1982) -cccecce Furman v. Georgia 408 U.S. 238 (1972) ....eee0e Gannett Co. v. DePasquale 443 U. S. 368, 99 S.Ct. Saab eveosesceusesece 2898, 61 L.Ed.2d 973 (1980)....... ii 1,11,29 1,5-6, 10-13,17, 23-24 1,11,29 34 39 36,39 14 34 15 TABLE OF AUTHORITIES CONTINUED Cases Page Globe Newspaper Co. v. Superior Court U.S. , 102 S.ct. 2613, 73 L.Ed.2d 248 (1982)....... 15 Jones v. Florida 322 So.2d 615 (Fla. 1976)... 28 Kampff v. Florida 371 So.2d 1007 (Fla. 1979).. 28 Lockett v. Ohio 638 8.8. S06 (iS7Eb caccsncss Bean McKeiver v. Pennsylvania 403 U.S. 528 ig. } 41 Palko v. Connecticut BES O.8. BED FROST cccecesse ae Pell v. Procanier SAF B.8. ORF CaSRS) cccosevse Proffitt v. Florida 428 U.S. 768 CASTOR ccc caceces 33,34, 37 Richmond Newspapers, Inc. v. Virginia 448 U.S. 555 100 S.Ct. 2814 65 L.Ed 2d 973 (1980)....... 15,16 iii TABLE OF AUTHORITIES CONTINUED Cases Page Roberts v. Louisiana B20 U.B. 32D CAS PSdicccecece BF Saxbe v. Washington Post Co. 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974)....... 19 Swisher v. Brady 438 U.S. 204 ol. 40 United States v. Martin Linen Supply Co. Sae Balle SEG CAST bccoccecsecs 39 United States v. Sisson 399 U.S. 267 (1970).......-. 40 Wainwright v. Douglas U.S. s§.Ct. Dra 646s66eeeee* 3 Waller v. Georgia U.S. S.Ct. 83-321 cert. Granted... ..ceecsevees 26,42 Woodson v. North Carolina 428 U.S. 280 }\ oo, | eee 39 iv TABLE OF AUTHORITIES CONTINUED Constitutional Provisions Page Fifth Amendment to the Constitu- tion of the United States... 3 Sixth Amendment to the Constitu- tion of the United States... 4 Fourteenth Amendment to the Con- stitution of the United PG 62 66 ORAS SR SHSECK ORES OS 4 28 U.S.C. Sec. 2254 se eee *e @@eeee 3,5,12 Statutes: Alabama S.B. 241 SS 8-9 Lan bos 66> 66.68 6e. 6.08 606 08 be 31 Fla. Stat. 921.141(5) (b)....... 27 Indiana Stat.Anno. SS 35-35-2-9 ST « 5b 8% 0664666 6666060 ¢ks 31 Treatises: Gillers, Deciding Who Dies 129 U. Penn.L. ev ’ -74.. 38 Other: American Law Institute, Model Penal Code: Sec. 210.6, 133 (Preliminary Official Draft 0 a er a 38 TABLE OF AUTHORITIES CONTINUED ABA Standards, Sentencin Alternatives and Procedures, Sec. 1.1, 47-48, Commentary (Approved Draft 1968)....... The President's Commission on Law Enforcement and Adminis- trative Justice: The Challenge of Crime in a Free Society, Task Force Report, The Courts 26....... vi 37 37 OPINIONS BELOW The opinion of the United States Court of Appeals is reported at Douglas v. Wainwright, 714 F.2d 1532 (llth Cir. 1983). (App. 1-125) That decision reviewed the judgment of the district court reported at Douglas v. Wainwright, 521 F.Supp. 790 (M.D. Fla. 1981). Opinions of the Supreme Court of Florida are reported at Douglas v. State, 328 So.2d 18 (Fla. 1976), cert. den. 429 U.S. 871 (1976), and Douglas v. State, 373 So.2d 895 (Fla. 1979). II JURISDICTION The United States Court of Appeals by a two-to-one decision, on September 19, 1983, affirmed in part and reversed in part the United States District Court's denial of the defendant's peti- tion for writ of habeas corpus. The State of Florida filed a petition for rehearing and suggestion of en banc consideration of that part of the deci- sion reversing on the right to counsel issue involving the Sixth Amendment. The state also filed a Motion to stay mandate so that it could seek certiorari review in this Court. On October 21, 1983, both the petition for rehearing and suggestion for rehearing en banc were denied and on October 26, 1983, an order was entered staying mandate until November 21, 1983, and continuance thereof being conditioned upon the Clerk of this Court notifying the Clerk of the Eleventh Circuit Court of Appeals of the state's petition for writ of certiorari being filed. On November 18, 1983, a copy of the state's petition for writ of certiorari to the Eleventh Circuit Court of Appeals was received by cross-petitioner. The state's petition in Wainwright v. Douglas in Case No. 83-817 in the Supreme Court of the United States has pending a motion filed by the state to defer consideration of the petition for writ of certiorari. The jurisdiction of this Honorable Court is invoked pursuant to Title 28 U.S.C. Sec. 1254. III CONSTITUTIONAL AND STATUTORY PROVISIONS Amendment V of the Constitution of the United States provides that: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him- self, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Amendment VI of the Constitution of the United States provides that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." Amendment XIV of the Constitution of the United States provides inter alia, that: "All persons born or naturaliz- ed in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privi- leges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.” Title 28 U.S.C. Sec. 2254 (a) provides that: "The Supreme Court, a justice thereof, a circuit judge or a District Court shall entertain an application for a Writ of Habeas Corpus in behalf of a person in custody pursuant to the judment of a State Court only on the ground that he is in custody in violation of the Constitution or laws or trea- ties of the United States.” IV STATEMENT OF THE CASE Douglas was convicted of the murder of Jessie Atkins. Douglas v. Wainwright, 714 F.zd 1532 (llth Cir. 1983). In the second portion of the bifurcated trial, the jury unanimously recommended life imprisonment, rejecting the death penal- ty. The trial court, however, notwith- standing the jury's recommendation imposed the death penalty. Id. at 1535. The apparent motive surrounding the homicide was a classic "love triangle” between Douglas and the wife of the deceased, Helen Atkins. Helen Atkins had lived with Douglas for a year prior to her marriage to the victim. During her marriage, periods of separation occurred, in which she maintained contact with Douglas. Id. On July 16, 1973, while Helen Atkins and her husband were driving their vehicle, they were confronted by Douglas who forced them off the road and ordered them to proceed to a wooded area near Brewster, Florida. Id. at 1536. At gunpoint, Douglas forced the victim and Helen Atkins to perform sexual acts and then struck Atkins over the head with his rifle and shot the victim in the head. Id. Douglas then proceeded to engage in sexual activities with Helen Atkins. Id. Helen Atkins and her children proceeded to live with Douglas for some nine days after the homicide until authorities independently found the victim's body. Id. At the trial, Helen Atkins was the sole eye witness to the alleged crime and was the prosecution's key witness. Id. Prior to her testimony, on the state's motion and over objection of Douglas' counsel, the trial judge excluded the general public from the courtroom. Id. The following exchange occurred: MR. CAMPBELL: I am making a motion that due to the nature of the testimony of the next witness, Helen Atkins, that the Court order that the Courtroom be cleared of all except necessary Court personnel. MR. KIRKLAND: The Defense will object, because she's not a person of young and tender years. There are ladies on the jury that are going to have to hear this and I think she should confront society with her testimony as well. I think the Defendant has a right to a fair trial and to a public trial. MR. CAMPBELL: Your Honor, I think that regardless of whether shc's a person of young and tender years - I'm not sure how far that goes ... THE COURT: Let me see you gentlemen up here. (Counsel approached the bench.) THE COURT: Do you feel that this is so embarrassing to her... MR. CAMPBELL: It could be, Your Honor. THE COURT: ...do you feel this is embarrassing to her or are you trying to save the women in... MR. CAMPBELL: I think its not only embarrassing to her, Your Honor, I think that it's such that I don't see any reason for some of the people in the audience to sit and listen to this sort of testimony, as I've indicated to the jury. I don't see any reason that anybody ought to hear it unless it's absolutely necessary. THE COURT: Is [sic] there any members of the Defendant's family in the audience? MR. CAMPBELL: Yes,Your Honor. THE COURT: How many? MR. KIRKLAND: One or two. THE COURT: Is the Press here? MR. KIRKLAND: I assume there are members of the Press. THE COURT: Ladies and gentlemen, a motion has been made that the - due to the nature of the testimony as anticipated by the State to be produced - that the Courtroom be cleared of all personnel who are not part of the official actions in this case. Our Constitution and laws provide for a public trial and this is the right of every individual. I wish to assure the guarantee of a public trial and I will permit members of the Defendant here. ... MR. CAMPBELL: Then you ought to also permit the members of the family of the deceased. THE COURT: ...and the members of the family of Jessie William Atkins, Jr. *e ef MR. CAMPBELL: ...and Helen Atkins. THE COURT: ...and Helen Atkins and the representatives of the Press. Other than that, I would like everyone else to leave and - until this phase of the case has been completed. (The spectators left the Courtroom). After the jury recommendation of life imprisonment, the trial court took the sentence under advisement and requested and received a presentence investigation report for the purposes of possibly identifying any mitigating circumstances. Id. at 1536. The presentence report on which the court relied identified several prior felony and misdemeanor convictions. Id. All but one of the felony convictions had previously been invalidated because they were secured in violation of Douglas' Sixth Amendment right to counsel. Id. The trial court then sentenced Douglas to death. 10 The conviction was affirmed by the Florida Supreme Court in Douglas v. State, 328 So.2d.18 (Fla.) (Douglas I) cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed. 2d 151 (1976), reh. denied, 429 U.S. 1055, 97 S.Ct. 770, 50 L.Ed.2d 771 (1977). The Florida Supreme Court affirmed the denial of a subsequent motion for state post-conviction relief, but issued a stay of execution. Douglas v. State, 373 So.2d 895 (Fla. 1979) (Douglas II). Douglas then petitioned for federal habeas relief which was denied in all respects. Douglas v. Wainwright, 521 F.Supp.790 (M.D.Fla. 1981). On appeal, the Eleventh Circuit Court of Appeals affirmed the district judge in rejecting all of Douglas' claims except reversed on the Sixth Amendment right to counsel claim which determined 1l that Douglas was deprived of effective assistance of counsel in the sentencing phase of the proceedings. Douglas v. Wainwright, 714 F.2d at 1557. V BASIS OF FEDERAL JURISDICTION The basis of federal jurisdiction in the Court of first instance was a peti- tion for writ of habeas corpus filed pursuant to Title 28, Sec. 2254 U.S.C. VI REASONS FOR GRANTING THE WRIT Public Trial The initial question presented by this petition deals with an accused's right to a public trial guaranteed by the Sixth and Fourteenth Amendments to the Constitution. The precise issue present- ed here has not previously been before this Court for decision: whether a criminal trial may be closed to the general public upon the request of the 12 prosecution over a defendant's objections without any demonstration that closure was necessitated by some overriding governmental interest. The opinion of the court below recognized that this court “has never specified whose pre- sence, at a minimum, must be allowed to ensure a defendant a constitutionally guaranteed public trial”, and "has not spoken on the proper approach to issues raised when a criminal defendant alleges his Sixth Amendment right to a public trial has been violated." Douglas v. Wainwright, supra, at 1537, 1538. The right to a public trial is one of the most cherished liberties guaran- teed us by the Bill of Rights. To take that right from a man facing the ultimate penalty - death - strikes at the very heart of the awesome responsibility citizens repose in our government. The 13 public trial right "is not one belonging to the public, but one belonging to the accused, and inhering in the institu- tional process by which justice is administered." Estes v. Texas, 381 U.S. 532, at 588, (Harlan, J., concurring). A criminal trial by its nature is an action brought by the people in the name of the state against an individual who is thought to have violated an act forbidden as against the welfare of society. All citizens have a vital interest in such a trial. They desire a defendant to have a fair and impartial trial; they also are interested in the state getting a fair and impartial trial; they are interested in how the judges, the prosecutor, the police and jurors discharge their duties; and how witnesses testify. The citizens should not be required to get their information of these important matters 14 through an edited or incomplete or biased account furnished by a press that might lean sympathetically to one party or the other. More recently, this Court expressed in both the majority and dissenting opinions “that open trials were part of the common-law tradition." Gannet Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 973 (1980). Hence, “the Bill of Rights was enacted against the backdrop of the history of trial being presumptively opened." Richmond News- papers, Inc. v. Virginia, 448 U.S. 555, at 575, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). This Court has consistently defended the public character of the trial process with respect to attendance of the press and public as encompassed within the First Amendment. Globe News- paper Co. v. Superior Court, U.S.- 15 , 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Commonwealth of Virginia, supra. It would be difficult to fathom that an accused's right to a public trial under the Sixth and Fourteenth Amendments would take second place to the right of access guaranteed the public and press to a criminal trial within the First Amend- ment context. The record is devoid of any identifiable basis founded upon competent evidence and articulated findings to support the closure. The record finds only the merely lugubrious complaint of the prosecutor and nothing more overrode the accused's public trial guarantee. The trial court conducted no hearing, no balancing of the interests and articulated no findings. It matter-of- factly barred the public from the testimony of "the sole eyewitness to the murder and 16 the witness on whose testimony the judge relied on in finding the one aggravating circumstance used to justify imposition of the death penalty.” Douglas v. Wainwright, supra. at 1541. "[Hjer testimony was crucial to say the least.” Id At the heart of the purpose of public trial is that "(o]peness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously...” Gannet Co. v. DePasquale, supra at 382. Further, witnesses have proven to be more truthful under the gaze of the public. What impressions impacted the jury from partial closure in this case? Did they believe that this testimony deserved special protection, or undue emphasis, or more 17 credibility than other witnesses? Did the jurors share a special anguish for the victim's family who were allowed to remain? These questions cannot be answered. It is obvious that a violation of an accused's right to a public trial would present many speculative dangers which would be impossible to prove. For this reason, the public trial right, to be given meaningful effect, must necessarily preclude closure unless the very founda- tion of the trial is jeopardized. l. ‘Federal courts have routinely refused to require a defendant to prove prejudice once a violation of the right to a public trial is shown. See, United States v. Hernandez, 608 F.2d 741, t Fe ; rtineau v. Perrin, 601 F.2d 1196, 1198 (Ist Cir. 1975); United States v. Eisner, 533 F.2d 987, 9 Cir. 1576), cert. denied. 429 U.S. 919; United States v. Kobli, 172 F.2d 919 (3rd r. ; Unite tates ex rel. ae v. Rundle, 419 F.2d 599 (ard Cir. avis v. United States, 249 F. 394 (8th or : 18 It is not contended that this case was a "Star Chamber" proceeding but a more subtle and insidious a public trial. To allow of a criminal trial to be sponte by the trial judge the term "public" to mean deprivation of the attendants selected sua deftly scalpels something quite different from public attendance. Stated otherwise, "(i]t is not essential to the right of attendance that a person be a relative of the accused, an attorney, a witness, or a reporter for the press, nor can these classes be taken as the exclu- sive representatives of the public." Davis v. United States, supra at 395. This Court has recognized that the press has no constitutional access superior to those enjoyed by ordinary citizens. Saxbe v. Washington Post Co., 417 U.S. 19 843, 94 S.Ct. 2811, 41 L.Ed. 2d 514. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed. 2d 495. Nor can the press, as the alter ego of the citizenry, assure the purposes of the public trial guarantee and elevate a closed proceeding to the open judicial forum intended by the Framers of the Sixth Amendment. By allowing the type of closure here, special attention is drawn to the witness. Those allowed to remain after exclusion could very well subvert the alleged purpose of the closure. Surely, the nervous or embarrassed witness is better protected and shielded by the public, many of whom would be the friends of or in sympathy with the witness. On the other hand, an exclusion order limited to family could create a more hostile atmosphere depending upon the size and number of a defendant's family. 20 How is a court to determine who may remain and who must leave? Should attorneys not participating in the trial be excluded? Should law students be excluded? Should journalism students be excluded? Members of the legislature studying the judicial function? How and on what basis can one draw a legal distinction between members of the public? A, B, and C may stay, but D may not? The perils of this type of closure become obvious. It is not contended that the public trial right of the Sixth Amendment is absolute. It is submitted that openness must prevail absent a manifest necessity to some overriding societal interest. 2. For example, Stamicarbon, N.V. v. American Cyanamid, ° n ir. 1574) to protect trade secrets; United States v. Bell, 464 F.2d 667 (2nd Cir, ), cert. den. 409 U.S. 991, to protect confidentiality of hijacker 21 [Footnote 2 Continued] profile. United States ex rel. Lloyd v. Vincent (2nd Cir. 1975), cert. den. 423 U.S. 937, preserving confidentiality of undercover agents. Further, when any closure is requested in a criminal case, a trial court must hold a hearing to balance the interest in question and clearly articulate define- able reasons for exclusion of the public. With respect to the closure here, the absence of a hearing and articulable findings created confusion in reviewing the public trial question. As the lower court recognized "[{iJn the habeas proceedings below, contrary to the state court finding that the reason for the exclusion was protection of public morality, the district court proceeded on the assumption that the purpose of the partial closure was ‘avoiding additional and unnecessary insult to the dignity of 22 the witness.'" Douglas v. Wainwright, Supra at 1544. Taking either of the reasons for closure in this case or both it is difficult to comprehend the overriding societal interest that would allow a carte blanche exclusion of the public. The main concern of a criminal trial is not the protection of public morality or embarrassment of witnesses. Many cases may concern testimony possibly offensive to members of the public. Blanket exclusion is not necessary to protect this interest. Trial courts can, out of the presence of the jury, warn trial attendants of potentially offensive or shocking testimony and let those of the public choose between remaining or leaving the courtroom. The lower court doubted that protection of public morali- ty could justify even a partial closure. 23 Douglas v. Wainwright, supra at 1545. It is clear that the extent of closure utilized on a public morality basis is unjustified when countered by the accused's public trial right. Secondly, the arguable basis for exclusion herein is founded on potential embarrassment of the widow-witness. Kindness and compassion are indeed worthy aims to all parties to a criminal trial. The witness was a mature women with two children. Douglas v. Wainwright, supra at 1536. A multitude of criminal trials present embarrassing testimony on the part of witnesses. The mere fact that testimony could be embarrassing does not limit itself to this case. Douglas v. Wainwright, supra at 1537. If potential testimony could be embarrassing to a witness then public trials would soon be unusual and mere history. The trial 24 court undoubtedly acted out of sympathy for the witness, an objective that could have been totally well motivated. However, a capital trial or any criminal trial does not have as its focal point the comfort and insulation of potentially embarrassing testimony at the sacrifice of an accused's constitutional rights. Without reasoned inquiry of the witness and others, makes it impossible to determine whether manifest necessity required the parameters of closure in this case or a need for any closure. And even if this interest may sometimes allow partial closure, the total absence of any reason- ed findings prevents a founded justifica- tion for the deprivation of the Sixth Amendment guarantee. 25 Consideration of Prior Invalid Convictions Obviously the petitioner's crime took place in the context of a love- triangle relationship, was motivated by the tension, sexual jealousy and romantic rivalry in which petitioner found himself. A rational jury could have viewed the sequence of events as a classical instance of a crime of passion and thereby recon- ciled the tragedy of the homicide with the evidence of emotional disturbance arising from the jealousy and frustration which irrationally motivated petitioner. As such, the jury could have rationally viewed this case as involving a situation of compelling mitigation and reasonably concluded that this was not one of the most aggravated and unmitigated of capital crimes. The past valid criminal record of the petitioner involved a single convic- 26 tion for forgery. However, even if the prior uncounseled convictions were considered, this homicide was the accused's first violent offense. Accordingly, Florida's aggravating circumstance of prior violent felony, found in Section 921.141(5) (b), Florida Statutes, would at most, involve a prior record of non- violent felonies. Thus petitioner could not have been viewed as a career-violent criminal. Accordingly, the past perpetra- tion of non-violent offenses were unrelat- ed to the crime of passion involved in this case. Here, the jury could have quite correctly considered the evidence and reached a common-sense decision against imposition of the death sentence. When viewed in this way, as the jury could have viewed it, the offense was not without mitigation of the kind which has been recognized to warrant imposition of a life sentence under Florida law. See, 27 e.g., Burch v. State, 343 So.2d 831 (Fla. 1977) (frenzied attack upon victim found to have been caused in part by defen- dant's mental disturbance, sentence reduced to life); Chambers v. State, 339 So.2d 204 (Fla. 1976) (heinous or atro- cious nature of the crime explained by mental or emotional disturbance, sentence reduced to life); Jones v. State, 332 So.2d 615 (Fla. 1976) (aggravation outweighed by mental deficiency, sentence reduced to life); Kampff v. State, 371 So.2d 1007 (Fla. 1979) (obsession with marriage and and brooding over impending divorce found to be mitigating, sentence reduced to life). Thus the facts of this murder do not significantly exceed the "norm" of capital homicides as far as the cruelty of the homicide itself. The murder may well have been “unplanned” until the sexual confrontation which resulted from 28 the factors of jealousy and emotional disturbance noted above. Thus this crime was not a premeditated murder, nor was it the depraved killing during commission or a felony for gain such as during a robbery. In this case the facts support a unanimous jury's finding of mitigation in accordance with this court's decision in Lockett v. Ohio, 438 U.S. 586 (1978). Both the trial court and the Florida Supreme Court rejected the jury verdict at the penalty phase as a direct result of “considering” the prior invalid convictions or “buttressing" the decision based upon them. Douglas I, 328 So.2d at 22 and Douglas v. Wainwright,, 521 F.Supp. at 793. This court should thus grant certio- rari to review the consititutional issues raised in the use of these prior invalid 29 convictions to negate a jury's finding of mitigation in a capital case. Imposition of Death Sentence After Jury Recommendation of Life Imprisonment This court should grant certiorari to review the constitutional question present here regarding the use of the death penalty in cases where the jury, sitting as a penalty jury at trial, made a determination that a life sentence should be imposed. Petitioner submits that the imposition of the deéeth sentence in this circumstance violates the right not to be twice placed in jeopardy of life under the Fifth Amendment. This issue was passed upon by the Florida Supreme Court in its decision in this case in Douglas v. State, 373 So.2d 895, at 897 (Fla. 1979). For a time Florida was alone among jurisdictions providing by state law that 30 a trial judge may override a jury's penalty recommendation for life or death. Florida has been joined by Alabama and Indiana which have recently enacted statutes similarly providing that a trial judge is empowered to impose a death sentence when the trial jury has recom- mended a sentence of life imprisonment. Alabama S.B. 241, SS 8-9 (1981); Indiana Stat's Anno. SS 35=-50-2-9 (1979). A. The practice of imposing death sentences where the jury, has found for life after trying the facts under instruc- tions of law, and using the reasonable doubt standard, raises an issue unprece- dented in over 700 years of Anglo- American jurisprudence. The practice involves an automatic appeal by the state to the trial judge from a jury's verdict for the defendant on the question of the death penalty. In this case the jury was presented with but two possible alterna- 31 tives, life imprisonment or the death sentence. The issue presented here under the Fifth Amendment double jeopardy clause is Similar to the issue presented to this court in Arizona v. Rumsey, No. 83-226, cert. granted, in which the Arizona Supreme Court thought a similar question had been decided by this court in Bullington v. Missouri, 451 U.S. 430 (1981). This court held that the double jeopardy clause of the Fifth Amendment barred imposition of a death sentence on retrial once the first trial jury had determined that the defendant's life should be spared. Id. Missouri permitted retrial of the penalty issues upon a new trial being granted at the behest of the defendant, Florida's procedure permits the jury's life recommendation to be retried automatically when no new trial is granted to the defendant on either 32 guilt or penalty issues. The practice of allowing an appeal by the state from a favorable jury decision for the accused was disapproved in Benton v. Maryland, 395 U.S. 784 (1969), overruling Palko v. Connecticut, 302 U.S. 319 (1937). B. This court could not have considered the constitutionality of this practice in Proffitt v. Florida, 428 U.S. 242 (1976), where a jury recommendation for death was involved and where the court considered whether the statute's procedure as a whole was capable of producing consistent and rational results. Note the statement of petitioner, State of Florida, in petitioner's brief in Proffitt v. Florida, page 78, that: In this particular case, we are not confronted with an over- riding of a recommendation of mercy, but rather unanimity as between the jury and the trial 33 judge in concluding that death was the appropriate sentence. Not only was the issue not decided in Proffit, but important considerations to the determination of the issue could not have been reviewed at that time as shown by the following. The Court could not have considered the substantial national practice with regard to the legislative response to Furman v. Georgia, 408 U.S. 238 (1972), in 1976. By now such national consensus is apparent. Of thirty-two jurisdictions including federal which have adopted guided discretion death penalty laws since Furman only three permit death sentences after the trial jury finds that the life of the defendant should be spared. Under Duncan v. Louisiana, 391 U.S. 145 (1968), the national practice with respect to funda- mental fairness in jury proceedings must be based upon the common-law system as it 34 has developed "contemporaneously in England and in this country." Id. at 145-150 n.14. A scheme of justice which utilizes a jury fully on the issue of the life or death of the defendant providing for a full trial akin to that afforded on issues of guilt or innocence, yet treats the jury's decision for the defendant as non-binding is alien to our system. See United States v. Martin Linen Supply Co., 430 U.S. 564 (1977), declaring that such a practice would be totally alien to our system. Reference to the national practice with reviewing death penalty procedures has been an important criteria in deter- mining the constitutional scope of the death penalty. In Coker v. Georgia, 433 U.S. 593-597 (1977), this court surveyed the national practice in determining whether use of the death penalty was unconstitutional for the rape of an adult 35 where homicide was not involved. In Roberts v. Louisiana, 428 U.S. 325, at 366 (1976), the court reviewed national legislative actions in determining that a mandatory death penalty was unconstitu- tional. In Enmund v. Florida, 458 U.S. ss (1982), an analysis of the national experience in actual use of the death penalty was considered in determin- ing that the death penalty was unconsti- tutional where applied to a defendant who only abets an underlying felony. In Beck v. Alabama, 447 U.S. 626, at 635-637 (1980), the national practice was utilized in determining that a rule prohibiting instructions on lesser-included offenses in a trial of capital cases was unconsti- tutional. National scholarly and professional legal opinion is also properly considered in determination of due process questions under the Fourteenth Amendment regarding 36 the constitutional scope of application of the death penalty. Two sources directly reviewed by this court in Proffit, 428 U.S. at 252 n. 10 support judicial sentencing in capital cases limited by jury consent, or jury-judge concurrence, that death is the appro- priate sentence. See The American Bar Association Project on Standards for Criminal Sentencing, Sentencing Alterna- tives and Procedures, Section l.l, commentary (approved draft 1968) at 47-48, stating that strong reasons exist for requiring jury consent for any death penalty. See also The President's Commission on Law Enforcement and Adminis- tration of Justice: The Challenge of Crime in a Free Society, Task Force Report, The Courts 26, approving jury discretion in capital sentencing but distinguishing non-capital sentencing. 37 The Model Penal Code adopts, as the proper relationship of judge and jury in Capital penalty decisions, a system where the trial judge is the final arbiter of sentence but where a jury's decision against death is final. American Law Institute, Model Penal Code Section 210.6, and Commentary at 133 (Preliminary Offi- cial Draft 1962). See also, Gillers, Deciding Who Dies, 129 U.Penn.L.Rev. 1, at 39-74 (1980), concluding that jury consent for use of the death penalty should be required. C. As it has done in other cases raising significant questions recarding the scope of the constitutional appli- cation of a death penalty, this Court should review this question on the merits. The issue is one raising a substantial and unresolved constitu- tional question concerning the appli- cation of the death penalty in circum- 38 stances involving (1) a mandatory death sentence for first degree murder in Woodson v. North Carolina, 428 U.S. 280 ‘1976); (2) its use for a crime committed against an adult where no homicide occurs in Coker v. Georgia, supra; (3) use of the death penalty where one neither takes life nor intends that life be taken in Enmund v. Florida, supra (4) its use as punishment for those under 18 years of age; in Eddings v. Oklahoma, 455 U.S. 104 (1982), involving a 16 year old defendant; (5) its use under a system which precluded full consideration of mitigating factors by the sentencing authorities in Lockett v. Ohio, supra, and most recently (6) its use where a non-authorized factor is considered together with sufficient authorized factors to determine the crime to be aggravated, in Barclay v. Florida, 462 U.S. (1983). 39 D. The role of the jury distin-. guishes the present issue from those involving findings or recommendations made by a referee or master acting as an assistant to the court in cases such as Swisher v. Brady, 438 U.S. 204 (1978), where this court concluded that where a special master acted merely as a deputy to the court there was but one continuing jeopardy and no violation of the consti- tution where tentative findings could be rejected by the court. See United States v. Sisson, 399 U.S. 267, at 334 (1970) (dissenting opinion of Chief Justice Burger) ("the Constitution gives an accused the benefit of any mistakes in his favor of the first jury he encoun- ters” but does not extend this finality to mistakes by judges.) As explained in Bullington v. Missouri, supra, the provision of a jury trial on issues determinative of the death penalty, using 40 the reasonable doubt standard, with instructions to the jury on the criteria to be followed, held like a trial on guilt or innocence, requires application of the double jeopardy clause to bar retrial of the penalty issues when the jury has decided that the defendant does not deserve to die. Therefore, the petitioner need not demonstrate that a jury is constitu- tionally requird to pass upon the issue of penalty in a capital case in order for the decision of his jury favorable to him on the question of life or death to be constitutionally final. However, compare McKeiver v. Pennsylvania, 403 U.S. 528 (1971), holding no right to jury trial exists in juvenile delinquency proceed- ings due to the fact that such proceed- ings are designed to be rehabilitative, and are ameliorative in that errors can be corrected and the treatment or commit- 41 ment of the juvenile modified at any time. Contrast the utter rejection of rehabilitation where the death penalty is involved. Wherefore, the petitioner presents an urgent and compelling question of constitutional law which only this court can resolve. The imposition of a death penalty where the unanimous jury acting as the conscience of the community has decided that the life of the defendant should be spared is a result which should "shock the conscience" of the court under the due process clause of the Fourteenth Amendment. This cross-petition for certiorari should be granted. VII CONCLUSION For the same reasons that this court granted certiorari review in Waller v. Georgia, Case No. 83-321, and 42 Cole v. Georgia, Case No. 83-322, the court should accept and decide the important issues of the right to a public trial under the Sixth and Fourteenth Amendments. Likewise, this court should accept and decide the important issues of miti- gation in capital cases and imposition of the death sentence after a jury life verdict. Cf. Arizona v. Rumsey , No. 83-226. port 43 APPENDIX TABLE OF CONTENTS Decision of the Eleventh Circuit Court of Appeals.........Pages 1 = 125 Howard Virgil Lee DOUGLAS Petitioner-Appellant, Vv. Louie L. WAINRIGHT, Secretary, Florida Department of Offender Rehabilitation, and David H. Brierton, Superintendent of Florida State Prison at Starke, Florida, Respondents~-Appellees No. 81-5927. United States Court of Appeals, Eleventh Circuit. Sept. 19, 1983. Before RONEY and KRAVITCH, Circuit Judges and TUTTLE, Senior Circuit Judge. KRAVITCH, Circuit Judge: Howard Virgil Lee Douglas was convicted by Florida state court of murder in the first degree. In the second phase of a bifurcated trial, the jury unanimously recommended life imprisonment, rejecting imposition of the death penalty. The trial judge, however, found that the murder was "especially heinous, atrocious and cruel," that "no evidence of mitigating circumstances was produced," and imposed the death penalty. The con- viction was affirmed by the Florida Supreme Court in Douglas v. State, 328 So.2d 18 (Fla.) (Douglas I), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976), reh. denied, 429 U.S. 1055, 97 S.Ct. 770, 50 L.Ed.2d 771 (1977). The Florida Supreme Court affirmed the denial of a subsequent motion for state post-con- viction relief but issued a stay of execution. Douglas v. State, 373 So.2d 895 (Fla.1979) (Douglas II). Douglas then petitioned for federal habeas relief pursuant to 28 U.S.C. Sec. 2254. The federal district court denied the habeas corpus petition in all respects. Douglas v. Wainwright, 521 F.Supp. 790, 807-08 (M.D. Fla.1981). We affirm in part and reverse in part and remand. I. Background Appellant was convicted of murder of Jesse Atkins. The motive apparently arose from a classic “love triangle” in which Helen Atkins ("Atkins"), wife of the deceased, had been romantically involved with appellant, having lived with him for a year prior to her marriage to Mr. Atkins. She and her husband were frequently separated and Atkins and Douglas maintained contact during that period. On the afternoon of July 16, 1973, twenty year old Atkins and her husband drove to Bowling Green, Florida to collect belongings from a trailer Atkins rented and from which her eviction was threatened. On the return trip to Fort Green, appellant drove up beside the Atkins and ordered them to pull to the side of the road. Appel- lant, armed with a rifle, got into their car and ordered them to proceed according to his directions. During this trip the car became stuck on a back road. All three walked to a nearby mining operation where a man was found who returned with a truck to extricate the car. The three then drove to a wooded area near Brewster, Florida. Appellant at gun point forced the victim and Atkins to undress and perform sexual acts, and then struck Mr. Atkins on the head with his rifle, shattering the rifle stock. Appellant next fired multiple shots into the victim's head. tet, abe According to Atkins, she and appellant drove away in the Atkins' car until it again stalled. Appellant then directed Atkins to engage in sexual activities with him. Following this they walked several miles to where appellant's truck was parked and drove to the trailer home of Atkins' mother- in-law to pick up her two children. Atkins testified that she did not tell her deceased husband's parents about the murder because of appellant's threats to kill them all. Atkins, Douglas and the children all returned to the scene of the murder where Atkins and Douglas dragged the body into some underbrush and covered it. They then started the Atkins' automobile which Atkins drove away. Douglas followed driving his own truck. Atkins and her children lived with Douglas at her trailer for nine days following the murder, until authorities independently discovered Mr. Atkins' body. Douglas was indicted on charges of first degree murder, tried by a jury and convicted. At trial, Atkins, as the only eyewitness to the crime, was the prosecution's key witness. During her testimony, on motion by the state and over the objection of defense counsel, the judge excluded the general public from the courtroom. The fami- lies of the defendant, the witness, and the decedent and members of the press were allowed to remain. At the sentencing phase of the bifurcated trial, the jury recommended imposition of a life sentence. After taking the sentence under advisement for ten weeks, the trial judge issued an order of Judgment and Sentence, adjudging appellant guilty and imposing the death penalty. Before imposing sentence the trial judge requested and received a presentence investigation report to be used to identify any mitigating circumstances. The pre- sentence report on which the court relied identified several prior felony and misdemeanor convictions of appel- lant. All but one of the felony convictions previously had been invali- dated because they were "uncounseled convictions" imposed in disregard of Appellant's right to counsel. II. Public Trial Issue Douglas contends that his Sixth and Fourteenth amendment right to a public trial, as applied to the states through the Fourteenth amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), was violated by the exclusion of members of the general public from the courtroom during the testimony of Atkins, who was the prose- cution's key and only eye witness to the crime. Conceding that the right to a public trial is not absolute and that it must, in some instances be balanced against other competing societal interests, appellant argues alterna- tively that even if the exclusion did not violate his public trial right per se, the trial judge's failure to hold a hearing on the exclusion motion or to make findings as to the necessity for the closure violated appellant's sixth amendment right. Immediately prior to Atkins' testimony concerning the events leading up to and following the death of her husband, the state moved for the exclusion from the courtroom "of all except necessary Court personnel.” Douglas v. Wainwright, 521 F.Supp. 790, 795 (M.D. Fla. 1981). The colloquy between the parties was as follows: MR. CAMPBELL: I am making a motion that due to the nature of the testimony of the next witness, Helen Atkins, that the Court order that the Courtroom be cleared of all except necessary Court per- sonnel. MR. KIRKLAND: The Defense will object, because she's not a person of young and tender years. There are ladies on the jury that are going to have to hear this and I think she should confront society with her testimony as well. I think the Defendant has a right to a fair trial and to a public trial. MR. CAMPBELL: Your Honor, I think that regardless of whether she's a person of young and tender years - I'm not sure how far that goes THE COURT: Let me see you gentle- men up here. (Counsel approached the bench.) THE COURT: Do you feel that this is so embarrassing to her 10 MR. CAMPBELL: It could be, Your Honor. THE COURT: —__ do you feel this is embarrassing to her or are you trying to save the women in MR. CAMPBELL: I think its not only embarrassing to her, Your Honor, I think that it's such that I don't see any reason for some of the people in the audience to sit and listen to this sort of testi- mony, as I've indicated to the jury. I don't see any reason that anybody ought to hear it unless it's absolutely necessary. THE COURT: Is [sic] there any members of the Defendant's family in the audience? MR. CAMPBELL: Yes, Your Honor. ll THE COURT: How many? MR. KIRKLAND: One or two. THE COURT: Is the Press here? MR. KIRKLAND: I assume there are members of the Press. Id. at 795, quoting II Trial Tran- script 213-14. The judge then in- structed the jury: THE COURT: Ladies and gentlemen, a motion has been made that the - due to the nature of the testimony as anticipated by the State to be produced - that the Courtroom be cleared of all personnel who are not part of the official actions in this case. Our Constitution and laws provide for a public trial and this is the right of every indi- vidual. I wish to assure the guarantee of a public trial and I 12 will permit members of the family of the Defendant here. MR. CAMPBELL: Then you ought to also permit the members of the family of the deceased. THE COURT: —_ and the members of the family of Jessie William Atkins, Jr. MR. CAMPBELL: and Helen Atkins. THE COURT: and Helen Atkins and the representatives of the Press. Other than that, I would like everyone else to leave and - until this phase of the case has been completed. (The spectators left the Courtroom.) Id. at 793-94, quoting II Trial Trans- cript 214-15. The United States Supreme Court has never specified whose presence, at 13 a minimum, must be allowed to ensure a defendant a constitutionally guaranteed public trial. But see In re Oliver, 333 U.S. 257, 259, 68 S.Ct.499, 500, 92 L.Ed. 682 (1948) (conviction for contempt with only judges and perhaps staff members and prosecution present violates right to public trial). However, Justice Harlan, in his con- curring opinion in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), stated: Essentially, the public trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more respon- T. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...." Amendment VI, United States Constitution. 14 sibly in an open court than in secret proceedings. A fair trial is the objective, and "public trial" is an institutional safeguard for attaining it. Thus, the right of "public trial" is not one belonging to the public, but one belonging to the accused and inhering in the institutional process by which justice is administered. Obviously, the public trial guarantee is not violatec if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the “public” will be present in the form of those persons who did gain admission. Even the actual presence of the public is not guaranteed. A public trial implies only that the court must be open to 15 those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process. Id. at 588-89, 85 S.Ct. at 1662-63 (citations omitted). Beyond this, even though the Supreme Court has in several cases addressed the contours of the first amendment right of the public and press to attend criminal proceedings, Globe Newspaper Co. v. Superior Court, U.S. , 102 S.Ct. 2613, 73 L.Ed. 2d 248 (1982); Richmond News- paper, Inc. v. Commonwealth of Virginia, 448 U.S. 555, 100 S.Ct. 2814 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasgquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the Court has not spoken on the proper approach to issues raised when a criminal 16 defendant alleges his sixth amendment right to a public trial has been violated. We interpret the Court's analysis in the first amendment right of access cases, however, as helpful to the analysis of a claim of deprivation of a sixth amendment right to a public trial. See Globe Newspaper Co. v. Superior Court, supra; Richmond Newspapers, Inc. v. Virginia, supra; Gannett Co. v. DePasquale, supra. In Aaron v. Capps,, 507 F.2d 685, 687-88 (5th Cir. 1975), the only binding precedent in this circuit on the issue before us,” the court's 2. in Bonner v. City of Prichard 661 F.2d 2306 (llth <= 1961) (enbanc) this circuit adopted as precedent the decisions of the former Fifth Circuit. 17 decision that the defendant was not deprived of a public trial was based primarily on the fact that, in the particular circumstances, the presence of certain persons sufficed to preserve the public nature of the proceedings. In the words of the court: "([T)he fact that some members of the public were barred from the courtroom does not necessarily mean that a denial of a public trial has occurred; the ‘'deci- sion must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a ‘public trial'." Id. at 687, quoting Levine v. United States, 362 U.S. 610, 616-17, 80 S.Ct. 1038, 1042-43, 4 L.Ed.2d 989 (1960). In Aaron, the general public was 18 3 The excluded during a rape trial. relatives of both the defendant and the victim, the defendant's clergyman, courtroom personnel, all attorneys and the press were allowed in the court- room. Id. The court held there was no violation of the public trial right because: “some members of the public were admitted; the courtroom was at least three-fourths full; the tran- script of the trial became public record. Particularly important is the fact that the news media were admitted. The published reports of the trial were 3. The exclusion order was made pursuant to Article VI, Section 169 of the Alabama Constitution of 1901, which was repealed in 1973, and read: "In all prosecutions for rape and assault with intent to ravish, the court may, in its dis- cretion, exclude from the courtroom all persons, except such as may be necessary to the conduct of the trial.” 19 lengthy and complete. The defendant's relatives and clergymen were present to provide moral support and comfort to the accused." Id. at 687-88. The court determined that the presence of these persons, combined with the actual press coverage of the trial, adequately served the purposes underlying the public trial right, id., and the ” ‘defendant received[(d] every safeguard insured by a trial open to the general public.' " Id, at 688, quoting Note, 45 Mich.L.Rev. 474, 479 (1937). Relying on Aaron v. Capps, there- fore, we should consider whether in the proceedings in question the purposes underlying the constitutional mandate of a “public” trial are met, even though certain persons are not present or allowed to be present. In other 20 words, the practical impact of the partial closure must be evaluated. Id. {1) Prior to the recent Supreme Court decisions on the first amendment right of access, several of the United States Courts of Appeals decided that a defendant's right to a public trial was not violated when the closure was partial, in tat family members and/or the press were allowed to remain, and the exclusion of the public was narrowly limited in scope to a legiti- mate purpose for which it is ordered. United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694-96 (7th Cir. 1977) (to protect dignity of witness in rape trial); United States v. Eisner, 533 F.2d 987, 993-94 (6th Cir.), cert denied, 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976) (to protect witness with fear of testifying in public); United States ex rel. Bruno v. Herold, 21 408 F.2d 125 (2d Cir. 1969) (to protect witness afraid of testifying); United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (to protect witnesses from intimi- dation); Geise v. United States, 262 F.2d 151, 155 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959) (to protect child witnesses in rape trial from embarrassment). Others held that even where the closure is total and the press and family members, as well as the general public, are excluded, but only for a limited, justifiable purpose and period of time, the public trial guarantee is honored. United States v. Hernandez, 608 F.2d 741, 747-48 (9th Cir. 1979) (to protect witness and his family where safety threatened); United States ex rel. 22 Lloyd v. Vincent, 520 F.2d 1272, 1274 (2d Cir.), cert. denied. 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (to preserve confidentiality of undercover agents in narcotics case); Stamicarbon, N.V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir. 1974) (to protect from disclosure of trade secrets). But see United States ex rel. Bennett v. Rundle 419 F.2d 599, 607-08 (3d Cir. 1969) (writ of habeas granted because exclusion of public did not meet "standard of strict and inescapable necessity” where jury had retired from courtroom for hearing on suppression of evidence and only purpose of exclusion was to protect the defendant); United States v. Kobli, 172 F.2d 919 (3d Cir. 1949) (conviction reversed where exclusion of public for protection of public morals swept too 23 broadly; exclusion of only youthful spectators would have been appropriate); Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944) (conviction reversed where only press, necessary courtroom personnel and family members allowed throughout the trial). Thus the law is clear that the right to a public trial is not absolute and must in some instances give way to other substantial interests essential to the fair administration of justice. United States v. Hernandez, 608 F.2d at 747; United States ex rel. Latimore v. Sielaff, 561 F.2d at 694; United States v. Eisner, 533 F.2d at 993; United States ex rel. Lloyd v Vincent, 520 F.2d at 1274; Geise v. United States, 262 F.2d at 155-57. See Aaron v. Capps, 507 F.2d at 687; Lacaze v. 24 United States, 391 F.2d 516, 521 (5th Cir. 1968). See also Note, The Accused's Right to a Public Trial, 42 Notre Dame Lawyer 499, 503-04 (1967); Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1144-47 (1966) [2] The recent Supreme Court right of access cases make equally clear, however, that one who seeks to justify closure of a criminal trial carries a heavy burden. Globe News- paper Co. v. Superior Court, U.S. at __, 102 S.Ct. at 2620 (where the state obtains exclusion of the public and the press and press asserts a first and fourteenth amendment right of access to criminal trials, closure must be justified by "a compelling govern- mental interest, and [be] narrowly tailored to serve that interest"); Richmond Newspaper, Inc v. Virginia, 25 448 U.S. at 581, 100 S.Ct. at 2829 (opinion of Burger, C.J., White & Stevens, JJ.) (where court, without objection from prosecutor or defendant, seeks closure and press asserts first and fourteenth amendment right of access, closure is unjustified "{a)bsent on overriding interest articulated in findings"); Id. at 598, 100 S.Ct. at 2839 (Brennan & Marshall, JJ., concurring in judgement); Id. at 600 & n. 5, 100 S.Ct. at 2840 & n. 5 (Stewart, J., concurring in judgement). See also Newman v. Graddick, 696 F.2d 696 at 801 (llth Cir. 1983) ("compell- ing governmental interest” and findings required to close civil proceeding relating to release or incarceration of prisoners). It would be extremely ironic to require less of a showing when the basis for opposing closure is a defendant's explicit sixth amendment 26 right to a public trial than when the interest asserted is the press' unexpli- cit first amendment right of access to criminal trials. Equally ironic would be a holding that when a state seeks Closure it has a lesser burden than a defendant who seeks closure to protect his right to a fair trial. See, e.g., United States v. Powers, 622 F.2d 317, 324 (8th Cir. 1980) (where defendant seeks closure to ward off undesired publicity and state objects, defendant must show that closure is justified by strict and inescapable necessity). Cf. Nebraska Press Association v. Stuart, 427 U.S. 539, 553-65, 96 S.Ct. 2791, 2800-05, 49 L.Ed.2d 683 (1976) (use of prior restraint of press to protect defendant's right to fair trial pro- hibited where alternatives to restraint of press will suffice). 27 What emerges from a review of these cases is the conclusion that the strength of the reason for closure is another factor properly to be consider- ed in determining whether the right to a public trial has been violated. 4 4. In Aaron v. Capps, supra, little attention was devoted to the suffi- ciency of the justification for the closure. There, however, as noted supra n. 3, the closure was ordered pursuant to a state constitutional provision, the federal constitutionali- ty of which was not directly challeng- ed. Subsequent to the decision in Aaron v. Capps, the right of access decisions of the Supreme Court and of this circuit have made clear that the reason for the closure is a critical factor that must be considered in order to justify closure. Cf. United States v. Juarez, 573 F.2d 267, 281 (5th Cir. exclusion of defense witnesses during closing arguments and jury charge, pursuant to Fed.R.Evid.615 “was reasonable" due to concern that wit- nesses might be called at a second trial and given these proceedings were totally open to the general public). [3-5] Whether a particular proceeding therefore is sufficiently "public" to pass constitutional muster "must turn on the particular circum- stances of the case,"> Aaron v. Capps, 507 F.2d at 687. In particular, the court must analyze, in light of those purposes of the public trial guarantee which the defendant alleges were underminded, see Gannett Co. v. DePasguale, 443 U.S. at 383, 99 S.Ct. at 2907; Douglas v. Wainwright, 521 F.Supp. at 795, the 5. As expressed by another federal court: "Ordinarily the Sixth Amendment precludes the general exclusion of the public from the trial of a case over the objection of the defendant... [H]owever, ...although the Constitu- tional right of public trial is a substantial one, the term ‘public’ is a relative one, and its construction depends upon various conditions and circumstances..." United States v. Geise, 158 F.Supp. 821, 827 (D. Alaska ’ oted with roval and aff'd, Geise v. Unit tates, F.2d at 29 scope and practical impact of the partial closure, Aaron v. Capps, 507 F.2d at 687-88, and the strength of the reason for the closure. See Note, The Accused's Right to a Public Trial, 42 otre Dame Lawyer 499, 499-504 (1967). This approach allows a distinction to be drawn between some proceedings where closure is partial, in that certain members of the public are allowed to remain, and those in which total exclusion is ordered. Total exclusion is proscribed absent a most compelling justification. Cf. Globe Newsapaper Co. v. Superior Court, supra 102 S.Ct. at 2620. In other cases, where neither all members of the public nor the press are excused, the “public” nature of the proceedings may be retained sufficiently so that a lesser justifi- cation for the partial closure will 30 suffice to avoid constitutional depri- vation. In those partial closure cases where the interests underlying the public trial right are not protected, however, a compelling justification for the closure, as in total closure cases, must be shown. A. Purposes of the Public Trial Guarantee The Supreme Court in Gannett Co. v. DePasquale, 443 U.S. at 383, 99 S.Ct. at 2907, reviewed the interests protected by the public trial right: "Openness in court proceedings may improve the quality of testimony, induce unknown witnesses’ to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an oppor- tunity to observe the judicial system." 31 See also Globe Newspaper Co. v. Superior Court, U.S. at , 102 S.Ct. at 2619-20; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 569-73, 100 S.Ct. at 2823-25 (Burger, C.J., White & Stevens, JJ.); Id. at 593-97, 100 S.Ct. at 2836-38 (Brennan & Mar- shall, JJ., concurring in judgement). ‘In the habeas proceeding below, the district court accurately summarized the purposes underlying the right which potentially are implicated in this case: "(1) [protection from) the dangers of secret proceedings (2) open proceedings give notice to the world of the details of the case, thus encourag- ing potential and previously unidenti- fied witnesses to volunteer their knowledge, and (3) the likelihood that more truthful testimony will result if 32 given in open court in the presence of the public.” Douglas v. Wainwright, 521 F.Supp. at 795. Appellant does not argue that the trial was in any way "secret” in the sense of being a "Star Chamber" pro- ceeding: ° the exclusion order was narrowly tailored to apply during the testimony of one witness only, some members of the public were in atten- dance, the press was allowed to be present and the transcript of the testimony was made public, precluding any basis for a claim that the dangers of secret proceedings were present.’ Thus, our analysis must be undertaken 6. Even Justice England who dissented on this issue in the Florida Supreme Court and would have reversed Douglas’ conviction for violation of the public trial right said: "We do not have here the classic nonpublic trial which our jurisprudence has abhorred since the nation was founded. I agree with the majority there was no ‘Star Chamber’ or ‘Inquisitorial' proceeding..." Douglas 33 TPootnote 6 Continued] I, 328 So.2d 18, 22 (1976) (England, J., dissenting). 7. We make no ruling as to whether the danger of a secret proceeding could be present in the event of a more broad exclusion order, where a partial closure is in effect during more of the trial than the testimony of one witness, where total closure is ordered, or where the transcript is not made public. within the framework of the other purposes of the public trial right which the appellant asserts and the lower court determined were relevant here: encouragement of unidentified witnesses to come forward and the likelihood of more truthful testimony absent the exclusion. If, on the particular facts of this case, Aaron v. Capps, 507 F.2d at 687, these interests were adequately protected by the nonexclusion of the press and family members, then a less "“compell- 34 ing” justification will suffice for the proceedings to qualify as "public" for purposes of the sixth amendment guaran- tee. Here, given that Atkins was the sole eyewitness to the murder and the witness on whose testimony the judge relied in finding the one aggravating circumstance used to justify imposition of the death penalty, her testimony was crucial to say the least. The record reveals that the witness has remained with the appellant for nine days after the death of her husband. Only when the body was discovered did Atkins notify anyone of the murder. Appellant did not testify at trial, but his attorney(s) at trial, on appeal, and in the habeas proceedings have suggested indirectly that Atkins was herself implicated in the crime. Although 35 there is no direct evidence in the record to support this, the possibility remains that some unidentified person may have witnessed events relating to the killing but, for a variety of imaginable reasons (e.g., a desire not to get personally involved} had not come forward at the time of trial. If, however, such a person had attended the trial and heard testimony being given by Atkins which was contrary to what he had witnessed, he may have been com- pelled to come forward. This is the type of situation against which protec- tion is to be afforded by the public trial right and which is alluded to in the second purpose of the right identi- fied by the court below. The third purpose of the public trial right pinpointed by the lower court, inducing truthful testimony by 36 the witness, also is implicated in this case. Atkins may have revealed to another person a version of the events of the day of and the week following the killing inconsistent with her testimony at trial. Even if such a revelation would constitute excludable hearsay, the knowledgeable member of the public could have informed defense counsel of any inconsistency. Cross- examination, therefore, could have been enhanced. The foregoing scenarios are speculative and hypothetical only, and are not the only ones imaginable. There is not necessarily any way a defendant denied the right to a public trial could prove the validity of such hypotheses. For precisely this reason, the federal courts consistently have refused to require a defendant to prove 37 prejudice once a violation of the right to a public trial is shown. United States v. Hernandez, 608 F.2d 741, 747 (9th Cir. 1979); Martineau v. Perrin, 601 F.2d 1196, 1198 (lst Cir. 1979); United States v. Eisner, 533 F.2d 987, 993 (6th Cir. 1976); United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969); Davis v. United States, 247 F. 394, 398 (8th Cir. 1917). It is "the settled rule of the federal courts that a showing of prejudice is not necessary for reversal of a conviction not had in public proceedings.” Levine v. United States, 362 U.S. 610, 627 n. 1, 80 S.Ct. 1038, 1048 n. l, 4 L.Ed.2d 989 (1960) (Brennan & Douglas, JJ., dissenting from a finding that failure to object to closure waives right to public proceedings). "To require proof of 38 [prejudice] by the defendant would be ironically to enforce against him the necessity to prove what the disregard of his constitutional right has made it impossible for him to learn." United States ex rel. Bennett v. Rundle, 419 F.2d at 608; see also, United States v. Hernandez, 608 F.2d at 747 ("To require the accused to establish prejudice because of the exclusion would impair or destroy the safeguard"). B. Scope and Practical Impact of the Exclusion Having identified the interests in a public trial that were wptaninell by the partial closure during Atkins' testimony, we proceed to analyze, in light thereof, the scope and practical impact of the closure. The partial exclusion was limited to the testimony of one witness only. — 39 See Globe Newspaper Co. v Superior Court, U.S. at, 102 S.Ct. at 2620 (closure order must be narrowly tailor- ed). As discussed above, however, that one witness was central to the prosecu- tion's case. Moreover, the order required exclusion of all of the general public, not only youthful spectators. See United States v. Kobli, 172 F.2d 919 (3rd Cir. 1949) conviction reversed where exclusion of public, not only youthful spectators, for protection of morals swept too broadly). In Aaron v. Capps, 507 F.2d at 687, the practical impact of the partial closure was mitigated by virtue of “the fact that the news media were admitted [and] [t]he published reports of the trial were lengthy and com- plete." The record in Aaron v. Capps also reflected that even though the public at large was excluded, “the 40 courtroom was three-fourths full...." Id. [6, 7) All that the public trial guarantee affords to the defendant is that the public be allowed to be present, not that the public actually be present. See Estes v. Texas, 381 U.S. at 588-89, 85 S.Ct. at 1662-63 (Harlan, J., concurring). Simply allowing the press to be present, however, does not serve the same purpose as allowing the public to be present, for the press is not the public, and the Sixth Amendment guaran- tees a public trial. It is only as a fiduciary for the public that the presence of the press mitigates against what otherwise would be a closed, non-public trial. Thus, in certain cases, the presence of the press has been held to safeguard the public trial 41 right, the press serving as a fiduciary for the public, not because they were allowed to be present, but because they were present and reported the trial activities and informed the public of that which the public was unable to experience first-hand because of the closure order. Aaron v. Capps, 507 F.2d at 687-88. It does not follow logically that because the Sixth Amendment requires only that the public be allowed to be present that where the public is excluded but the press is allowed to remain the Sixth Amendment right is not infringed. If the press is not actually acting as a fiduciary for the public, then a partial closure is no different than an absolute closure, requiring a most “compelling interest" to justify it. The determination of the degree of press coverage, therefore, is necessary to a determination of the 42 extent to which the public trial was infringed. The assessments in turn are relevant to the strength of the governmental interest essential to justify the closure order. During the Motion to Stay Hearing in the court below, the district judge stated: "I am concerned as a result of one contention which was raised, and that is that the principal witness may not have testified to some of the things she testified to if she had had to testify in the presence of the public." He concluded, however, that one of the purposes underlying the sixth amendment that a witness face the defendant in front of her peers, "was satisfied...when this witness, the principal witness, was required to BS. Franscript of July 24, 1979 Motion to Stay Bearing at 111. 43 testify in the presence of the press and, in this instance, the press, in my judgement, was the saving factor, being present, because as might be expected, they published it."” Likewise, in the opinion denying habeas relief, the district court stated: “Certainly the newspaper reporters present guaranteed that there was no secret trial and gave notice of the trial details to the community." Douglas v. Wainwright, 521 F.Supp. at 795. [8] While there is little evi- dence to support the conclusion that che press was present and reported the details to the community, we cannot say 10 the finding is clearly erroneous. In 9. Id. at 112 (emphasis added). 10. At the Motion to Stay Hearing the district court also stated: "[I]n view of the fact that the press was allowed 44 TFootnote 10 Continued] to be present and there was no direc- tion to the press or attempt to ins- truct the press about which they might or might not publish, and it could be assumed, and I think that this is an assumption that can be safely made, that the press did publish something about this. Nothing in the record about it." Transcript of July 24, 1979 on to Stay Hearing at 110-11 lélehenie added) While any party seeking closure of a criminal proceeding, here the state, must carry the burden of justifying the need for closure in the first instance, in a habeas proceeding the burden of proof is on the habeas petitioner to show why federal post-conviction relief should be granted. 28 U.S.C. Sec. 2254. Appellant has given us no basis for finding clearly erroneous the district court's assumption that the press was present and reported the details of the testimony to the public. response to the court's inquiry at the time of the motion for exclusion, defense counsel stated: "I assume there are members of the Press (present) ."?+ il. Bovgis v. Wainwright, 521 F.Supp. at 35 quoting I1 Serial Transcript at 214. Appellant does not now 45 argue that the press was not present or did not report the testimony.!? [9] The presence of the press and family members during Atkins' testimony helps mitigate any undermining of the purposes of the public trial right that are implicated in this case. Press coverage reduces the danger that an unidentified witness to any of the 12. The actual presence of the press is significant in that it is a major factor in distinguishing a partially closed proceeding from one that is totally closed which requires a most "compelling interest" as a justifica- tion. See, e.g., Globe Newspaper Inc. Superior Court, U.S. at , 102 S.Ct. at 2620. This is not to say that the presence of the press is the only method by which partially closed proceedings may be distinguished from those that are totally closed. For instance, whether or not the record has been made public and whether or not persons in addition to family members but less than the general public are allowed to remain are also factors to be considered. See Aaron v. Capps, 507 F.2d at 687. 46 events surrounding the crime would be uniformed of any prejured testimony by Atkins. See discussion supra at 1541-1542. Likewise, Atkins' awareness of the presence of the press and all family members minimizes the risk that the witness would alter her testimony when the proceeding was partially closed as opposed to completely open. See text supra at 1541-1542. Accordingly, as in Aaron v. Capps, 507 F.2d at 687-88, the prac- tical impact of the closure here was not a kind presented when a proceeding is totally closed to the public. Cf. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966). Cc. The Reason for the Exclusion {10] As noted above, also crucial to a determination of whether 47 the right to a public trial is violated is the reason for the ciwsure. A substantial reason for even a partial closure is required. The Florida Supreme Court on direct appeal from Douglas' conviction stated in its review of the public trial issue that: "The basis of the motion was that the nature of the testimony was so embarrassing that there was no reason that anybody should hear it unless necessary." Douglas I, 328 S.2d at 20. The court concluded that exclusion of the public for the purpose of protection of “public morality" does not present a violation of the right to a public trial. Id. at 20-21, quoting Robertson v. State, 64 Fla. 437, 60 So. 118 (1912). (11) In the habeas proceedings below, contrary to the state court 48 finding that the reason for the exclu- sion was protection of public morality, the district court proceeded on the assumption that the purpose of the partial closure was “avoiding additio- nal and unnecessary insult to the dignity of the witness.” Douglas v. Wainwright, 521 F.Supp. at 796. Pursuant to the powers and duties granted to a federal habeas court under 28 U.S.C. Sec. 2254, the federal court is required to afford a state court finding of fact a "presumption of correctness," Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981), “unless the appli- cant shall establish or it shall otherwise appear...." that one of the conditions set forth in Sec. 2254(d) (1)-(8) is present.!? 13. 26 U.S.C. Sec. 2254(d) reads in its entirety: 49 (d) In any proceeding instituted in a Federal court by an appli- cation for a writ of habeas corpus by a person in custody pursuant to the judgement of a State Court a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall estab- lish or it shall otherwise appear, or the respondent shall admit--- (1) that the merits of the factual dispute were not resolved in the State Court hearing: (2) that the fact-finding procedure employed by the State Court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; 50 > ey TFootnote 13 Continued] (5) that the applicant was an indigent and the State Court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding; (6) that the applicant did not receive a full, fair, and adequate hearing in the State Court proceeding; or (7) that the applicant was otherwise denied due process of law in the State court proceeding; (8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in para- 51 graphs numbered (1) to (7), inclu- sive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pur- suant to the provisions of para- graph number (8) that the records in the State court proceeding considered as a whole, does not fairly support such factual determination by the State court was erroneous. 28 U.S.C. Sec. 2254(d) (emphasis sup- plied). If none of the situations enumerated in Sec. 2254(d) is present- ed, a habeas court may substitute its factual findings for that of the state court only if the habeas petitioner established "by convincing evidence that the factual determination by the state court was erroneous." Id. Even if one or more of the conditions is presented, a state court finding cf fact still may be overturned only if a finding to the contrary is proved by a "preponderance of the evidence." Sumner v. Mata, 449 U.S. at 551, 101 52 S.Ct. at 771. In assessing a petitio- ner's claim, therefore, the habeas court must review the record and determine if the “presumption of correct- ness" applies, and, if so, whether or not the presumption has been rebutted, or, if not, whether a contrary finding is supported by a preponderance of the evidence. Id. at 547-51, 101 S.Ct. at 769-71. In the instant case, the district court failed in this duty. [12, 13] Normally, when faced with such an error we would remand to the district court for an application of the correct analysis. In the instant case, however, we have before us the identical record as did the district court in the initial proceed- ings and as would the lower court on remand. On the face of the record it is apparent that the state trial judge 53 was presented with two asserted reasons for the closure: protection of the public morality and protection of the witness from embarrassment. See Douglas v.Wainright, 521 F.Supp. at 795, quoting II Trial Transcript 213-14. See also IV Trial Transcript at 727. The Supreme Court of Florida ruled that one reason, protection of public morality, was sufficient to justify the closure. Douglas I, 328 So.2d at 20-21. It did not reach the question of whether there was any other reason for the closure, although the dissenting justice pointed out that undoubtedly the trial judge primarily was motivated by a desire to protect Atkins from embarrassment. Id. at 23 (England, J., dissenting). Against this background, while we admonish the district courts that in habeas proceed- 54 ings findings of fact apparently contrary to those made by the state court should be explained and justified under Sec. 2254 and Sumner v. Mata, we conclude that the district court was not clearly erroneous in finding that the primary reason for the partial closure was protection of the witness from embarrassment. {14} Further, although we doubt that protection of the morality of the general public could qualify as a sufficient reason for even a partial closure, United States v. Kobli, 172 F.2d 919 (3d Cir. 1949), we hold that the district court did not err in concluding that protection of the witness was sufficiently compelling to justify this partial closure, where, as we have held here, the partial closure does not undermine the purposes under- 55 lying the public trial right. See United States ex rel. Latimore v. Sielaff, 561 F.2d 69 1, 694-96 (7th Cir. 1977); Aaron v. Capps, 507 F.2d 685 (Sth Cir. 1975); Geise v. United States, 262 F.2d 151-155 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959). Hence, we AFFIRM the denial of habeas relief on the public trial , 14 issue. D. The Need for a Hearing and Findings 14. Appellant also argues that exclu- sion of the public during Atkins' testimony placed undue emphasis on her testimony, highlighting the importance of what she had to say. Such a danger however is inherent in any closed or partially closed proceeding. Appel- lant's trial counsel sought no caution- ary instruction to negate this risk. Given our holding that appellant was not deprived of a public trial, we also find this argument without merit. 56 {15] Appellant also contents that even if no actual deprivation of the public trial right occurred, error of constitutional dimension was committed when the state court failed to hold a hearing on the exclusion order and articulate in findings the reason for the partial closing. The failure to give interested parties an opportunity to be heard and to state reasons for closure has rendered closure orders constitutionally infirm in the cases implicating the press' and public's right of access to criminal trials. Globe Newspaper Co. v. Superior Court, U.S. at , 102 S.Ct. at 2622 n. 5; Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 581, 100 S.Ct. at 2829 (plurality opinion); id. at 598, 100 S.Ct. at 2839 (Brennan & Marshall, 57 J.J., concurring in judgment); id. at 600 & n. 5, 100 S.Ct. at 2840 & n. 5; (Stewart, J., concurring in judgment). See also Newman v. Gradick, supra, 696 F.2d 796 at 801, 803. Cf. Gannett Co. v. DePasquale, 443 U.S. at 376, 99 S.Ct. at 2903 (where hearing held and findings made as to need for exclusion, no error in closing pretrial hearing to the press). Certainly these procedural safeguards are no less crucial when closure is challenged as a violation of the defendant's sixth amendment right. Accordingly, we hold that an oppor- tunity to be heard and adequate find- ings are required where any closure of the trial is contemplated and the defendant objects and requests an opportunity to be heard. {[16, 17] In the instant case, 58 however, though defense counsel did object generally to the partial clo- sure,> he failed to object in the trial court to the absence of a hearing or findings. The failure to object contemporaneously or to request a hearing and findings deprived the state court of the opportunity to correct the error. Appellant makes no attempt to justify, under the “cause and preju- dice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the failure to make specific objection. Therefore, appellant's right to an opportunity to be heard in and to findings from the state 16 court has been waived. 15. fi Trial Transcript at 213. 16. We emphasize that even in the absence of a specific objection ora. request for a hearing and findings the better course for the state court to 59 [Footnote 16 Continued] follow is sua sponte to hold the hearing and make findings. Such findings should include the reason for the closure, the evidence that supports the need for the closure, the number of persons excluded and the number allowed to remain, and the presence or absence of the press. This procedure will facilitate both direct and federal habeas review. The federal courts in habeas proceedings accord appropriate state court findings the "presumtion of correctness." Sumner v. Mata, 449 U.S. at 549, 101 S.Ct. at 770. Thus, the existence of such findings may allevi- ate the need for an evidentiary hearing in federal habeas court, see 28 U.S.C. Sec. 2254(d) and the interests of finality in state criminal justice proceedings will be served. See Engle v. Isaac, 456 U. S. 107, 126, ise, 102 S.Ct. 1558, 1570, 1571, 71 L.Ed.2d 783, 800, 801 (1982). Sumner v. Mata, 449 U.S. at 549-50, 1OI S.Ct. at 770; Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, Le 53 L.Ed.2d 594 (1977). 60 TII. Witherspoon Issue Appellant contends that the exclusion for cause of three members of the jury venire violated the Supreme Court mandate in Witherspoon v. Illi- nois, 391 U.S. 510, 88 $.Ct. i770, Ze L.Ed.2d 776 (1968). In Witherspoon the court established that, in order to protect a defendant's right to be tried by a jury drawn from a cross-section of the community, members of the venire may not be excused for cause simply because they are conscientiously, religiously or morally opposed to the death penalty. "{A) sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id. at 522, 88 S.Ct. at 1777 (footnote omitted). Rather, venirepersons may be excused for cause based on conscientious objection only if they indicate "unam- biguously,” Id. at 515 n. 9, 88 S.Ct. at 1773 n.9, that their views on the death penalty "would prevent them from making an impartial decision as to the defendant's guilty,” Id. at 513, 88 S.Ct. at 1772, or "that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them." Id. at 514, 88 S.Ct. at 1772. The court below rejected appel- lant's Witherspoon claims on the merits. We, however, do not reach the merits of appellant's contention because appellant failed to raise the 62 Witherspoon issue on direct appeal and in state post-conviction proceedings; the issue was raised for the first time since objection was made at trial in the federal habeas proceeding. {18,19} Florida Rules of Criminal Procedure 3.850:/ has been interpreted by the Florida courts as barring the consideration of claims in state post-conviction relief proceedings that could have been were not raised on direct appeal in the state courts. Hargrave v. State, 396 So.2d 1127 (Fla. 17. Florida Rule of Criminal Procedure 3.850 reads in pertinent part: "An application for writ of habeas corpus in behalf of a prisoner who is autho- rized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his decision." 63 1981); Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980). See also Alvord vs. State, 396 So.2d 184, 191 (Fla.1981); Pittman v. State, 401 So.2d 934 (Fla. App. 1981); Savino v. State, 397 So.2d 1236 (Fla.App.1981);: Roth v. State, 385 So.2d 114 (Fla.App.1980). This court in Ford v. Strickland, 696 F.2d 804 at 815-816 (llth Cir.1983), held that, given this interpretation of Rule 3.850, petitioner was precluded from challenging admission of a confession for the first time in federal habeas proceedings unless the "cause and prejudice” standard of Wainwright v. 18 Sykes was met. Douglas' failure to raise the Wither- 18. Even though the "cause and preju- dice” standard of Wainwright v. Sykes was originally developed in the contest 64 TFootnote 15 Continued) of a procedural default at trial, this circuit has applied the. Eykes rationale in cases involving a procedural default in the course of a direct appeal from a state court conviction Fore Vv. Strick iand, supra, at 815-16; v. Wainwright, 651 F.2d 347 (St th Cir. Tesi}; ieane v. Maggio, 557 F.2d 430, 433-34 (5th Ciecisty- We are bound by these rulings. spoon issue on direct appeal or in Florida post-conviction relief proceed- ings?? thus prevents him from raising the claim in federal habeas proceedings unless he establishes cause for the failure and actual prejudice resulting TS. If a petitioner failed to raise a claim on direct appeal but raised it in post-conviction proceedings and the state court ruled on the merits, the federal court may proceed to the merits of the claim without inquiring as to the existence of cause and prejudice. opens - Blackburn, 623 F.2d 383, 386 cert. denied, 450 U.S. 753, 101. §.Ct. 1413, 67 L.E£q.2da 380 (1981). 65 20 from the forfeiture. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed. 2nd 783 (1982). 20. in Ford v. Strickland, supra, 696 F.2d 804 at 816 this court stated that a petitioner will be precluded from raising a claim for the first time in federal habeas proceedings if no "cause and prejudice” is shown under the standards of Wainwright v. Sykes, or if petitioner deliberatly has bypassed the state court procedure under the test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 622, 9 L.Ed.2d 837 (1963). A review of the language and impact of Wainwright v. Sykes shows, however, that where the cause and prejudice” standard is applicable the deliberate bypass test is displaced. Wainwright v. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506 — and prejudice” is a narrower,"i.e. more stringent, standard than deliberate bypass and the Court “reject[ed]" the latter standard). See Engle V. Isaac, 456 U.S. 107, 102 S.Ct. ’ -13, 71 L.Ed.2d 783 (1982) (where there is a deliberate bypass of state courts, even if the attorney perceived that raising the claim in state court would have been futile, the “cause” standard of Wainwright v. Sykes cannot be met). ere there has been a deliberate bypass the “cause standard can never be 66 TFootnote 20 Continued] met and review will be barred; but absence of "cause" may be found in circumstances short of deliberate bypass. Ford v. Strickland, supra, at 816. Thus, deliberate bypass is sub- sumed in the “cause and prejudice” analysis. Cf. Arnold v. Wainwright, 516 F.2d 964, 967 (5th Cir. 1578} ("cause” standard of Davis v. United States, 411 U.S. 233, 93 4.Ct. 1577, 36 L.Ed.2d 216 (1973), percursor of Wainwright v. Sykes, displaced use of deliberate bypass standard), cert. denied, 426 U.S. 908, 96 S.Ct. 2230, 48 L.Ed.2d 833 (1976); Rivera v. Wain- wright, 488 F.2d 275 (5th Cir.1974) (same). See also Hockenbury v. Sowders, 620 F.2d lll, 112-13 & n. I (6th Cir.1980), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981). [20,21] "Cause and prejudice” is a conjunctive standard, both prongs of which must be satisfied by the appel- lant before this court is free to ignore the procedural default and hear the merits of appellant's claim. Engle v. Isaac, 456 U.S. at 134 n. 43, 102 S.Ct. at 1575 n. 43, 71 L.Ed.2d at 804 n. 43. Appellant presents no argument that the 67 failure to raise the Witherspoon issues on appeal was justified by cause; nor in the opinion of this court, does any sufficient argument exist. The Wither- spoon issues were certainly not novel ones, as Witherspoon was decided in 1968, several years before appellant's trial. Indeed, as evidenced by timely objections during the voir dire, trial counsel was aware of the issues. Appellant argues only that grave prejudice resulted from the alleged Witherspoon violations. Even if the prejudice prong of the Wainwright v. Sykes test were satisfied, appellant fails to meet the dual standard of prejudice and cause. Accordingly, a federal habeas court is not free to decide the merits of the Witherspoon 68 issues. *? For this reason the judgment of the district court denying habeas relief on this claim is AFFIRMED. 31. We note that, even if Witherspoon were violated, appellant could not have been prejudiced by any such violation, at least as to sentencing, because the jury recommended life imprisonment. Thus, any Witherspoon error in the jury selection must have been harmless. 69 IV. Consideration of Prior Invalid Convictions Appellant next argues that the Florida Supreme Court, in reviewing the trial judge's imposition of the death sentence, improperly relied on several prior invalid convictions in affirming the death sentence. Appellant contends that such use violated his right to meaningful, independent appellate review deemed necessary to the capital sentencing process under Protfitt v. Florida, 428 U.S. 242, 253, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913, reh, denied, 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 158 (1976) and state supreme court decisions interpreting the Florida statute, e.g., Songer v. State, 322 So.2d 481, 484 (Fla.1975); State v. Dixon, 283 So.2d 1, 10 (Fla. 1973). 70 Convictions of Douglas for grand larceny, three escapes, two breakings and enterings and one forgery were presented in a presentence investi- gation report specifically requested and used by the trial judge in his search to find mitigating evidence. Appellant and appellee are in agreement that all of these convictions, except the one for forgery, previously had been vacated under the authority of United States v. Tucker, 404 U. S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), because appellant was not represented by counsel. Accordingly, these uncoun- seled convictions must be treated as 22 nullities. The State concedes this, 33. The record does not reveal specifically the procedural context in which these convictions were vacated. See Record at 748-50. 71 but, in support of its argument that use of the convictions deprived appel- lant of no constitutional rights, it relies on the fact that the trial court was aware at sentencing that some of the convictions were uncounseled and restricted its use of them accordingly. The trial court in its findings of fact specifically stated: "The presentence investigation report was considered only in light of its failure to reflect 23 mitigating circumstances." This statement was repeated by the judge at 23. Douglas v. Wainwright, 521 F.Supp. at 793, quoting II Triat Transcript at 759. FPla.Stat.Ann. Sec. 921.141 (3) specifically requires consideration of mitigating circumstances before imposi- tion of the death penalty: (3) Findings in support of sentence of death. - Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circum- stances, shall enter a sentence of life 72 TFootnote 23 Continued] imprisonment or death, but if the court imposes a sentence of deeth, it shall set forth in writing its findings upon which the sentence of death is based as to the facts: (a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and (b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances. In each case in which the court imposes the death sentence, the determination of the court shall be supported by speci- fic written findings of fact based upon the circumstances in subsections (5) {aggravating circumstances] and (6) (mitigating circumstances] and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence, the court shall impose sentence of life imprisonment in accordance with Sec. 775.082. the hearing on the motion for state post-conviction reliet.*4 Appellant does not contend that the trial court used the invalid 24. Transcript of July 17, 1979 Hearing on Motion for Post Conviction Relief at 7. 73 convictions for any purpose other than that stated, but argues that use of the invalid convictions by the Florida Supreme Court violated the right to meaningful appellate review. Although appellant's brief if less than clear as to what specific rights he claims were violated, it does identify two issues of constitutional dimension that are embodied in this one claim. The one issue incorporated in appellant's argument is that under Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (1977), appellant has a right not to have his "death sentence rest[ ] on an erroneous factual predicate," and that but for use of the invalid convictions some mitigating circumstance would have been found. In the brief on appeal to this court, appellant's counsel state: 74 "By considering appellant's prior invalid convictions it prevented the trial court and the Florida Supreme Court from finding 'the defendant has no significant history of prior crimi- nal [activity]' as a mitigating factor." In Gardner the trial judge in imposing the death penalty relied on a presentence report, parts of which were deemed confidential and not revealed to defense counsel. The Florida Supreme Court affirmed the death sentence without reviewince the confidential portion of the presentence report. A plurality of the United States Supreme Court held that the trial court's failure to provide counsel access to 25. Appellant's Brief at 23, quoting Fla.Stat.Ann. Sec. 921.141(6) (a) the report violated due process. Gardner v. Florida, 430 U.S. at 362, 97 S.Ct. at 1206.7°, The plurality stated: “Our belief that debate between adversaries is often essential to the trith seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases." Gardner v. Florida, 430 U.S. at 360, 97 S.Ct. at 1205. 1205. This “opportunity to comment” is intended to guarantee that "the death sentence [does not] rest[ ] on an 26. Justice White concurred on the basis that the procedure failed to meet the "'need for reliability'" which the Court held in Woodson v. North Carolina, 428 U.S. 280, 56 S.Ct. 29 L. 944 (1976), is required under the eighth amendment in order to impose . the death penalty. Gardner v. Florida, 430 U.S. at 364, 97 S.Ct. at . 76 erroneous factual predicate." Id. at 360, 362, 97 S.Ct. at 1205, 1206. In the instant case appellant does not contend that he was denied the "opportunity to comment" on the presen- tence report. Indeed trial counsel brought to the attention of the trial court the fact that virtually all of appellant's previous convictions were invalid under United States v. Tucker, supra. The trial court specifically disciaimed reliance on the convictions as an aggravating circumstance but also specifically found that even without the uncounseled convictions no miti- gating circumstances were presented, Record at 751-52. While there is some merit to the contention that a mitigat- ing circumstance was presented, ~’ 27. Once the uncounseled convictions are removed from appellant's record, there remains only the conviction for 77 TPootnote 27 Continued) forgery, and evidence of a statutorily approved mitigating circumstance may be presented. Fla.Stat.Ann. 921. 141(6) (a) identifies as a mitigating circumstance that "(t]he defendant has no significant history of prior criminal activity.” (emphasis added). While this court will not be heard to say that a conviction for forgery is not serious, what qualifies as "significant" under the Florida statute must be evaluated in light of Florida Supreme Court interpretations of this factor and in relation to the grave issue of whether or not the death penalty should be imposed. The Florida Supreme Court has approved an intepretation of this provision supporting a finding of mitigation where the defendant had a prior convic- tion for burglary and had admitted to a theft. The state supreme court appa- rently accepted the lower court's finding that these two incidents of prior criminal activity combined did not rise to the levei of “significant history of prior criminal activity." Salvatore v. State, 366 So. 2d. 745, P Fla. 8), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115, reh. denied, 444 U.S. 975, 100 S.Ct. 474, 62 L.Ed.2d 393 (1979). Cf. Smith v. State, 407 So.2d 894, 900-01 (Fla. 1981) (confessions to "various" crimes constituted significant his- tory); Ruffin v. State, 397 So.2d 277, 283 (Fla. 19581) (previous murder is significant history); Washington 78 v. State, 362 So.2d 658, 666 (Fla. 8 course of burglaries, confes- sions to continuous stealing of pro- perty constitutes significant history), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Bd.2d 666 (1979). Clearly this statutory mitigating circumstance has not been limited to absence of all serious criminal activity. Forgery is a serious offense, but surely no more "significant" than burglary or theft. Given the prior interpretation of this mitigating circumstance, there is a possibility that if Douglas had appealed the trial court's finding of no mitigating circumstances the Florida Supreme Court would have found the finding erroneous. appellant never appealed the finding of no mitigating circumstances to the Florida Supreme Court, as is evidenced by the opinions of that court in Douglas I, 328 So.2d at 22 and Douglas Il, 373 So.2d at 896. Even if we assume arguendo that use of the invalid convictions made the predicate for appellant's sentence erroneous, “° Gardner did not create an absolute constitutional right to have 28. See note 27 supra. 79 the death sentence rest on a completely accurate factual basis regardless of the failure of counsel to take advan- tage of opportunities to bring erroneous information to the attention of the state courts. To interpret the GardnerI decision in such a way would be to circumvent the ruling of Wainwright v. Sykes and its progeny, see, e.g., Ford v. Strickland, supra (applying Sykes to failure to raise issues on direct appeal), which imposes a burden on the habeas petitioner's counsel either to raise claims first in state court or to explain the failure to have done so. Gardner was decided on the ground that the procedure of keeping information confidential violated due process protections. Here appellant was afforded all the 80 procedure necessary to ensure that his death sentence did not rest on “an erroneous factual predicate." Counsel's failure to take advantage of the procedure is simply not redressable under the theory of Gardner. The second element of the claim that use of the uncounseled convictions presents a constitutional violation, and the argument most clearly pre- sented, is that the Florida Supreme Court failec to limit its reliance on the prior invalid convictions to negation of mitigation. In affirming the imposition of the death sentence, the state supreme court stated: The evidence is clear that the murder was committed in a cold and calculated manner. No evidence of mitigation was produced. The _ trial judge buttressed his acts wee the death penalty should be imposed by the inclusion in his findings 2} of fact information from a pre- sentence investigation report which the defendant was given the opportunity to traverse. The report reflected that the defen- dant was 37 years old and had been previously convicted of a number of felonies including grand larceny, breaking and entering (twice), forgery, and misde- meanors. The defendant had previously received penitentiary sentences aggregating seventeen years and an undesirable military discharge. We conclude, as did the trial judge, that the death penalty is the proper sentence. Douglas I, 328 So.2d at 22 (emphasis supplied). Based on this portion of the supreme court's opinion and particu- larly in light of the failure of that court explicitly to state that it too was limiting reliance on the prior invalid convictions to support a finding of absence of mitigation, appellant in effect argues that this court must infer that the invalid convictions were used as evidence of 82 aggravation and that such use tainted the reliability of the review process.” The federal habeas court below ruled that the trial judge's explicit limitation of use of the presentence report to verification of absence of mitigating evidence was conclusive on the issue of any impropriety in the 29. Appellant more clearly made this claim in the state supreme court in state post-conviction relief proceed- ings. There the claim was rejected under a harmless error rationale in that no mitigating circumstances had been found and the Florida supreme Court relies on a presumption that death is the appropriate sentence where there are no mitigating factors. Douglas II, 373 So.2d at 896, citing Spenkellink v. State, 372 So.2d 65 (Fla. 1979) (England, C.J. concurring); State v.Dixon, 283 So.2d 1 (Fla. . Cf. Riley v. State, 366 So.2d 19, 22 (Filia. ) (remand required where improper aggravating circum- stances considered and a mitigating circumstance existed). Appellant does not challenge this presumption and we make no ruling as to its constitutional validity. 83 trial judge's or the state supreme court's handling of the report. Douglas v. Wainwright, 521 F.Supp. at 793. We affirm that conclusion. To support his argument that the Florida Supreme Court used the convic- tions as aggravating evidece, appellant relied solely on that court's statement that the trial court used the convic- tions to "buttress[ ] his decision that the death penalty should be imposed," Douglas I 3287 So.2d at 22, and the federal district court's observation that "(t]he Florida Supreme Court gave some support to ... the possibility that it had [ ] considered such convic- tions in itsreview of petitioner's sentence." Douglas V. Wainwright, 521 F.Supp. at 793. We conclude that appellant's argument provides no basis for finding that the Florida Supreme 84 Court did not limit use of the prior convictions to support the absence of mitigating evidence. °° A review of the structure of the portion of the Florida Supreme Court opinion relating to the presentence report supports this conclusion. In affirming the death sentence and analyzing whether the death penalty was excessive on the facts of this case, “30. The Supreme Court's recent deci- sion in Barclay v. Florida, 0.8. 103 S.Ct. 3416, 76 L.Ed.2da ’ (1983) (plurality opinion); id. at , 103 S.Ct. at 3431 (Stevens & Powell, JJ., concurring), indicates that the use of nonstatutory aggravating factors is not a constitutional inform- ity. The plurality stated that there is "no constitutional defect in a sentence based on both statutory and nonstatu- tory aggravating circumstances," and that failure of the Florida Supreme Court to control use of nonstatutory factors is only a error of "state law." , 103 S.Ct. at 3428. The court say, however, that use of such factors is of constitutional magnitude if it rises “for some other reason to the level of a denial of rights pro- 85 TFootnote 30 Continued] tected by the United States Constitu- tion." Id. Here, of course, if the State Supreme Court did use uncounseled convictions to enhance punishment, the principles of United States v. Tucker and Gideon v. Wainwright would be violated. the Supreme Court first discussed and approved the trials court's finding that the crime qualified as heinous, atrocious and cruel, satisfying statu- tory aggravating circumstances. Fla.Stat. Ann. Sec. 921.141(5)(h). Douglas I, 328 So.2d at 22-23. The court next dis- cussed the cold-bloodedness of the killing, apparently alluding to aggravating cir- cumstance. Sec. 921.141(5) (i). Id. at 23.7% Then the court proceeded to discuss the absence of mitigating evidence. In conjuction ST. This aggravating circumstance was not part of the trial court's findings but appellant does not raise any challenge to this apparently additional finding by the Florida Supreme Court on direct review. 86 therewith, the court noted the trial judge's reliance on the presentence report and the prior convictions and other information presented in the report. Since all of the discussion of the information contained in the report is so obviously separated from the dis- cussion of any aggravating circumstance, the logic of the relevant portion of the opinion flows only if one concludes that the convictions were considered in light of mitigation. See Elledge v. State, 408 So.2d 1021, 1023-24 (Fla. 1981) (refe- rence to organization of trial judge's order verifies that evidence was used to show absence of mitigation, not to support an aggravating factor). As appellant provides no other evidence that the information was used for any purpose other than to negate a finding of mitigating factors, there is no 87 basis for a finding that the informa- tion was used as evidence of aggrava- tion. {(22,23] The law is clear that the sentencer's knowledge of invalid convictions in and of itself does not require resentencing where the court has not relied on the invalid convic- tions to enhance the punishment. United States v. Mission, 597 F.2d 60, 61 (5th Cir. 1979); United States v. Gaither, 503 F.2d 452 (5th Cir. 1974); Lipscomb v. Clark, 468 F.2d 1321, 1323 (Sth Cir. 1972); See also, Farrow v. United States, 580 F.2d 1339, 1345 (9th Cir. 1978). Where counsel failed on direct appeal or in state habeas pro- ceedings to bring to the attention of the state courts that use of the invalid convictions may have precluded a finding of a mitigating circumstance, and where there is insufficient evidence to support the contention that the convic- tions were used in any other way that would present a federal constitutional violation warranting habeas corpus relief, we affirm the denial of habeas relief on this ground. 89 V. Judge's Imposition of Death Sentence after Jury Recommendation Of Life Imprisonment {24] In the sentencing phase of the bifurcated trial, the jury recom- mended that Douglas be sentenced to life imprisonment, rejecting the only other possibile sentence, death. Under Fla.Stat.Ann. Sec. 921.141(2) a jury sentencing determination is treated as merely "advisory" and the trial judge is the final arbiter of the sentence. >“ Appellant argues, supported by a thorough brief by amicus curiae, that to fail to treat an “advisory” jury sentence of life imprisonment as final violates the due process protections of 32. Once defendant has been convicted of the capital felony, the only sen- tencing options are life imprisonment or death. Fla.Stat.Ann. Sec. 921.141- (2) (c) and (3). 90 the fourteenth amendment and, addi- tionally, the double jeopardy clause of the fifth amendment, as applied to the states through the fourteenth. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) Appellant does not argue that jury sentencing is constitutionally required in capital cases, but rather that where a state provides for jury recommenda- tions of sentence, a recommendation of life may not be over-turned by the trial judge. This argument is based primarily on an analogy, in light of the similarities between the procedures employed in the guilt phase of all criminal jury trials and the sentencing phase in capital trials in Florida, to the finality afforded a jury verdict of acquittal in the guilt phase of crimi- nal trials. Appellant's argument, however, is forclosed by three United 91 States Supreme Court decisions that have approved the constitutionality of the Florida statute. In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), the Court specifically ap- proved the provision calling for judicial rather than jury sentencing. Although the jury in Proffitt had recommended death so that the Court was not directly confronted with the issues raised by imposition of the death penalty after a jury recommendation. This awareness is evidenced by its citation to Tedder v. State, 322 So.2d 908 (1975), in which the Florida Supreme Court enunciated the standard that must be satisfied before a judge can reject a jury life 92 recommendation. °~ The Supreme Court in Dobbert v. Florida, 432 U.S. 282,295 & n.9, 97 S.Ct. 2290 & n.9, 53 L.Ed. 2d 344 (1977), more clearly approved the process whereby the judge may impose death after a jury recommendation of life. There the Court considered a challenge to the Florida capital sentencing statute under the ex post facto clause of Article I, Sec. 10 of the United States Constitution. >4 Dobbert had been sentenced to death under the statute here in question. The chal- lenge was based on the fact that under the statute in effect prior to the current one and at the time Dobbert committed the murder, jury sentencing 33. "A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death follow- 93 [Footnote 33 Continued) ing a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So.2d at 910. 34. "No State shall ... pass any... ex post facto law ..." Article I, Sec. 10, United States Constitution. decisions were final. Since in his case the judge imposed the death sentence after a jury recommendation of life, Dobbert alleged that the new Statute acted as a ex post facto law as applied to him. The Court decided that the current statute, enacted in 1972 in response to Furman, was not an ex post facto law because it represented only a procedu- ral change, and one which, in general, was an ameliorative, not an onerous, revision of the law. Id. at 294, 97 94 S.Ct. at 2298. In discussing the generally ameliorative nature of the current statute, Justice Rehnquist 35 and quoted the standard to Tedder, then stated: "A jury recommendation of life may be overridden by the trial judge only under the exacting standards of Tedder." Id. at 295-96, 97 S.Ct. at 2299. In a footnote the Court went on to say: "The fact that the trial judge had recommended life in this case in no way denigrates the procedural protections afforded by the new proce- dure. The judge did so in circumstan- ces where there were obvious and substantial aggravating factors, and where there had been no significant mitigating factors adduced." Id. at 296 n.9, 97 S.Ct. at 2299 n.9. 35. See note 33 supra. 95 Appellant and amicus curiae would have this court disregard the Supreme Court's approval of the Florida proce- dure whereby a trial judge may override a jury life recommendation on the basis that the language in both Proffitt and Dobbert was only dicta, as the Court was not there directly presented with the precise issue now raised. Further, amicus curiae argue that language in the more recent Supreme Court decision, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed. 2d 270 (1981), casts doubt on the constitutionality of the practice here challenged and evidences that the Supreme Court would now hold that a jury recommendation of life should be treated as final where a jury, based on statutory findings, has rejected the death penalty. See Id. at 445-46, 101 S.Ct. at 1861-62. But see 96 United States v. DeFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 434,66 L.Ed.2d 328 (1980). Whatever the merit of appellant's Claim and whatever the degree of speculative doubt Bullington cast on the continued viability of the approval in Proffitt and Dobbert of the practice now challenged, since this case was argued the Supreme Court has clearly reaffirmed its approval of the Florida procedure. Barclay v. Florida, U.S. , at , ’ 103 §.Ct. 3418, at 3425, 3427, 3428, 76 L.Ed.2d (1983) (plurality Opinion); id. at , 103 S.Ct. at 3426-3427 (Stevens and Powell, JJ., concurring). Under the decisions in Barclay, Dobbert, and Proffitt, the system of overriding jury recommenda- tions of life imprisonment is not unconstitutional. 97 VI. Ineffective Assistance of Counsel. (25) Appellant finally argues that he was deprived of the effective assistance of counsel at the penalty phase of the trial due to trial coun- sel's failure to consult with appellant and other potential witnesses prior to the penalty phase and to investigate and present evidence which might have been considered mitigating. He also points to counsel's comments to t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0778%3A1. Public record. Not legal advice.