# Petition — DOBARD v. ALABAMA (No. 83-5695) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1694%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 0. 983-5695 PERCY LEO DOBARD, PETITIONER, Vs. STATE OF ALABAMA, RESPONDENT. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF ALABAMA *RALPH I. KNOMLES, JR. Drake, Knowles & Pierce Post Office Box 86 Tuscaloosa, Alabama 35402 (205) 759-1234 BARRY E. FRIEDMAN University of Alabama School of Law Post Office Box 1435 University, Alabama 35486 (205) 348-5930 ATTORNEYS FOR PETITIONER *Counsel of Record ] Whether ehe Alabama ‘oOurts have violated the € the Eighth Amendment if sentencing the Petitioner to death without ronsiderings all f the "riteria for proportionality review requirec © Solem . Helm, __—sOiU S , 103 $.Ct. 3001 (1983). . a. Whether this Court's mandate in Witherspoon \.- 391 U.S. 510, 88 S$.Ct. 177¢ (1968) was violated by removal for cause of a juror wh eauivocally responded concerning her ability to assess a death penalty. b. Whether this -ourt should promulgate uniform standards for Witherspoor voir dire t stem the tide of es ee Witherspoon litigation. = Whether the Petitioner's Fourteenth Amendment due process rights were vio.atec © the trial court’s refusal tc ascertair whether e he sequesterec petit Tur was improperly influenced bt viewing accounts ‘, and commentary about, tne attempted assassinatior f President Ronaic Reagan. = w ~ Be r ¥ - v- a) 4 es - ae E F “ONTENTS ? ’ — Wr ~ sions T re) ve) | ' ” ¥ a) TARPLE OF AUTHORITIES CASES: Page Adams v. Texas, 448 U.S. 38, 100 S.Ct. seTT TTSery * * * * o * * * * * * * . * * * * re Rva 19 Barefoot v. Estelle, 103 S$.Ct. 3383, ae eee «3. . . . . . . . . . . . . . . . . . . 14 Boulder v. Holman, 394 U.S. 478, 89 S.Ct. tise (1969). ee 8 0S £1 61*. Sw Cle, Se eee se 14 Brickley v. State, 286 Ala. 546, 243 So.2d Ste TS oD) * . * * . . . . * * * * * . * * . * 24, 25 Burns v. Estelle, 592 F.24 1297 (Sth Cir. 1979) adherec to 626 F.2d 396 (Sth Cir. 1980) fen banc) oS SOS SS eS SS ee ee eee 17 Coker v. Georgia, 433 U.S. $84, 97 S.Ct. Deel TSF Dat alae ee ee el ee ae ee ll Darden v. Wainwriaht, 699 F.2d 103) (llth Cir. 1983), Mandate withheld pendinc reh. en banc, id. at 1963. . . « « © © © © © «© © « 1B, 19, 20 Davis v. Georgia, 429 U.S. 122, 97 S.Ct. Dpe GAeVee wos. 0+ 6 \o 2° so. Sele a6 6) Se ae 14, 18 Dobard v. State, 435 So.2d 3338 (1982) ..... 8, 10, 12 Enmund v. Florida, 458 U.S. s Bee oe. é ee 8 Oh in ae ay ae sae ek ee ee fe 10, 11 Ex Parte Dobard, 435 So.2d 1351 Sees BUCS) 6 «- ms »'m “@ & 6.16 Bu Oe BOs tee 2 eee ee Granviel v. Estelle, 655 F.2d 673 (Sth Cir. 1981), cert. denied, 455 U.S. 1003, 102 Fe lta (13582) . . . . . . . . . . . . . . . 18, 19 Grecc v. ee eae 428 U.S. 1301, 96 S.Ct. is . . . . . . . . . . . . . . . . . . li, 12 Rance v. Zant, 696 F.24 940 (llth Cir. 1983) ... 17, 19 Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982), cert. grantec, 103 S.Ct. 1425 (1983). ..... p Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. Té35 TI Set) . . * . . . * . >. * . . . . > . . . 22. 23 Leith v. State, 20€ Ala. 439, 90 So. 687 (1921). . 21 Liddell v. State, 287 Ala. 299, 251 So.2d ™ 601 CLO71) . . * * * * * * * .* * * * * * . * * * 14 Martin v. Maggio, 711 F.2€ 1273, 1285-86 TSth Cir. eLET e 6606 leile 6 3-8 6 -eo.8s «6 ere 19 Maxwell v. Bishop, 398 U.S. 262, 90 §.Ct. * *. . .* * * * . * . * * . * * * . . 13 iii TABLE OF AUTHORITIES--Cont inued McCoraquodale v. Balkcom, 705 F.2d 1853 (llth Cir. a a 6.6 S 6. 6 Se 6 6-6 howe © ole. @ 6 * 19 Oliver v. State, 232 Ala. $, 166 So. e135 (1936) 7 24 . . . . . . . . . . . . . . . . . . Paz v. United States 462 F.24 740 (Sth Cir. 1972) De eae ae ia tae Rak ee ae ee ae ea 23 Proffitt v. Florida, 428 U.S. 242 96 $.Ct. .. £2 Pree a ae a oe eee ee Ly Aa Ray v. State, 257 Ala. 418, $9 So.2d 582 1952 ae ae ee 6b eee ee Se Bee 21 Remmer v. United States, 347 U.S. 227, 74 Das wee. Cheees. .« «ss : ie ahs seek eed mag- mater > a 23:23 Seekers v. State, 35 Ala. App. 40, 44 So.2¢d 628, cert. Genied, 253 Ala. 420, 44 So.2d 633 «(19%5) She eee wt See te lene ee 24-28 > DhRid?; ‘ c re ad Smit VV. PHRIISEsS, § swe a20te S04 Watts - - ao is 940 (198. ae lee Sl or > er ae ee eo: me cA ao . He >= ¢ o~ , s gid ; , » . hela OL LED 9-13 ; I | . oe ae oe “on oe ae Ls l : eer , : tee P Stvles v. State, 29 Bs°°423. , Sceee-2en Sry 56.98 iS eats hoe apremp—ntt gi i, ae a ae ee ee d d United States v. Bagqnariv.:, 665 F.2d 87? TGs Cir vYorrt 23 E>) L ; Sa er oi ne tor Or te a ee ee 3 on . —S . United States : ascqcez, 597 F.2d 192, 19 (Sth Cir. 19°79) 23 | ; “ae te Oe ee ae ea oe ee a ee 2 sc . c cir ro" Le, 392). U8. 10, 88 7 ‘nr , , : | . . . . . . Le . . 2 ‘ i 14, 16-2) 2s a . .- 17 n . . . . . . . . . . . . . . . ’ «* So.2€ 982 (Ala. 1978). ... .- 24 CONSTITUTIONS: Dil ees, GENE. VEe a a oa el ae 8 6 SM eee ee ee ee a aa Ses: Ds TES “en 6 16! oe a ee eee eee 9 TARLE OF AUTHORITIES--Continued STATUTES: ae , > hs > ‘ ‘ m7 5 IN THRE SUPREME COURT OF THF UNITED STATES OCTOBER TERM, 1982 NO. A- PERCY LEO DOBARD, PETITIONER, we STATE OF ALARAM, RESPONDENT. PINIONS BELOW The opinion of the Alabama Supreme Court, Ex parte Dobard, is reported at 435 So.2d 1351 (Ala. 1983), and is set forth in Appendix A. The opinion of the Alabama Court of Cririnal Appeals is reported at 435 So.2¢d 1383 (Ala. Cr. App. 1982) and is set forth in Appendix B. The judament of the Alabama Supreme Court was entered on July 8, 1983 and rehearing was denied on August 5, 1983. Justice Powell extended the time within which to file this petition for a writ of certiorari to and including November 3, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3). STATUTORY AND CONSTITUTICNAL PROVISIONS INVOLVED the af f several ore the Eighth and out, in pert ie of Alabama e Court r ovisions are ser Section 13JA-5-* a ay. the rn. enience é + firmance of his sentence of the United States Amendments. These 4 STATEMENT CF THE CASE On March 30, 1981, the trial of Percy Leo Dobard, charged with first-cecree murder, began in the Circuit Court of Marenco County, Alabera. The jury was sequestered. On that same day John Hinckley, Jr. attempted tc assassinate the Presidert ef the United States, Fonald Reacan. Despite the sequestration order, the jury was permitted to watch television accounts of the attemptec assassination, alonc with the attendant editorial- ization. The trial court at the behest of the defense counsel ascertained that fact but did not determine the nature of what Was seen or heard. Neither did it ascertain whether any jurors were prejuc.icecd by the media coveracc. (R. 774). On March 31, ury found petitioner guilty of murder. On April ist the same jury fixed his punishment at death. The trial judge affirmed the death penalty and sentenced Dobard tc die by e.ectrocution in Alabama's electric chair. The facts leading up to Dobard's arrest and conviction are as follows: tn June 21, 1980, at approximately $:30 a.m., O’Jim'’s Restaurant near Eutaw, labama, was robbed by a young black couple from New Orleans, Jearette Kennecy and Percy Lec bobard,. Shortly thereafter, wayne Sudduth, a Livingston University security guard, notified police headquarters that he had stopped an automobile similar in appearance to the vehicle Gescribed in the radio report of the O'Jim's robbery. Sudduth, apparentiy not fearful, approached the car ard asked tc see Doberd's driver's license. He never unholstered his gun. When Sudduth subsequently failed to respond to a radio call, Officer Raymond Byrne of the Livingston police force went to Sudduth's last reperted location te investigate. There, Byrne found Sudduth lying dead in the road. Sudduth had suffered two direct NN NS ND ee ee ee gunshot wounds. The automobile reportedciy stoppec by Sudduth later was found some miles away, where it had left the road and Kennedy were arrested by police after a pickup of contre] at a police roadblock, Several witnesses testified they saw Dobccc, the roadblock ahead of Dobard anc KFennecy the occupants yelied tc inform him that “the girl had a gur” (R. 404). Both Dobard and Kennedy were arrested without incident and charged with the murder of Wayne Suc th. The onl witness t testi? at trial that ULobarc shot Succuth was Jeanette Kenned Kennedy's testimony sealec a plea agreement in which she receive 2c ea in prison for first Gecree murder provided she testifise ainst Dobar in accoraance > | “Dobard and Kennedy stole the pickup truck after their car was driven off the road and become mired in the field. o~ — until she so testified. | with a previously given statement. The barcain was not final | | | Kennecy*s testimory was neither consistert ner coherent. The gist of her story was thet after Sucduth approached the car askec Dobard for a @river's license, Dobard reached around, ostensib!y fcr his wallet, and came up with the pistol, which he “To t+ -- excerr- ‘ ~ > ‘ mro-*Fr a mor ons hearin r foll ; pr ial 4 h ing elaborate porn the plea acreement MF. REIC ? ight; the next motion is a motion tc Gisclose impeechrent information. The motion would apply ¢t amy witnesses the State intends to use, but in particular we are askinoe the State to furnish this information abcout Jeanette Kennedy. THE COUFT: I° 11 tell you what I heard the State say: I hearc the State say that if she testified truthfully at - , any trisel of Percy L. Dobard, they would recommend that the sentence be twenty years in the penitentiary; is that correct? MR. WATKINS: That's correct. THE COURT: The condition upon her truthful testimony as given in a statement to them that is reduced tc writing; if she testifies at the trial substantially to the truth and it is substantial to that statement. MR. REID: All right; has she been sentenced yet? THE COURT: She has not beer sentenced anywhere. MR. REID: She has not been sentenced in any case. he case as per a written transcribed THE COURT: Sentencing is a condition upon her testifying ** statement that she has made (R. 196-97). w fired three times at Sudduth.? At one point Kennedy testified Dobard got out of the car; at ancther she stated he simply opened the door and put a foot cutside. This seemingly minor point takes cn great significance because bullet trajectories are the best evidence of who actually shot Sudcéuth. See the description of the crime scene, infra. The defense's theory cf the case was that Kennedy was the triecgerpersor.. This theory was consistent on its face with the confusing physical evidence of the crime scene. Indeed, the angles of the first two bullets as they entered Sudduth's body and the position of the third bullet that entered the door post make it more likely thar not that Kennedy killed Sudduth. It was also consistent with the testimony cf the owner of the stolen pickup truck, see n. 1 supra, that Kennedy screamed repeatedly to Dobarc to °kill him, kill hir® (the pickup owner]. Because reconstruction of the crime scene was sc Cifficult, and so Crucial, defense counsel soucht funds fror the court ec that hie indigent client could employ an expert. The court entered an order allowinc him to spend up to $1,000 cf the $1,00U maximum attorney fee for representing an indicent defendant. In short, ‘ The Stete called ro less the court awarded nothing for experts. than four (4) state-paid experts, including a coroner, a forensic pathologist and a firearms expert, to bolster their case acainst Dobard. One of those experts describec his euployer as “the scientific arm of the police community” (R. 549). 3awo shells in fact struck Sudduth. One was fired through the decor post, and later was found embedded in the rear firewall of the car. Apparently schrapnel from that bullet grazed Sudduth's leg. 4t suggest that appointed defense counsel David Reid should have used this token fee for experts would be callous and absurd. Reid undoubtedly lost thousands of dollars in addition to angerinc clients in his defense of Dobard. Prior to trial the jury was voir dired concerning death scruples. Two jurors were excused by the court for cause. Defense counsel objected to the dismissal of both jurors, on the grounds that neither met the standards imposed by Witherspoon v. Illinois, 391 U.S. 510 (1968), and that to remove jurors opposec to the death penalty deprived the defendant of a fair trial by a jury composed of a representative cross-section of the community (R. 313). The jury convicted Dobard, and a sentencing hearing was held at which the following facts were adduced: Dobard, a poor ‘black from New Orleans’ ghettc, was quarter- back of his high school football team, anc a leading student. As a youth he showed much promise. He then was drafted anc served with the United States Army in West Germany. His army medical records indicate that at some point after he went abroad Dobard became addicted to heroin and cocaine. Despite his addiction to drucs, Dobard had ne significant history of criminal activity. Although Dobard attempted to rid himself of the addiction several times upon his return, he generally was unsuccessful. Jeanette Kennedy, an eichteen year old drug addict, had one child by Percy Dobard and was preqnant with another at the time of Officer Sudduth's death. She also apparently was a leading supporter of bobard'’s continuing drug use, several times removing him from Grug rehabilitation programs. Shortly after Kennedy checkec Dobard out of a crug rehabilitation program for the last time, they began their tragic journey to Alabama. The jury sentenced Dobard to death. At the mandatory mitigation hearing the trial judge affirmed the sentence, finding that two acgcravating circumstances” outweighed the one mitigating circumstance: Dobard had no history of prior criminal activity. two statutory aggravating circumstances were fourd by the court: (1) Dobard was engaged in flight after committine a robbery, and (2) a capital feiony was committed for the purpose of avoiding or preventing a lawful arrest (R. 813). Dobard's motion for a new trial was perfunctorily denied, and his conviction was a’firmed by the Alabama Court of Criminal Appeals. Dobard v. State, 435 Sco.2d 1338 (1982). Following an adverse judgement, without argument, by the Alabara Supreme Court, Ex parte Dobarc, 435 So.2d 1351 (Ala. 1983) and denial of rehearing, the Dobard execution was set for September 23, 1963. Dobard's sentence was subject tc appellate proportionality review. In purporting to give the proportionality review under the Eighth Amencment, Alabama law, anc in the face of a challence by the petitioner, neither appellate court consider F.24 at 103& ("I believe I would" acceptable under Witherspoon). opinion for a Gividec panel of the Eleventh Circuit in Darden v. Wainwright, supra, 699 F.2d 1031, suggests both the reason for the difficulty anc é solution: Neither itherspoon nor Adams provides trial courts with the forumula or requisite colloquy for the proper excusal for jurors on Witherspoon grounds. Instead, the trial judge must decide whether each particular venireperson has made it “unmistakably clear® that he or she is within one of the two prones of Witherspoon. 19 The trial judce is in the best position to evaluate the prospective juror's demeanor ané answers tc the questions. For this reason, trial judces are generally accorded broac discretion in evaluating juror impartiality. Id. at 1037, mandate withheld pending reh. en banc, ic. at 1043. While in a broad sense the Darden majority is correct, the Witherspoon opinion admits of far less leeway than the Darden opinion would suggest. There are two grounds, and two grounds only, upon which a juror may be dismicsed under Witherspoon; the answer to the inquiry must be definite anc susceptible of only one interpretation. Petitioner respectfully suggests the time has come for this Court to propound specific Witherspoon questions, and acain amnounce that there must be concretc answers. There is no gcod reason tc refrair from such a pronouncement. In Witt v. Wainwright, supra, 714 F.2d at 1083, the State urged that the appellate cour "avoid imposing the de facto requirement that prosecutors ask each prospective Juror certain standard cuestions and receive talismanic anewers before excusal fe " cause may be justified.* Id. at 1083. The petitioner urges no resort to magic but fails to understanc why a clear, common sense answer shoulc not be obtained if availabie. jitherspoor, in fact, supports this approach. A properly ftramed and properly answerec Witherspoon inquiry will leave ro room for doukt as to whether - + -- the responding juror should be dismissec for cause. this the Witherspoon mandate were enforced, there would be no need for rial cudges to play amateur psychologists and semanticists--particularly inappropriate when a defendant's life is at stake. i2.; Although prosecutors may have an aversion to so-called “talismanic® “°yes® : "no" requirements, those dre the only anc no answers that make ea ‘uror'’s position “unmistakably clear.*® There is much to be gained from such a pronouncement. Certainly it is a greater affront to notions ef comity to subject voir dire in every capital case to repetitive review, than to establish specific guidelines state courts must follow. Further, there is no need to await experimentation in state and circuit courts; the bounds of Witherspoon clearly are set out in that éecision. In the interests cf federalism, and conservation cf judicial resources, as well as the protection of compelling constitutional rights, petitioner suggests this case if an appropriate vehicle in which to propound mandatory Witherspoon standards. In any event, the trial court erred in allowine the dismissal of Juror Cannon. eG ti III. The Petitioner's Convictien And Subsequent Death Sentence Were Assessed in Violation Of Due Process Because The Trial Court Refusec 10 Determine Whether 7? Sequestered Petit Jury has | ow Improperly Influencec As A Resu Of Viewing Televised Accounts t Cf, And Cormertaries About, The Attempted Assartination of President Ronald Reagan. The Dobard jury was impaneled on March 30, 1961, ane se- guestered for the duration of the trial and sentencing. Se- questration of jurors, particuleriy in capital cases, serves two purposes: (1) "nething shall occur outside of the trial which could] disturb their minds. leaving the jury entirely occupied with consideration of the case which they are worn to try,° Leith v. State, 206 Ala. 435, 443, 90 Sc. 647, 6912 (1921); anc (2) the jury should be free from ali outsice or improper influ- ences or communications, Ray v. State, 257 Ala. 418, 59 So.2d 582 (1952). Accord Rermmer v. United States, 347 U.S. 227, 74 S. Ct. 450 (1954). On the same day the Dobard jury was sequestered John Hinkley, Jr. attempted to assassinate the President of the Unitec States, an event attended by extensive mecia coverage and commentary. Yet, despite the importance of sequestration, the trial judge found, as a fact, that jurors were permitted to view television accounts of the assassination attempt. 21 In flagrant disregard of ail customary due process principles, to this date no court has ascertained what it was the jury saw, or what effect the media coverage might have had on the trial of this case. Trial counsel sought to question the jury while they were still impaneled (R. 774, 775), but that request was dismised abruptly. At every subsequent stace of this proceeding counsel has identified the problem anc requested relief. At every stace relief was denied. Proceedings before the Alabama Supreme Court were no exception; that court's cursory review fails to do justice to petitioner's due process claim. First, the court addressed only the federal due process issue, ignoring the state constitutional claim altogether. Second, the only analysis done under the federal due process claim was to distinguish two state cases cited by petitioner in brief. Third, with no basis in the record, the Alabarna Supreme Court cecided as a matter of fact that viewing media coverace of the assassination attempt "did not influence the jurors to the extent that they would have acted without evidence." Ex Parte Dobard, supra, 435 So.2a at 1354. Finally, the Alabama Supreme Court failed entirely to address the influence of the media commentary on the jurors in the sentencing phase of the trial. "(T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 §. Ct. 1639 (1961). "The right to a trial by an impartial jury lies at the very heart of due process.” Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 950 (1982) (Marshall J., dissenting). This Court, and the lower federal courts, have emphasizec the importance of the impartial jury right in numerous contexts. 22 E.g., Irvin v. Dowd, supra (pretrial publicity); Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450 (1954) (private communication with juror); United States v. Bagnariol, 665 F.2d 877, 8€&3-84 (9th Cir. 1981) (extra-record information sought by juror), cert. denied, 102 S. Ct. 2040 (1982); Paz v. United States, 462 F.2d 740 (Sth Cir. 1972) (extra-record materials in jury room). In United States v. Bagnariol, 665 F.24 877 (9th Cir. 1981), the court conducted an exhaustive study of federal cases in which juror partiality was questioned as a result of jurors coming into contact with individuals, or information, outside the contours of the case. The Bagnariol court's study reveals the following general rule, applicable throughout the federal courts: The trial court, upon learning of a possible incident of juror misconduct, must hold an evidentiary hearing to determine the precise nature of the extraneous information. The defendant is entitled to a new trial if the judge finds a “possibility that the extrinsic material could have affected the verdict." Id. at 885, quoting United States v. Vasquez, 597 F.2d 192, 193 (9th Cir. 1979). Accord Smith v. Phillips, 455 U.S. 269, 215, 102 S. Ct. 940, 945 (1962) (remedy for allegation of juror partiality is hearing) ;2? Remmer v. United States, supra, 347 U.S. at 229, 74 ©. Ct. at 451 (private communication with juror gives rise to presumption of prejudice; remedy is hearing to ascertain whether contact was harmless); Paz v. United Stetes, supra, 462 F.2d at 745-46 (once it is ascertained extra-record L3cmith, decided this past term, indicates the burcen 18 oF the defendant to prove “actual bias" on the part of the juror. Althouch arguably this conflicts with the standard that the verdict must be reversed if there is a4 “possibility” the extrin- sic material affected the verdict, Smith, on its facts, is e@ somewhat different case than the “extrinsic material” cases. Smith involved a juror applying for a job in the prosecutor's office. Smith, however, is in accore with the other cases if holding the initial step to remedy a claim of impartiality is @ hearing. books were before jurors, remedy is remand for hearing to see if any “possibility” extrinsic material affected verdict). Alabama law applies an even stricter test than federal law. With the exception cf the present case, the Alabama Supreme Court consistently has recognized the need to keep the jury “separated from, and uninfluenced by, the outside world.” Oliver v. State, 232 Ala. 5, 10, 166 So. 615, 617 (1936). Accord Brickley v. State, 266 Ala. 546, 548-49, 243 So.2d 502, 507 (1970); Seekers v. State, 35 Ala. App. 40, 43, 44 So.2d 628, 631, cert. denied, 253 Ala. 420, 44 So.2d 633 (1949). Under Alabama law, the party attacking the partiality of the jury only has the burden of demonstrating that it was subject to some “vitiating influence.” The test of vitiatinc influence is not that it did influence a merber of the jury to act without evidence, but that it migrt have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered." Oliver v. State, 232 Ala. 5, 10, 166 So. 615, 617 (193€). See also Ex Parte Dobard, 435 So.2d 1351, 1354 (Ala. 1983) (purperting to apply test); Woods v. State, 367 So.2d 9&2, 964 (Ala. 1978) (issue not whether events did influence juror, but whether events might have influenced juror) (emphasis in original.) Once that influence is shown, the onus of showing that no prejudice resulted from the “vitiating influence” is upon the prosecution. Oliver v. State, 232 Ala. 5, 166 Se. 615 (1936); See also Woods v. State, 367 So.zc 982, 984 (1976) (prosecution raises issue of vitiating influence; burden shifts to defendant to rebut). In the instant cause the trial court violated principles of both federal and state cue process when it failed to pursue the matter once the defense presented the court with evidence that a *“vitiating influence” had reached the sequestered jurors. In this context, the state Supreme Court's “holding"--that viewing the assassination attempt did not influence the jurors--is Done this tem and deliver bim to the custody of the Warden of William C. Holman unit of the prison system at Atmore, Alabama All DONE and ORDERED thu, the 13th day of April, 196) od Claud D Neilson CLAUD D. NEILSON CIRCUIT JUDGE cause; (3) defendant was not deprived of right to fair trial by news media coverage of assassinalon attempt on President Reag- 1. Criminal Law @ = 855(8) Jury's exposure lo media coverage of assassination attempt on life of president of the United States, which occurred during defendant's capital murder trial, did deprive defendant of hs right to a fair inal. 2 Jery @ 35.1) s Record did not support defendant's blacks and five whites ” & Jeary @ 108 No venireman may be removed far cause unless it is determined that his views as lo capita) punwhment are eo strong that death penalty and prospective juror who tadicatad that be bad « fixed opinion against capital punshment regardiess of UNITED STATES CONSTITUTION EIGHTH AMENDMENT Excessive bail shall not be required, nor excessive fines aposed, nor cruel and unusual punishments inflicted. FOURTEENTH AMENDMENT Section 1. All persons born or naturalized in the United tates, and subject to the jurisdiction thereof, are citizens of ‘ve United States and the State wherein they reside. No State nall make or enforce any law which shall abridge the privileges immunities of citizens of the United States; nor shall any ~tate deprive any person of life, liberty, or property, without iue process of law; nor deny to any person within its jurisdic- tion the equal protection of the laws. APPENDIX D $ 13A-5-53 PUNISHMENTS AND SFNTENCES § 13A-5-53 § 13A-5-53. Appellate review of death sentence; scope; remand; specific determinations to be made by court; authority of court following review. (a) In any case in which the death penalty is imposed, in addition to reviewing the case for any error involving the conviction. the Alabama court of criminal appeals. subject to review by the Alabama supreme court, shall also review the propriety of the death sentence. This review shall include the deter- mination of whether any error adversely affecting the rights of the defendant was made in the sentence proceedings. whether the trial court's findings con- cerning the aggravating and mitigating circumstances were supported by the evidence, and whether death was the proper sentence in the case. If the court determines that an error adversely affecting the mghts of the defendant was made in the sentence proceedings or that one or more of the trial court's findings concerning aggravating and mitigating circumstances were not sup- ported by the evidence. it shall remand the case for new proceedings to the extent necessary to correct the error or errors. If the appellate court finds that no error adversely affecting the rights of the defendant was made in the sen- tence proceedings and that the trial court's findings concerning aggravating and mitigating circumstances were supported by the evidence, it shall proceed to review the propriety of the decision that death was the proper sentence. (b) In determining whether death was the proper sentence in the case the Alabama court of criminal! appeals, subject to review by the Alabama supreme court, shall determine (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, (2) Whether an independent weighing of the aggravating and mitigaiing circumstances at the appellate level indicates that death was the proper sentence and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. considering both the crime and the defen- dant (¢) The court of criminal! appeals shal! explicitly address each of the three questions specified in subsection (b: of this section in every case it reviews in which a sentence of death has been imposed id) After performing tne review specified in this section, the Alabama court of criminal appeals, subject to review by the Alabama supreme court, shall be authorized to (1) Affirm the sentence of death (2) Set the sentence of death aside and remand (o the trial court for correc- tion of any errors occurring during the sentence proceedings and for imposi- tion of the appropriate penalty afier any new sentence proceedings that arc necessary. provided that such errors shal! not aflect the determination of guilt and shall not preclude the imposition of a sentence of death where it is determined to be proper aller any new sentence proceedings that are deemed Necessary. or 133 $ 13A-5-54 CRIMINAL CODE % 13A-5-55 (3) In cases in which the death penalty is deemed inappropriate under subdivision (b"2) or (bw 3) of this section, set the sentence of death aside and remand to the trial court with directions that the defendant be sentenced to life imprisonment without parole. ‘Acts 1981. No. 31-178. § 15.) Collateral references. — 24 CJS. Crim- mai Law. #3 1643-1647. 183)-1540 5 Am Jur Jd. Appeal and Error. : 723 § 13A-5-54. Appointment of experienced counsel for indigent defen- dants. Each person indicted for an offense punishable under the provisions of this article who is not able to afford Jegal counsel must be provided with court appointed counsel having nv less than five vears prior experience in the active practice of criminal! law. ‘Acts 1951, No. 81-178. : 16.) Editor's note. — In light of the similarity of the provisions. decisions under former + 13A-5-37 are included ip the annotations tor this section section does not require the record to show that appointed counsel has at least five years’ prior experience in the active practice of criminal law. it sumply requires that the indigent accused be provided such counsel Absent some tangibie indication that the requirements were not met. 4 court cannot summarily rule. as @ matter of law. that the statute was not complied with Johnson + State, 399 So 2d 659 ‘Ala Crim App 1979: aff'd in part and rev d in part, 399 So. 2d 873 ‘Ale 1981) Appointment in keeping with section. — Where an attorney has practiced criminal law at (he cail of the criminal docket im Une county tor 10 veers. his sppommtment to « case involving a capstal felony 1 in keeping with the provision of this section requiring not less than five years prior expervence im the active prac- tice of cruminal law Jacobs v State. 371 So 2d 429 ‘Ala Crim App 1977). rev d on other grounds. 371 So 2d 448 :Ala. 1979) Collateral references. — 23 CJS. Cnm- inal Law. 3 97TH 1: 21 Am Jur 24. Criminal Law. $9 309-317 Accused » might to represent himself in state criminal proceeding — modern siate cases. 96 ALR34 13 § 13A-5-55. Conviction and sentence of death subject to automatic review. In all cases in which a defendant is sentenced to death, the judgment of conviction shail be subject to automatic review. The sentence of death shal! be subject to review as provided in section 13A-5-53. ‘Acts 1981, No. 81-178, § 17.) Editor's note. — 'n hight of the sumilarity of the provissens decisions under former $ 13A-5-34 are inciuded in the annotations tor this section The whole purpose of ti 13A-5-3) through 13A-5-36 now repesied: «as lo allow for yudscial review of @ sentence of death fined by the jury Ayzery State 399 So 2d JW: Ale 1961) Scope of review. — Each death sentence should be reviewed to ascertamn whether the crime was in fact one properly punishable by death. «hether similar crimes throughout the slate are being punished capitaliy and wheth Une sentence of death is approprate in relation to the partwular defendant in making thu final determination ine courts should examine the penalty imposed upon the defendant in relation lo Ral umposed upen his accomplices. lane Becks State 396 Se 24645:Ala 1960) Collateral references. — 24 CJS. Crom onal Lew ¢) 1643-1647 1431-1660 5S Am Jur 24, Appesl and Error. 4 723 ls --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1694%3A1. Public record. Not legal advice.