Petition for Writ of Certiorari — Townley v. Clark

86: 6 04. a Court, U.S,

eT ED

IN THE ' OCT 14 99g

Supreme Court of the Hnited Ptates s SPANIOL, J,

OCTOBER TERM, 1986

S. L. TOWNLEY. eft al,

Petitioners,

JAMES T. CLARK, JR.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY SUE TERRY

Attorney General of Virginia

*JACQUELINE G. EPPS

Senior Assistant Attorney General

101 North Eighth Street

Richmond, Virginia 23219

§04-786-6563

Counsel for Petitioner

*Counsel of Record

ALPHA Grapnics, Inc. e Wasninotron, D.C. e (202) 331-8101 I"

QUESTIONS PRESENTED

Whether trial counsel acted unreasonably in failing to seek

additional evidence in mitigation of the death penalty from

lay witnesses when, in response to counsel’s request, the

deiendant failed to reveal such additional evidence?

Whether the defendant has established actual prejudice as

as a result of counsel's failure to investigate and present

psychiatric evidence in mitigation of the death penalty, when

such evidence would have been unfavorable to the defendant

and established an alternative basis for imposition of the

death penalty?

TABLE OF CONTENTS

PAGE

RS gS St a

EE ee er I

EE Se ee a 2

Cee EIU OEE, FRC) VEEN 6.5 occ ek cw ces sle sees 2

ST BOO CRE orc ek it ce cesccccecccesves 2

ReAone fom GRANIING THE WRIT............... 6

I. The decision below reflects a misapprehension

and gross misapplication of the Strickland

standards and conflicts with decisions of

another Circuit Court of Appeals ................. 6

Il. The decision below, that counsels’ failure to

further investigate and present psychiatric

evidence during the penalty phase of

respondent’s trial for capital murder was

prejudicial, ignores the Strickland standards

for determining prejudice and conflicts with

decisions of another Circuit Court of

ER ore CNS ob 4 k's Che wk dv deen dae 10

ES ee ee 13

TABLE OF CITATIONS

PAGE

CASES

Burger v. Kemp, 753 F.2d 930

be pe A eg area ans Gere ye wr monr ney Emre 8, 12

Clark v. Commonwealth, 220 Va. 210,

257 S.E.2d 784 (1979, cert. denied,

PR ae UU Se ee rrr errr rer fe)

Clark v. Townley, No. 85-6601

er Scat. SUG EE irs Vo haa kee daa eden deeb a wake 7

Francois v. Wainwright, 763 F.2d 1188

ai ge a, GP ere reer eer eee eee ee re 12

Hitchcock v. Wainwright, 770 F.2d 1514

SRO aD, OE age aka Ve kare bade exe daaed eas 9,12

McCleskeyv v. Kemp, 753 F.2d 877

OO we SE ka Vs hae kas CRN bas 6 ea ke ween vk ONS 9

McMann v. Richardson, 397 U.S. 759 (1970)............6. 7

Mitchell v. Kemp, 752 F.2d 877

Cre Si es onc a KasA dG ee eee ee nee Rewen 9

Strickland v. Washington, 466 U.S. 468

OE aa cd ck eR OR A ew) he RS Passim

Tucker v. Kemp, 776 F.2d 1487 (11th Cir. 1985) ........... i)

Virginia Department of Corrections v. Clark,

BEF VG Fibty SU ee POT UD cc ck ikecee eaien By Oe

OTHER AUTHORITIES

Se a. a RE 55 4 eS baw hehe sd oes eho cee a awed p

Section 19.2-264.4 of the Code of Virginia ............. 2, 6

Section 19.2-264.5 of the Code of Virginia ................ 2

Constitution of the United States

NS NO Ri ee Se Bre ele aa ee a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

S. L. TOWNLEY, et al.,

Petitioners,

Vv.

JAMES T. CLARK, JR..

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioners, S. L. Townley, ef a/., respectfully pray that

a Writ of Certiorari issue to review the Judgment and Opinion

of the United States Court of Appeals for the Fourth Circuit,

entered in the above-entitled proceeding on June 5, 1986.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Fourth Circuit

is unpublished, and is reprinted in the appendix hereto. (Pet.

App. A.)!

The memorandum decision of the United States District Court

for the Eastern District of Virginia (Bryan, D.J.) has not been

reported. It is reprinted in the appendix hereto. (Pet. App. B.)

' References to the appendix hereto will be designated (Pet. App.____..)

JURISDICTION

The judgment of the Court of Appeals was entered on June »

1986. (Pet. App. A.) Petitioners filed a Petition for Rehearing en

hance which was denied on July 17, 1986 (Pet. App. D). The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States Constitution

states, in pertinent part:

In all criminal prosecutions, the accused shall enjoy the

right . . . to have the assistance of counsel for the

defense.

STATEMENT OF THE CASE

The respondent, James T. Clark was convicted by a jury of

willful, deliberate and premediated murder for hire, a capital

offense, on August 29, 1978, and sentenced to death byajuryina

separate sentencing proceeding held pursuant to § 19.2-264.4 of

the Code of Virginia. At a second sentencing hearing before the

court pursuant to § 19.2-264.5 of the Code of Virginia the

sentence of death was imposed. Upon affirmance of the death

sentence by the Supreme Court of Virginia, Clark v. Common-

wealth, 220 Va. 201, 257 S.E.2d 784(1979), cert. denied, 444 U.S.

1049 (1980), Clark filed a petition for a writ of habeas corpus in

state circuit court. The circuit court judge who presided over the

trial also presided over the state habeas hearing.. After hearing

evidence concerning Clark’s family background and anti-social

personality, the court commuted the death sentence to life im-

prisonment. This decision was reversed by the Supreme Court of

Virginia, Virginia Department of Corrections v. Clark, 227 Va.

525, 318 S.E.2d 399 (1984). Thereafter, respondent instituted this

action by filing a habeas corpus petition under 28 U.S.C. § 1254,

in the United States District Court for the Eastern District of

Virginia alleging that he was denied the right to effective

assistance of counsel during the penalty phase of his trial for

capital murder. Specifically, Clark claimed that counsel failed to

investigate and present additional evidence in mitigation of

the death penalty.

A. The Lay Evidence

At his sentencing proceeding before the jury, trial counsel

presented evidence in mitigation consisting of the testimony of

Clark’s mother and father. Mr. Clark testified that his son was a

fairly normal child until age nine, when he received first degree

burns over 40% of his body. (App. 6).? Following this incident,

he received intensive treatment and remained in the hospital for

one year. (App. 7). Asa result of the incident his whole character

changed, he lost interest in school and began to have “some legal

problems.” (App. 7).

Clark’s mother testified that Clark was normal “until he was

burnt.” (App. 10). She further stated that when he was in the

hospital he was pampered a lot, but she did not notice any

changes in his personality after the incident and she saw no

“proclivity towards violence.” (App. 10). Evidence was also

adduced that the parents had separated when Clark was three

years old and that throughout his childhood, he was shifted back

and forth among his mother, father and grandmother.

At the habeas hearing, the respondent introduced the testi-

mony of several witnesses in addition to his mother and father

who chronicled his background in more detail. According to

their testimony, while Clark’s father worked his mother would

often go out leaving Clark and his brother at home alone. Finally,

Clark’s mother abandoned the family for good and started living

with a married man. Clark and his brother visited her during that

period of time, but for the most part lived with their maternal

grandmother. When the mother’s relationship ended, she moved

to the District of Columbia and became a prostitute. (App. 432-

33). Clark lived with her on various occasions during that time

2?References to the joint appendix filed below will be designated

(App. ).

and was subjected to the influence of a “madam” and a

professional gambler who was involved with Clark’s mother.

(App. 436-37).

When Clark was about nine years old, he and his brother were

sent to live with their father who had remarried. (App. 435-36).

While they were living with their father, Clark attempted to put

gasoline in a model airplane causing the plane to explode,

resulting in third degree burns over 40% of his body. (App. 207-

09). His brother saved his life by pushing him into a portable

swimming pool. (App. 207). Clark’s grandmother testified in

detail concerning the infestation and stench of Clark’s wounds.

(App. 210-12).

Sometime after Clark’s release from the hospital, he and his

brother again went to live with their mother. She had by this time

remarried and moved to Maryland. When the marriage turned

sour, Clark’s mother became involved in a lesbian relationship.

(App. 442-47). The termination of the lesbian relationship led

Mrs. Clark to attempt suicide. Clark and his brother found her in

a coma following the attempt. (App. 448). Upon her recovery she

returned to prostitution and reestablished her friendship with the

madam who cared for Clark and his brother during their

mother’s convalescence. (App. 448-51). Clark’s brother, to whom

he was closer than anyone, was murdered as he was traveling

home upon discharge from the Army. The case was never solved.

(App. 220-21).

Most of the above facts were elicited though the testimony of

Clark’s mother. However, she failed to reveal this information to

Clark’s counsel, who had interviewed her on at least two

occasions prior to the sentencing hearing. (App. 508).

Several other witnesses testified at the habeas proceeding,

including Clark’s two grandmothers, a neighbor of the family

when they lived in Maryland, a principal at one of the schools

Clark attended and a teacher. Although trial counsel had inter-

viewed several potential witnesses whose names had been

provided by Clark, counsel was not provided the names of these

five witnesses. Their testimony revealed that Clark and his

brother lacked supervision and it appeared as though their

mother had no concern for their welfare. (App. 271-73, 293).

B. The Psychiatric Evidence

Prior to trial, a mental examination was performed at the

request of Clark’s trial counsel. Dr. Ludwig Fink, a psychiatrist,

found Clark competent to stand trial but noted that during the

doctor’s interview with him he “remained . . . pleasant, almost too

pleasant considering the seriousness of the alleged crime. ... What

struck me was his complete lack of emotion and any affect. . . .

With similar detachment he stated he would try to obtain the

death sentence and be executed rather than be sentenced to life in

prison. For a twenty-one year old this is quite an unusual

statement.” (App. 15). Dr. Fink, without suggesting that Clark

suffered from any psychological disorder, recommended that he

be sent to a mental hospital for a more thorough examination of

his mental condition before trial. (App. 15). Trial counsel did not

follow Dr. Fink’s advice and presented no psychiatric evidence

during the jury sentencing hearing.

Prior to sentencing by the judge, counsel. requested another

psychiatric examination which was performed by Dr. William

Allerton, a psychiatrist. He diagnosed Clark as having an anti-

social personality, (App. 37), but found that he was not suffering

from a mental illness. (App. 38).

During the habeas hearing, psychiatric evidence was presented

which established that Clark was abnormal in several respects.

Dr. Richard Saunders, a clinical psychologist, testified that

Clark evidenced no guilt about his conduct, (App. 308), and no

significant emotional impact at the loss of his brother, or his ex-

perience when burned. (App. 316-17). His level of moral func-

tioning, according to Dr. Saunders, was at a primitive level in

that “he has not formed a conscience in... the normal way, and

his ability to appreciate the feelings of another person... are

grossly impaired.” (App. 330-32). Dr. John Follansbee, a psy-

chiatrist, testified that the matrix for conscience is established

very early in life and that Clark suffered damage in the first three

years of his life to that matrix, impairing his ability to add content

thereto in later years. (App. 370).

Both doctors felt that Clark suffered from an anti-social

personality and that he was a very dangerous individual who

could kill again for money. (App. 348, 392). Although Dr.

Foilansbee declined to predict what Clark’s future behavior

might be, Clark concluded that in 1978 when Clark committed

the murder, he was a very dangerous and violent individual.

(App. 391, 392). Dr. Follansbee was not aware of any intervening

circumstance that would prove that Clark could not be a violent

and dangerous individual. (App. 393). Trial counsel testified that

they would not have introduced the psychiatric evidence at the

habeas hearing because it would have provided the prosecution

with evidence of “future dangerousness.” (App. 531-32, 658-60).

At trial, the Commonwealth had sought and obtained the death

penalty on the ground that Clark’s conduct met the “vileness”

condition in Virginia's death penalty statute. § 19.2-264.4C. The

death penalty could also have been imposed, under this statute, if

the jury believed that the defendant “would commit criminal acts

of violence that would constitute a continuing serious threat to

society.” § 19.2-264.4C.

The district court found that counsel's performance in investi-

gating and presenting background and psychiatric evidence was

unreasonable and that the errors were sufficient to undermine

confidence in the outcome of the sentencing phase of the trial.

The Fourth Circuit affirmed the district court’s decision.

REASONS FOR GRANTING THE WRIT

The decision below, reflects a misapprehension and

gross misapplication of the Strickland standards and

conflicts with decisions of another Circuit Court of

Appeals.

The right to counsel which is guaranteed by the Sixth Amend-

ment and made applicable to the states through the Fourteenth

Amendment includes the right to effective assistance of counsel.

McMann v. Richardson, 397 U.S. 759, 770-771 (1970). This case

presents the question of whether counsel was ineffective in failing

to present additional evidence in mitigation of the death penalty

when counsel had no reason to believe that additional lay evi-

dence was available, and when allegedly available psychiatric

evidence would have been prejudicial to the defendant. While

paying lip service to the standards enunciated in Strickland v.

Washington, 466 U.S. 668 (1984), for determining whether an

individual has been denied his Sixth Amendment right to the

effective assistance of counsel, the Fourth Circuit has in fact

drastically undercut the Strickland principles and created a new

set of standards to be applicd in evaluating counsel's per-

formance.

A claim of ineffective assistance of counsel must be measured

against the two-part test announced in Strickland. First, the

respondent must show that “counsel's representation fell below

an objective standard of reasonableness.” 466 U.S. at 6838.

Second, respondent must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 466 U.S. at

694.

In assessing the performance component, the Fourth Circuit

found that counsel's “failure . . . to pursue further evidence from

lay witnesses, all of whom were available upon reasonable in-

quiry, ..., was unreasonable,” Clark v. Townley, No. 85-6601,

slip op. at (4th Cir. June 5, 1986). (Pet. App. A-3). The court thus

rejected an important Strickland principle which recognizes that

“the reasonableness of counsel's actions . . . [is] usually based,

quite properly, .. . on information supplied by the defendant”

and “what investigative decisions are reasonable depends

critically on such information.” 466 U.S. at 691.

Moreover, Strickland requires a defendant to overcome the

“strong presumption that counsels’ conduct falls within the wide

range of reasonable professional assistance;” in order to obtain

relief 466 U.S. at 689. The Fourth Circuit failed to apply that

presumption to the salient facts of this case. These facts show that

Clark’s counsel talked to him on several occasions about his

family background. They also interviewed his mother and father

who were called to testify on respondent's behalf during the sen-

tencing hearing. Although counsel inquired, they were never

advised by Clark or his parents of any other witnesses who could

provide information that would be helpful in mitigation. (App.

499-503). Ironically, the evidence presented at the habeas hearing

that was considered to be most “compelling” by the District

Court was provided by Clark’s mother who was apparently

willing to disclose more information to Clark’s habeas counsel

than she disclosed to trial counsel. The evidence in mitigation

presented by trial counsel, while not so extensive as that pre-

sented at the habeas proceeding, was presented to the extent that

it was revealed to counsel.

Counsels’ performance here was considerably more thorough

and more diligent than that of counsel in Strickland, who spoke

with the defendant about his background and talked to the de-

fendant’s wife and mother on the phone, but failed to follow-up

on his conversations or present any evidence in mitigation at the

sentencing hearing. 466 U.S. at 673. Yet, the Fourth Circuit

found counsel's actions here to be professionally unreasonable.

Here, as in Strickland, counsel could have reasonably surmised

from conversations with Clark and his parents that Clark’s back-

ground offered no additional mitigating evidence.

Under the Fourth Circuit's newly created standard for de-

termining “reasonableness,” counsel is prohibited from relying

on the information supplied by a defendant and his family and is

required to aimlessly seek additional information from unidenti-

fied sources. Ignoring Strickland’s objective standard of reason-

ableness and the prejudice prong of the Strickland standard,

the Fourth Circuit has held that the mere fact that other witnesses

might have been available, or that other testimony might have

been elicited from those who testified, is sufficient to establish

ineffectiveness of counsel. The conflict between Strickland and

the decision below could not be more stark.

Equally apparent is the conflict between the decision below

and Burger v. Kemp, 753 F.2d 930, 938 (11th Cir. 1985). There,

neither the petitioner nor his mother provided the attorney with

the names of individuals subsequently located by habeas

counsel. However, the Eleventh Circuit rejected the notion that

counsel was required to “pursue every path until it bears fruit or

all hope withers.” 753 F.2d at 940. In upholding the reasonable-

ness of trial counsel's performance, the Eleventh Circuit said:

It is true that the petitioner’s current attorneys were

successful in finding other witnesses who could painta

tragic childhood background; it is also true that they

were able to ‘elicit’ a more compelling explanation of

Berger's background from his mother than did [trial

counsel].

The Court then concluded that where the petitioner has given

counsel no reason to believe that pursuing certain investigations

would be beneficial, counsel's failure to pursue those

investigations may not later be challenged as unreasonable.”

753 F.2d at 940.

The United States Court of Appeals for the Eleventh Circuit

has further addressed this issue in several cases with similar

factual situations, and upon proper application of the Strickland

standards has reached the opposite result. See Hitchcock vy.

Wainwright, 770 F.2d 1514 (11th Cir. 1985) (counsel's presen-

tation of mitigating evidence reasonable where evidence devel-

oped to some extent for the jury even though trial counsel was

unable to elicit mitigating evidence to the extent elicited during

habeas hearing); McCleskey v. Kemp, 753 F.2d 877 (11th Cir.

1985) (counsel not ineffective where defendant and his sister

were asked about potential character witnesses and “suggested

no possibilities”); Mitchell v. Kemp, 752 F.2d 886 (11th Cir.

1985) (counsel's failure to investigate petitioner’s background

held reasonable in view of petitioner's failure to inform counse

about witnesses who could have provided “powerful mitigating

evidence.”); Tucker v. Kemp, 776 F.2d 1487 (11th Cir. 1985)

(counsel not ineffective for failing to present petitioner's

“turbulent family history” in view of defendant's failure to

provide names of witnesses requested by counsel.)

The Fourth Circuit has established a precedent directly at odds

with this Court's ruling in Strickland. Policy considerations

dictate that if a sentence of death, imposed by a state court and

10

upheld by that state’s court of last resort, is to be overturned by

a federal court, it should not be done merely because of a dis-

agreement with the results, but only upon proper application of

the standards of law established by this Court. Although Sirick-

land establishes general guidelines, lower courts need additional

guidance on the application of its specific principles. Considera-

tion of this issue by this Court is essential.

The decision below, that counsels’ failure to further

investigate and present psychiatric evidence during the

penalty phase of respondent's trial for capital murder

was prejudicial, ignores the Strickland standards for

determining prejudice and conflicts with the decisions

of another Circuit.

Regardless of the merits of Clark’s claim that trial counsel was

unreasonable in failing to investigate psychiatric evidence, the

Fourth Circuit failed to recognize that Clark did not establish

prejudice as a result of counsel’s performance.

The Fourth Circuit found that the respondent established a

reasonable probability that in the absence of counsels’ errors the

outcome of the trial would have been different. This conclusion

evinces the Court’s confusion over the standard for determining

performance and that for determining prejudice. Several

examples of this confusion are apparent.

First, the Fourth Circuit incorrectly found that Strickland

precluded the use of hindsight in assessing not only the per-

formance issue, but the prejudice issue as well. Specifically, it

said, “High deference to professional judgments of counsel

might have carried the day had the psychiatric material been

timely obtained so that the professional decision could have

been made at the critical time, i.e. at the sentencing phase.” (Pet.

App. A-4, n. 1). Hindsight, however, “may not be used to excuse

a lapse in professional performance.” /d. In other words, the

Fourth Circuit concluded that a lapse in counsel’s professional

performance which satisfies the test for unreasonableness auto-

matically satisfies the test for prejudice, and notwithstanding

the fact that the mitigation value of the evidence may be highly

speculative, hindsight may not be used to evaluate it. Such an

anomalous interpretation of Strickland was clearly not intended.

1]

While it is true that Strickland prohibits the use of hindsight

in assessing counsel's performance, 466 U.S. at 689, there is

nothing in Strickland which suggests that hindsight can not be

used in assessing prejudice. To the contrary, the Court in Srrick-

land used such hindsight to determine what impact, if any, the

evidence which trial counsel failed to present would have had on

the outcome of the sentencing proceedings. 466 U.S. at 699-700.

Second, assuming arguendo, that counsels’ failure to seek out

additional psychiatric evidence was professionally unreasonable,

Strickland requires a defendant to show that the unreasonable

errors “actually had an adverse effect on the defense.” 466 U.S.

at 693 (emphasis added). Such a showing here is impossible

because of the undisputed characterization of the psychiatric

evidence as evidence which “highlighted Clark’s status as a

serious threat to society,” (Pet. App. A-4, n. 1), and the Court’s

acknowledgment that had counsel been aware of this evidence,

they would not have used it because it would have provided the

jury with another valid aggravating circumstance to support the

death sentence. (Pet. App. A-4, n. 1).3

In Strickland, the court found no prejudice where the admis-

sion of the omitted evidence “might even have been harmful to

his case: . . .” 466 U.S. at 700. There is at least as much reason

to conclude in this case, as in Strickland, that the presentation

of the evidence which trial counsel failed to present might have

been harmful to Clark’s case.

Further the Court’s decision misapplies Strickland to the

extent it relied on the District Court’s undue emphasis on the fact

that the respondent had only to persuade one of the twelve jurors

to hold out for mitigation. Such unwarranted deference to the

“single juror” aspect of Virginia’s capital murder law is incon-

sistent with Srrick/and’s objective standard that the court is to

“proceed on the assumption that the decision maker is

*Clark’s death sentence was based solely upon the jury's finding that the

circumstances of murder-for-hire were sufficiently “vile.” Clark v. Common-

wealth, 220 Va. 201, 213, 257 S.E.2d 784, 796 (1979), cert. denied, 444 U.S.

1049 (1980).

a

12

reasonably, conscientiously, and impartially applying the stan-

dards that govern the decision,” 466 U.S. at 695. It also repre-

sents an application of the “some conceivable effect” standard

expressly rejected in Strickland. 466 U.S. at 693. As previously

stated, Strickland requires that a defendant establish that

counsel’s performance “actually had an adverse effect on the

defense” to meet his burden of showing that “the decision reached

would reasonably likely have been different absent [counsel's]

errors.” 466 U.S. at 696.

The court’s decision on the prejudice question is also in conflict

with several decisions of the United States Court of Appeals for

the Eleventh Circuit. See Francois v. Wainwright, 763 F.2d 1188

(11th Cir. 1985) (counsel's failure to present evidence of a chaotic

antisocial upbringing not prejudicial); Burger v. Kemp, 753 F.2d

930 (11th Cir. 1985) (counsel’s failure to present evidence of a

split-personality was not prejudicial because such evidence might

have been harmful to the defendant); Hitchcock v. Wainwright,

770 F.2d 1514 (11th Cir. 1985) (counsel’s failure to present

additional mitigating evidence not prejudicial where no

indication that attorney would have used evidence).

Moreover, “when a defendant challenges a death sentence... .,

the question is whether there is a reasonable probability that,

absent the errors, the sentencer—including the appellate court, to

the extent it independently reweighs the evidence—would have

concluded that the balance of aggravating and mitigating cir-

cumstances did not warrant death.” Strickland, 466 U.S. at 695.

The Supreme Court of Virginia, upon a de novo review, rein-

stated the death penalty after balancing the aggravating and

Mitigating circumstances. See Virginia Department of Correc-

tions v. Clark, 227 Va. 525, 318 S.E.2d 399 (1984).

As with the Fourth Circuit's findings on the reasonableness

of counsel's actions, its ruling with respect to the existence of

prejudice also represents an inexplicable erosion of the Strick-

land standards in violation of public policy considerations.

The departure from the accepted standards of Strickland is so

drastic as to require invocation of this Court’s supervisory power.

13

CONCLUSION

For various reasons asserted herein, this Petition for Certiorari

should be granted.

Respectfully submitted,

MARY SUE TERRY

Attorney General of Virginia

*JACQUELINE G. EPPS

Senior Assistant Attorney General

101 North Eighth Street

Richmond, Virginia 23219

804-786-6563

Counsel for Petitioner

*Counsel of Record

\

CERTIFICATE OF SERVICE

I, Jacqueline G. Epps, a member of the bar of this Court,

hereby certify that on this 13th day of October, 1986, three

copies of the Petition for a Writ of Certiorari in the above-

entitled case were maiied, first class postage prepaid, to David J.

Fudala, Esquire, 4010 University Drive, Fairfax, Virginia 22030,

counsel for respondent. | further certify that all the parties

required to be served have been served.

Jacqueline G. Epps

Senior Assistant Attorney General

101 North Eighth Street

Richmond, Virginia 23219

804-786-6563

Counsel for Petitioner

APPENDIX

BI ie A PN nS OPT A DOIN ae EP Ee a EE Se Be

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-660!

James T. Clark, ./r.,

Appellee,

versus

S. L. Townley;

Gerald Baliles,

Appellants.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Albert V. Bryan, Jr., District

Judge. (C/A 84-1271-AM).

Argued: March 3, 1986 Decided: June 5, 1986

Before WINTER, Chief Judge, and MURNAGHAN and

ERVIN, Circuit Judges.

Jacqueline G. Epps, Senior Assistant Attorney General (Mary

Sue Terry, Attorney General of Virginia on brief) for Appellant;

David J. Fudala (Hall, Surovell, Jackson & Colten, P.C. on

brief) for Appellee.

PER CURIAM:

In a Virginia state court proceeding, James T. Clark, Jr. was

found guilty by a jury of willful, deliberate, and premediated

murder for hire. In the separate sentencing hearing, a sentence of

death was meted out.

We concern ourselves here solely with the question, procedural

in nature, relating only to the propriety of the sentencing, guilt

not being open to question. The crime possessed literally no

redeeming features. The question is of no mean constitutional

significance, namely, whether the legal representation afforded

Clark with respect to the sentencing aspect was ineffective as that

term is elucidated in Srrickland v. Washington, 466 U.S. 668

(1984).

Prior to the trial, defense counsel obtained a psychiatric

evaluation by Dr. Ludwig Fink who concluded that Clark was

competent to stand trial. Dr. Fink noted, however, that he had

been “struck [by Clark's] complete lack of emotion [about the

crime} and of any affect . . . With similar detachment [Clark]

Stated that he would try to obtain the death sentence and be

executed rather than be sentenced to life in prison. For a 21 year

old this is quite an unusual statement.” Dr. Fink went on to state

“[wJhile there is no question that he is competent to stand trial

and that he is aware of the gravity of his offense, considering his

attitude | would suggest that he be sent for a more thorough

examination of his mental and emotional condition to a mental

hospital before his trial.”

Clark’s formative years from infancy on provided a litany of

things which were extremely unfortunate. His parents had been

separated at an early age. he suffered a painful episode resulting

in burns over 40% of his body with subsequent “wild” behavior.

Clark’s brother, to whom, inall the world, he alone was attached,

was mysteriously killed. Clark and his brother had lived for some

time on the streets at the early ages of fifteen or sixteen, and had

Sheltered for a time with a prostitute. Clark’s mother had

performed as a prostitute. His custody was shifted back and forth

between his parents and much of his life in early years was passed

in the company of babysitters.

Counsel for Clark did not seek psychiatric testimony for the

purpose of developing mitigating circumstances in an attempt to

avoid imposition of a sentence of death. The route was available

for counsel for Clark to obtain, while seeking evidence of

mitigation, a protective order prohibiting use of psychiatric

reports at the sentencing proceeding unless Clark gave his

consent.

it has been held in Locket v. Ohiv, 438 U.S. 586, 604 (1978)

“that the sentencer in all but the rarest kind of capital case

[should] not be precluded from considering, as a mitigating

factor, any aspect of a defendant's character or record and any of

the circumstances of the offense that the defendant proffers as a

basis for a sentence less than death.” (Emphasis in original).

Following affirmance of Clark's death sentence by the Virginia

Supreme Court, Clark v. Com ronwealth, 220 Va. 201, 257

S_E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980), a petition

for a writ of habeas corpus was filed in state court. There,

extensive testimony concerning Clark’s upbringing and his

familial surroundings, together with evidence of psychiatric

aspects of the matter, was developed. The state court judge who

presided commuted the death sentence to life imprisonment.

Following reversal of that order by the Virginia Supreme Court,

a federal habeas corpus proceeding took place, and Judge Albert

V. Bryan, Jr. granted relief to the extent of modifving the

sentence which the Commonwealth of Virginia might impose,

vacating the death sentence and ordering resentencing in the state

court. He concluded:

Faced with almost certain defeat at the guilt stage of

the proceeding, with the only hope for their client to be

the presentation of some evidence of mitigation at the

sentencing phase, trial counsel's [sic] failure to seek out

psychiatric evidence or at least to pursue further

evidence from lay witnesses, all of whom were

available upon reasonable inquiry, to aid them, was

unreasonable.

Our own examination of the record satisfies us that Judge

Bryan’s conclusion was correct that the Strickland standards as

to inadequacy of performance and likelihood of prejudice have

been met, and, therefore, we affirm his decision for the reasons

advanced in his opinion. Clark v. Townley, United States District

Court for the Eastern District of Virginia, Civil Action #84-1271-

AM, June 24, 1985, as amended July 12, 1985. !

AFFIRMED.

- ome

'In doing so, we are not unsympathetic with the plight of counsel for Clark,

faced with a client not cooperative in efforts to mount a defense—a client who

expressed a preference for death rather than a life sentence. They concluded that

the psychiatric evidence developed subsequent to Clark's conviction and

sentencing, in the exercise of their best professional judgment. would not have

been introduced at the sentencing stage of the trial because it highlighted Clark's

Status as a serious threat to society. High deference to professional judgments of

counsel might have carried the day had the psychiatric material been timely

obtained so that the professional decision could have been made at the critical

time, Le., at the sentencing phase. However, just as hindsight is not to be

employed against counsel in such situations, Strickland, 466 U.S. at 688-89, it

may not be used to benefit counsel and excuse a lapse in professional

performance. “[V]iewed as of the time of counsels’ conduct,” under the facts of

the case as Clark's counsel knew them, including the report of Dr. Fink, .

counsel's determination not to use the psychiatric evidence at the sentencing

phase was not the only reasonable one. /d. at 690.

A-5 APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

JAMES T. CLARK,

Petitioner,

7. CIVIL ACTION NO. 84-1271-AM

S. L. TOWNLEY, et al.,

Respondents.

ORDER

For the reasons set forth in the Memorandum Opinion this day

filed, itis ORDERED that:

1. The petition for habeas corpus, to the extent it challenges

the legality of the sentencing procedure pursuant to which the

petitioner was sentenced to death on November 21, 1978 by the

Circuit Court of Fairfax County, Virginia, in accordance with

the August 29, 1978 verdict of the jury, is granted.

2. The said sentence of death is vacated.

3. The petitioner shall be resentenced in the Circuit Court of

Fairfax, Virginia, within a reasonable time, either by a judge of

that court of a jury impaneled pursuant to Va. Code § 19.2-

264.3C.

s/ G.V. B.

United States District Judge

Alexandria, Virginia

June 24th, 1985

A-6

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

JAMES T. CLARK,

Petitioner,

V. CIVIL ACTION NO. 84-1271-AM

S. L. TOWNLEY, et al.,

Respondents.

MEMORANDUM OPINION

This action involves a petition for habeas corpus filed pursuant

to 28 U.S.C. § 2254 by a Virginia prisoner who has been

sentenced to death for capital murder under Va. Code § 18.2-

31(b).!

The prior proceedings which bring the matter to this court are

these:

1. On July 17, 1978 the petitioner was indicted by a grand jury

of the Circuit Court of Fairfax County, Virginia, in a two count

indictment charging that on January 31, 1978 he feloniously for

hire murdered one George Scarborough (Count I) in violation of

§ 18.2-31, and that on the same date he displayed a firearm ina

threatening manner while committing the murder, in violation of

§ 18.2-531 (Count I1).2

'§ 18.2-31, Code of Virginia reads:

? Count II was not submitted to the jury.

2. On August 29, 1978, after a one day trial a jury found the

petitioner guilty as charged in Count I. In a separate penalty

proceeding held the same day pursuant to § 19.2-264 the jury

found that the petitioner's conduct was “outrageously or

wantonly vile, horrible or inhumane in that it involved depravity

of mind or aggravating circumstances” and fixed his punishment

at death.

3. On November 21, 1978, after a sentencing hearing pursuant

to § 19.2-264.5, the trial court imposed the death penalty.

4. That sentence was affirmed on direct appeal to the Virginia

Supreme Court. Clark v. Commonwealth, 219 Va. 237, 257

S.E.2d 784 (1979), and the Supreme Court of the United States

denied certiorari, 444 U.S. 1049 (1980).

5. OnSeptember 24, 1980 petitioner filed a petition for habeas

relief in the state court of his conviction. While a number of

grounds were asserted in support of his challenge to the legality of

his conviction and sentence, an evidentiary hearing held on April

21 and 22, 1982 was limited to the claim that trial counsel did not

afford petitioner reasonably effective representation at the

sentencing stage of the trial. All other claims were reserved by the

trial court. *

6. On September |, 1982 the trial court issued an opinion

finding that trial counsel's performance at the sentencing stage

fell below the range of competence demanded of attorneys in

criminal cases (Habeas Record 141). Specifically he found that,

although on notice that there “existed in Petitioner's case

psychiatric issues and aspects of his background worthy of

exploration as evidence in mitigation . . . [t}rial counsel failed to

adequately and properly investigate, develop, consider and

present lay and psychiatric evidence in mitigation of the death

penalty.” Although not addressing by name the question of

prejudice, the trial court further found that “[a]n adequate

investigation by trial counsel would have revealed mental

abnormality and background and familial circumstances entitled

to be given independent mitigating weight in sentencing” (id.

152). He concluded that the appropriate relief was to commute

the sentence to life (id. 153), and at a resentencing on September

10, 1982, the court imposed a life sentence.

‘See the discussion of respondents’ assertion that these other claims were

abandoned, post at p. 6.

7. The Commonwealth of Virginia appealed this decision to

the Virginia Supreme Court. On June 15, 1984 that court

reversed the judgment of the trial court, concluding that

petitioner had received effective assistance of counsel during the

penalty stage of his trial asto both the performance and prejudice

components of the inquiry.4 The trial court was directed to fix a

date for petitioner's execution. Virginia Dept. of Corrections v.

Clark, Va. ....., 318 S.E.2d 399 (1984). A Petition for

Rehearing, (Respondent's Ex. 1) requesting that the matter be

remanded to the Circuit Court to consider the other grounds

which formed the basis of petitioner's challenge and which had

not been considered by the trial court, was denied on September

7, 1984.

8. On December 17, 1984 this action was filed, the state trial

court in the meantime having issued a stay of execution until

February 14, 1985, conditioned on the filing of the instant action.

9. On February I1, 1985 this court entered a consent order

staying execution of the death sentence during the pendency of

the proceedings in this court and any appeal to the United States

Court of Appeals for the Fourth Circuit.

10. On June 7, 1985 this court heard argument on the pending

motions in the case. While petitioner asserts in his brief that an

evidentiary hearing in this court is required, no showing has been

made of any additional evidence necessary to resolve the issues

before the court, and the court finds the present record adequate

without a further hearing, evidentiary or otherwise. The motions

presented on June 7, 1985 were a Motion to Strike and a Motion

to Dismiss, both filed by the respondents.

The Motion to Strike addresses an affidavit filed by the state

sentencing judge in which he states, among other things, that had

the evidence which was presented to him at the habeas hearing

been presented at the sentencing hearing to him or to the jury, “it

* By the time the state habeas proceeding reached the appellate level, the case

of Strickland v. Washington, 52 U.S.L.W. 4565 (May 14, 1984), has been

handed down by the Supreme Court. The Virginia Supreme Court relied on it in

discussing the necessity of proof of prejudice before ineffectiveness could be

established. The trial court had not discussed that issue; however rather than

remanding the action to the trial court for such a determination. the Virginia

Supreme Court decided it.

Are oe aaah ABH Tey

—_—w~

would have been given very serious consideration and weight in

my decision of whether to impose the jury sentence of death.” The

Motion to Strike this affidavit is based on the ground that

evidence of the trial judge’s “probable response to the evidence

adduced at the habeas hearing” is inadmissible. Washington v.

Strickland, 693 F.2d 1243, 1263 (Sth Cir. 1982).

The Motion to Dismiss addresses the merits of the habeas

corpus petition. Because it entails consideration of matters

outside the pleadings the motion will be treated as one for

summary judgment. Counsel were so advised at oral argument,

and in his response to the motion petitioner has also discussed

matters outside pleadings, specifically, the record of the

proceedings in the state courts.

Following oral argument decision was reserved to allow the

court to consider the transcripts and record in the state court

proceedings. That has now been accomplished.

MOTION TO STRIKE

The affidavit of the state judge is very relevant, in the court’s

view, to the petitioner's claim of prejudice. Whether there is

prejudice depends upon “whether there is reasonable probability

that, absent the errors [of counsel], the sentencer .. . would have

concluded that the balance of aggravating and mitigating cir-

cumstances did not warrant death.” Strickland v. Washington,

52 U.S.L.W. 4565 at 4572 (May 14, 1984). That same case defines

reasonable probability as being a probability sufficient to

undermine confidence in the outcome. The affidavit of the judge

does not go so far as to say that he would probably not have

imposed the death penalty had the mitigating evidence been

presented. He says only that it would have been given very serious

weight and consideration by him in his decision whether to

impose the death penalty. Nevertheless the statement is sufficient

to undermine this court’s confidence in the outcome, that

outcome being of course the decision to impose the jury sentence

of death.

At the circuit court level, the question is Strickland was the

admissibility of a state trial judge’s testimony, to support the

State’s position, that the new proffered mitigating evidence would

not have altered his decision to impose the death penalty and that

consequently there was no prejudice. Here of course the testimo-

ny is offered to establish prejudice. The statement of the Supreme

Court in Strickland that “evidence about the actual process of

decision, if not a part of the record of the proceeding under

review ..., Should not be considered in the prejudice determina-

tion” must be considered in light of the circuit court decision.

The court cannot, from the opinions of those courts, find any

support for the proposition that such testimony should be ad-

missible for the purpose of establishing prejudice, but

inadmissible for the purpose of showing an absence of prejudice.

Consequently the court concludes that the affidavit, and any

testimony, of the state judge, are inadmissible. The Motion to

Strike will be sustained.

MOTION TO DISMISS

The respondents assert that, while the petition alleges many

bases for its challenge to the state court judgment, many of them

have been abandoned. The record is not entirely clear whether on

April 21 and 22, at the habeas evidentiary hearing, the issues

other than ineffective representation of counsel were reserved.

Certainly no other issues were the subject of that hearing. The

statement of counsel for the state at pp. 41-42 of the transcript of

that hearing that “we're only here to evaluate the claims in

paragraphs 24 and 25 [the ineffectiveness claims] of Mr. Clark’s

original petition” is not dispositive of the status of the other

claims; however it is apparent that counsel for petitioner felt the

other claims were reserved, and specifically purported to reserve

those issues in his Memorandum of Points and Authorities, p. 1,

filed with the state court on April 20, 1983.

When petitioner prevailed on the ineffectiveness issue and the

trial court commuted the sentence to life, the state immediately

appealed. The trial court at the habeas hearing apparently felt

there were unresolved issues in the case after his September |,

1982 letter opinion. In that opinion the court, at page 4, had this

to say:

A-11

Mr. Clark’s Petition consists of 24 pages and 35

numbered paragraphs. Many of the issues raised in the

Petition have been previously addressed by this Court

or an appellate court. Other issues appear to be

without merit; however, argument by counsel may

prove otherwise.

This statement was consistent with the court’s statement at page

292 of the transcript of the April 22, 1982 hearing in discussing

the other issues that “there will be strictly legal issues and I'll

review them in an oral argument setting.”

No cross appeal was taken. § The appeal of course removed the

case from the trial court’s jurisdiction, and there was nothing the

petitioner could cross appeal since there had been no hearing on

any issue except ineffectiveness.

The court concludes that the petitioner has not abandoned his

claims that were not addressed by the trial court or the appeallate

court; however in light of the appeallate court’s refusal, after

being requested to do so, to remand the case to the trial court to

consider those claims, the court also concludes that the petitioner

has exhausted those claims.

In any event, the principal claim addressed by the parties in this

action, and the one counsel concede is the main one, is the claim

of ineffectiveness at the sentencing stage, and the court will

address that claim.

INEFFECTIVE REPRESENTATION

“[BJoth the performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law and fact.”

Strickland, at p. 4573. Consequently the court is not bound by

nor should it give the deference commanded by 28 U.S.C.

§ 2254(d) to a state court conclusion of ineffectiveness, id. at p.

4573. What historically happened is of course a finding of fact to

be accorded that deference. Whether what happened constitutes

ineffectiveness is not.

SExcept for a brief reference to the admissibility of a confession at the guilty

phase, the state petition for habeas was limited to the sentencing phase.

PERFORMANCE

On June 23, 1978, prior to the indictment on July 17, 1978, and

in anticipation of the preliminary hearing, Gary V. Davis was

appointed as counsel for the petitioner. On Davis’ motion.

another attorney, lan M. Rodway, was appointed co-counsel, on

August 23, 1978. In the meantime, a mental examination

pursuant to then Va. Code § 19.2-169, to determine petitioner's

competency to stand trial, had been ordered. An August 7, 1978

report on that examination, from Dr. Ludwig Fink, a

psychiatrist, found Clark competent to stand trial. The report

noted, in addition, that during the doctor’s interview with him he

“remained . . . pleasant, almost too pleasant considering the

seriousness of the alleged crime. What struck me was his

complete lack of emotion and any affect. . . . With similar

detachment he stated he would try to obtain the death sentence

and be executed rather than be sentenced to life in prison. Fora

21 year old this is quite an unusual statement.” The report closed

with the comment that though he was competent to stand trial.

“considering his attitude | would suggest that he be sent for a

more thorough examination of his mental and emotional

condition to a mental hospital before trial.” (Trial Record 13).

In addition to the foregoing, trial counsel were aware of the

following, prior to the August 29, 1978 trial:

1. Clark told Davis that he would agree to testify against

others implicated in the alleged murder for hire in exchange for

the death sentence with no recommendation for life, on condition

that he be put to death by the needle or pills rather than the

electric chair. It was this advice that caused Davis to ask for the

appointment of co-counsel. Davis felt Clark’s request was

unusual to say the least.

2. That Clark showed absolutely no remorse for his crime, nor

any fear or anxiety about possible execution, that his stated

reason for the killing was the money, the excitement and the

thrill.

3. That at an early age Clark’s parents had separated.

an Nee ARIE As Sh od Nba nt 8)

A-13

4. That he had been burned when he was approximately ten

years old, prior to which there had been a number of separations

between his parents, that the burn was painful. and that he had

problems in two different hospitals. Following the burn he “sort

of went wild.”

5. That he had a younger brother, to whom he was very close,

who had been killed. He and his brother lived “on the street” fora

while at age 15-16 and for a while lived with a prostitute.

6. That he had a felony arrest in approximately 1977, and that

there had been a presentence report done in Maryland in

connection with that charge.

J. That he had been shifted back and forth between his

parents several times at an early age, and had spent a lot of time

with babysitters.

8. They may have known that his mother was a prostitute.

9. That if counsel obtained a psychiatric report prior to trial,

it could be obtained under a protective order. i.e., the report

could not be used against him at trial without his consent.

Both trial consent concluded that there was really no defense to

the crime insofar as guilt was concerned, and that their only hope

was some mitigation at the sentencing phase of the trial which

would spare Clark the death sentence.

No further psychiatric examination of petitioner was per-

formed or requested by trial counsel. No attempt was made to use

Dr. Fink as a mitigating witness. No inquiry was made con-

cerning any presentence report by a probation officer in

connection with the 1977 felony conviction. The only members of

Clark’s family who were interviewed by counsel were Clark’s

father, James Clark, Sr., his mother, some of his contemporaries

aud his girl friend. * No neighbors or former teachers were con-

tacted. No other members of his family, sister or grandparents,

were interviewed.

At the sentencing phase two witnesses were called for the

defense, Clark’s mother and father. Their testimony covers eight

pages of the transcript. The burn was mentioned, although not |

6 No claim is made that the failure to call the contemporaries or the girl friend

ineffectiveness.

A-14

the painfulness (screaming) or circumstances (stench and maggot

infestation) of the hospitalization for it. The father testified with

very little elaboration that after the burn Clark became a be-

havioral problem. The separation between his parents and his

being raised by his grandmother was brought out. The mother

testified that he was burned, but that no change was noticeable in

him after the burn. Not brought out was any evidence concerning

Clark’s younger brother having been killed. The jury deliberated

approximately 40 minutes before announcing its decision im-

posing the death sentence.

As is required by the Virginia statute, § 19.2-264.5,'a further

hearing is held after an investigation by a probation officer before

the death sentence is imposed. At this hearing the accused has the

right to present any additional facts he desires bearing upon the

matter. For good cause the trial judge may set aside the death

sentence of the jury and impose life imprisonment. In this case, at

the instance of the trial judge, a report was prepared after a

psychiatric examination by Dr. William S. Atherton, for use at

the final hearing (Trial Record 72). The report was dated

November 20, 1978, and trial counsel were advised of this report

prior to the November 21, 1978 final sentencing hearing. The

report diagnoses the accused as “301.7—Personality Disorder;

Antisocial Personality.” At that hearing the probation officer

testified and was cross-examined by trial counsel. No psychiatric

evidence was offered other than the report of Dr. Atherton. Trial

counsel again called Clark’s father and mother, who again

discussed the burn in more detail, and, this time, discussed the

killing of Clark’s younger brother. Clark himself testified at this

hearing. He discussed his burn, his use of drugs, living on the

street, living with a prostitute, his arrest and escape in Maryland,

the death of his brother and the arrangements for and details of

the killing. Following this counsel presented closing argument

and the court imposed the death sentence.

The court concludes that faced with almost certain defeat at

the guilt stage of the proceeding, with the only hope for their

client to be the presentation of some evidence of mitigation at the

sentencing phase, trial consel’s failure to seek out psychiatric

evidence or at least to pursue further evidence from lay witnesses,

all of whom were available upon reasonable inquiry, to aid them,

A-15

was unreasonable. Here counsel were aware of a number of

factors, enumerated above, the cumulative effect of which, if not

singly, surely indicated at the very /east, an inquiry by a trained

psychiatrist and further lay inquiry. This failure denied the

petitioner reasonably effective assistance, and counsel's per-

formance in this regard fell below the range of competence

demanded of lawyers in criminal cases. McMann vy. Richardson,

397 U.S. 759, 771 (1970).

The failure to pursue the psychiatric inquiry which was so

obviously called for cannot be defended as a tactical decision, at

least for the performance component of the ineffectiveness

inquiry. Counsel were not armed with the wherewithal to make a

tactical decision without further psychiatric information and lay

testimony. The psychiatric information might not have proved

useful. It might have proved harmful. But it could have been

obtained under a protective order and it would have allowed

counsel to make an informed tactical decision.

PREJUDICE

The prejudice component of the ineffectiveness inquiry 1s

more difficult. At the state habeas hearing further lay evideice,

from witnesses whom a reasonably competent attorney would

expect to have had information concerning Clark’s past, and

results of psychiatric and psychological examinations revealed

the following:

1. In much more detail the list of tragedies in Clark’s life as a

youngster, beginning with his parents’ separation, living with

first one parent, then another, then a grandparent; the squalid

condition under which he was kept (or neglected) by babysitters;

his exposure to his mother’s prostitution and lesbian affair, the

painfulness and horror of his burn over 40% of his body and how

that affected him, both in his embarrassment at his appearance

and his work at school; the closeness between him and his brother

and how the killing of his brother affected him; the mother’s

attempted suicide and being found by Clark and his brother; and

his use of drugs and living on the street and with prostitutes.

2. Evidence from a psychologist and psychiatrist (Follansbee

and Saunders, PX | and 2, habeas hearing), that factors

enumerated in paragraph | as well as the results of in-depth

interviews with Clark, disclosed that he should be regarded as a

psychologically and morally defective and disabled person. He

has never developed a conscience and is in essence completely

amoral.

There is no way of knowing with certainty whether, had the

foregoing been presented to the factfinder, be it jury or judge,

the sentencer would have concluded that they were sufficiently

mitigating to warrant life as opposed to death. The law, however,

does not require such certainty. It only requires a reasonable

probability, which is defined as“a probability sufficient to under-

mine confidence in the outcome.” Strickland, supra at p. 4572.

When it is remembered that the petitioner only had to persuade

one of the twelve jurors to hold out for mitigation’ the court

concludes that its confidence in the outcome of the sentencing

phase is undermined by the revelation of the evidence which, but

for the attorney errors, would have been presented to the jury. *

Respondents argue, however, that had the psychiatric and

psychological evidence been adduced it would have opened the

door for the Commonwealth to argue future dangerousness as

warranting imposition of the death penalty. Section 19.2-264.4C

does permit imposition of death if the Commonwealth proves

that “there is a probability based upon evidence of the prior

history of the defendant or of the circumstances surrounding the

commission of the offense of which he is accused that he would

commit criminal acts of violence that would constitute a

continuing threat to society. . . .” This issue was not submitted

to the jury as a basis for imposition of the death penalty, but

respondents say that if the Saunders and Follansbee reports or

’ Under § 19.2-264.4E, in the event the jury cannot agree as to the penalty, the

jury is to be discharged and a life sentence imposed.

* There is no showing that the evidence adduced at the habeas hearing was not

available or could not have been developed at the trial had trial counsel

undertaken to investigate and develop it.

A-17

evidence had been presented to the jury, the Commonwealth

would have been justified in requesting such a submission. Even

if such a theory was submitted of course there is no assurance that

the jury would have accepted it; and when it is remembered that

only one juror need be persuaded and that the guilt phase of the

case was viewed as hopeless, competent counsel mighi well have

felt that they really had to take the chance that the ameliorating

aspect of the evidence would outweigh the adverse aspect.

Certainly the additional lay testimony would not have indicated

dangerousness and may well have excited sympathy.

Moreover, a close examination of the two expert witnesses’

testimony casts some doubt on whether they both are saying

there was a probability of a contining serious threat to society. It

is true that Saunders, the psychologist, said, at page 262 of the

transcript of the April 21, 1982 hearing, that Clark was an

extremely dangerous individual who would not refrain from

illegal behavior, and would carry out another killing if offered

money to do it. Follansbee, the psychiatrist, on the other hand,

was careful to limit his opinion to Clark’s being dangerous in

1978. and disclaimed any ability to predict with any certainty his

behavior in the future (April 21, 1982 hearing, pp. 302-308).

Counsel need not have called Saunders.

Even with this testimony from Saunders and Follansbee, and a

recognition that the finding of amorality would itself be a factor

supporting a finding of a continuing threat to society, the court is

still persuaded that there is a reasonable probability that had the

sentencer heard this evidence, at least one juror and perhaps all,

as well as the trial judge, would have concluded that, balancing

the aggravating factors, of which there were many, and

mitigating factors, of which there was a significant number, the

death penalty was not warranted.

Accordingly the court concludes that petitioner was not

afforded effective representation at the sentencing stage of his

August 29, 1978 trial; the sentence of death imposed on Novem-

ber 21, 1978 in accordance with the August 29, 1978 verdict of the

jury will be vacated; and it will be ordered that the petitioner shall

be resentenced by either the judge of the Circuit Court of Fairfax

County or a jury pursuant to Va. Code § 19.2-264.3C

A-18

The petitioner has raised other issues. The court has con-

sidered them, particularly the so-called Witherspoon problem

with an excluded juror. Witherspoon v. Illinois, 391 U.S. 510

(1968). None warrant any further discussion than was given most

of them on direct appeal to the Virginia Supreme Court from the

original trial. Clark v. Commonwealth, supra. The court rejects

those considered by that court for the same reasons. As to the

others, the court finds them to be without merit as not of con-

stitutional dimension.

5

United States District Judge

Alexandria, Virginia

June 24th, 1985

APPENDIX C

A-19

IN THE UNITED STATES DISTICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

JAMES T. CLARK,

Petitioner.

CIVIL ACTION NO. 84-1271-AM

S. L. TOWNLEY, et. al,

Respondents.

AMENDED ORDER

Deeming it proper so to do, it is hereby ORDERED that the

Order of June 24, 1985 is amended to read as follows:

For the reasons set forth in the Memorandum Opinion this

day filed, it is ORDERED that:

!. The petition for habeas corpus, to the extent it challenges

the legality of the sentencing procedure pursuant to which the

petitioner was sentenced to death on November 21, 1978 by the

Circuit Court of Fairfax County, Virginia, in accordance with

the August 29, 1978 verdict of the jury, is granted.

2. The said sentence of death is vacated.

3. The petitioner shall be resentenced in the Circuit Court

of Fairfax, Virginia, withina reasonable time, either by a judge of

that court or a jury impaneled pursuant to Va. Code § 19.2-

264.3C, to the extent that the said Circuit Court of Fairfax

County, Virginia determines that said code section is applicable.

/s/ G.V.B.

United States District Judge

Alexandria, Virginia filed Clerk, U.S. District Court,

July 12th, 1985 Alexandria, Virginia

APPENDIX D

A-20

Filed July 17 1986

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-6601

James T. Clark, Jr.,

Appellee,

versus

S. L. Townley;

Gerald Baliles,

Appellants.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Albert V. Bryan, Jr., District

Judge

The appellants’ petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no member

of the Court requested a poll on the suggestion for rehearing in

banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and sug-

gestion for rehearing in banc are denied.

Entered at the direction of Judge Murnaghan, with the concur-

rence of Chief Judge Winter and Judge Ervin.

For the Court,

s JOHN M.GREACEN

CLERK