# Petition for Writ of Certiorari — Townley v. Clark

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 1007

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2205%3A1. Public record. Not legal advice.