Appendix — Darden v. Wainwright

Supreme Court brief1986

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15)

'N THE s ‘ UNITED SI tn SEP 13

CTOBER TERM, 1984 OFFICE OF THE CLERK

PREME COURT, US

UNITED STATES DISTRICT Court.

r4 .

MIDDLE DISTRICT OF FLORIDA : .

TAMPA DIVISION |

UNITED STATES OF AMERICA rew-4 - .

ex cel. WILLIE JASPER DARDER, ~

Petiticeer

oe 'G-* we. 99-566 Civ. t.-8

LOUIE L. WAINWRICHT, Secretery,

Divietios ef Cerrectioss, Stete

of Ploriés, . ’ ,

Respoodent ‘

' basa ‘

he ‘ete4 et ¢>

REPORT AND & Lala ATION

a .

A etete prisoner, Willie Jeeper Derden, wader seatence

of death for surder briege this bebece corpus ectics attacking

hie conviction ead hie sestesce oo sueereus groweds. After coa-

» * -

sideration of the state court secorée® sod the evidence edduced

et ec evideatiary bearjen,” end the extensive eescresde filed by

J .

the perties, I bewe coucluded thet twe of petitioner's cleise

eerit hebese corpus relief. After careful.coaesideretion ef the

reeetaiog twenty-four cleies, 1 fiad thet they are without coo-

etitetiose) ecritt.”

' thw OB Lerae :

backcnou¥e ~ ee Le 2

Oe the evectog of Septeudber §, 1973, Here. Beles Terses

wee slows ia ber fureitere stere leceted is Letelend, Pleride.

Sewetios betweee 5:00 p.e. eed 6:00 9.2. oe tedividuel cease to

the etere ead seked te leek «ef cose . fureitere ead furniehiages.

After leekieg et « few items, the tedividvel ,left,.iedicetiag

thet bie wife would be ia te-the storecn Sometime deter, the sane

tadividuel retursed te the etere, thie-tise ccthes te leek et

reegee sed eteovee. While Here. Terese eae out the price

te ©. @q4 1a Sus th *h «€ @

Reference te the triel treeeeript shell: be Seetgeeted »

bereiar T+.

eu «© 4@ OhE1*1 tr e-*

. Referesce te the evidestiary bearing shell be designated

hereiat 8. a

De te, te? @ a8

Ie light of the eltieaets cecoeseedetion thet hebese corpee

relie!l be greeted, the tweety-feer seritiess cletiee will

be ‘reeted ta suemery feehios is thie report.

090001

of the itees, the tedividwel pulled « gue eod deweoded the

contests of the caeh regieter. tt wee et thie peiet thet

“ee. Tereee’s besbead, Cori, esexpectediy welkted tete ise

store. The sesstlest reepeaded te thie ieterrupticosn by sheotiog

Cecl Terese betwees the epee et cleee reege. The bedy érepped

ie the édeorwery, belfwey ta the stere eed belf out.

With Me. Terese ipteg ée0d of é7iag of the fleer,

the eeestiont erdered Here. Terece te get éewe o@ the fleer.

thee demeeded thet ebe reeeve ber felce teeth eed perfere ore:

sex oo bis. Whee she preteeted, be erdered ber te steed of, ene

begee welkiag ber te the froat ef the etere. A teenaged seis

ser ond perttioe eapleyee of the Tereeee, Phillie areeld, ber iss

heard the comecetiosn errived ot the etere et thie tise. et reei-

ieteg whet wee geteg of, Phillip etteepted te cove He. Tereee *

beds ell the wey tete the sbep. as the teenager beet over the

body. the eeeetilest sbhet bis ts the south. se the youts etteeeted

co flee, be wee ebot is the seck ead thee ie the side.

& short tiee leter, seee three stiles free the site ef

the seréder, seeeelt sad rebbery, petitiower Willie Jeeper Derdee,

whe wee oo ferleegh free the Divietes ef Cerrectices, ieset coe-

crol of the berrewed suteeebile be bet bees érivieg, eo¢ seeehed

fete « telepbeee pele. Petitieser left the ecene sad retureee

te Teepe where be epeet the sight. Se wee teitielly erreetee

eed cherged with leevrieg the scene ef oe eeccideet. Sees thereetter,

he wee errested ced charged with cerdéer, eecoeult.with tetest te

coueit seréer, ereed robbery, -eod eeoeelt with iatest te commit

cope. The greed jery retersed tadictecete chergieg firet éegree

euerdet, febbery end ceeeelt with tetest te ecoeeit seréer ta the

ficet é@egree. 40 ell tieee petitieaer bee setetetoed thet Se wee

eet preeeet ot the Terece’s etere eed te ieecceet of the cherere

Bech before eed during triel, petitiower eee identitic«

os the eecetleet by BSelee Terese sod PHILLip Arecié, epe-witeree

eletios ef the crietes! epicede. The triel jery feeed pet itterer

geilty ef euréer te the ficet éegree, seeeelt with teteec te O00" 2

>. -

commit surder ion the firet degree, ard robberyi: after the

second phase of the bifurcated trial, the jury recommended the

imposition of the death peselty..cAfter enumeratiag its findiogs

of aggravating end sitigating circumsetances,;the trisel court

sentenced petitioner to death by electrocution. .

POST-TRIAL BISTORY OF THE CASE

Petitioner took « direct sppeal of hie conviction to

the Supreme Court of Floride. 0a Februery 18, 1976, the court

‘

aflirmed the judgments and sentences... Darden +. State, 329

So.2d 287 (Fae. 1976). The Supreme Court of the United States

gtented petitioner's writ for certibreri’ on Sovesber 1,' 1976, "

Dearden v. Florids, 429 US 1036 (1977)' oa the” sole iseuve of ** >

whether the prosecution's sussatica te the‘jury is the circus-

steaces of this case deprived” petitioner of due process of law, |

aod thereafter diseipoed the writ as" isprovideotiy granted on

April 19, 1977. Derden v. Plorida,*430 08' 704 (1977): ‘?

——

Petitioner's sentence was the subject of « clemency

hearing on March 30, 1978," and ageinton May 8, 1979. Petitioner

filed « lewewit is the Second-Judiciel Cirewit, in ead for Leon

County, Flerida, Derden vy. Grabem, et @1,'case no. 79-1193,

seeking injunctive and declaratory relief with regards to the

result of the clemency proceeding. *-Pursuent te Defendant's

Motion to Diemiee, the Compleiat was dissiesed with prejudice on

Mey 16, 1979. The Gowermor thea signed Petitioner's death ~*

wertest op May 18, 1979, ead om Mey. 21,°1979,; the Supreme Court

of Floride affirmed the trisl-ceurt!s dissiseal pt May 16.. Derdes ...-

;

vy. Grahes, case oo. 56,877.

Petitioner thes filed two actions: + (1) che habeas

corpus petitios which is the subject of the ieqcbac caee, and

(2) «# Motios te Vecete, pursuaect'te Fie. BR. Cris. PF. 3.850, and

e Motios for Hew Trisl, purswuent te Fle.’ BR: Cris. P. 3.600 (filed

in the originel action in this cause,’ State of Florids +. Darden,

case oo. 73-2027-C). A bearing wee held of both sotions os 00003

Mey 21, 1979. A mottos toe secure the presence of Dearden et the

hearing wee denied end a1] sotions om the serite, iacluding «

f motion for stay of execution, were denied. (Court Exhibit to.?!

Oa Mey 22, 1979, the Supreme Court of Plorida ffirmed the order

of the triel judge and denied yet another application for stay

of execution. Darden vy. State, case no. $6,910)

j In bie initial Petition for Writ of Habess Corpus,

filed with thie Court, petitioner slleged two grounds:

(1) The prosecutor's closing argument was so funds-

mentally prejudicial and wafeair that it deprived hia of due

i process of law;

(2) The pre-trial ideatification of him by the vwictia's

wife was so impermissibly suggestive that’ ite admission inte,

evidence deprived hie of due process of law. (Thie cleia wees

withdrawea and sbendoned. Pretrial Stipulation Paragraph 3 b)

Based upos « review of the petition and the sateriais

attached, this. Court found thet petitioner's conetitutionel

aesertions “were not facially frivilows in any sense, but indeed

" end stayed petitioner's execution.

present substantial claine,

By seane of interrogatories propounded to petitioner

on July 3, 1979, respondent wae able'to secertain that petitioner

wes slso slleging the following constitutional claias in support

of his petition for habese corpus relief: ’

l. The execution of the petitioner's death sentence

would wielate the Eighth ead Fourteenth Aseandwents of the

Constitution of the United States Because sthat sentence wee ia-

posed pursuent-to «a pattern of arbitrary and capricious capite!l

sentencing; ‘4 ‘ we. % sn Tare new a t's

2. Petitioner's execution would constitute excessive

puciehwest in vielstion of the Eighth Amendwent sod « deprivetios

of life without due process of law under the Fourteenth Asendsent

because the juetifications seserted to support the death penalty

eres fectuelly ineufficiest to warrent the invesion of the funde-

sentel right to life;

* jarie

00004

3. The death sentence imposed upon the petitioner con-

stitutes « cruel e0d unuevel pusisheent forbidéen by the Eighth

Amendment in thet it cometitutes the unnecessary infliction of

ne Alle te ttn, iil, ls

physical end peychological pein and torse.t;

4. Peti tr hes been sentenced to die in violation

of the Equal reveals cleuee of the Fourteenth Agendsent

because hie death sentence wae sapeced pureusect to «a pattern and

practice of raciel digcrimination in capital sentencing;

5. Pett be hee been sentenced to die in violations

of the Equal Protection Clause of the Fourteenth Asendsent

becauee his death sentence wee imposed pursuant to a pattern

aod practice of diecrimgisation against poor persone ina capital

sentencing; ‘+tsiteanm. ag se ' .

6. Petitioner hee been sentenced te die in violetion

of the Equal Protection Clause. of the Fourteenth Amendment **

because bie death sentence was imposed pursuant to « patters and

practice of inflicting capitel punishment upon wssele offenders,

aod eparing similarly situated female offenders, on the sole

ground of their _ we sexes; ality rere. me FP

?. The death sentence imposed wpon the petitioner coa-

etitutes cruel and vousvel puotehment+forbidden by the Eighth

Awendwent because, considering #11 of (the relevent circumstances

of the offense and the offender, it |is groesly disproportionste

aod excessive;

8. The dal, sentence isposed upon the Petitioner is

inappropriate, improper end illegel because considering «11 of

the relevant circumstances of the offenee-rend the offender and +

the sentence iapos fo comperable-cases :it-ise disproportionate;

excessive and vowarrented; ie Brat, ei yg 9°

9. Petitioner's death sentence wah imposed in violation .

of the Due Process sod Equal Pretection Clauses of the Fourteenth

Awendweent because be wae sentenced to die following « trial at

which be wee denied, solely because of his poperty, a feir oppor-

tunity to prepare end present evidence se a the death sentence

should not be isposed. For the same reason the seatencing jury

wae deprived of evidence indispensable to the rational detersina-

tion of penalty, end the death penalty imposed on the petitioner OO0005

ie eccordiogly «,crvel aed unuevel punieshwent forbidden by the

* +

Eighth Amendwent; ' a

7 “+ * ; 4 ' 7) :

s ) > ~ Jit gal 4

ee ere ae > Ln :

’ ‘ . .

; >

@ ” bd ~

" .

10. Petitioner's deeth ccoteece deprives his of life

without due process of law ia violation of the Fourteenth Amendaent

because it wee imposed by procedures thet were fuadeseantally unfeir

in thet petitioner was not givea adequate sotice end a0 opportunity

to present evidence and argument eddressed to the epecific taesues

thec the sentencing suthority coneidered detersinetive of the

question of life or death; ig-- ’

ll. The execution of the petitioner's death sentence

will deprive hie of life without due process,of law, end will de-

prive him of the equel protection of the :-lews, in violation of

the Fourteenth Amendment, because thet sentence wae reviewed and

effirmed by the [Floride] Supreme Court. pureuant to proceduces

that (A) were fundewentally wafsir, in thet the petitioner wee

denied sotice end en oppertuaity to be heard regarding the

“similar cases” thet the [Florida] Supreme Court compared with his

ae the basis for ike “proportionelity review,” ead (8) denied

the petitioner on the sole gtouad of hie tadigeacy, aeccese to

facts regarding “similar. cases". which: a) death-sentecced defendant

with adequate means could heve presented to the [Floridse) Supreme

Court ae the grounds fer reduciag| his, sentence froe death to

life iaprisonsent; ’ hee "whl bedceelieiar tte

12. Petitioner's $000b| condense: écectece him of life

without due process ~~ inj violetion, of. the Fourteenth Amendment

because it was imposed by procedures that were-fundsesentally vo- -

fair in thet the petitioner: wes denied timely-setice of, sod «j

feir opportunity to prepare torseet cprejudicial. evidence thet

wee presested at bis penalty triad, oni é

13. Petitioner’s:death,sentence-deprives. bin of life

without due process of lew is wieletioa of the Fourteenth Asend-

went because it was teposed by procedures thet pereitted « sent-

ence of death to be rendered based epon facts thet were sot estabd-

lished beyene « ressonable Goubes es uy ye

14, Petitioner's death sentence is « cruel end unusual

punishment forbidden by the Eighth Amendwent, ead wae imposed io

j v. awe ; '

OO006

ee OR RS, Bete) -t \

e &* ° Ps , 6” .

ae a te |

' ,! : a ae

violation of the Due Process sad Equal Protection Clauses of the

Fourteenth Amendwent beceuse {. wae based upon proceedings ir

which the presecutor wes persitted to urge « death sentence upon

grounds thet were cpvched is daflemestory ergument of the proee-

| cuting attorney aod isproper professional conduct;

1S. Petitioner's death sentence wae imposed and effirmed

in violation of the Siath end Fourteenth Asegdsents because he ves

denied the effective sesistesce of counsel at the pesalty stage of

hie capital prosecutions; ‘ote " j : ‘

s*.

16. Petitioner's conviction end sentence of death de~

prive bim of the equel protection: of the lewe end of hie life

withowt due process of lew, in vielatios of the Fourteenth Ame ad-

i sent, because he was convicted end sentenced to. die following «

triel et which he wee denied, eclely, becavee of his poverty, *

fair opportunity to prepare end present tts defense to the capical

charge ageinet his; "se 9 BT Me s0Rg. 00's tes

1). Petitioner's death sentence wee imposed in violation

of the Fifth, Siath ead Pourteenth Amendments, with the purpose

and effect of penalicing the. exereise .of .cights.secured by those

Amendments, io thet it wae imposed ‘purevent .té,e “pattern and

practice of the prosecuting end judicial eutherities of the County

of Polk, Tenth Judiciel Cireuit of State of Florids to reserve

the sentence of death for capitally-~cherged rdefendantse who refuse

to plead guilty oda thereby to, weive. theirsPilth Amendeent right ..

to triel end choad Sizth secednens-etene~ te, 00808 by jury;

18. Petitioner's céaviction aod death: sentence were >

rendered io viclation ef the Due Process on Protection

Clauses of the Fourteesth Asendeont bececse he was indicted by «

greed jury, end wee convicted end sentenced to die by the recommen~

dation of a petit jury, thet were selected hrough procedures

which syetematicelly excleded recisl sinerities from jury service;

19. Petitioner's death sentence is « cruel ead usvevel

punishweent end deprives bin of, life without due proces of lew

because it wee taposed persevuent tor the recossendation of «a jury

OO0C7

selected through procedures thet eyetesaticeally excluded from jury

ste

service persous heaving conscientious or religious scruples egeiaet

, . .

capital punisheent;

’ > 8ie we ‘

20. Petitioner's desth sentence wes isposeed ia vicle-

tion ef ‘the Sizth Asendeeant pessuse &8 ne ieposed purseuent to the

' ‘

recoesendaetion of « jury from which pereoes heaving conscientious

or religious ecruples against capital pucishment were syetemeti-

cally excluded, with the reeult thet the jury did not conetitute

& tepresentetive cross section of the comeuaityy

21. The execution of the, petitioner's death sentence

would deprive hia of life without due Sa law, ead of the

equal protection of the Lewes, is vielaetiosn of the Fourteenth Agend-

sent, becauee the procedures weed, ia the coneideration and deniel

of hie application te the Office of Snceuttee Clewseacy for comeu-

tation of thet sentence were fundamentally wafeir, irreguler

eod arbitra:y; + ee

22. The execution of the petitioner's death sentence

would deprive bis ef the equel protection of the lewe guaerentecd

by the Fourteenth Asendweent, because the State of Floride vas

denied and denies the petitioner, seiely. ce account of his poverty,

opportunities for commutative relief; against. that sentence which

ere evetlabdle te death-sentenced prisoners who bevwe the financial

“

“sen Oe »*.* ‘- ,* ‘

eeane to afford then;

23. The exzecytica ot the petitioner's: dest seatence

would deprive him of the equal pretection of the laewse-guaeranteed ~~~

by the Fourteenth Asendsesnt because be wee legeiiy incompetent and -

the State of FPleoridse bas denied him, solely on sccount of his

poverty, eppertenities available -te death-seatenced prieonerse who

can afford thee, te show that be wee legelly incowpetent to be

put te death; >. =

Petitioner elee filed o "Seppicecetei Petition for Writ

eof Habeas Corpus, Septeaber 12, 1979, is which be edded « clei

eof toeffective sesietence of esundes.' Thie browght the totel

sueber of the claisase being slleged by petitioner to tweaty-eiz.

Respondent hae raised so objection’ts the inclusion of these addi- OQOOCN

tiowel cleiae, end hee elee weiwed any claim thet petiticover hee

feiled to ezbeuwst state court resedicee se te env cleis preseoted.

Therefore, ell twenty-ei~ claise ere sow properly before this

Court. Sowevwer, ee seted sbove, the cleisa relatiog to pre-triel

identification bese bees withdraws, lseving tweoty-five clsiaes

for further cousiderations. j

INFLAMMATORY ARGUMENT OF TEE PROSECUTING ATTORNET

AND IMPROPER PROFESSIONAL CONDUCT.

Ia senv weys the prosecutor, dy eceidéot or by

design, sey itaproperly eubwert the triel. The

priwery sefeguerd egeicet sbhuses of this tiad

is the ethicel reepossibility of the prosecutor,

whe, ee so often bee been ecid, sey ‘etrike bere

blows’ but set ‘foul eses.* Berger vy. Usited

Scetes, 295 0.8. 78, 88 (1935); Brady v. Maryiend,

373 U.S. 83, 87-88 (1963). “If thet seateguerd taiis,

review reeeiae aveileble wader due process standages.

United Stetes ¢. Ash, , 413 U.8...300 (1973), 32°.

Petitioner couateads chee ressrke sede by the aeeletent

state attorneys during closing erguments were .co prejudiciel to

bie cevsee ee te constitute a denial of wic tight te dwe process,

The sefority episics isa the Plerids Supreme Court decisios,

slthough effireiag petiticoser's conviction end sentence, recog-

siced thet "...the prosecutor's reserke vader oerdisery circue-

etences would couetitute « vielsetics of the Code of Professionsi

Reepoceibilicty...." Dearden ¥. State, 329° $0.24 290 (Ple. 1976).

Respondent's Supplemental Anewer, et pege 12, recites that

"He ome bee ewer even weakly-euggeeted chat BeDeniel's closing

* t a4 ix Se .

reesrks were anything bat improper...." <i): + :

The teproeper statements of the prosecution cea de

pleced ia four general categories: ~., . | e602 . 20

; , 4

° a

qa) etetenents :bputhe, procecetion attenptias te try

petitioner fer “effesses"+of the stete-Divig-; ef- Ceorrectir.s;

(2) etatemente of sbi goessenetes eecking te prejudice

the jurere by tepreperly eppesliag te their emoticons;

(3) eteteseets of the prosecution which ieproperly,

pleced the presecueteors’ persesal socsenetacs ie teever

(4) ether feres of tspreper ergument.

THe 0 ORAL ARCUMENT- ‘

I » +8 ‘ #* : OOGCS

Ae exeeples of etetements Sy the prosecetion stteeptiog

te try petitioeer fer “effenses” of the State Divisios ef

————— i

Corrections, the record diecloees the following excerpts {ros

the prosetuter’s jury erguecst:

ae fer oe © em concerned, there showld be

eeother Deleedest ia thie courttooces...

end thet fe the divietos of corrections, the

prieees. (t. 749)

eee

ae tac ee | ee coocerned.;.thie scies! vee oo

the public fer ese reesos. teceuse the divieieoes

ef corrections tureed bie leese, lets hie out,

lets bie owt oe the public. Cee't we expect bis

te etey ic « prices whee they ge¢ there! Cee't

we expect thes te etey lected up cace ther ge

there! De we keow thet they're geteq te be out

oe the public with gues, érickiog! (Tt. 749)

a oe ho ’

| » 3 - ty, ‘

I wish thet perees of persons respossibie fer

bie os the public wee is the éoervey

ineteed of [the eurder wictie). I prey thet

the perece reepensibie for it would heve bees

ie thet deorwey w0¢ sey other pereoe respoaeibi«e

foe it, I wieh thet be bed bees the one shot is

the south. ft wiem thet be bed beee the one

ebot io the seck, tneteed of [Phillip areold).

Tes, there is encther Defendeat, but I regret

thet I teow of ceo cherges to plece epee bis,

except the public condessstion of thee, cosdees

thes. (Tf. 750-751)

+ bea Oe

Me Terese te de04 becouse thet eotoows fof eod-

ood we don't bewe te the courtrece silewed it.

Se te crimtesliy segligest for sllewteg tt.

(v. 793) , *. «# ; 9;

” ’

Opt? -wiimo'h %.6: 0 He ©

@@e@6 e7* oF

There ie coe perece os trisl, set the Polk

Couwsty Sheriff's Office, set the Billeberough

Sberifft's Office, bet be ead bis keepers, the

Divietos of Corrections, , (T. 764)

ee ,

_#« 7a’ 4 ‘

I ceneet heir bet wish thec the Division ef

Corrections wee sittiog te the <beir with bie~ -

[the édefesdent)s+ Theet pow. “(T, 782) -

The preseceter, wr. HeDeniel,. angege? te * lise ef

argument to. édtew the jury's ettestios te ss ieeuve wholly teee-

tertel te the éeteretestios of! petitiower’s getit er ineccrece,

ae exeeplified by the fellewieg seouscets: “*

Thet’s the oely wey thet I taeew thet be te sot

going te get owt os the public. It's the oely

wey I koow. It's the osly wey I coe be sure of

it. te's the esly wey thet enybedy coe be sure

ef it sew, because the people thet tursed bis

loose--thie een served hie tiee ead tf thie sen

served bie tise oe the Court bese sentence? bis,

is *°

"ete Fuse “@

0001:

thet’'s fiee. If he’s cehebiliteted, fice.

But lec bis ge hewe oo furloughs, weetend

peere«es--net bowe, etrike thet, excuse se--

go cover with bie girl friesd for the weetend,

ge sheet pool ter the weekend, ge sell his

gues, oc gue, fer the weekend, g0 consuee

ériak tea the bere over the deekend. (T. 733-754)

Statements of the presecution seeking to prejudice

the jurors by teproeperiy appesliag te their emotions tecilude

! —

the foellewiag: °

ae ee “A ,

I wieh (Hr. Terese] bed bad « shotgee ia bis

head whee be welked ia the beck door sad biewa

bie fece off. 1 wieh thet I cowld see his

[petitioser) sittieg bere with se fece, blows

ewey by « ebeotgea but be dide’t....1 wish seavone

hed welked io the beck door sod blewsa bis bead off .

et thet potet. (Tf. 758-759)

Mr. MeDeotel reterned to this these whee be described

the five times thet the elleged euréer weapon hed been fired.

He expleioed thet thie left ese bullet is the cheeber. “[Derden!

dida’t get « eheace te wee it. t wieh he hed veed it ee hie-

eelt.” (3. 774) Se wade @ etwiler comseetria describiog

Petitioser’s seutesebile eccident: *)*1 wish be bed beea tilled

ie the eccideat, but be weon't. ageis,-ve ere eelucky thet

tise.” (fT. 775) Pieelly, wetle sdiceetent enh keen thet

Petitioner hed cheeged bie eppeerence between the date of the

etiee eed thet of the triel, Mr.-MeDesiel gretuiteusly cowseated

thet “[c)be ealy thieg be bece't dese thet t teow of te éut tte

theeet.” (7. 779) se e€€itionsl e¢anent 66 ebe veces veils -occure

4 ,

ac T.775, whee the prosecutor +etated:*hod Darden caved one

[ewllec). <Ageta © wtebh be bed eeed-it oo bieselt.”

ae A . }

Tikijas eo

’

The pereceel credibility of, thei preseecutere wee

pleced te teeve tChreegh soueeete seek ee sheees! |

tl e@ coevteced, #6 coevteced «@ tT teow 1 om ;,

steading befere vou today, thet Willie Jeeper

Derder ie © eurderer, thet be surdered Mr. ,

Teresa, thet be rebbed re. Ter@eee sad thet be

ehet te bill PRaillip Areeld. ft will be coeviaced

of thet the treet of oy life. (Tf. 748)

Mr. MeDeniel, the leed couwseel fer the presecution,

repeetediy effered the jury Bie eptetos thet Petitioner wee sor

* S08 werthy of beliet. Sieece Petitioner's defense consieced

00011

largely eof bie owe alibi toetinosy, the prejudice from such

remecke te wenifesc. 5 ei..6 ti

Petitioner testified thet be bed eekted for the lie

detector teet. ta discussiag thet, teptiacsy, Me. MeDeniel

eaid: “I dom't beliewe eaything be says..." (T. 770)

Petitioner testified thet bie slibi wae the truth. Mr. MeDeniel

attacked thie testiaesy ia the fellewiag way: “Well, let ae

tell you somethiog: If I am ever over ia thet cheir over there,

feciog life or death, life taps toccecee or éeeth, I guereotes

you I will ite wattl ey teeth feta’ owes") | (t- 335) ead “The

enly pereoa whe took that etend, Mr. Meloeey eeid oo one took

thet eteod eed lied vader oath, Be wee wrong... One did. Sit-

ting over there with « vellew shirt oo with the stripe dove

the froet et thie tiee.” (7. 7155-756) , Thie wee ee obvious

’ ,t @ wee °

reference to Petitioner. odes vehw tee

Petitioser tecttfied thet be remeabered the preciee

tiees of severel events thet occurred éuriog the dey of the

surder. These setetements were « crucial part of hie teetiaony

for, if true, they eetebliobed thet be could sot heave been ito

the Termes fursiture eters st the time'’of the crime. Mr. Dentel's

reer meer “I coulde'’t eves tell you right sow whet dey I put «

witeeses oo the steed thie week.” . (CT. 769)- Petitioner testified

thet tM stepped et «© service stetios efter bie S@utowobile accident,

seeking seeletance-~ Ceetiaony thet. wee soef treed by ewe of the

state's owe witeeeses. Tet Mr. /NeDeetel discounted Derden's

testimony eed seid: “That's whet be seve. I deoa't keow thet be

stepped et soy... 1 guerentee.you be wee. get goieg back to the

scene of the secident wetil be bed gotten bowe.” (7.777~778)

ie edditios te tellieg the jury thet bs theught Petitioner « lier,

Mr. MeDeatel elee suggested ta « thisly veties wey thet be ki ew

of other imetances where Petitiowss hed shor people: “Derdes

dosen't Like people whe seve efter be sheets thee ie the seuth.”

(tT. 761) a.

00012

Gther tepreper feree of ergusees’ vere presented by

the presecution before the jury Me. MeDestiel begee hie ergu~

sent by tellieg the jury ta effect thet it should pey oe ette

tice te the ergueceat of defence counsel thet would follew de

couse ell defense lawyers slweye sede the seve argumeeote:

How [defenee counsel) end lt e@ positive, end ft

seoure you sed I guerenatee you thet [defense

coveeel) will try *he Polk County Sherif t's

Office; be will t.97 the Pelt Cousty Sheritt se

Office; ead he wii try ee. And he will tr

Mr. White I guarentee thet, dbeceuse hee sores

I geve hie eeny yeere eg. (tT. 749) *

we. MeDentel dlecucseed Petitiower’s etetement thet ve would

toke @ lie detector teet if bie attersey vere preeent Mr

MeDeaiel teld the jury! a ie ,

Vell, ealy en tacoupetent lewver would eliew

Decden toe take @ lie detector teet Aad thet

priseeer, with theee coavictieas ea bie receoréd,

keoowe thet (tT. 770)

Me. MeDectel elee sede repeated references te sepects

of Petitiower’s coaduct while os weekend ferlough free prises

chat were entirely wareleted toe the offenses with which he wee

charged (tT. 731,763,766)

. Soe ee

‘. . eS. ‘se

«@ ;

Threugheut the eetire clesinag ergueceats of beth pre:

secution ettereeye, ealp twe ebjectioss were ever reieed oF

Jjefeaee coucaee) The ficet eecurred whee the presecution eve

geeted thet Petitiover'’s girl. friesd, keowtag. thet be vee *

eetetesl. ellewed. bie te .beteg @ gue tete ber heovee while he .

vee oo weekend furlewgh. «(Tf 751).' Be epectiie reliog wee sede

se the ebtection, bet the teesest. vee set etrickes. The second

objection cateed by édefenet couseed wee 48 Teepenee te the proee

cution's comment thet the ealy thieg Petitiover Les set dene te

selter bie eppeetence wee te cut t breet (T.779) Defense

couseel seoted thet te wee the f4fth tiee the presecution hee

comeeated het be wiebed seeeene would have eher Petitieuer, ef

;

cheat Petitieser weueld heve killed bBieeeif. The ceurt everruied

the ebjectios (T 780)

le Derdes vy. Stats, 329 Se.24 267 (Pile. 1976), th

OO0013

—

ooo SP rey hae

we -_ i Zh * Y eet ey. ‘\ ' )

’ +See Py “9

4° %

. “*

s@ +e ’ . ,

Supreme Court ef Pleride considered Petitiover's contentios thet

cemerke sede by the secteteet etete etteorseye during cleetes

ergueents were ee prejudicial te bie sevee oe te require the

grentiog of @ sew eriel. after « thereegh exseisetion se¢ evelu-

eties of the Leaguege betes coepleined of by Petittover, the

Court concluded, bewever, thet whee the “cotelity ef the record”

wes considered, the conerte of the Preeeceter seousted te here~

lees error.

gto hy het , %

t «

te «© leedieg coee o8 the questions of whether © federe!

prosecutor's courtrece eteteeeets vieleted « deteadent’'s tight te

due precese oF coestituted prejudicial error deprivieg bie of *

79 &. Od. 1924 (2995), the Supreee Court of the Ueited

feie trie. 295 of 78, 35 8.t. 62%,

The Waited Stetee-Attoreey le the representetive

set of ee erdiaery perty te © eootreverey, bet ef

s sovereigaty whose ebligetios te gerere tepertiallr

ie e@ coepelling se et @hhy

end wheee tetereet, therefere, te « erietes! preee-

cution te set thet it ebell wie «© ceer,

juetioe ehell be dooce. Ae euch, be te te « pecelier

ood very ye sense the servect ef the lew, the

ewofeld oth of which te thet guile ehell set secer”

et tewccesce cutfer. te wer presecete with eereest

secs ond viget + tedeod, be ebewléd 40 oe. Bet,

while be sey etrite beard biewe, he te set ot liberty

te ettibke fowl eees.. tt te oe euch hie duty te

refreie (ree tepreper eethbodse calculated te preduce

e wreegtul couviction: ee it te te eee every Legitieete

eeone to bring shout. «. just ooe. .Rerase *t **.

The eweb leter cove. of Dosmelir: +. DeChristefers. aie

U.S. O97, 4 8.0, 1068, 40 bv Bes 24 432- (1974), tewelved ©

federel bebese corpee preceeding drowght by &. etete priseeer whe

slileged thet the eteteneete ef the presecuter é¢uritosg bie etete

court teiel vteleted the éve presses cleeee ef the Pouerteeeth

aeoedoest. The Sepreee Court, tedtested. thet the ecore ef cevtew

te euch «© coee would be the serrer ene of éee preceee “eed oor

the breed exerectoe ef evpervieery gover thet tt would poseeee te

regerd to tte ewe trtel court.” Boseeliz ot 642. Te deteretotns

chet Petitioeer bed ehewe fe prejedios seewetivg te © deeiel ef

conetitutionel due preeece, the Court teek sete thet the

00014

" STO EE Fe _—— "

—_————_— TT

chelleeged setaetesentes coectituted ealy « brief serent tn th

? ecoseceteor’s leag ergueest, thet there wee selther the iette-

duction of epecif ic eielesdiag evidence jepertent te the proee

cutton*s ceee ta chief ser the aeedioclesere of epeciftic ewte: -

‘ eeleable te the eecuced’s defense end thet the triel court, of

the defeedeat’'s request, bed deetrwcted the jery te éteregere

the presecetor's steteeeet. ;

te eddition, seversl ether fectere Seve pees considered

by th. Seprese Court in eweleeting whether © preseceuter e« re-

eerke eede te, ef tae the presence ef the jerry, bewe cometitutes

prejedictel error in éepriving © defendoent of due precese, oF

hie right te « feir triel. Theee coesideretiove imeclede the

reletive etrength of the gevereeent’s céee egeiaet the defendant

whether the preeecetor's reeertkhe were eede te Treepenee te defense

coueneel’s eteteeeete te the jury, whether defeeee counsel relere

ony objection te the coepletaed ef reserte, the preeeceter «

jetent ead whether the preeeceter cetrected the reeerts

tT; . "

SRIEP EPISODSR OF PERSISTENT EReoe

te deteretoteg whether « ereseceter’s stetewents in .

ergueent te the jury eoeetituted prejediciel errer, the courts

hewe token sete of whether the etetesests vere but @ beief epleode

ie « leeg eueeetion ef whether the etetenentes were cepectediy sede

le United Shetes +, Seceny- Tecuve O41 Se... 510 wS 150, 88 §.Cr

Sil, 84 &. 84. 2421 (2948), the Court feeed chet sithewg> the .

steteeente of the preseecetion were tepreper, they were “eiver

seberretions te « pre eee eviel eed set cueuletive evideece ef

e preceediag doetieeted by peestioe «a prejedsee,9 Secony-Yecuve

ot 240, eed 444 set constitute prejedictel errer,

Litewtee, te Denneiliz_ DeChrietefese. eupts. ***

Court teeeeeed thet the preseceter’s comment “wee bet One Seeret

tn o@ extended triel.” Beenelizy ** 645. o@@ @14 wet wviolete

che Defendoat’s right te eee precece The #888 Teeeonrioeg vee

fellewed by the Fitth Ciceutt Coert ef Appeele te Alwarer » fetelle

SDL F.2@ LILS (Seb Cae. 1976), whee tt found thet the sing'«

ceeeck of the presecetion, whee considered te the content of the

entire triel, 414 eet reader the preceediage fueedenen eliy entetr.

Oe the ether bead, ta cireusetences where the prere

cetioe'* elecendect wee preneenced eat peretetent. the courts

beve found thet euch coseente bed « prebeble cueuletive ef fret

oe the jery, ené@ thee resulted ta prejediciel errer. Berger +

Onited Stetes. supre: Beeston ». Setelie, 369 F. 24 372 (Ses

Cir. 1978). _reeer + es

Tee receet Pifth Cirewie Court of tepecie ceece,

Gronnes +. Alebems, 587 P.24 246 (Seb Cie. 1979); eet Codd +

Welovrignt. 609 7.24 754 (See Cie. 1980) serely seatios the

reposted comecets of the preeecetios te peestag. Although fect~

eelly @tettect free eeck ether, the court coecieded te cect cove

thet the petiticouner bed set bees deetied Gee precese.

° r tt.

BISLEADING ARCUNENT OF PAIS SUMMARY

The courte bewe eueeieed coapleined of presecetert«:

etetemente te detereine whether Cheee eteteeeete seeented te the

iatredwction ef epecifica eieleeding evidence tepectent te the

presecetion’s ceee te chief ef the sendieciooere of epecitic

evidence weleeble te the ecevwsed’s defence. te cosee where the

courte bewe found thet seither of the sheve occurred, the courts

bewe concluded thet ee deeiel of dee preceee ecturred. Donnelly.

guers: Gebb. aupte- ; ’

Coavereely, whee the coertese fewed thet the preseceter

bed sleeteted feete, pet eerde tate the seethe of wlteeeeee, crese-

eneeived witeesees efter deliberately sieceeetreing thelr Ceetimonrr,

eeeuwed prejudicial feete set ie ewidewee, Berger. suets. *ee~~

tegiy eteled the jery ced court ebeet the eigeificesce of crwctel

evidewce, Bilier ». Pats. 306 28 1, 87 S.Ce. PHS, 2? LL. te. 24 GOR

(296)),. en@ tepited thet « @efeedeet ft & free coee wee givin

eet seeee of @reg tretticthers te bie etterser Sertieg the courte

of the trtel, Bpited States ». Cores, 355 7. 24 LPG? Cen Che. Fh),

00016

Sy the courts found thet the subseteotiel rights of the defendant

4 were prejudiced.

Ill

PERSONAL OPINION OR OPINION BASED ON EVIDENCE

Im ceases ia which the prosecutor s remarks were found

to heave been made in response to the defense counsel's statements

to the jury, it wee determined that the prosecutor's statements

to the jury did sot violate the defendent's right to due process.

In Socony-Vacuum, suprs,the Guprese Court rejected the defendant's

———

contentioas thet verious stetements of the prosecutor about his

belief io the defendant's guilt and the government's desire for «@

conviction, constituted prejudicisl error. The Cowrt ruled thet

the statements were sot prejudicial sisce the statements concerning

the Covernmwent'’'s wish to bevwe the defendants convicted were made

| in response to defense counsel's, repeated statements to the fury

as to the knowledge and ecquiescence by government officials in

the defendeats’ conduct. Seocony-Vecuus, et 241-242.

im Del Cristo v. United States, 327 F.24 208 (Sth

Cir. 1964), the court found that the defendant was not denied «

feirc triel because the prosecutor:ia hie swuemation to the jury

said he believed the defendant to be guilty. The court determined

thet the argument of the defense thet the prosecuting attorney

did sot beliewe thet the defendent vas guilty, but was werely

doing his joo, bed | provoked the retort from the, prosecutor con-

cerning his belief in the gutilt of the detendest.

PURPOSEFUL AND FPLACRANT OR FAIR COMMENT

)

In reviewing whether « ssscseneee*t courtroom remarks

conetituced prejudicial error, the courts heve given consider-

ation to whether the prosecutor's conduct wee etther purposetwi

or flegrtent. Singer v. mited Stetes, 380 US 24, 85 S.Ct. 783,

13 L.Ed 24 630 (1964). le Bruce v. Estelle, 483 F.2d 1031

(Sth Cir. 1973), the court found that the prosecution's inaccurate

suggestion thet the defendant would be free to walk the streets 00017

if the jury found hia wuneble to stand trial, wee deliberate end

calculeted to influesce the jury in ite decision weking. Bruce

‘ et 1040. accordingly, the court concluded thet the defendant's

right to « fair heeriog on the wmerite of the -aee hed bern in-

‘ fringed upon. ‘

Sisilerly, im Kelly vy. Stoss, $14 F£.2¢ 18 (9th Cir.

1975), the Court found thet the prosecuting attorney's etatement

a et li

to the effect thet perhepe the next time the victim wouldn'’’ be

“e Little bleck girl from the other side of the tracks; say>*

it will be somebody thet you know,” constituted « highly te-

fleemsatory ead wholly impermissible appesl to reciel prejudice.

‘

Likewise, the court found thet:

The district sttorney’s perorettons thet "If you

can't find the defendent guilty on the facts that

I heve presented to you, 1 feel like 1 juet wight

as well, you know, close up shop ead go howe...’

vee oot only a bighly teproper expression of personel

eopicion but constituted « veiled threet to the jury

to return « guilty verdict. Kelly ec 19.

The Court concluded thet the cusuletive effect to these improper

commecate end inflammatory statements made by the prosecuting

attorney during sergusent to the jury operated to deny the bleck

defendant « fair triel om rape cherges.

WEAK 3 CA

Io detersining whether teproper reearke wade by the

prosecution constituted prejudicial or reversible error, ene of

the fecters considered by the courte hee been the relative strength

of the case egeinet the defendant. A review of relevent cases

indicetes that prejudice to the defendant wee found when the

cose wae @ “week” one a0 opposed. to «6 "strong” one.

Im Berger, suprs, in reversing the defendant's convict~

ion, the Court in evelusting the prosecutor's statements, noted

thet the case egeinet the defendant wee sot etrong, but wilt

“properly be charecterized se week,” ead “in these circuestances

prejudice te the caves of the eccused ie so bighly probseble thar

we ere not juetified in seeusing ite non-existence.” Serger et *9.

p On the other hend, tn Socony-Vecuue, suprs, the etrengceh of

ioe 00018

’ 18

the government's case wes one of the factors relied on by the

Supreme Court ia holding thet the prosecutor's remerks, althoug"

improper, did not conetitute prejudicial error. Socony-Vecuus

at 299. The Court distinguished the decietos io Berger, supré,

in which the case againet the defendant bed been weak. Id.

In ite opinion in Cronnon, eupre, the Fifth Circuit

court of Appeale noted thet elchough the lenguese ueed by the

prosecutor wee strong, it wae coupletely in accord with the

evidence in the case, Cronnon et 251. Additiooselly, the con-

curring opinion took note ef the fact thet “the proof ageinst

the defendant wes overwhelming.” Id. et 252. And, in Cobb, suprs.

the Fifth Cirewit found:

Given the circvuesetances of thie caee, we conclude,

and ovr conclusion is sede eesier by the strength

of the evidence easinet Cobb, thet oo prejudice

emounting to such @ deniel of constitutions! due

process wee shows, Cobb at 756. (Emphacia edded)

vI J " 38 sul ’

OBJECTION MADE OR FAILURE TO OBJECT

A factor sometiaesr cousidered wheo the prejudicial or

sonprejudicial effect of s« prosecutor's comsents is detersined

is whether ea objection ves pede to the comments by defense

counsel. In Berger, suppres. Corona, supré, eed Houston, supré,

where the prosecutios hed wade several coagents which were ,

objected to by the defence, the respective courte found thet the

defendants’ rights hed bees prejudiced. *

Ie Cronnon) auprs, tre court foudd that the Petitioner

hed not suffered « deprivation of due process, The concurring

opinion pointe out thet se objection wee sade to, the prosecutor's

closing etgument. Cronnon-et 252.

Vite:

Verious courte heve considered the effect of curative

foetructions sought by defence eouscel eo the reeult of taproper

comments of the presecuteor. In Socony-Vecuus, supré, and

Donnelly, supre. it wees held thet wader the perticuler fects -

teining (in each cose the cousent ‘of the prosecutor wae deened

00018

se but a0 teolated coweemeent), the prosecutor's courtroom remerk

de eine

did not constitute « violation of the defendant's right to dye

process. —"

UWowever, when the prosecutor hee engaged in persistent

and pronounced sisconduct, the courte heve indicated that tn-

etructions by the trial court directing the jury to disregard

the prosecutor's isproper tremerks, were not evificient to cure

the error. Berger, suprs; Houston, supre-

vitt

| REMARES WITHDRAWN, CURRATIVE INSTRUCTIONS

In Socony Vecuus, supra, where the defendant's conviction

wae upheld, ome of the fectore relied on by the Supreme Court in

holding that the prosecutor's remerke to the jury did not coheci-

tute prejudicial error ves thet the prosecutor withdrew his re-

’ werke efter the defendant bed objected thereto. Socony-Vacuu®

at 242. And io United Stetes vy. Rodrigues, $65 FP. 24 1234 (5th

Cic. 1978), the Fifth Circuit seoted thet the jucy inetructions

givea-by the court sey be cousidered ee « factor in sesessing

the degree of prejud.ce eusteioed by « defendant because of ia-

proper comments by the prosecution. Rodrigues et 1244.

aero ess po bt be

The sbove enumerated epecific factors heave been con-

sidered by the Supreme Court end-the Fifth Cirewit Court of

Appeale in eveluating whether s preeecutor's reserkes meade to, or

in the presence of the' jury, heve.coneticuted prejudicial error

depciviag « defendant of due process, oF Wie’ right to « feir trial.

The Supreme Court hese gives epecific guidelines to be applied in

arriving et « proper detersiaatios of the prejudictel effect om

the jury, if eny, reeulting fros triel errors.

The sethodolegy for determining if the effect of trial

errote om the trial jury wee -herslese or preveoted defendant fro

cocetviog @ fair end iepaertiel triel ie feund ia Fotteskos v.

nite | 928 us 750 (1948p. es

In the fisel enclyeic sud geese in esch case suet be

influenced by conviction resulting {roe exemination of

the proceedings to their entirety, teapeted but nor

governed in any rigid sense of stare decisis by what

O0002L

‘

hes been done in sisilaer situations. cf Unite

States v. Socony-Vecuus O11 Co., suppres, st :

Necessarily the charecter of the proceeding, whet

; is at stake upon ite outcome, and the relation f

the error eeserted to casting the belance for de

Cisien on the case ee & whole, ere saeterial factore

te judgment. Kotteskos, St 762.

Some side to right judgeent sey be stated sore

eafely ia negetive thea in effiraetive for Thus,

it te sot the @ppellete court's function to deter Ve

guilt of iavocence. Weller ¥v United Stetes, surrte

at 611; Bollenbach vw. United Steces. 326 US 607,

613-614. Neer ie it te specuiete upon probable re-

} conviction ead decide sccording to how the speculation

comes out. Appellate judges cennot escape euch in

pressions. But they sey sot eeke thee sole criteris

for revereel or effirsence. Those judgvents ere em

clueively for the jury, gives alveyse the necessary

sinleua evidence legelly eufficient to eustein the

conviction uneffected by the error. Heiler yv United

States, euprs, Bollenbech v. United States, supre

But thie does set seen thet the eppellate court car

escape altogether teking sccount of the outcome To

weigh the error’s effect egeinet tne entice secting

of the record without relation te the verdict or

judgeent would be sleoet to work in «# vecuur. cf

United States yv. Socony-Vacuue Ot) Co., suptrs. #*

239, 242. ie criminel cavees thet outcome is con-

viction. Thie ite different, of way de, from guiit

in fect. It te guilt in lew, eetedlished by the

judgment of layses. And the question is, set were

they seis in their judgeeat, regerdiecss of the error

or ite effect vpoa the verdict. It ie rether what

effect the error bed of reesconebly sey be teken to

heave hed upon the jury's decision. The crucial thing

ie the iepect.of the thicg.dose wrong o8 Che Pines

of ether een, oot om one's ows, ia the totel settiag

Cf. United Stetes v. Socony-Vecuus Oil Co., supra,

at 239, 242; Bollenbech v. United States, suprs, °**

Thie suet teke esccoust of whet the error meant Co

thea, not singled out aod etending alone, but in

relation to ell else thet heppened. And one suet

judge ethers’ reectione sot by hie ows, Sut with

slleowence fer how others wight resect end not be

regerded genereliy es ecting without reeson Thie is

the teportent difference, but one eney to ignore when

the sense of guilt comes etrongiy from the record.

If, when ell is said aed cone, ww conviction is sere

thet the error did net inf .veoce the jury, oF hed but

very elight effect, the verdict ead the judgment

should etend, except perhape where the departure is

froe « constituttonel sere, of @ specific comssecd of

Congress. Bruno v. Ueited Stetes, suppres, ** 294

But if one cannot sey, with ieit sssurance, efter pond-

ering #1) thet heppened without etripping the erroneous

ection from the whole, that the judgvent vas not sy

etantielly sveyed by the error, it is isposeidic |

conciude that eubetentiel rights vere not siicct

The inquiry cennot be sereiy whether there was ¢

to s pport the result, spert from t! phase aft .

the error. It is rether, even eo, whether toe °'

itself hed substentiel inf ivence _if so, of if

is left in grave doubt, the conv ction cennet st? 00021

Kotteakos, et (63-765. (Feoetaetes deleted eaphasis

added)

The Kotteskes “herwless error” test wee cited in «

y Fifth Cirewit opision detersiaing thet prosecutoriel misconduct

denied defendent « fair tris in United Stetes v. Naynes, 466 F.24

1260 (Sth Circ. 1972) eed forsee the besise for the “hereless

error” conetitutionel rule aseeunced in Chepeen vy. Californias,

386 U.S. 181 (1967). Chepeen rejects any “overwheleing evidence”

teect.

SUMMARY

The Derden triel tury wee eubjected to numerous in-

stances of prejudicial presecutoriel ergueent ce ebove detailed.

The case egelost Derden wae not & week case, but it did depend

oa the jury's deterpination of the credibility of Derden's elibt

teetisooy a8 egeioet the eye-witeess testiseny of the victine

All attecks upon Dearden which would affect his credibility in

the winds of the jurere of prejudice these sgeiaet hia would tend

to diecredit him ead hie testiaeny. Defense counsel's objection

te the presecetor’'s aergueent wee lete end tentative. The trie!

judge overruled the objection thereby seking it eppeer thet the

argveest could be properly considered by the jury.

The questios whieh thee enet be sehed see Be the

context of the entire triel did the prosecutor's iaproper *«rev

senate either heave « subsetentiai ieflvweace on the jury's deterai-

netion of guilt, of ie there greve doubt about what iaflueace the

rn argument did have on the jury? Petitioner's triel counsel put

ia teevwe the credibility of the vwietias’ ideatificatioe by crose-

exastoation sed proper jury argumeat. Derden's teetiaony «at

triel included « denial ef the offeases of on aslibi, testinaony

which “eppeered oo ite faee to be sincerity.” (Triel Judge's

Fiodinge ef Fact For Sentence. )

Ie the coatext of the emetionelliy cherged trial of

Derden, @ bSbleck sen, eecused of rebbery, the berutel eurder of

e white een, the repeeted shooting of « defenseless white teen-

acer ond vile sexual edvences on 6 white women, I bave sore

than greve doubts thet the tepreoper, repeated, prejudicial areu- ONO22

ment of the prosecution did see effect the jury te ite delibere-

tion. If em convinced thet the jury deliberation wee eubetentially

inflwenced by the iapreoper ergument sed thet the jury vas

prejudiced ageinet Derdesn by the strgumenc. The State hee

i failed te desonetrete,beyoad « reseoneble coudt, thet the

' prosecetor’s cosesents did sot contribute te Derden’s convict

joes, s burden sendeted by Chapeesn wv. Califernis, suprs

ergueect wee so egregious thet the trisl judge should heve

reprisended the prosecutor ead iastructed the jury to dieregers

the iepreper rempecke, even withevt ebjectiog pt pene defe.se

counsel The ooe effective objection vee od truled end the

judge thereby segnified che prejudice, leedipg, the jury to d«

’

lieve thet it wes preper te consider the probecutor's ergueent

in deter@pining the verdict. The herrible, beinevus, repulsive

eeture of the crimes tavelved dees sot expisete the prejudicial

effect of the presecuteore’ ergument in thie case. Te held other-

wise would eliminate eny presecuteorial reetreaiat ead deny «

defeodent, isa « cease like the preseat ove, « feir trisel on s

ptesveption thet eny prosecutorial: eisconduct, bowever egregious,

is hereless where the crise te shocking end .there would be eu!

ficient evidence to convict if the sisconduct-hed not occurred

The errere here were set berelees whee viewed ‘ie light of the

teechings of Kottesktos ead Chepeesn, suprs

Although the Fleride triel judge teposes the death

penalty, end sey do ee seotwithetendiag « jury recommendsetion of

life teprisessent, the jury receependetion is given great weight

In order to tepese the death peselty folleviog « recoesendation

of life, “the fects suggesting @ sentence of death should be so

cleer end coavieciag thet virtuslly se resechable persone could

differ Tedder +. State, 322 Se. 24 F = (Fle. 1975

See elee Burch v. State, 343 Se. 24 O31, 34 (Fle. i9??)

Derden wee entitled te « feir triel em the ifeve of guilt sod «n

equel seseseure of fairness et the sertencing phese, eatetate

prejvudiciel ergueeent ef the preseceuter.

Ie sekiog thie recoesendetion, I ee ewere thet ¢t

ecision ef the Flerida Suepreee Court in Darden y¥ State is duwe

thet deference reauired By Title 78 U.S.C. 82254 (4) as

Flor

pet ctoner a fair triel is o mixed questior

he ~

- - ~~

ed in Sumner v. Mats, U.S an» 02 § t

3061, decided January 21, 1981. Section 2254 j

the factuei determination wade by the Florida court

1, which historical tacts are’not in dispute Here

cOurt the seme record is reviewed. The ultimate de-

on of whether the prosecutor's prejudicial remarks

the extent it ise considered a factuel determination,

clude that the record, considered as « whole, does not

support @ determination that Darden's triel wes a fair

Considered as a determination of the eppropriate legal

ution of the historical facts found, applying the feder

tutional standards herein set forth, I find thet the

da Supreme Court vas in error in the feir triel standard

standard

process.

utilized and the results reached. That court summarized

for review ase follows:

"How is it possible to use Ianguage which is

fair comment -sbout these Crimes without shocking

the feelings of any normal person? The language

used by the prosecutor would have possibly bt n

reversible error if it hed been used regarding «a

less heinous set of crimes." Darden v. Stat

329 So. 2d 329,290. +

a . ?

wr . -. se

The snewer, of course, is that eves « person charged

most heinous crimes is entitled to a fair triel not

trial but ee fair triael.

We ere mindful of the fact thet federal courts

go mot sit ss courts of errors aod appeals when «

ecete prisoner seeks federal habess corpus. At

the same time,-we cannot ignore our responsibility

to inmeure that en accused obtains « fair trial by

eo impertial jury. As the Suprese Court-has

reiterated time and: tise again, "“[elxercise of

calm end inforsed judgment by . ...fa jury's]

members is essential to prover enforcement of law

Nighly prejudiced remarks uttered by the prosecutor

jeopardize the jury's deliberative process and hence

infringe upon en eccused’s right to « fair hearing

eon the werits of the case. Bruce v. Estelle,

483 F.2¢4 1031, 1040 (Seh Cir. 1973). (Footnotes

deleted.)

The prosecutor etruck foul blows, and there is grav

doubt that the jury was not iofluenced by these foul blows.

Accordingly, I find that Petitioner vas denied his right to dy

O00CR4

oy a ——

MISCELLANEOU DEATH PENALTY CLAIMS

Most of Petitioner's additional claeias, seserter

after the filing of the original petition in this cause, reia

to the applicecion of the death penalty statute, Florids

Statutes §921.141. Except as otherwise specifically treated

in this report and recommendation, the claims asserted lack

sufficient wserit to afford Petitioner habeas relief

Petitioner's contentioas that excessive puaishment,

cruel and vuausuel punishmest, discrisination in punish@ent re-

lated to race, poverty, end fundamental unfairness mitigete

aguinst imposition of the death penalty ere issues settled

against Petitioner ins Spinkelliok vw. Wainwright, $78 FP. 24 582

;uS

(Sth Cir. 1978) and Proffitt v. Floridsa

“

™

Arbitrary sexual, recial and poverty related pecterns

of sentencing ere alleged by Petitioner, but no proof was offered

to support these contentions. -Io an opinion etriking down the

Messachusetts death penalty statute, the Supreme Judicial Court

of that etate recites thet “The crisinal homicide data from

the date of the post-Fursen setetutes through 1977 indicate

[thet] (1) Florida, of ‘286 blacks. who,hed killed whites, forty-

eight (16.82) were sentenced to death: of lll whites who killed

blacks, none vere sentenced to death.” District Attorney v. Wacson,

Mass. Sup. ‘Jud. Ct.; 10/78/80, 28 Cr.L 2172. Petitioner, én

the instant case, bas failed to establish any such statistics

showing a suepect patters of sentencing, «Is any event, it is

doubtful that such statistics, standing slone, would warrant habeas

relief without a review of esech case included ion the statistical

summary.

;

CLEMENCY PROCEEDINGS

Petitioner claims thet he ves denied due process in re-

lation to the clemency proceedings. Whatever procedure Percitioner

may suggest is unfair, irregular or arbitrary, there hee been a0

shoving of prejudice to Petitioner in the clemency proceedings.

Nor ia there any proof thet Petitioner's poverty denied him ar

equal opportunity: to establish thet he wae denied an opportuni

for commutative relief or opportunity to establish that he was

legally i-competent to be put to death.”

I find no legal authority contrary to Justice

England's concurring opinion in Sullivan v. Askew, 348 So.id

312, 316-319 (Fle. 1977), wherein England stated:

Nothing yet ssid by the United States

Supreme Court suggests that the discretionary

decision whether or sot to allow a judicially

approved death sentence is subject to the sane

due procese strictuces es sre required for any

judicial process esployed to impose such &

sentence. ..efurther ...I would noe engrafet

these due process requirements on the clenency

powers conferred in Florida's Conetitution...

Sullivan at 319.

DEATH PENALTY REVIEW

In Tedder v. State, 322 So.2d 908 (Fla. 1975),

the Florida Supreme Court gave seesursoce that it would revirw

all death penalty cases to assure an even-handed application of

the death penalty and to ineure that the desth sentence would not

be “wantonly” and “freakishly” imposed... That assurance was

accepted by the Supreme Court in Proffitt v. Florida, 428 U.S. 242

(1976), ae satisfying the requirement thet the Florida death

.* on

penalty stetete vould be spplied in a non-discriminatory fashion

aod not in an arbitrery or capricious mssoner.

The Floride Supreme Court: performs this review function

by comparing the facts and circumstances of each case with those

of other cases in which ithe death penalty is imposed. Malloy

State, 382 So. 24 1190 (Fla. 1979). For a -detatied discussion of the

procedure followed by the Florida Supreme Court, see: Brown v.

Wainwright, 392 Se.2d 1327 (Pla. 1981). Pursuvent to the provisions

of 28 USC, Supreme Court Rulé@ 22, Petitioners have until mid-April,

1981 in which to file a petition for writ of certiorsri to the

Supreme Court of the United States. An exemple of the Florida Courts’

difficulty in performance of this task is evident in the diseenting

opinion in Madoy v. State, supra, at 1193. See also: Concurring

Opinion in Codfrey v. Georgia, u.Ss. » 100 §.Ce. 1759,

1980. Performance of the review function by the Florida Supreoe

COC 26

Florida) courte belovw

{zed by Justice Mareshell in che Jiseer

nion in Cardner v Florids 430 U.S. 349 365 (19

he stated that “thefblatant disregard exhibited

or the standards devised to re

osition of the death penalty calls into question th

ais for this Court's spproval of that system in Prof

{ , )

e ma rity, hovever cused the Florida Court s rev

rformonce because Proffitt and Tedder were decided

orids Supreme Court Gardner decision. Cardner, gsupr

Petitioner cleimse that the review fugctioan

the Flocida Supremes Court does not “assure that the

malty will not be imposed in an arbitrary or capricic

required in Proffitt, supra. In support of thie cis

oner on November 15, 1979, filed an affidavit of th

the Floridse Supreme Court, establishing that the Fl

Supreme Court does not tske into coneideration sentenc

those capital triale-which result is life- imprisons

3n the death penalty. A contention that such cases

hould be included in the review process ves raised an

Prof(fitt, supra, it 259 n.16.. -Petitioner hae eubmitt

sof other than this affidavit, end in light of the p

roffict, this claim msuset-be denied.

THE WITHERSPOON PROBLEM

Petitioner alleges that-the jury which conv

d recommended the desth penalty failed to include «

ction of the community /because prospective jurors we

operly excluded based solely on their religious orc

ruples againet the death pesalty, in violation of Wi

linois, 391 U.S. 510 (1968).

Five veniermen were excused for cause: Mr.

Meys, Me. Carn, Me. Maher and Mr. Murphy Each we

sr cause after expressing his opposition to the death

is now clear that exclusion of even one ventreman o

variance with the Witherspoon standard will void ¢

ntence even though the state may have one or more un

eemptory challenges. Burne v. Estelle, 592 F.2d 129

i”

i®

r t e

yrme

ert

er.

a c rs

rat er

4ect ‘

o 4

i his

cr ”

fenti ia

ney

yee

ia v

c r

OOOR?

———l tl tt

2d 396, (Sth Cir. 1980); Aldersan v. Austin

498 F.Supp. 1134 (S.D. Ge. 1980); Davie v. Ceorgia, 429 U.S 122

(°376); Adams v. Texas, U.S. » 100 $.Ce. 1521 (1959)

A general inquiry into persocosl, conecienctious scruples sagai:st

capital punishment cannot form « permissible basis for exclusion

from «a jury deliberating the life or death face of another

human beiog.

It cannot be assumed that a juror who describes

himself es having ‘conscientous or religious

scruples’ egsinst the infliction of che death

penalty or sgainet its infliction "an @ proper

case’ thereby affirme that he could: never voce

in favor of it or that he would not coosider

doing so in a case before hie... Unless a

venireman states unambiguously that he would

automatically vote against the imposition of

capitsl puscishment no matter whec the trial might

reveal, it sisaply caonot be assumed. Hitherspoon v-

Illinots, 391 U.S. 510, et 515 n.9 (citations

omitted).

Such exclusions are constitutionally permissible only

if veniremeo sake

“snmistakebly cleer (1) that they would sutomatically

vote against the imposition of capital punisnoent

without regard to eny evidence that wight be developed

at the triel of the case before thes, or (2) thet ©

theic attitude toward the death penalty would prevent

them from making an impertial decision as to the

defendant.'s guile." -\ Witherspoon v. “Illinois, supra,

391 U.S. et 522-23 8.21 (emphasis in original),

reiterated in Adams, 100 S.Ct. at 2525 and Burns

626 F.2d at 398.

We need to go ao. further then.to review the voir 41

examination of Mr. Varney aod Mri Murphy to see that aft least

two prospective jurors were excused for holding views ebout capital

punishment not shows to be sufficiesatly unbendiog to weet the

standards of Witherspoon.

On the iseue of.prejudice ageinec the death.penaltcy

the trial judge's cursory exesinetion of Mr. Varney follows:

THE COURT: All right, Mee. Macy, do you hold euch

conscientious sorel or religious principles in

opposition to the death penalty you would be un-

willing under any circuastences to recom@end the

death sentcoce? (Emphasis added)

MRS. MACY: No, eir.

OOORE

THE COURT: Do you, Mr. Blankenship?

Varney

anewer

han

LER

4 eaiead

a <

BLANKENSHIFE No, ei

at Mr Pelellat?

PELELLAT No, eit

RT Mre. 5Spixe

SPIKE No eir e

VARNEY Yes sir.

RT You feel then, 84>. het e n

I am not seying 4t will it woule o

slative, ia the event that tne ev

» thet under tne lew thet shoul ee

ssendation you would be ynwill 4

a recosgsendation beceuse of your cones

efs?

VARNEY I be! eve 1 vou d (Emphasis

RT All right, #4: You will ¢t e

MALONEY I renew the objection IL ¢

hould be healldnged for cause.

RT Yes, eir, the objection wii t

overruled.

All right, ‘Mr Varney, you will e ex

k su very much for your eervice

Murphy's examination wae nearly «ae t

The equivocal questions to Murphy evo*

he following colloquoy ensued wit st

K: Theodore T. Murphy- Rusber 8?

(Me Murphy vee seated in the jury

IRT Mr. Murphy, whet 48 your occuf

MURPHY Retizrec } '

COURT Whet did you do prior ¢t re

MURPHY Several jovs. I was eight ar

s in he administration office in mB a¢

ee thet I wee thirty yeers with the t

RT Whet seminary vere you wi P

MURPHY st Pioe, Uni jgle, New tT .

RT Do you have eny ® ral r elig

OOORY

sorel or religious principses in

to the death penalty so strong

: ‘ .

uld be uneble withc violeting ~

ut your

to recommend « death penalty regerdlesse of

(Eaphasi«s added.)

Yee, I heve.

All right, seit, you will

Murphy left the jury box.)

Cecelia Clack Mulroy. Nuaber

Mre. Horne, you will sote the defendant

sic) to him being excused for cause

thet Mr. Verney “believed” thet he

. _

dec

or unable” to recommend the death penalty aus

f hie conecieastious beliefs does not foreclose the poeeidi:tt

thet despite his expressed convictions he could put hie dise-

belief or unwillingness seide and do bie duty sae a citizens.

. -~-

anewer sight haeve.deen that he ‘could.—! Unfortunately, ae ic

svie v. Georgis,_euprse, the berd—question was not, asked _, vik

* 7 +. ? .

ete > ‘ .

Mr. Murphy's expressios of sorrel, -cqonecientious or religious

‘ ‘= ~# «< ’ ys

principles which vould’ be ‘vwiolated{by fecommending*cepitel =;

Key. os

genoct

does aot

thet

foreclose the same possibility

side these principles ead de hie)duty ee @

citises.

These

poases

U.S. eat

failed

to demonstrate

"unaebiguously,™

Witherspoosa,

516 2.9,

"“vomistekably,”

391 0.8.

4 @G. the

could put

Verney and Murphy vould havé automatically voted ageinet ecos-

gendat

tapart

ion of

capitel puoishwest;

or thet

they would sot

ine

fal decision as to the guilt or innoeence of Peci

these

mere

tioner

two

liefs sbout capital. pusishwent

expressed by

venirement would sot necesearily lead thes to

igsoore

the

violate

their oethe.”

Adaeese *¥.

Texas,

supre.

More wae

guired

thes

these tentative,

iaitiel,

expressions

of douwbdt

the

ir ability to recomsend the death penalty in

order to

unwpietekediy

clear

thet

they would eutomaticslly vote #ge:

the

isaposition of

cepitel punishment without

aoy

regerd

O0C 3‘

ll ent hilt ltt Mere

a 2 a | Th a ie -

evidence thet might be developed, Their excuseal was ¢.roneocus

under Witherspoon, Burne and Adsms, supra.

Respoodeot, in @ one sentence arguseent, contends

thet Spinkellink v. Weinwright, 578 P.24 $82 (Sth Cir. 1978)

and/or Proffitt wv. Florids, 428 U.S. 242, included clsinue

identical to Petitioner's Witherspoon claim and that the cleis

was rejected in those cases. (Respondent's Su plesenctal

Memorandum of Law, page 4.) Spinkellink, supre st $92 cites voir

dire examination of two excluded veniresen who, both atated

unambiguously that they could fairly judge Spinkellink'’s guilt

7” ' o. © At te pg 2° @- bee 6 set

but mede it unmistekenly clear that ‘they would automatically

yote against the imposition of capital punishment without rem

gard to the evidence. Although the reported decision in

Spinkallink, supra, at page 592, recites chat the tranecript of

the voir dire examination of the two excluded veniresen is

“set forth in Appendix A,” that eppendix is not docluded in the

er ee ee $2 :}° Se Ria’. @ Se. PRR, . ~gaek.2 ’ oo Og ‘

published decision.- I heve-reviewed thet-traneveript. A read-

ing of the Spinkellink ‘jury: voir“dire ‘exesinetion rey

. a =. an ‘ > + = ‘

alse that

» ats? we t ‘«

“n@ «

two veniremen, excluded for cause,¢Mr- Ferrell and Mr. Colson,

were clear aod Suembigacas’ inTehel+ decerminec. onvote rom impose ae" 7

the death penalty under any circomstances. 1 Another, veoiremec,

Mr. Minetee, although initially expressing opposition to the

death penalty was ultimately beated-on the dury, afterj;further "oo 7

examination established that ibe rouid.and would vote for capitel

punishment in « proper: case.c+Vithithet: record before the

Spinkellink court it vas-elearlycno, violation) of Witherspoon

to exclude the’ two veoiremen:for’cause.: In Proffitt,: suprsa.,-

the Supreme Court did not address eny Witherspooe clais. Neitherur:

case cited by the Respondent represents eutbority for rejection

of Petitioner's Witherspoon clain.

Witherspoon and the releted cases discussed above

establieh a basis for vacating the death sentence but sone of

these decisions suggests that the conviction sust also fall.

To the cootrary, the Witherspoon opinion, where helf of the panel OO02*

bed been excused because of their opposition to capital pusiseh-

ment. expressly refuses to vacete the conviction. See also:

Uae paves wee > “ee 22? 6

Burns, supré,

Alderman, supra; and Brown v. Fstelle, suprs.

Alderman, supts® i a 4

In the inetant case Petitioner hase pede co claim that ihe

Witherspooa violation sbould result is wacation of the jury §s

verdict of guilt, buc Witherspocs requires vecactions of the deat!

penalty.

ASSISTANCE OF COUNSEL

In further support of his applicacioa for hsebeas

corpus relief, Petitioner WILLIE JASPER DARDEN alleges ee ove

of his claims that the assistance of court appointed defense

counsel was 80 ineffective as to don7 bie the 4uve process of

e > se” *

law guaranteed by che ‘Pourteceth Ancnduest sf the Conetitution

of the United States and to deny him bis right to counsel as

guaraccteed by the Sixth Amendment of the Constitution of the

United States. Petitioner has enumerseted twenty-seven fectuel

contentions as the besis for this clain.

REVIEW STANDARDS _.#» aabe

"rrr?

»-

- ar vr”:

“eet 3 a 89 a _ 9

rk elod eo Ac.

There'is « presumption that ‘counsel bas reaodered

~ ba dee > 4s . to tamast® a4. 1} gm, «

legally effective scecaace MF thomas’ ve twyrick,” 535 F.2d.413 ;

(8th Cir.) cert. den. 97 $.Ct.. 178, 429 US 868,.5$0 L.Zd. 2d 148

Lac Mea, OEIp IN A Beatie Regie an te

(1976). <A haebess corpus-petitioner- challenging the effectiveness

of the assistance of his counsel’ bee the burden of establishing

thet the perforsance.of his counsel fell. below ithe acceptadle

seneteete. gaits aia Lied bit thee Ae eee te ee

The ‘Sixth Amenodmedt-of ‘the Constitution of the United

States provides: “Ia all -criminalvprosecutions, the accused

shall enjoy the right,.:+to bave ithe-Aseistance.of Counsel for his

defence.” In Powell v. Alabama,«ei3 §.Ct. $$, -287 US 45 (1932),:

with epecific reference to capital cases,:the' Court indicated

that thie Constitutionali guarentee contenpleted: “effective”

covuosel. ~ ahs

A leading Fifth Circuit case on whet constitutes

“effective” counsel is MacKenna v- Bllis, 280 F.2d 592 (5th Cir.

1960). In thet case, the court said:

32 COC 32

—

s ; “ide Va ee, . a sy

“We interpret the right to counsel as the right to

effective covasel. We interpret «cunsel to zean

not errorless counsel, and not ~ounsel judged ina-

effective by hindsight, but counsel reasonably likely

to render and rendering reasonably effective aseis-

tance.” MaecKenns st 599. ‘

[See also United States vw. Gray, 5365 F.2d 881, 887 (Sth Cir.

1978); Lovett v. Florida, 627 F.2d 706 (Sth Cir. 1980)!.

zd °

In the recent case of Knight v. Fiorida, So.

Opinion of February 24, 1981, the Supreme Court of Florida

adopted the following four principles as a standard to determine

whether an attorney has provided reasonsbdly effective assistance

L ‘

to his client: “—s. ‘ ;

“ar hte 5 “tocar 44) quse py ss. 88 aie: dake

"“Piret, the specific omission or overt ect upon which

the claim of ineffective assistance of counsel is

based sust be detailed in the appropriate pleading.

Second, the defendant bes the burden to show thaec

this epecific omission or overt act was «a substan-

tial and serious deficiency measurable below that

of competent counsel...

Third, the defendant has the burden to show that this

specific, serious deficiency, vbheo considered under

the circumstances of the individual case, wae sub-

etantial enough to demonatrate « prejudice to the

defendant to the extent that thera is a likelihood +:

thac the deficieot conduct affected ‘the ‘outcome of

the court proceedings...

Fourth;fin jthe ‘event Ta defendant™doep™ shows 4 ““substac- bb oe | wy

tial deficiency and-presents a prise. Tacie “showing

of prejudices, the etate etill has an opportunity to

rebut these assertions by showing beyond a reasonable

doubt that there-was no prejudice io fact..." |

‘ . 1

At the time the petition for hebeas:corpus relief vas +_,: ;

filed in the instant case,athe Fifth Circuic:

used two distinct criteria: in eveluating' the effectivenese of

Court of Appeals

aeeistance reodered by retsined as Opposed: co appointed: counce!

[See: Herring vw. Estelle,:491-F.:24 125' (Sep Cake. 1974);

Fitzgerald yv. Estelle, $05°#:2d 1334 (Sth Cir. 1974)). !the recent

decision of the Supreme Court. of the United States in Cuyler v

nee

Sullives, 100 $.Ct. 1708, 446 US 335, 64 L.zd. 24 333 (1980),

mandates that courts sbell not use-two distinct criteria in evelu-

acing the effectiveness of assistance rendered by retained ae

opposed tc appointed counsel.

' *

The Supreme Court stopped shore OOC32

of articulating whet etanderd should now be used in determining

whether counsel bed been effective.

In the recent case of Besvers v- Balkcom, 636 F.2d

1l4 (Sth Cir. 1981), the Fifth Circuit Court of Appeels edopted

the following guidelines ia determining whether the requirement

of effective sesistance of counsel bas been mec.

“ 'rhie Circuit hae been etrict in ites requircment

of the effective sasesistance of counscl. Effective

counsel does sot scan ‘errorless counscl, end sot

counsel judged ineffective by hindsight, but counsel

reasonably likely to render and renderin reasonably

effective sesistance.' This necessarily ‘involves

an inquiry into the actual performence of counsel

in conducting the defenee...based on the totality

of the circumstances and the entice record.’ Con-

sequently, ‘[ojne may receive ineffective saesist-

ance of counsel even though the proceedings have

not been « farce or mockery.' ™ Beavers, supra, 115.

A review of defense counsel's pre-trial preparation

and the handling of the trial itself indicates that sotwith-

standing Petitioner's claim to the contrary, defense counsels’

assistence was not ineffective whea measured by the test arti-

culated in MacKenna v. Ellis, supra. Petitioner's claims concerao-~

ing Reedntitte prelisinary hearing, psychistric examination, psy-

chiatric evaluation, fingerprint evidence, continusoce of

Wovember 1, 1973, diemiseal of appointed, counsel, change of venue,

search and seisure, suesoning of witnesses, sundry remarks of

the court, motion to setrike che’ jury panel, feilure to ohject to

the ict? éduction of testimony, identification testinaoasy, and sis-

cellanequs other alleged failings of bierdefense counsel, even

when vigued with the clear vision of hindsight, do not meet

_ = ere

Petitéeners burden of proof necessaryito-establish ineffective

assistance of counsel. « a . ge

Based on the totality éf the record and considering

all of the evidence before this Court, it is eleaer that Peti-

cioner's triel counsel made « substantial effort to efford

Petitioner sa defense te the charges upon which Pecitioner was

convicted. At both the pre-trial and trial stages, counsel for

the Petitioner wae effective in investigating and trying the

case and in protecting the rights of the defendant in «a professions! VDUOG4

competent fashjon. The representation, to the extent it was not

~-,.

: >» ¥ua't

I ‘ ws = 4

wt | “(* Pn ps . :

“t es ty

4-4 Verma WARE TAY Oyadeel Lets ae te

perfect, in no way prejudiced Petitioner.

roe «| ight: of other recommendations in this report, the

only allegetions ot: “inet fects + counsel made by Petitioner

og °

tard ty -

which will be analyzed in depth are his contentions that (1)

bie defense counsel failed to fully develop Petitioner's alibi

defense and fsilad to call defense witnesses in support of

Petitioner's alibi claim, and (2) defense counsel vas ineffective

4 ) %%

because he ayy ome to repeated prejudicial comments

made by the _Droseeetion during closing ergusente. The state

court trial Spenqagiee aod the evidentiary hearing held in this

court reveal the” folioving fects: isenen ds

, = = Ron he >

a ee Y Parent o "| tt

tua? pr ALIBI DEPENSE

Ua YS j ~ ’

Defendant claimed that he was not at the crime scene.

;

The triel testimony of Mrs. Helen Turman indicated that the

aseailact catered: ber etore between 5:30 and 6:00 P.M. (T 233),

and event a total of 10 to. is pinutes in the store. (T 266).

‘ tk 4 ee ’

She Sepehes .tabtenbiletbes stn-asthes the telephone operator to

report the erimes while the sesailact was still in pursuit of

° 4 - .

ry re FOss2Sp- Arnold. (Tf a6, 243)

i‘? ‘

7% rt are. f me

4 afc Srastnface” wii teeta 291)* and - -Phillip Arnold (T 467)

testified that they- thought‘ thac:the shooting occurred about

6:00 a John Daniel Stone testified that he was almost involved

: “7

in en accident.asround 4:00 P.MS with a.car some miles from the

ag pet sy | ,

- "f,Petitioner) testified /that icight around 6:00 P.M.

— one ere It wessestablished that Petitioner was the driver.

ce el re ay yaar, .

—_—- ‘ i aS: .~ JS? -

(t 308) s48% Ut ard re Se ear

—

after the:accident, he was driven to « BSe-eteation in Plant City,

* 4 }

Florida, trying thereto locate a- wrecker to tow the automobile

which hed been involwed in the accident. (T 640) Mary Siaaons

. i '

teetified, Gaweren, chet she drove Petitioner, leaving from the

secense.of so aceidest at about 6958 or 6:40 P.M. (T 331), thee

they speag’ about 10 te 15 atevtes at the gas station in Plant

City, and that the trip from the accident scene to Tampa, Florida

took ome hour. (fT 338, 340)

OO03L

. 35°

At the evidentiary hearing io this court, Jack Jobnsoo,

Esquire, end Raymood Goodwill, Esquire, testified concerning .

their reeearch and davestigatios of Petitioner's alibi cleia.

Mr. Johbneon testified thet the last tipe anyone saw Petitioner

prior to the sutomobile accident wes around 5:25 P.M. (#8 235).

The Public Defenders believe thac the crime bed been coumitted

between 6:00 and 6:15 P.M. * (8 235). and the accident occurred

between 6:15 and 6:30 P.M. (8 213) : The cell coocerning the hoseo-

cide was receiyed by the Lakeleod Police Department et 6:31 P.M.

(B 235); the accident was reported to the Hillsborough Cousty

Police Department «st 6132 P.M. (BH 239-240). Mr. Johbaoson indi-

cated that it wes the opinion of the defense that there wes sot

a good alibi defense on behalf of Petitioner because of the gap

of time between when be wee:last sees prior to the accident,

acd the time when the crime occurred. (H 232) Attempts to

locate anyone who could yerify Petitioner's testimony coacers~

ing the repsir of bis car's; muffler -bad-been unsuccessful. «

(B 237) bil Oe ‘

Mr. Goodwill indicated thet Petitioner did sot pro~

yide the defense with any information which could account for

his presence fros $;30 to 6:35.PM. (8-291) Mr. Goodwill further

indicated that the evidence which wes available to the defense

did not preclude Petitioner from, heving been the aseailect.

(8 291). = a@- - Ces

A - '

ww - ,

jaBoth Mr.‘ Johnson; (8 239-260), and Mt .NCoodwill,!

(8 349) -SWare, aware. thagi ghe: accident: report, was. phooed in fros

Se ake + om

a lounge gustuecrese the bighway- from che scens-of the eccident

by an indiyiduel sened “Glea.”. Mr. Goodwiil and the Public

Defender's staff did not-go0 to -the lounge in ao effort to identi-

fy and locate "Clean" (8 349-350) to determine the exact tise

whes he phoned the police after the. accident hed occurred. The

Petitioner bas offered so proof that "Glen's" testimony wes

essential to establish bis alibi.

With regard to defense counsels’ decision to cell

Petitioner as the sole defense witness, Mr. Johnson teetified O0Oa!:

that this decisivos ves & calculated trial tactic, plenned for the

eo. % -

purpose of giving defense counsel the finsel closing argument

3 before the jury. (H 236) Having already concluded that there

vas no reel yalid alibi cefLense which could be sade on behalf of

. Petitioner (H 236), defense counsel believed that presenting s

poor elibi was worse then no slibi at ail. (8 236)

_——

1 FAILURE TO OBJECT

3 Defense counsel for Mr. Goodwill ae thet it as

F a conscious, deliberste decision on his pert now co object to

‘ —_——_ -

the repeated, objectionsble comments made by the prosecution in

closing arguments. (H 333-334) Defense counsdl testified thet

the prosecution “vould gat such more vehesenct in his remarks

you sllowed him to go 08, and we could slways come back in with

an objection later on in order to preserve it for the sppesl

purpose.” (B 334)

In Willisms v. Beto, 354 F.24 698 (Sth Cir- 1965),

the court recognized:

_ the -fact some other lavyer followed s different

course’'in asother case, oF would have done differently

had be been acting 4s counsel, is no ground for brand-

ing the appointed attorney with the opprobrivum of in-

effectiveness, oF infidelity, or incompetency- The

practice of lew is eo ert es well a8 & science. As

no two men can be exactly alike in the practice o!

the profession, it ie basically unreasoneble to jucge

an attorney by whet another would have done, or says

he would hsve done, ia the better light of hindsight.

Willieamssat 706. '".

The Fifth Circuit Court of Appeals bes repeatedly recognizes that

che triak tactics 'and etrategy of an attorcey,, eves if judged to

be in error in retrospect, do not constitutes denial of effect-

ive assistance-of counsel. [Odom v. United States, 377 ¥.2¢4

853 (Sth Cir. 1967); Daugherty: y. Beto, 388 F.Bd 810 (5th Cir

1967); Lee vy. Wainvrignt, 437 F. 24 771 Cth Cir. 1972).

All of Petitiooer's contentions regarding his ineffect-

ive covosel claius, including factors relevent to his alibi

defense and the feilure of the defense to object to the

fal

closing argua@enc, have been carefully considered. Evaluated in

°]

light of the cited cases, I find that Petitioner has faile

meet his burden of establishing ineffective assistance of counsel!

37 COOC3

<i la n

CONCLUSION

Willie Jasper Darden bes dees denied a fair trial

by jury ia two ways. Firet, the Darden trial jury did sot

represest « fair croes sections of the eommunity by virtue of the

exclusion of jurors inclined egeinet the death penalty but sot

shown to be uaquelified or unable to sit and

alty ia @ proper case. Secondly, the Dardes

recoesesd such pes-

jury wae exhorted

to convict end recommend the desth penalty by emotionsl, irrele-

vent and prejudicial prosecutorial diatribes

the dispassionate resolutios of the questiosa

guilty and should receive the death penelty.

haviog so place ina

whether Darden was

Conetitutionel

protections are sot reserved for good people and denied to bed,

aor does the right to s fair trial go by the board because the

crimes charged ere borrible to couprehend.

I recoesend thet babess corpus relief be greoted. If

the prosecutorial argument cleim ie sustained Petitioner will be

entitled te « sew trial. If omly the Witherspoon jury selections

claim is susteined,. Petitioner is entitled to wacation of the

death sentence and imposition of -« sentence of life imprisonsent.

This Soe day of April, 1981,; et taupe, Plorids.

Litt Yo

SPUL GAME, AR,

UMITED: STATES MAGISTRATE

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7." oak *i nrrTrrmn cr. rrc rman me ~ + APPEN

» ~ ~ > >

int TAB UNITEY STATES CUURT QO} APPEA. .

4 r

SR THE ELEVENTH CIRCUIT | —"

F r a4 a ie Yiid ~~ 4ALU 2 .

SPENCER D. MERCER

CLERK:

Petitioner-Appellar

re can >

Cross-Responcen:r

versus

rr * *** LAL" PTT a a c ~~

LOVIE L. WAINWRIGHT, Secretary,

nr = ~ | iad ® Ce =

Department of Corrections, State

of Florida,

™ . a¢

Respondent-Appellec,

Cross-Petitioner.

> . . ~

Ropeal from the United States District Court

far » (Ada) nh tr 4 1 iA

for the Middle District of Florida

Par crm, nw) ct + aT wr ae — moe a © rawr tn th ™

ON PETITI i¥ FOR REHEARING DIRECTED 4 \ ink a! RANC wit Mae

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE,

KRAVITCH, JOHNSON, HENDERSON, ANDERSON and CLARK, Circuit

Judges, and MORGAN, Senior Circuit Judce.*

PER CURIAM:

At the request of one of the members of the en banc court,

the court has been polled on the petition for rehearing

* Circuit Judge Joseph W. Hatchett, having recused hims

not participate in this decision. Senior Circuit Judge Le

Morgan elected to participate in this decision pursuant to

U.S.C.A. s 46(c).

‘TY’

“4

O00&4

fee)

> -

(hu

’

CLARK, Circuit Judge, dissenting:

for rehearing en banc in this case. Using either the

| | > . » < Pd rT? - 7;7Aec = - 529 9

Caldwell Vv. MiISSISS1DD1, ~evde , aw a Det Se 40 32

(1985), or the Brooks v. Kemp, 762 F.2d 1383

——

1198S) (en banc), standard,~ Darden is entitled to habeas

corpus relief due to the prosecutor's closing argument at

the guilt/innocence phase of his trial.

No one, not even the State, as the district court

moted, has ever asserted the arguments given by

prosecutors in this case were anything but improper. Darden

v. Wainwright, 513 F.Supp. 947 (M.D. Fla. 1981). The

magistrate in this case concluded: "I am convinced...

“As I noted in my dissent from the denial of rehearing in

Brooks, the majority's use of the Strickland v. Washington

prejudice standard cannot be r®conciled with the Supreme

Court's utilization of the “no effect" test in Caldwell.

Brooks v. Kemp, No. 83-8923 (July 23, 19935) (Clark, J.

Gissenting). Rehearing should be granted to clarify the

discrepancy between the language of _the en bane court in

Brooks and that of the Supreme Court in cal Gwell. Using

either, however, Darden is root ye te to relie€é.

2a review of the record Clearly indicates that the

prosecution made its sentencing argument at the

guilt/innocence phase. Early in Mr. McDaniel's argument

he stated:

I will guarantee you I will ask for death [at the

penalty phase). There is no question about it.

The second part of the trial I will request that

you impose the death penalty. I will ask you t

advise the court to give him death. That's the

only way I know that he is not going to get ou

the public. [It's the only way = know. It's the

only way I can be sure of it.

argument." Under the new Brooks test, prejudice is the key

element that a petitioner must Cemonstrate.

The most important factor in this case is the

evidence the State presented against Darden. The evidence

corroborating evidence. Darden at all times denied any

involvement in the crime. Purthermore, as I argued in my

dissent to the original panel opinion, the eyewitness

identifications were conducted, at the very least, in a

: | = 7 9 7 = =

improper instances emphasized the reliability of eyewitness

= . = | a : - _ > | vw . an a -

identification testimony, the lack of credibility of Darde

as well as his “animal” nature, and stressed that death was

the only sentence that would protect the public.

Using the Brooks test, the strength of the

evidence against the accused is a factor in determining

whether the argument exceeded constitutional limits.? [It

would seem that the evidence here is weaker than in any of

the four cases recently decided by the en banc court. The

3In Brooks, the majority at one point stated: "an outcome

based on weak evidence might be more likely to have been

affected by errors than one based on a very strong case.”

762 F.2d at 1335.

OO0KE

O00&S

ow fue fq om = = «

i117 I

as s ' -

. :

FINDIN e PAC » Cowrren

he efencant, WILLiAk ASPER DA was ; a

r : , aunty pon a harce :

,egree fe was also charged i the same ictment w

enses f robbery and assault with intent t r :

the ame time and piace as the harged wf er I e2

" en . . : Indictment ee entere " .

Pfter a change of venue was granted, *¢ al was the ‘

trus 2 the Defendant was ¢ .

; r f twelve ersons

The separate senter : ecaure e

+a te was then held before the -- a}

’ ents , the . ecomme

jeath agents = Pe hecamee ao — . 6 he

: enter r e ee and enter wrt

. ‘ om " om z the or er .

e nder r apita felor law

Th eo time f these ffenses we > a “

r rr re > len . ni 70 i » ’ ‘ e ‘

The Defendant at gun point robbed Mrs furma at a 3 are

furniture store, without resistance from her whe er 2

iceniy appeared at the back ca r f the stor the e

"mediate . | with 1 war 7 snot B]

iy ” irmar ar ’ > rear > > e oF rda >

. rtunr > fiee The e fendant > 2 J >

- 5 > 2 ma Tr ve that Mrs 4 . ‘ . :

x act ir N's ear ; : ; e

e . the “ 7a 3 was sa

OO082

times by the Defendant, twice in the mouth and neck while he was

stooping to help the dying Mr. Turman, and once in side or back as

he fled.

At the time of the offense, the Defencant was on 4 weekend

furlough from the State Prison where he was serving 4 sentruce.

I find this evidence to show the offenses to be shocking,

cruel, bestial and without any possible justification, excuse or

provocation. They show a cold, heartless and vicious disregard

for human life and dignity.

Another Judge of our Court previously had the Defendant

examined to determine his mental competence. He was found to be

competent. Shortly before the trial, at the request of Defendant's

counsel, I ordered the further examination of the Defendant by

a different, private clinical psychologist and a pychiatrist to

determine if the Defendant, although competent, was subject to some

personality disorder or emotional problem which in some way might

explain or mitigate the atrocities committed. The Doctors reported

they were unable to offer any mitigating opinion or evidence. I

recite this not in aggravation, but to show the absence of mitiga-

tion in this regard.

The Defense essentially consisted of a denial that the

Defendant was the man who committed the crimes. In mitigation,

after conviction, the Defendant again emotionally and with what

appeared on its face to be sincerity, proclaimed his innocence.

The evidence was sufficient to convince the jury of the

guilt of the Defendant beyond a reasonable doubt. I concur in that

conclusion.

| I find from the evidence and the record the following

aggravating circumstances:

(1) The capital felony was committed by the Defendant,

WILLIE JASPER DARDEN, while he was under sentence of imprisonment

(2) The capital felony was committed by him while he was

engaged in the commission of a robbery.

(3) The capital felony was especially heinous, atrocious

and cruel.

000'70 |

In mitigation I find the following circumsta °

] The Defendant is the father of sever ldre

, The Defendant repeatedly pr esse

innocence f the charces.

I do, therefore, conclude find and determine that

aggravating circumstances exist as enumerated above ¢t re e

position f the death sentence and that there are insuf* ent

mitagating circwestances to outweigh the agaravating cir mstance

I find the conclusion inescapable that the law ic}

- ~ « + + : a= - - oa »**

asses mace anc provided ustice, good science a e genera

welfare of the State of Florida require me tc Pr se the es

sentence

; ,

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: HE i . 7 PE

FOR HE ELEVENTH CIR IT

4 afl 7

-h. ie a

. sorroc arne ay aour

-HARLIE SEN 1 BOWEN,

D - . _ _. —

revitioner-aAppelilce,

versus

= Cc a -~

RALPH EMP Warde

mo x

Respondent-A

;

. Cand - Pie ~ ~sie

Appeal from the nited States District Court

-~ - . _ . a= GQ Pamenm

-S2 the Northern District of Georgia

ucge.

a. a, =~ - .

- ¥ rf - Aa .

FAL, VSIFTCULLC wUuCcge:

®HonoraDd e Georce ‘ae -~ “~ rr? ~ r cfr > a ~ & 7 A-2 + - -~ho

> — & ~~ > =. a 7 ee — « se | ~ « — « wae wi & we & ow wee aaa - >

» AA) ry cfr > of Py 7 a -~+ a vw Aoac che > ele

Micgcie District o FiOricga, Sitting oO 22€S51¢C cion.

O00 7:

Petitioner “Sariie Senson Bowen, was convictec ¢ 3 it

- Polx County, Georgia, of rape and murder He was sentencec *

1ife imorisonment for the rape charge and to death for the murce

-harce Having exhausted his state court remedies, Bowen fi-ec

the instant petition for a writ of habeas corpus pursuant to <5

9.8.C. § 2254. Respondent, Ra.on Keme Warden, Georgia

Diagnostic and Treatment Center, appeals the district court s

grant of the writ

Respondent raises three issues On appeai l whether the

district court erred in holding that the state trial court's

charge to the jury during Bowen's culpability trial improperi

shifted the burden of proof on the element of intent, in viola

tion of Sandstrom v. Montana, 442 U.S. 510 (1979), and was not

harmless beyond a reasonable doubt; 2) whether the district

court erred in holding that the prosecutor's closing argument

during the sentencing phase of Bowen's trial rendered that phase

and

whether

the district

court

fundamentally

in finding tha

unfai

Bowen

since

the

sentencing

jury

(3)

was entitled

was drawn

to a

from

new

sentencing

unconstitutionally

composed traverse jury list. We affirm the district court's jury

composition ruling and reverse the district court's rulings on

the Sandstrom and prosecutorial argument issues.

I. PROCEDURAL HISTORY

Bowen was indicted in Polk County, Georgia, on charges of

00080

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: >a- ’ anc Nae > ¢ >t was -}- arm.ess ode a

- - & os ~

. ~ ;

--~ _- ne te ee ee - nr en a. - A+ = ~ ~ - — = ~ &

reasorar.2@ couot, and é cme prosecutor S$ ciOosinNng argume

- ‘

= ~_—- — COR ae Tomed Aa - - ye | - | - = -* > oe 7 ~ = a- - =

WE e@ ~ e >€ -@ i a the ear i ~ rencere we at pnase - » SsoOwe

‘

)

t*)

owen asserts that the following tIury instruction imper-

missibly shifted the burden of proof on the element of intent, in

of Sardstrom:

The acts of a person of sound mind and discretion are >

presumed to be the product of the person's will but the

presumption may be rebutted. A person of sound mind

and discretion is presumed to intend the natural and

probable consequences of his act but the presumption

may be rebutted. A person will not be presumed to act

with criminal intention but the tryor [sic] of facts,

that is you the jury, may find such intention upon

consideration of the words, conduct, demeanor, motive,

and all other circumstances connected with the act for

which the accused is prosecuted.

we acree.

The Supreme Court, in Franklin v. Francis, 53 U.S.L.W. 4495

(U.S. April 29, 1985), held that a portion of a jury charge

Virtually identical to the one at issue here “undeniably created

an unconstitutional burden-shifting presumption with respect to

the element of intent." Id. at 4498. The Court also rejected

the state's argument, identical to the one advanced by respondent

am tne .snstant case, that any technical infirmity in the chal-

000 F2

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suiie ane if the instruction was applied to an eiement of the

-rime which was not at issue at the trial.” Id; accord, Tucker,

7 F.2d #£(M/S at 8); Brooks v. Francis, P.2¢6

th Cir 19865 en banc M/S at 8). Davis further states that

"focus on whether evidence of intent, rather than the more

inclusive issue of guilt, is overwhelming." Tucker, F.2d

(M/S at 8) (emphasis in original) (citing Davis, 752 F.2d

at 1521 6 n.10). In this regard, the nature of the defens®

asserted at trial may be an important factor. See Brooks,

F.2d (M/S at 9).

A reading of Davis and ts progeny reveals that when a

court focuses on the decree of evidence of intent, it should

examine the evidence without reference to the particular defen-

dant. In other words, the court should examine the evidence as

if the allegedly criminal conduct had been performed by some

anonymous actor. For example, in Davis, where the defense

essentially was non-involvement, the Court examined the circum-

stances of the victim's death and concluded “that whoever killed

the victim did so with intent and malice.” Davis, 752 F.2¢ at

1521. In Tucker, another non-involvement cefense case, the Court

reasoned that the evidence was overwhelming that whoever killed

the victim did so intentionally because “the victim died of one

crushing blow to the skull by a Blunt instrument.” Tucker,

000° 4

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ciati

rom

Sands

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inst

tne

aan

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in the

ssue

rancis,

the

In Franklin,

comparison.

material

all

~*e

entical

ndstro

lated Sa

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facts d

since the

armless

loa

reasoned

The court

nt's accident defense.

enda

Gef

intended to

that Franklin

S added)

(emphas

not be deemed harmless

ense

an asserted de

tuati

Sil

the

S77

000

- 2

Are cumnmft ior ate > Raye secome Serartive r * >

witetsu eee Se? ee ss Gc - ee ee Ce ee ee a swe — & eee ee ee

bs = —_—

= ‘ a ~ -_ > a < DA 7 7 _ - ook

7” a | | Lol - Oo e Lal nan fo

JONNSON, + “s+ at Jo J Y~wWlOisy ~ , cisse ~~ alg .

S$ ete -tebke Ss etel— ~ = Fan ara before a _ re 2 on

- - we G - > > V & » Gar & Gii ~~ n & —~s- ¥ — ee

)

able doubt that the Sandstrom error in this case did not

ute to Bowen's murder conviction. The error was harmless and we

therefore reverse the district court's holding to the contrary.

III. PROSECUTORIAL ARGUMENT

Bowen challenges portions of the prosecutor's closing

argument during the sentencing phase of his trial. Bowen argued

in his petition filed in the district court that the following

passage improperly raised the possibility that he might be

paroled from a life sentence:

[The Prosecutor]: And now we come up here with this

idea that here is a man that even though he knew that

he himself .. . even though he was convicted in his

own heart and he desired to die and we are approached

with the proposition that he is subject to be rehabili-

tated and released back into society.

Yeah, I guess he can be rehabilitated. Hitler

could have been. I believe in about six or eight

months if I'd had him chained to a wall and talked to

him and beat him on one side of the head for a while

with a stick telling him you believe this don't you

then beat him on the other side with a stick telling

him you believe that don't you I believe I could have

rehabilitated Hitler.

000£8

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i ae 2w/w\. 4S & . 4 & > e e s ak s ~ a. 3 ~ 2. *

a ™ oats ear M ’ - ~ ee - - - Pa “tant, a » '«

work at Goocyedr 1iiS 1 Lne Cwistert cc rean, lt Ss

~ “~ . mls Sl ae! - - 7~ - —- - —_. a - “7 “~- = ea

~ €@ivaoie Ser- ae e ca GO see angie some re ean,

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l S COncelvadilie tha ne ca 27e 120@t J ‘ saMOl.e, 1G

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s@ ivad.e @er-a« e ~ a! ve Lev ° < ~ 42. ifik lS Deer

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anc snmoOKe lS arijvyuanad, anc ts & - C@ivaod. Cenat

- = =~ —\y - ~_-a ae - 7 ~~ ® «» 7 ~ a ~ I-A + - 7 +

e to ee ee _ =| ee er Litrtcric ~we.ve Year ee et as ~* i &

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J want L (oO aii you ve got to Gao is .

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wo or o ~~ — ~~ — as —_— ~-K 5 oe *& -~ * = = ~y

i is ~OUNSECL 4 301 qe O}Tectv Ct S:rt ALne C

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—_— > wo ~*~ “ W@ — “ « > a» ~ “-» #£ . — _ ~ ~ ~~ an i“

~ - ~ me - Se ~ + £ = =~ ~ re oun sne 7 = —— —- a i Ton

PEYONSG LNne obouncs Of a2 talr argumenc anc i Suggest tnat

= — 7 a & a — _ _ ee »- -

e oe gairecte LO cease iro ~Nat.

The mise & « a Averr ,le T). tt | AKT arr 1 An

- — i i —_ _ —-~»* & @ & y ww & ed — a ee er Fe

4 »

\The Prosecutor]: They say he can come back i

society. Some of them would welcome him with open arms

t I'm not. They can call me what they w c

hatever they want to. I'm not wi

tion you must make.

ments made by the prosecutor in his closing argument which will

be iscussed below, held that Bowen's sentencing trial was

rendered fundamentally unfair. We

ve)

ft)

“

)

The law is clear that habeas relief will not b

improper prosecutorial arguments unless those arguments rende

the sentencing proceeding “fundamentally unfair." Donnelly v.

DeChristoforo, 416 U.S. 637, 645 (1974); see Brooks, __ F.2d

— e a a a e

Francis, P.2 lith Cir. 1985 en banc) M/S at

. ” ee | al ™ _—

6- . lo make that determination, the reviewing court must

. - - - 7 _ 7 ~ +

Gecide whether there is a reasonable probability that, had the

0002

3ifferent Brooks, F.2d M/S at 31 citings

Strickland v. Washington, U.S , 80 L.Ed.2d 674, 696

1984

As an initial matter, we interpret the content of the

argument quoted above as more a comment on Bowen's future

dangerousness and prospects for rehabilitation than an injection

of the possibility of parole into the sentencing hearing.

Throughout the sentencing hearing, defense counsel attempted to

portray Bowen as a person who converted to Christ after his

incarceration for killing Sheila Denise Young. For example, J.D.

Bryant, a deputy sheriff with the Polk County Sheriff's Depare

ment, was called to testify on behalf of Bowen. Bryant worked at

the jail where Bowen had been housed since his arrest. Bowen's

counsel specifically asked Bryant if he had “any opinion regard-

ing [Bowen's] potential for rehabilitation and return to soci-

ety.” Tr. at 278. Bryant, a Baptist minister, testified that in

his opinion, Bowen truly had experienced a religious conversion

and now was a “model individual® who “could participate in

society and become a useful member of society." Id.

The en banc court has made it clear that consideration of

future dangerousness “is a proper element in the sentencing

jury's decision." Brooxs, F.2d (M/S at 48). “Simi-

larly, .. . the jury may appropriately consider whether ([the!

defendant is ... s0 unlikely to be rehabilitated that incapaci-

tation is warranted." Id. at (M/S at 39). The prosecutor

OOCSO

“a4

ies

care

tr)

attorney's

rook«s,

is clear

sonal

e prosecutor's pe

-h

— FT

~~ &

statement

at 375 ALincsg tnese statements arguac. acvocate tn aps cS-

priateness of retribution, a penological custification for =:>

Geazh penalty which is properly considered by the jury, Brooxs

F.2d (M/S at 38-39), the fact remains that they were

coucnec in the form of personal opinions. These arguments

therefore also were improper.

The district court took issue with the prosecutor's

characterization of Bowen as "a product of the devil,” Tr. at

S65, "a liar,” id. at $67, who was “no better than a beast.” [2

at 569. We address these in turn.

With respect to the first of these remarks, we note that

the prosecutor was not referring specifically to Bowen, bu

rather was commenting on the insanity defense in general. The

prosecutor was simply making the point that not all perpetrators

of heinous crimes are insane and that society has “gotten away

the old time idea that [a defendant can commit a vicious

crime] because [the defendant is] a product of the devil, and

(the defendant commits the crime] because [he does not] care.”

Id. at 565. Although dramatic, we do not view this argument as

improper.

We also do not regard the prosecutor's statement that Bowen

w32s a liar as improper. When the term was used, the prosecutor

was arguing to the jury that Bowen did not act like a person who

was disoriented and out of touch with reality when he killed

Sheila Denise Young. The prosecutor argued that Bowen tried to

cover up the fact that he had attacked his own daughter shortly

“4

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00053

future stim Of Bowen wou. e iry's conscienc .

nme state that tne srors were tre on. persons who cou

Bowen from «iliing agair see ics. at 21 Rather, the prosecutor

7as Sringins r1Ome tne point trat the *urors were the n

ministers of the law" adie to exact appropriate retribution fr2-

the slayer of Sheila Denise Young This was proper argumen*

<£- BEOOKs F.2c “M/S at 49 "The reminder to ¢t?

jury that ‘the Duck stops with you today" was an ppropria*

reference to the fact that the jur must make the ultimate

decision.”).

- = -~ ’ —_ | 2 = aa ofr i ne ~ae & 7; A -— a >

.n€ -~- ia. ar sument @e) | —~enw st Be & — re i.iec

invalidate the sentencing hearing went as follows: “You know fo

fal

’

a criminal to go without proper punishment is a disgrace tc

society we live in and it's shown to us every day by the fruits

that we reap from day to day in our society when we have th

bloody deeds such as this occur.” Tr. at 579. Standing al

)

tni passage does not appear to be an improper argument. wh

read in context, however, it is clear that the prosecutor wa

Giving his watered-down rendition of an argument found im

‘)

Immediately before the challenged argument the prosecut

uUStices once said that

the sickly sentimentality a causes us to shirk

whenever the axe of justice is about to fall that it is

mot true sentimentality, that it cannot produce true

Justice, that it may be the sign of a tender heart but

it is also a sign of one not under proper regulation.

0006-4

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Georgia iaw, Bowen was eligiSile tor the death penaity.

That however, does not end the inguiry Ks we have seen,

see Supra p. il-l2, the recent en banc decisions of this Court

whether improper arcuments rendered

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sentencing trial fundamentally unfair, we should ask whether

there is a reasonable probability that, in the absence of those

arguments, the death penalty would not have been imposed. See,

e.g., Brooks, F.2d (M/S at 31, 52). "This inquiry

involves an evaluation of the improper remarks in the context of

the entire proceeding. ..." Id. at 52.

The prosecutor improperly put before the jury his persona

Opinions. The principal thrust of his argument, however, made it

Clear that only the jury could decide whether or not Bowen should

be executed. The prosecutor began his argument by stating tha

is necessary that you twelve jurors decide what punishment

[Bowen] is to receive for the offense of murder.” Tr. at 560.

Further along in his argument the prosecutor conceded that I’m

,ywilling to abide by your [the jury's] determination because it's

a determination you [the jury] must make.” Tr. at $77. He also

000 “b&b

7 - "2 . . ° Ww + af ™

- ‘ - I . t ‘ -

7 _— rn" se af . > _ = “a rs

- > Q ¥ > > TA Ke .

rh ¢ tria jcce's instruct ; mac¢ : :

.@ar tnat fr ne save the ry was respor .@ for tne timat

_- > 7 ear? - = - wer . . > : " ;

“haraoe rhe ruCGCe instructed rhe r that " J elt aot _ "ove

-per emer wered ~~ fix -“-o Dun i Amen . ° rhe fas a ‘ ° w > >

the defendant has alreacy beer ‘ te . [d at € the

rext paracgrap? the wage charged that the ror “are the ige

£ the law and facts r tr ase } are mace the

exc ius) 2 *ucaces a6 , re rec ‘ a. . ~~ —_— e ct. 7 ‘

icge ai Sharged the jury that ever if the tate provec the

existe - f an aggravating ircumstance the "Ww t

be authorized t Fix the punishment f the defendant at

noris nment.* id. at O° The jcae further try rac > *

- > ~ rA<¢ "are a . a ar "Tanner > ea > > al

, , yerai > shoulad Sr ~ la y > ~@ Thar —-— + a >

. >. £10

OOD.

ng that the jut f rst - that if Sore ,@ responsibdi.

ing 3

the sentencing cecision no that the prosecutor's opinion -

n more tnan tnrat The ™prorcer Statements . SDinion w«

representec only a smali part therect. Any prejucice from the

Rprce mar we r the most part all tatec ¢

statements of the prosecutor and the judge's charge We fin

reasonabie probability that, absent the improper statement

opinion, Bowen would not have been sentenced to death.

that the prosecutor's invocation of the views of a notgc¢

justice” changed the outcome of the sentencing hearings. First

as previcusiy noted, the thrust =} the prosecu

argument mace it unmistakeably clear that the jury could do as it

pleased. Bowen's counsel also emphasized the fact that, under

Georgia law, the jury could opt for life rather than death, even

if it found the existence of an aggravating circumstance, after

;

’

considering all the circumstances. ee ic. 600-0]

you find that this was a vile heinous act you still have the

option because of considering the man of awarding that man a li

Sentence instead of a death sentence id. at 602 I}¢ ye

consider the true Charlie Bowen .. . a8 the evidence really

pictures him, .. . then... you have the opportunity to award

him a punishment of life in prison rather than being put tt

Geath, even for the offense of murder™): id at 604 | Tihe law

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7 if¢ : - _ @ LS whicr MCONMSTITCUCIONM@i. ex

a - ° ‘

- : “<< - ele w@e > — . =. .

: ‘ . na -@& enge cne 2iScriminatcer se.ec* :

~@te : es mcert Cne eque. prorection ~-2+8Use : ~€

: rteentr smencment cee ROsSe ¥ Mitchell. 4473 = cas 137s

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nee a7 é.G ‘ 4 \ ’ i3sce4 sivcs . 2 . rae

. 2% eo - - .2 7% ~- > & : > * - —.. ~ +> - = . ah :

: ; : ss : ¥ = WU . ; J | :

. = _ = ‘ : . = eae —_ 7 ,

- : 13°93 ayior v LOvuisiana 413 U.S rr. i375 ite

_*s*ee¢ - -* 7 . > = 7 7¢ >» * - - 5 -~ - > - ~ —

; 5 j Le 9 4G i3dé id i L3s4 = ~ ~

——- « ™ — as = — sae @ «2 . . —

ivsS 3s ~— 366 L385 sidson r.4G4 i343. "ne Dave notec tha

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- ™ : th 75° F DA . ; > «- . —. 7. re > 4 .

anaivsis See Tuttle, 5 F.2¢ @ L32 Z si >son -5 F.26 @a

1546 Nitec States v Perez-He sncez 67/2 F.2€2 i38C¢ L384

— > 587

Ld iz \ r

Th o e rere —— o > 3¢@ —- - iw Te} ** « ~~ -— & - + > he 2

° Ss . _ ™ ‘ence a -astaneca whé ° *ared

OO1LC!

Th £ rece steno ,<¢ ee ec*ar oc -rsf - ~— ~- 2S

- > : a 7 = ~— a - = am & a —_ ~ o> te

that is a recognizable, distinct class. x

. -

a ar . na - ~ _ a os — > - “~ + ~ -

cecree Ot uncerrepresenteatic USsSt oe proved, e

Oe rl. ne » * Oe ee oe ee | ~ + ~~ a a ale -_ ~ om bk ~~ =

=< npar ma tie Ccne 2 os a — & = e te et € my e a3 +

7 . ,

. . .

_~ , a oo a _ “ner ms r+? or > “4 nn - “<<. ~_-_

pDODdDU La tio : co the mm & oOpecr a Ca i.iec => Ser ve a>

£ . = .

urors, UVer a Siawiisai 4G « wo. LV ws & s €.

= =o? Le collec ~~ on “rao re *h at _- = -- ~ > _

+ + ——_*> FF . . . a i ee we ww SS we A = = -~— a oe 2 _ ~ &

ns ~ + ayi(1¢ce aw , € nan rar a an) a a cCrinrnmrmnaer fC ee

ws oe —“ =~ oe? oh — & ~— * eee ee ee oe -~_— ~~ s& Oe ek ee he - = —

]*r aw ? =

snowing.

‘a - - — = 40h 7 ¢ _ AOA ~ - - ~——_ aw - + = vw > mk A A

~aStaneca, #5VU Jes atc 494 ~-itations SMiccec Ltcneii, 44

ee - . _ ~ laa

~ 565 ro - _ _ “7 - ~ ~_ ~ ~ & a. +a ® ~ *

U.S. at 565. More recently, the Supreme Court set fort the

elements of a fair cross-section prima facie case To preva on

> aa ; “> » ~* c ~ ee we 2 - —~ «= ~G2OSC « ~~ wi. Y ~+ ~

a sixth amendment jury composition challenge:

[T)he defendant must show (1) that the group alleged to

be excluded is a “distinctive” group in the c

(2) that the representation of this group i

from which juries are selected is not fair an

able in relation to the number of such perso

community; and (3) that this underrepresentati

to systematic exclusion of the group in th jJury-

selection process.

Duren, 439 U.S. at 364. After carefully reviewing the record, we

= |

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hold that the district court co

established a fourteenth amendment prima facie case.

Respondent concedes that since women constitute a recogniz-

able, distinct class, see Duren, 439 U.S. at 364 (citing Taylor,

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—

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;

419 U.S. at $31); Sneed, 729 F.2d at

Castaneda test has been satisfied. The gravamen o

‘ : ‘ . tnt ‘7 c~- ‘ (_-

with the district court, however, focuses on the weight

00101

women residing in Polk County and the percentace of women on the

traverse jury list

jury

Sowen was sentenced to die in 1978 by a jury drawn from the

traverse jury list compcesed in the fall of 1977 The statistics

admitted into evidence in the district court re

Aine

Se a. "ee

% between the percentage of women resi

and the percentage of women on the 1977 traverse jury list. The

“~

bay

recorad further shows that this disparity was not an aberrati

rather, the underrepresentation of women was even more dramatic

ur preceding traverse jury lists.?

In the face of this evidence of a clear historical patter

of female underrepresentation on Polk County's traverse jury

lists, respondent insists that the statistical disparities are

not constitutionally significant. We do not agree.

We acknowledge that the Supreme Court has eschewed pro-

nouncing precise mathematical standards for proving systematic

exclusion of distinct classes, see Alexander v. Louisiana, 405

U.S. 625, 630 (1972), and that we have followed its lead. Se

e.g., Gibson, 705 F.2d at 1547; Bryant v. Wainwright, 686 F.2d

1373, 1376 (llth Cir. 1982), cert. denied, 461 U.S. 932 (1983).

We do not, however, write on a clean slate. In factually similar

cases, the Supreme Court, this court, and the former Fifth

1f . . . ~

Circuit*” all have found statistical variances near the 22.7%

Gisparity present in this case to be constitutionally sig:

cant. E.g., Turner v. Fouche, 396 U.S. 346 (1970) (23%);

Jercnance2 Texas, es? U.S 47 1954 .4% 315s0n, :

1543 22% and 383% Macnettl Linahan, 679 F.2d 236 Lie> °

1982 36% and 42%), cert denied, 459 S 1127 (1983 Porter

Free~an, 3577 F.2d 329 (5th Cir 1978 20.4% We therefor

nave no difficulty concluding that the 22.7% variance between t

percentase of women residing in Polk County and the percentace of

women cn the i977 traverse jur list, immediately prececed 6¢

nearly a decade of even greater underrepresentation, is suffi-

cient to satisfy the second prong of the Castaneda test

The district court also found that the process employed by

the Polk County jury commissioners in composing the traverse jury

list was susceptible of abuse as a tool of discrimination.

agree.

The Georgia law in effect when the 1977 traverse jury 1

was composed provided:

At least on ger ion gh or, if the senior judge of

the superior court shall direct, at least annually, the

board of jury commissioners shall compile and maintain

and revise a jury list of intelligent and upright

citizens of the county to serve as jurors. In compos-

ing such list the commissioners shall select a fairly

representative cross section of the intelligent and

upright citizens of the county from the official

registered voters’ list of the county as most recently

revised by the county board of registrars or other

county election officials. If at any time it appears

to the jury commissioners that the jury list, so

composed, is not a fairly representative cross section

of the intelligent and upright citizens of the county,

they shall supplement such list by going out into the

county and personally acquainting themselves with other

citizens of any significantly identifiable group in the

county which may not be fairly represented thereon.

‘tiwaeé

er ze

commissioners shall sele

00103

JI w

ST mW re,

® mumoer, to serve as gra! rors. The entirc

mber first selected, including those afterwards

ected as grand jurors, shall constitute the body of

verse jurors for the county, except as otherwise

vided herein, and no new names shall be added until

se names originally selected have been completely

hausted, except when a name which has already been

wn for the same term as a grand juror shall also be

wn aS a traverse juror, such name shall be returned

the box and another drawn in its stead.

Tran ac:

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Ga. Code Ann. § 59-106 (current version at Ga. Code Ann.

§ 15-12-40 (1982)). Although the Supreme Court has characterized

this method of selection as “not inherently unfair," Turner, 396

U.S. at 355, it also has recognized that the statute contained

the potential for abuse. Id. at 356 & n.14. It is necessary

therefore, to examine the testimony of the Polk County jury

commissioners to determine whether the process they used to

compose the traverse jury list was susceptible of abuse or not

facially neutral.

Members of the jury commission testified both in the state

trial court and in the district court. The following passage

from the Georgia Supreme Court's summary of the state court jury

composition hearing underscores the largely subjective approach

taken by the jury commissioners:

At the hearing on the jury challenge, several

members of the Polk County Jury Commission were called

to testify. Of the jury commissioners, four are white

males, one is a white female, and one is a black male.

The jury commissioners testified to the following

effect: the appellant's jury was struck from a

traverse jury panel which had been most recently

revised in September-October, 1977. The panel was

Grawn from a 1975 Polk County voters registration list,

a list of county voters who had voted in the last

00104

S-enerasa. EL@ction, 3 s* rsons ac. Se s SOULE

Surisdiction, te.ephone booxs anc cit Sirectories

The primary source from which tne srors were drawn was

the list of voters who had voted in the last election

The commission was given brief instructions from the

Polk County Superior Court Judce, including an instruc-

tion to have males, females, blacks anc whites on the

jury list The commission met as a Grour anc <dis-

cussed each name consicerecd. They were considered on

the basis of each jury commission member's accguain-

tance with them - specifically on the basis of charac-

ter, ability, anc cavabdility to Se a2 juror If

everybody approvec, the name would be piaced on the

jury list. The commission dic not put anyone on the

jury list about whom someone on the commission ¢idc not

know something. They did not take any investigative

action to get to know people they did not know. (The

jury commissioners were not aware of their duty,

imposed by Code § 59-106 (1976 amendment), to supple-

ment the jury list by going out into the county and

personally acquaintin themselves with other citizens

of the county, if it appeared that the jury list, as

composed, was not a fairly representative cross~-section >

of the intelligent and upright citizens of the county.)

Blacks were designated with "(c)" on the voters lists

furnished to the panel, but all of them, particularly

the black jury commissioner, knew pretty well the great

majority of the black community. They did not know the

percentages of male-female or black-white in Polk

County, but no one was excluded from the traverse jury

panel because of race, age or sex; and it was the aim

of the jury commission to secure a ross-section of

people from the community for the traverse jury panel.

Bowen v. State, 260 S.E.2d at 857-58 (emphasis added). At th

federal habeas hearing, the jury commissioners who testified

reiterated that no one was placed on the traverse jury list who

was not personally known by one of the commissioners. The

district court concluded that this method of selection was

OOTOS

Se e - a , “—-_- * . _— ~-— ~~.

Castaneda tes=, the district court: improperiy focused on on.

- - 7 ~ a) nae

ubjective attributes of the seiection process Respondent urge

that the court: should have incorporated into its

| amd

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fact that 4 woman and a bdSBlack man were members of the 1977 jury

commission; (2) the fact that the jury commissioners did not rely

‘D

exclusively on the voters registration list to compose th

traverse sury list; and (3) the commissioners’ assertions that

no one was excluded from the list solely on the basis of race or

gender. Respondent also argues that the commissioners’ collective

familiarity with nearly everyone in the county could have

prevented abuse of the method of selection. These arguments’

however, miss the mark and evince a fundamental misunderstandinsc

of both the third prong of the Castaneda test and the distinction

between a prima facie case and a rebuttal case.

To fulfill the third requirement of Castaneda, Bowen was

Obliged to show that the traverse jury selection process used in

1977 contained the potential for abuse. Bowen clearly made such

a showing: (1) the jury commissioners knew the gender of every

potential juror; (2) the commissioners were, aS a group,

personally familiar with practically everyone in the county;

and (3) the commissioners discussed amongst themselves the

qualifications of each person considered. That a member of the

jury commission was black or female, or that several sources were

used to gather names, neither magically removes from this process

its highly subjective component nor diminishes the ease with

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Respondent argues here, as ne Gid unsuccessfully in the

court, that this case is distinguishadl in e¢rucial

respects from Alexander, Castaneca, ané their progeny. In

support of his position, respondent again directs our attentior

to the fact that the jury commissioners were neither ail white

mor all male, to the commissioners’ use of multipie sources to

gather names of potential jurors, and to the commissioners’

denials of discrimination and their asserted awareness of the

duty to include on the traverse jury list a fairc cross-section of

the community. Respondent submits that if the aggregation @&

these facts does not constitute a successful rebuttal case, none

really exists. We are compelled to disagree.

Initially, the fact that a black man and white woman were

members of the 1977 jury commission may be irrelevant. The

Supreme Court has made it clear that in examining a state's

rebuttal case, a court may not presume that persons of a particu-

lar class would not discriminate against others of the same

Class. Castaneda, 430 U.S. at 500. Moreover, regardless of the

number and nature of the sources utilized by the jury commission-

ers to compile names of potential jurors, the fundamental fact

remains that “the opportunity to discriminate was presented at

later stages in the [jury selection] process.” Alexander, 405

U.S. at 632. When respondent's rebuttal case is thus reduced, we

are left with the jury commissioners’ denials of discrimination.

‘

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FOOTNOTES

Re For a @etailed discussion of the historical facts in

this case, see Bowen v. State, 246 S.E.2¢ 322 (Ga. 1978).

2. Apart from the language of the challenged instruction,

other instructions in the trial court's charge make it clear that

acceptance of Bowen's insanity defense would preclude resort tc

the offensive presymption. After instructing the jury on

Bowen's insanity defense (Bowen does not challenge these instruc-

tions anc we therefore assume they were proper), the court

stated:

have instructed you, at the time o

the alleged offense ..., that é

and enter a verdict that wou

ng.

Tr. at 463 (emphasis added).

In the next paragraph of its charge, the court instructed

the jury:

If, however, from a consideration of the evidence

enertace we at that time and place of the occasion

uncer investigation in this trial that entyou would

anc thus responsible in such event

ut to give you.

Id. (emphasis added).

3. In his habeas petition, Bowen specifically contested

only the prosecutorial argument quoted in the text. This

also was the only argument objected to = trial counsel in the

sentencing hearing. The district court, however, examined the

challenged argument in light of ag He entire closing.

In the court's view, the challenged argument, when considered

with other arguments the court found objectionable, rendered the

sentencing hearing fundamentally unfair. Because the district

court considered arguments which were not objected to at trial,

and respondent does not contend here that that consideration was

improper, we find it appropriate to address all the arguments the

Gistrict court regarded as improper.

00110

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anger . ad

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mi iar st)

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ane ment

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axe r

. . _ .

ee mer

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si se

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(m/S act “*$). Here, the prosecutor referred only to a2

‘ *.- a een) " " 7 uw * _

Fnoted justice. The prosecutor in Drake specifically stated

that the Supreme Court of Georgia regarded the «ind of mercy

adverted to as not true mercy. See supra note 4; Drake,

F.2d (M/S at 18). Here, no mention was made of mercy,

except that society occasionally should be the object of mercy,

as well as a criminal defendant. The prosecutor in this case Tay

have tried to quote the Georgia Supreme Court, dbut he obviously

was not successful. Finally, the prosecutor in Drake took pains

to note that the quoted passages were taken from Georgia Supreme

Court cases involving murder and the death penalty. The prosecu-

tor in this case merely referred to the view of a “noted jus-

tice;" no mention was made of the context within which these

views were expressed. From the foregoing, we consider the

argument in Drake to be a much more severe statement concerning

the appropriateness of mercy for a capital crime defendant, anc

therefore much more prejudicial than the inarticulate argument

involved in this case.

6. Given its disposition of the gender discrimination

claim, the district court found it unnecessary to address Bowen's

companion claim that blacks also were unconstitutionally under

represented on the traverse jury list.

7. The sixth and fourteenth amendment analyses do differ

in one significant respect. To prevail on an equal protection

challenge, the defendant must show rposeful discrimination.

, 439 U.S. at 368 n.26. Hence, if the defendant makes out a

prima facie case, the burden of proof then shifts to the state to

show the absence of discriminatory intent. Id.; casianeda. 430

discriminatory ntent is irrelevant to a fair cross-section

challenge, Duren, 439 U.S. at 368 n.26, the state may rebut a

sixth amendment prima facie case only be demonstrating “that a

significant state interest [is] manifestly and primarily advanced

by those aspects of the jury selection process . . . that result

ih the disproportionate exclusion of a distinctive group.* ig:

2@ 1212,

at 367-68 (footnote omitted); Willis v. Zant, 720 F.

1217 («llth Cir. 1983), " » 104 S. Ct. 3846 (1984);

» 705 F.2¢€ at 1846 n.43 » 672 F.24 at 1384

n. .

8. In his habeas petition, Bowen contended that the jury

nel which sentenced him to death was drawn from a traverse jury

ist “composed in violation of the Constitution of the United

States." Record, Vol. 1 at 18. Since Bowen failed to specify

the constitutional basis for his complaint, the district court

stated that it would evaluate the jury composition claim under

both the sixth and fourteenth amendments. Id. at 210. The court

accordingly set forth in its opinion the Castaneda and Duren

tests. . at 210-ll. Absent from the court's opinion, however,

is any scussion of the burden the state must carry to rebut &

001L%2

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Vs 2 > i > . < :

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Ke rc : » @C daca

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ea 4 4G .< ® « 7 . : azca e” 2&anc acoPtec 3

™ 2 - - . " ~~ c ™ ™ 4 ~_ ~

prececent 2eCc isi Ss : Te rict eal 21% ance SO * £ ;

tc <_tooer ‘ 3s. “e ,_s sre Downd dy [ec is es . Ait &

>> * = > eancerec a* -* thaet ‘ate a. om

(Mott 4

ct ty Ga

mn"

, Circuit Judge, specially concurring in part anc

ing in part: |

I cone..r in Section IV of the majority opinion, affirming

gment of the district court in granting petitioner a new

ing trial because he was sentencec by an unconstitution-

lected jury. I also concur in Section II(a) of the

y opinion, which holds that a Sandstrom violation oc-

However, I dissent from Section II(b) of the opinion,

olds the Sandstrom viclation to be harmless error, anc

III, which holds that the petitioner was not prejudiced

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ry?

> *

acknowledge that I am bound by the recent decisions of

~ . . 76% , 1c? l1lenh C6

banc court in Davis v. Kemp, 752 F.2d 1515 lit eit.

en banc), and Tucker v. Kemp, No. 83-8466, slip op. 4531

ir. 1985) (en banc). However, the majority's opinion

fiably extends the harmless error concept to a case where

ent of the admitted killer was clearly at issue.

—

In Davis, the Court identified two ci

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he harmless error rule

ions: (1) where the evidence of the defendant's guilt was

lming, and (2) where the invalid instruction concerned ar

of the crime which was not at issue at trial. Id. at

Lamb v. Jernigan, 683 F.2d 1332 (llth Cir. 1982), cert

OO147S

)

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am = = " ~ e P} . - . . *

eoncerned the intent of the ZGefendant, but the Court held that

. = _ - a ~ - al ae > - + ** ‘ee + ‘Ae } ar ‘ =

Phe defendant dic not contest the issue of i ent See Davis,

—<* A . <7 7 al - - 1A e#&h _— & hb

Supra, 92 F.2C at i521. e Court held that under thos-

’

;

“circumstances the faulty instruction, which impermissi iftec

the burden of proof on the intent issue to the defendant, was

harmless error. In reaching its conclusion, the Court relied

heavily on Engle v. Koehler, 707 F.2d 241 (6th Cir. 1983), aff'd

by an equally divided court, 104 S.Ct. 1673 (1984) (per curiam),

in which the Sixth Circuit held that a Sandstrom violation could

be harmless error where the defendant admits that an intentional,

malicious killing occurred but claims non-participation in the *

crime; but that such a violation could not be harmless error

where the defendant asserts lack of mens rea. See Davis, Supra,

759 F.2d at 1521; Engle, supra, 707 F.2d at 246.

Although intent was not contested in Davis, intent was

very much at issue in the instant case. The petitioner raised a

temporary insanity defense, which called into question his

capacity to form the requisite intent for malice murder. This is

the same defense that was raised in Engle, in which the Sixth

Circuit held that a Sandstrom violation was not harmless error.

ct?

707 F.2d at 246. Nevertheless, the majority hold

Sandstrom violation, which may have given some jurors the

impression that the petitioner had the burden of proving that he

lacked the requisite intent for malice murder, was harmless

error.

: 001.46

and probable consequences of his acts if he is a person of “sound

ming”. The majority argues that this presumption could have

become operative only if the jury first determined that the

petitioner was sane, i.e., if the jury had already rejected the

petitioner's insanity defense. The majority concludes that i

the presumption had become operative, and the Sandstrom violation

thus occurred, the violation was rendered harmless by the fact

that petitioner's defense on the issue of intent had already been

rejected by the jury.

The majority's analysis fails to address the fact that the,

State was required to prove not that petitioner had a sound mind

but, rather, that he had the requisite intent for malice murder.

Even if the jury rejected petitioner's argument of temporary

insanity, the issue of intent was not a defense that petitioner

had to prove; intent was an element of the crime that the State

had the burden of proving beyond a reasonable doubt. Davis,

supra, 752 F.2d at 1528 (Johnson, J., dissenting). By arguing

that he had a diminished capacity to form the requisite intent

for malice murder, defendant did not thereby admit that he had

the requisite intent if he had the capacity to form it. Since

intent was a contested issue, holding a Sandstrom error harmless

in the present case is an unwarranted extension of the “harmless

error” rule.

001.77

II. THE PROSECUTORIAL MISCONDUCT ISSUE

In the present case, the prosecutor argued that a “noted

justice” had stated that mercy would be an inappropriate

consideration for the defendant. The prosecutor izplored the

ury to “fulfill the commands of the law,” and thus inflict the

Geath penalty on the defendant. The majority holds that, despite

this concededly improper argument, the prosecutor did not render

the sentencing phase of the trial fundamentally unfair, and

appellant is not entitled to habeas relief on this grounc. The

majority relies on the “prejudice” test adopted by this

Circuit in the en banc decision Brooks v. Kemp, No. 83-8028, slip

op. 4453, 4488 filth Cir. 1985) (en banc), which held that a

court should grant habeas relief for improper prosecutorial

argument at the sentencing phase only if there is a reasonable

probability that, in the absence of such argument, the death

penalty would not have been imposed.

In holding that the improper prosecutorial argument was

not grounds for relief, the majority disregards the recent

Supreme Court decision in Caldwell v. Mississippi, 52 U.S.L.W.

4743 (U.S. June 1l, 1985), in which the Court vacated a death

sentence because the prosecutor used the same kind of improper

argument that was used in the present case. Because the recent

Supreme Court decision rejects the “prejudice” test adopted in

Brooks, I dissent from Section III of the majority opinion.

—_—

0017.7.8

‘ : e . *s the Brooks Pr

‘ ;

‘a. " . ‘ fendant' Seat

hed 4 per _ = <¢ > : sument, +h eo -alic

St adic standard that ffers ignifica

ircult stancarc formulated in Brooks and

majority. In Brooks, the en banc court

whether to grant habeas relief for improp

arguments the reviewing court must decide

reasonable probabilit that, had the rema

entencing outcome would have been differ

lip op. at 4475 A “reasonable probabil

sufficient to undermine confidence in the

Kemp, No. 83-8047, slip op. 4577, 4587 (1

banc); Strickland v. Washington, 104 S.Ct

674, 698 84).

The basis for the standard adopted

notion that habeas relief should be avail

has affected the “fundamental fairness” o

proceeding. Thi fundamental fairness”

Donnelly v. DeChristoforo, 416 U.S. 637

Z >4

the Supreme Court set forth the standard

S9tpus petitions raising the impropriety

argument in the guilt phase of a noncapit

2 :

tnat tne reievant ingquit was whether the

“aArareece aon | ma Sr > > rar > he wo > e

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hat to determine

Sssecutorial

her there is a

>t been made the

Brooks, Supra,

is a probabilit

ome. Drake v

rr 1oac —

ir. i98ss

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rooks was the

mnily when an arr ~~

challenged

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; In that case,

eviewing nhavdeas

state prosecutor

fense In holdings

rk violated due

P “ >t

0014.9

infirmity ... Cc" stitutes a ‘failure to observe that fundamental

fairness essential to the very concept of justice. rooks,

Supra, slip Op. at 4472, citing Donnelly, 416 U.S. at 642.

In order to elaborate on the fundamental fairness

standard, the Brooks Court adopted the prejudice standard used by

the Supreme Court in Strickland v. Washington, supra. The Brooks

Court held that the Court in Strickland, “while addressing a

specific Sixth Amendment violation, recognized that ‘fundamental

fairness’ is the central concern of the writ of habeas corpus.”

Brooks, supra, Slip op. at 4473, citing Strickland, 80 L.Ed.2d at

700. The Brooks Court continued, “Thus, the [Strickland! Court

acknowledged that fundamental fairness, the same standard adopted.

in Donnelly, is the governing principle in reviewing errors of

counsel. The [Strickland Court's) use of the ‘reasonable

probability’ test to elaborate the underlying principle suggests

its applicability to other areas in which fundamental fairness is

the guide." Brooks, supra, slip op. at 4474. In short, Brooks

held that the standard used to test fundamental fairness in the

context of ineffective assistance of counsel claims is equally

applicable in the context of prosecutorial misconduct claims in

capital cases.

In support of its adoption of the “reasonable probability”

test, the Brooks Court argued that that test was “consistent with

the standards discussed in Donnelly and with subsequent cases

applying the fundamental fairness standard.” Id. The Court

Claimed that those cases indicated that, in determining whether

improper argument had a prejudicial impact on the sentencing

. 001.20

bas

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had an important ro

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Supra, 53 U.S.L.W.

the fact that the

te me Ne

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art alleviated by o

Significance of the fact that

prosecutor

[aJny prejudice from the improper remacks was fo

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id leave the jury with [the ew

le to play, the prosecutor did not

is previous [improper comment).”

’

c(t

)

{)

esent case places heavy emphasis on

ther statements of the prosecutor s

a |

made any attempt to cure or retract the specific

remarks that the majority concedes were improper. Yet, Caldwell

| > *

Clearly holds that general remarks to the effect that the jury

bears responsibility for the

cient to c

arguments aimed at diminishing the jury's sense of responsibil

ure the prejudice c

ity. Caldwell, supra, 53 U.S

Caldwell Controls

Caldwell, the prose

bear responsibility for the i

sentencing decision are not suffi-

aused by im

a |

"oO

4 @

“

-L.W. at 4748 n.7.

the Outcome in the Present Case

cutor argued that the jury would no

mposition of a death sentence,

because a death sentence would automatically be reviewed by an

appellate

made up of

court. The Court said that a capital sentencing jury,

individuals placed

in a very unfamiliar situation and

40 004.24

Called on to make a very difficult and uncomfortable choice,

might welcome the ovoportunity to diminish the importance f t

role and delegate its decision making authority to others The

-~ * — i | ~

-Ourt said,

Th a . - 7 . — ~~ - be ~

This problem is especially serious whe

- 4% * : 5 | » 1+ ; -

the jury ls told that tne aiternati

decision makers are the justices of the state

m eAlr+ rT. ; cert imily plaus mo --

supre 1e we a ee > Ss certainiy + Woszawitt «

a ,4 - ‘ “7 | — - a a

believe that many jurors will be tempted tc

, 5 | " . an —

view these respected legal authorities 3

hw s n : " | ~ =

laving more of a right to make suc 3

| ,

important decision than has the jury.

O*V

The essence of the impropriety in Caldwell was the

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—

(Tt

Lis

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have the primary responsibility for deciding whether the dea

)

sentence was appropriate but, rather, that the jury had a

impose the death sentence in order to give effect to the decision

of other authorities who were better able to judge the

appropriateness of that penalty. Such authorities might include

not only the justices of a state supreme court but also the

prosecutor, grand jury, or police.

In the present case the prosecutor argued not only that a

noted state supreme court justice had already determined that the

death penalty was appropriate for the defendant, but also

the law itself commanded such a sentence. This rgument wen

beyond what the Court condemned in Caldwell. Since the danger

that the jury might choose to minimize the importance of its role

was at least as high in the present case as it was in Caldwell,

ad 0014.25

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in a line of cases beginning with United States v.

Perez-Hernandez, 672 F.2d 1380, 1385-86 (llth Ci

like Cronn, involve equal protection challenges to the selection

L? 8)

of the grand jury foremen. See also United States v. Holman, 6

et?

oes

r +

c(t

+ 4

ve]

re |

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F.2d 631, 633-34 llth Cir. 1983); United States v. Sneed, 729

F.2d 1333, 1334 (llth Cir. 1984). The Fifth Circuit in Cronn

persuasively points out that the “apparent conflict” among recent

Supreme Court decisions, which this Court perceived in

771

Perez-Hernandez, stems from a misreading of Justice Marshall's

plurality opinion in Peters v. Kiff, 407 U.S. 493 (1972). The

Peters opinion did not discuss standing "in an equal protection

context,” as Perez-Hernandez states (672 F.2d at 1385); indeed,

the Peters Court did not reach the equal protection issue.

407 U.S. at 497 n.5. The discussion of standing in Peters

pertains, rather, to grand jury composition challenges under the

due process clause which -- like Sixth Amendment, fair

cross-section challenges to petit jury composition -- may be

raised by any criminal defendant, regardless of his circumstances.

Id. at 504. See Cronn, 717 F.2d at 167-68, and nn. 4 and 6.

Chief Justice Burger's dissent in Peters noted: “While the

Opinion of Mr. Justice Marshal refrains from relying on the Equal

Protection Clause, it concludes that if petitioner's allegations

0014 .<8

—— - tatems Game - 708 F.24 - Ut

509 In Unitec States v Cross, 0 2a a 6 n.4, this Court

ar A hk - ~ D + " .

acknowleagedc that the Peters plurality opinion analyzed the

+ - 7 ~ a ~ = ~

exclusion of Olacks £Erom grand jury service as a violation f£ due

- Z Y

process.” (Emphasis added).

On the other hand, in the equal protection cases of

Castenada v. Partida, 430 U.S. 482, 494 (1977), and Rose

Mitchell, 443 U.S. 545, 565 (1979), the Supreme Court

unequivocally stated that

"in order to show an equal protection

violation has occurred in the context of

grand jury selection, the defendant must

show that the procedure employed resulted <

in substantial underrepresentation of his

race or the identifiable group to which he

belongs."

(Emphasis Added).

But whether Perez and its progeny were decided correctly

not, this panel is bound by it in the absence of a reversal by

the Eleventh Circuit en banc or by an intervening contrary

decision by the Supreme Court. United States v. Holman, 680 F.2d

at 1356 n.ll. I construe Hobby v. United States, 468 U.S. ,

82 L.Ed.2d 260 (1984), as a contrary intervening decision which

mandates a re-assessment of the Perez holding.

In Hobby, the Supreme Court evaluated the challenge of a

white male to the underrepresentation of blacks and women in the

position of grand jury foreman as a due process challenge. In

holding that such discrimination would not warrant reversal o

O01 2

petitioner's conviction and dismissal of the indictment against

him, the Supreme Court sought to distinguished its previous

ruling in Rose v. Mitchell, supra, as ‘follows:

"Petitioners' reliance upon Rose is

misplaced. Rose involved a claim brought

by two Negro defendants under the Equal

Protection Clause. As members of the class

allegedly excluded from service as grand

jury foremen, the Rose defendants had suffered

the injuries of stigmatization and prejudice

associated with racial discrimination. The

Equal Protection Clause has long been held to

provide a mechanism for the vindication of

such claims in the context of challenges to

grand and petit juries. See, e.g., Castaneda

v. Partida, 430 U.S. 482 (1977); Hernandez v.

Texas, 347 U.S. 475 (1954); Strauder v. West

Virginia, 100 U.S. 303 (1880). Petitioner, a

however, has alleged only that the exclusion of

women and Negroes from the position of grand

jury foreman violates his right to fundamental

fairness under the Due Process Clause. As we

have noted, discrimination in the selection of

federal grand jury foreman cannot be said to

have a significant impact upon the due process

interests of criminal defendants. Thus, the

mature of petitioner's alleged injury and the

constitutional basis of his claim distinguish

his circumstances from those of the defendants

in Rose.

Given the nature of the constitutional

injury in Rose, the peculiar manner in which

the Tennessee grand jury selection operated, and

authority granted to the one who served as

foreman, the Court assumed in Rose that

discrimination with regard to the foreman's

selection would require the setting aside of a

subsequent conviction, "just as if the discri-

mination proved has tainted the selection of

the entire grand jury venire.” Rose v.

Mitchell, supra, at 551-552, n.4. No such

assumption 1S appropriate here, however, int

very different context of the due process chal

by a white male to the selection of foremen of

federal grand juries.”

Stated requirement that a petitioner seeking to raise an equal

protection challenge must be a member of the race or group

allegedly underrepresented on juries or grand juries B

implication, one who is not a member of the underrepresented

group lacks standing to raise such a challenge.

{[n addition, Hobby demonstrates that there is a difference

in the evaluation of a due process violation claim from that of

an equal protection violation claim. Discrimination in selecti®

of a grand jury foreman could be an equal protection violation

(Rose v. Mitchell, supra) but would not be a due process

violation (Hobby v. United States, Slipr

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