# Appendix — Darden v. Wainwright > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0215%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1986 - **Citation:** 477 U.S. 168 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE AT THE TIME OF FILMING, POOR HARD COPY IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. - 15) 'N THE s ‘ UNITED SI tn SEP 13 CTOBER TERM, 1984 OFFICE OF THE CLERK 5 PREME COURT, US oe 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 rt 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 \e 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 7 “+ * ; 4 ' 7) : s ) > ~ Jit gal 4 ee ere ae > Ln : ’ ‘ . . ; > ie @ ” 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 *y 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...." 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 15 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. IV 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 1? 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 ig 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 1x 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 ‘ 20 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 q 4 inflwenced by the iapreoper ergument sed thet the jury vas prejudiced ageinet Derdesn by the strgumenc. The State hee i i failed te desonetrete,beyoad « reseoneble coudt, thet the ' prosecetor’s cosesents did sot contribute te Derden’s convict I i 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 i 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 23 r Flor 7 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 © ~ ms 7 n _ a 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 24 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 > ~ @ Cc “ ad s rw 2 ™ 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 25 es 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 26 COC 26 * ~ Florida) courte belovw or = {zed by Justice Mareshell in che Jiseer nion in Cardner v Florids 430 U.S. 349 365 (19 he stated that “thefblatant disregard exhibited t 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 an se pr sc 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). I} ~~ ac se pr 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” 7 ~~ ne i® - t r t e yrme r na ert er. + a c rs rat er 4ect ‘ o 4 i his cr ” n- fenti ia at ney yee ia v 2a $e 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? ur al Varney anewer rm han LER ~~ 4 eaiead a . 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 ~ ‘ ‘= ~# « + = ‘ ' 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: a 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). » ¥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. i ; 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) a 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 7 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. % - ih 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 d 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 v ° s ° nN c fal - ° a closing argua@enc, have been carefully considered. 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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 el 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). a -~ ‘TY’ “4 O00&4 vA O >. fee) > - i ui ul wo © WU w mt (hu mo J Ss . » | 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 s- 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 bp " ; , ‘” OOO 72 ~ ‘-« 7 ‘7 : \ @ J — os + _ “~p. - sof” A & € « _ > > . : ~~ — FF - ‘ > -—— . ~ = “im e ’ - ~ -— —_ - farcn + Sai2i ws = ,o7 . ~ - ° + _ ; “ — — _- — - ar ee te ee . _ ° 7 = o- ~~ “a 2 eee eee ‘ ~ + = ”“ | > -**o ro ‘a ue ~ *“._ 71 A > * a s wt -~s =~ _ — - a ; -5 ~ = ~~ = e we cannot 7a *rho . ’ meraae s*+s-s¢ = oo eho > am & _- “oo * —— _» > 47 49 = — & a . a u on - 2nc e - - & T- a°8 — nA ce = er. ba. te iL , a ~ai Bw - —_ ~ mo eA) « be: —s > & — sae = - — Lc ¢€ = ~ VU JeJe« * 7 — ~ & ~ =— - “- Ja a a = a Sd A a 4 — » 00073 t ' i Q ‘ ‘ . 4 i 4 t 4 ‘ { . = 1 Ww 4 = ‘ i z/ 7-4 > a] z ~ = ‘ ‘ a | - t ? ba \ 4 ‘ | 4 4 ‘ , " hu . a) ° : ya ‘ i ' 4 ' me | | “4 '@) in 00074 O00075 00076 00077 “~ —— i = = — e > nd rn 2 ad e » — ~ = 00075 : 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 Mw ~ mo x Respondent-A se ' ! i i ! ' i ! i ! ! ! ! i ! ! ; ' ' ! ' . 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: I 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 c Bowen since the sentencing jury (3) was entitled was drawn to a from new an 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 : ° . 1 a . a : . > . ] i a . > ’ ry . l ‘ : ' { . . a ‘ » a > ‘ | . _ w . Y P d " " Qa : r t ‘ 4 . { : . a : | . ‘ - . a (2 _ { a > Ti . Qa : ry 0 > : f | a ,* _ ' c ‘ mv) ‘ A 4 ‘ ‘ : ‘ ‘ ‘ > 4A ‘ ' . 4 ’ ‘ ’ w; ‘ a q ‘4 QO ‘ : or : rt “a 7 oO Tt tis “ @ “a4 ) a Cty ov Vv) hu ry be J wo ~ yi © gm a ee ee _- ane > 7 -~- e rrnAe ._ = - > a ~~ cc - ~~“ -« : >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 cv . iy ‘ | iv i | i" a I o N +3 0 ) = 4 n n t*) UW 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 r=) P ~ " eh e ‘ A DMT. _" lt ow we se ; 3 tna _ - ec 3 7 nr > ~ ~ e > | ance. i=) - ay art > -* Ft > vec, > | : eoc » 46 ~ a, _.e)¢ ’ ai + . see . anc LS 3 e - " ; a ° — } hat ’ ] —. r as aet wit? icKe e ie (=) 7 La Ly 2 ~ > e a2 > - — - > > _ > > + 7 Aé " : > ‘ ro’ _ > | 2 . —_— ° " + . " > | OOOFS 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 6 “4 ua «D =) i) “we © ve ciati so ry a rom - Sands i * Vv) *) - > _ oer ant case and £K inst tne aan > vw) - @ 000*6 Mm in the ssue , .* m rancis, F the In Franklin, comparison. material all . ~*e entical . 4 a m ~ ndstro lated Sa ‘=! -— + “7% ¥ d , + facts d since the armless loa reasoned The court nt's accident defense. enda Gef intended to that Franklin ss S added) - ~ (emphas not be deemed harmless + ~ , wi ense = ~ an asserted de a - on 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 > V & » Gar & Gii ~~ n & —~s- ¥ — ee ~ 0 c? ) J 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 oa 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. i © 000£8 oar - “Annee n aa | > L = — ul - = - ~ > => = ~~ + - - on & a ~~ a* 7 ’ “Anco ~~ 2 > - c ~ar —- so > 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, ' . . ’ > - ‘ale tat aa — ; ot ~ ~ - -_ - > = - ~*~ _ nme _ l S COncelvadilie tha ne ca 27e 120@t J ‘ saMOl.e, 1G . nese , -~ e ~~ »* ~ _ = _ ~ *- — > pr aw “~ w - — - ° s@ ivad.e @er-a« e ~ a! ve Lev ° 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 © abide by. your determination because it's tion you must make. rt ments made by the prosecutor in his closing argument which will 3 i be iscussed below, held that Bowen's sentencing trial was 7 rendered fundamentally unfair. We cy Ww & ve) a ft) 1) mo 4 “ D =) mr ) a The law is clear that habeas relief will not b . improper prosecutorial arguments unless those arguments rende ry om Q, 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 ll 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 ae iJ “a4 ies care tr) attorney's rook«s, . , is clear It sonal - > e prosecutor's pe -h — FT ~~ ~~ & statement ha @ iJ wm 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 rh nm oO 3 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 14 “4 4) mm 4) 'T) hu a] - ~ m “a4 t) M4 4 Lo iJ si vb} 44 1 i ba © hu t) “4 \) © J “ «t vy) 4) () 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* .n€ -~- ia. ar sument @e) | —~enw st Be & — re i.iec invalidate the sentencing hearing went as follows: “You know fo fal ’ m 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 0 @ ) tni passage does not appear to be an improper argument. wh Ww read in context, however, it is clear that the prosecutor wa Giving his watered-down rendition of an argument found im - > ‘) oO 5S Immediately before the challenged argument the prosecut Q mt 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 ~ ’ _ . ~ a : - - : = ™ + = —_ . . , - . —_ : - . - - - ne - a - - - ‘ ; Ima i : ; t ; ¢ ¥ ‘ " - . x - -2 - ro a > ++ vg . . ~2 ‘ " > i= ‘ au Y : ; 4 , ‘ near and - 7 s+ hat —_— . > : > . . > ~ > ~osor ‘ae year _- oa, = EE ss. —, — _ - ~_ = -- > - > - - = - > - + - -~ a& Je 3 | . lé “we must insist 2 merc i: ‘ ler -Eeie r . 2.¥wa . " > = — a ~ > = - or ‘ - ™ . . oa tor ™ . — _ -- ’ . > > 7 ‘ 2 * _ amnmnna ¢ , accadc rhe . - ae ‘ ; 3 . Sais 3 ‘ - ‘ ; 7 By ost - hehe rao “~ - e - , eta t+ or ; 4 -s ao « ava > > - > ‘orn SUL °ie YOU «A w wnat i. #* ‘eae > | 4 wes db & + 3 Z . — a "Oo aff . ~ - + , _ . reo —-_. >» > > ¥ . _— -— + | is ‘ 7xe ~@e LUCE > | i 3 4uUmeé #23 . , = - - - >» .~* > -—e _ ~ > . - - > y = s y 9 > Lmp i ver. Ad 1g e I se J I , , pec | | BLY n »* _ “~r > - + ~- - ro 2 - - - a »* " e® sUPprene . + e- ‘ sE©0TCGia at ire € 3 7a e aSé - - > - - a sed - - ad » * > * > - ~ . (rare, e = Ww 3 »~> * & - e - -— 3 « > a - - —_ » | 4 mercy - & » — - - Th oe ara meanr . _ > ae - ~ Arann a a. + 2 » > > ° - > arcume =| Ssowe 5 $e 1 3 la - _ “rs * om “+ ~ + - = - = - oa - a ~ & ~~“ ‘ ’ > - 2 " 54. e 5 : . 5 vers a4 ‘ - d ‘ - — - ™ ~ ~ & > " —_— - > ~ ar > > > - ’ SUGGES ‘ 3 4 eu ; ‘ , ; . a2 ; ~“— « - ~ - = o > - 7 - - " - > ~ + ~ = = eal ae tan es + > > > - - - - . & ~ ~ | a S a - ; vc = — S 3 -- + a ~~ ~ - - > A 2 influence the jury's finding of aggravating circu sta 4 7 2 ; ‘ 7 a _ 2- - an a+ ran & ne * > *kos — _ “~ * 7 ingeec, 2Owe 40eS =, even ~-UN LENG Cnae argume i" IAC ~_—- - + ~ = m= + -~- * + *t-- = - * '« . — = ** > -“—“- e ea cfr _ = 2 — r Z i Se . = sa > owe & = “~ & @eées Tw & S a + ** mare r ' e re - = ar nr var ~ = . > ok tie ron ‘are ° « e Urcet #7as Orr lose — . 4 a oecause 4 & . OL VeC ~ ~ e Gseé me « al.'s! Lan c > .. sre La - 7 eT. > + , Thoareatare “Aer ss - - ~S ; > - ~ / ss = — ‘ s G & tw gs ~ ; — ~re ~ 7 _ - + ~ - 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 iw whether improper arcuments rendered } iA) cr? a | . cv cr? 7 oo ev? ct? oO h 0 cv m rt j »~ ) m 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 c? be executed. The prosecutor began his argument by stating tha 2 ~ ? 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 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« -_ - stec * > = nat - = > > é Sr a- > r = : . "oan © 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 2 m D ; ’ considering all the circumstances. ee ic. 600-0] you find that this was a vile heinous act you still have the rh 1 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 000SS . > ‘ ' " AC im > 4 - “ > é . " = =) e "Fr od 2 - , e Je > : ——_ ’ . ° » > + > _ . 7 ee - . nr - 5 . - a + * : ,7 = HOODS r . ; 2 ,eC “ - “7?” «2 ee” .er : 7 if¢ : - _ @ LS whicr MCONMSTITCUCIONM@i. ex a - ° ‘ - : “ — . =. . : ‘ . na -@& enge cne 2iScriminatcer se.ec* : ~@te : es mcert Cne eque. prorection ~-2+8Use : ~€ : rteentr smencment cee ROsSe ¥ Mitchell. 4473 = cas 137s 7 ~ . " s ’ is lw s j 4 : ’ ; > ‘ . 7 ® LA - ww ; v i" —_—— . Se 54 . eh Mie Ses’ « SS he ee > ane ssc c¢ = nee a7 é.G ‘ 4 \ ’ i3sce4 sivcs . 2 . rae . 2% eo - - .2 7% ~- > & : > * - —.. ~ +> - = . ah : .>4 4 ‘ iG anc © Sixkt amencrment WOLc ¥ JCenSsai.es : ; : 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 vi ww t) ee ; tw . ww {) vb : a” Ww 14) 7 v ; - ™ : 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 ,’ ; | - > : 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 ~~ = = “4 nn - “ Ser ve a> £ . = . "sraAe ~es aivmnm: © -ane morinad ~ + > im urors, UVer a Siawiisai 4G « wo. LV ws & s €. 2 = =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 - = — DresumDpt1lon ~ = _ scrim nat nan rsa cac on) 2 the cra © c+ | wi. SOU & + & “+ —- + > wm eis &£§ SO eo OD ~ ~is © eS oe Se ee a . ]*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 4 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. o Duren, 439 U.S. at 364. After carefully reviewing the record, we rt rt o 2 c? | ~ 0 O = | 0m -~ t er @ (yu cr? , & f w ? : mo } 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, WwW uu wi ct J @ rh »~ a | Wn ct U0 a | O — Te) Oo rh c? ; o 419 U.S. at $31); Sneed, 729 F.2d at rh J 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 2 % between the percentage of women resi and the percentage of women on the 1977 traverse jury list. The “~ bay O 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 c exclusion of distinct classes, see Alexander v. Louisiana, 405 mo 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% a ~ rh i 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. c? ~ Vi 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 nw er ze commissioners shall sele 00103 JI w t m ® 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. J x O ' Tran ac: 4 TOO we 71aaeetrtaerwnvw3gadtwW onn x o ow 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 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. m 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 w , m& | amd fA) r cv } D 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 007CS e _ ‘ “a a is) Lae) iJ Y) Vv) ae | vy) a - J 8 | Vv) = “a he oF rT) VOTE - 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. ‘ o . ‘ ‘ > - - > ‘ 7 oy : ' : he A | . =" > > " 1 > " = | n , 4 . a ' a " oe ao . ry -” 7" J a 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 ‘ ’ 7 . ™ - “ P . “ r > ce > 7 e ‘ > _* woer r ime a & 7 sis warnec a = - ™ leted . . - e anger . ad went r > es. 2 . Bi, FC . -~-- Her " le sse ryart ad : r ‘ " Th «a ea i mi iar st) r . sex zat ni, anc alee c r . - sms ; nent me 3 ’ —_ " “ ¥ « ; . : e = wi » : . » + . " ra “ * 7 “6 e ‘ -__ es ~ . oe e - Ae ane ment Nina@a | ~ 2 . ne _ ne . he 7 axe r . . _ . ne ee mer a ¢ - : es ‘ ; . ' > . -_ +. > 7. “> =) . : . : > - : . . ‘ - OOLT1 (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 f=) - é e ro) a : > > > - _ ° : : Vs 2 > i > . 2s e » ea 4 4G .> * = > eancerec a* -* thaet ‘ate a. om (Mott 4 ct ty Ga en Ww (t 2 Ww rv 0 mt oO 0 9 c? 0 mn" sd | , 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 @ ane } @ uD c? c? ) ry? ~ c? vu nN > * 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. nm > c 3 Ww ? & a @ W Cc — oo @ ry In Davis, the Court identified two ci D 3 » OO T cy ® wy OO "Oo , ? ‘) wm Oo -_ @ ry? QO y) ow = | & wa cr? rt VU 4 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 t @ ) @ en Pes OV > ( Ww - ro Pe e-- Ww cD ‘ rs - { fw > Ww cf? 7 m rh w t ’ ct - + ** ‘ee + ‘Ae } ar ‘ = Phe defendant dic not contest the issue of i ent See Davis, — : 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 i=) ws « sean? e& > “tet > ry rv - ¥ a ‘ ~ + a > A = , a“ ‘ ~ & - a wne ty" suUtc tn Cc »sACc ce Test Ac é Secau e ° -Ourt appliec a From the iit ec upon ¢t the hat to determine Sssecutorial her there is a >t been made the Brooks, Supra, is a probabilit ome. Drake v rr 1oac — ir. i98ss =~ elal =” en . C43 —— 2, aX : L.BG.2 rooks was the mnily when an arr ~~ challenged lard riginatecd ’ ; 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 2 bas a . *- _ . > - > a ww rd ~ > = — i -o = 1c 2a ~ : oot hae = . - . } bw 4s ™ : ™ ' - ‘2 = - 2 he Brooks sta t eason bu e e ie - ests ar a = Amendment, udice ‘ _ e “ + - - P > | a ndamenta a lona . — constitut «+ various types of “4 Oo vy DN he Brooks standard -** sa - ing 00742 eview 7 - a * dard stan d . 1 iOwe Ss 2) e ce Judi “ t ied a pre cates speci , pi * > , oo ~ ap armless error nd ~4 he Brooks prejudice » | ™ — - sa factors tha — ng wha > e a pe be 1 -*h — ~~ 7 lA — wou. . countiess ~ aldwell ng mh mak fo dese > . - ‘* © a] ate cour esembl indicating t rgume a | a y adopted, * osely appe defendant's | ~ , tion to _ . was wrong more c¢c n add w@ia rr + . * a _— — Se -~ ei been app as €é Brooks standard h e way th -* se *? _— 2 ~ tv ~ =) -) Sst, > . - (Rehnau ~ * at 475 mi ss - was review 73 appe - process. = ce “ “~- a2.isse _ i hon) Se al - argument oc ero65ac nr ihe oe ry Ww ce? rt fw 2 ct + rf and the judge's charge. Sup ir €£ the dissent, ont "s later comments ¢ had an important ro r even undermine, fh Supra, 53 U.S.L.W. the fact that the te me Ne a (y fw ct := ] eS oo art alleviated by o Significance of the fact that prosecutor _ [aJny prejudice from the improper remacks was fo 4 2 | ct wm ma j ; T | @m ww D ) T D du T J “© ih alt an on land -raf ever a an = :~\ 43+ A- = = # ~ ¥ -~ - = id leave the jury with [the ew le to play, the prosecutor did not is previous [improper comment).” ct | ’ fw t 4 Cc er 2 1) rh w& > ~ m Oy c(t O DS Wn W wo m Ww c? | © ) {) esent case places heavy emphasis on ry ther statements of the prosecutor s -_ 2) a | m Ww ct r 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 B. In Caldwell Controls Caldwell, the prose bear responsibility for the i sentencing decision are not suffi- aused by im 'O a | Oo "oO @ rt 4 @ rt O “ @ 2 tj ct O rt r fw + -L.W. at 4748 n.7. the Outcome in the Present Case c? 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. 4 er ty T ye J oe O*V The essence of the impropriety in Caldwell was the , 3 v0 ’ . 2. fw ct ~ O 3 r = | cv } @ 'O | O “ @m 2) & ct O ry “i w nm WO a mo — ct (Tt y w& ct ct yr m J 4 Lis a ty ) O c? cv J have the primary responsibility for deciding whether the dea ct ) 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 ct ro w (? death penalty was appropriate for the defendant, but also c? 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 vt ba 4 Ss sentenc ms 7? * “4 — a Ame namen al ~~— tanding lacks s , Bowen that @ 4 ) epresen a > under a ~ q@ m UO jury pool. “ OO1T2 arse @iébipza ——_ fare = a a “ss6 e oo & «+ | ~- TA - UStircicacion .cr permiccing US tCO@rvcias ~aNncilng Ge at 7, cr _-— A a —_ 209 - + = al rrr ° rr - rr ro an rea cr Cc ean rar rac - ~ recog -~+- — cnat - 1s we ee ee as reac er, a ~ wv > oe ~ Vw se = ‘ 9 4 7 ae = ‘ ‘ r? ~ 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. 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MONROE BRANNZN, s EUs - | | ' } ~~ * Te eae ad ~~ — wee -* -_ _™ « ‘ POLM CL? a #¢ SARTO . FLORIDA i ' = «ftir a — - — b+ sMe : $n 7 7 -+ — ™ onorm /_ = Ase 3 s ‘ A enc «rT “ we h DG Aoor . er : a eos ’ , be Ae x A >| A . at — . ir C 4 | i DORE bh j MU (1 A ant Wi yer LW i + aA @ J o- - * - > | P - ata . Aa fF . ’ > +4 r , : 1 : ‘ w\4 1 Oy IN THE UNITED STATES COURT oF APB Ne OR THE ELEVENTH CIRCUIT on (LED COURT OF APPEALS ELEVENTH CIRCUrT NO. 81-5590 B30 GE ita SPENCER D. MERCER ee CLER Petitioner-Appellant, Cross-Respondent, WILLIAM JASPER DARDEN 2S versus b LOUIE L. WAINWRIGHT, Secretary, Department of Corrections, 6tate of Florida, Respondent-Appellee, Cross-Petitioner, Appeal from the United States District Court Por the Middle District of Plorida Before GODBOLD, Chie Judge, RONEY, TJOPLAT,* HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, ANDERSON [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0215%3A03. Public record. Not legal advice.