Petition for Writ of Certiorari — Jack Howard Potts v. Georgia

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83-7499

IN THE SUPREME COURT OF THE UNITED STATES / )

OCTOBER TERM, 1988

No. 88-

JACK HOWARD POTTS,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

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PETITION FOR A WRIT OF CERTIORARI

CLIVE A. STAFFORD SMITH

185 Walton Street, N.W.

Atlanta, Ga. 30303.

(404) 688-1202

Attorney for Mr. Potts

, 470 U.S. 68, 105 S. Ct. 1087, 84

L. Ed. 2d 53 (1985) . . . . . . . . . . * . .

, 463 U.S. 992,°103 S. Ct. 3446,

77 L. Ed. 2d 1171 . . . . . . . . . . . . . .

Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed.

2d 944 . . . . . . . . . . . . . . . . . . .

Gardner v. Florida, 430 U.S. 349 .....+.+-+e«e«-s

, 486 U.S. , 108 S. Ct.

1981, 100 L.8a.24 375 (1988), .......

, 428 U.S. 262, 96 L. Ed. 2d 2950, 49

L. Ed. 2d 929 (1976) . . .* . . . . . * . . .

King v. Lynaugh, 850 F.2d 1055 (5th Cir. 1988) .

, 438 U.S. 586, 98 S. Ct. 2954, 57

L. BG. 324 973 (1978) . 2. «© ws we we we we we we

, 423 F.2d 1315 (10th Cir.

1970) . . . . . . . . . . . . . . . . . . . .

Q’ Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

465 U.S. 1013, 104 S. Ct. 1015,

cert. denied

79 L. Ed. 2d 245 es ee 4 wd ee Sk

Potts v. Zant, 243 F. Supp. 326 (N.D. Ga.

remanded, 638 F.2d .. ° oe

, 476 U.S. ;

1669, 90 L. Ed. 2d 1 . . . . . . .

, 476 U.S. ’

1669, 90 L. Ed. 241 . 1. + © we © @

476 U.S. :

1980),

106 S. Ct.

1669, 90 L. Ed. 2d 1°

, 476 U.S. , 106 S. Ct.

1669, 90 Le Ed. 2d 1 . . . . . . . . . . . .

, 476 U.S. 1, 106 S. Ct.

1669 . . . . . . . . . . . . . . . . . . .

Stroud v. United States, 251 U.S. 15 (1919) ...

, 476 U.S. 28, 106 S. Ct. 1683, 90

L. Ed. 2d 27 (1986) . . . . . . . . . . . . .

, 607 F.2d 1295 (9th

cir. 1979) . . . . . . . . . . . . . . . . .

United States v. Bass, 477 F.2d 723 (9th Cir. 1973)

, 799 F.2d 134 (4th Cir.

1986) * . * * * * * . . . * * * J . . * .* .

, 776 F.2d 926 (10th Cir.

1985) . . . . . . . . . * . . . . . . . . .

, 419 F.2d 131 (6th Cir.

1969) . . . . . . . . . . . . . . . . . . .

, 469 U.S. 810, 105 S. Ct. 844,

63 L.Ed.2d 841 (1985) . . . «©» » © © © © ow

alt pei ed

. . . ee ee a ee ee ate

ae = — wr of i a lll r ; Py ere eee aye ae ar a ey pr rr Ser 7

, 412 U.S. 470, 93 S. Ct. 2208,

L.Ed.2d 82 . . . . . . . . . . . . . . . .

, 391 U.S. 510, 88 S. Ct.

1770, 20 L. Ed. 24 776 (1969) . «© + + © swe

STATE CASES

Davis v. State, 512 So. 2d 1291 (Miss. 1987) . _ +

Doering v. State, 545 A.2d 1281 (Md. 1988) ....

, 391 A.2d 1364 (D.C.App.

1978) . * . * . . . * * . . * . * * . . * . *

Gilliard v. State, 428 So. 2d 576 (Miss. 1983) ..

, 168 Ga. App. 696, 310 S.E.2d 278

(1983) . . . . . . . . . . . . . . . . . . .

Hartley v. State, 159 Ga. App. 157, 282 .E.2d 684

State v. Henry, 198 So. 910 (La. 1940) ......

Lindsey v. State, 330 S.E.2d 563 (Ga. 1985) ...

» 733 P.2dad 416 (Okla.Ct.Crim.App.

1987) . . . . . . . . . . . . * * . . . . . .

(1984)

175 Ga. App.

503,

, 169 Ga. App. 723, 314 .E.2d 729

333 S.E.2d 838

(1985) . . . . . . . . . . . . . . . . . . .

, 283 S.E.2d 212 (Va.

1981) . . . . . . . . . . . . . . . . . . . .

Pope v. State, 256 Ga. 196, 345 S.E.2d 831 (1986)

Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978)

Potts v. State, 376 S.E.2d 851 (Ga. 1989)

State v. Poulsen, 45 Wash. App. 706 ......-.

Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987)

FEDERAL STATUTES

28 U.8.C. § 28387 . e- se esse vsvevneevnes

Criminal Justice Act, 18 U.S.C. § 3006(e)(1) (1964)

STATE STATUTES

0.C.G.A. § 42-9-39 . . . . . . . . . . . . . . . .

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-

JACK HOWARD POTTS,

Petitioner,

STATE OF GEORGIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

The Petitioner, Jack Howard Potts, prays for a writ of certio-

rari to review the judgment of the Supreme Court of Georgia

affirming Petitioner’s sentence to death by electrocution. Potts

v. State, 376 S.E.2d 851 (Ga. 1989).

OPINION BELOW

The opinion of the Supreme Court of Georgia is reported at

Potts v. State, 376 S.E.2d 851 (Ga. 1989), and is reprinted in full

in Appendix A, jnfra.

JURISDICTION

The judgment of the Supreme Court of Georgia was entered on

February 23, 1989. A timely petition for rehearing was denied on

March 15, 1989. Mr. Potts, who was without counsel thereafter,

moved this Court for an extension of time in which to find counsel

and file a petition. He was granted an extension up to, and

including, June 13, 1989, and now files a timely petition, invoking

this Court’s jurisdiction pursuant to 28 U.S.C. § 1257.

QUESTIONS PRESENTED

Petitioner presented the following questions of general

importance to the administration of justice:

1. Whether the Eighth Amendment permits the jury to impose

a death sentence premised upon unguided and inaccurate

———

speculation that life imprisonment, the only alternative

sentence, will result in parole in seven years?

2. Whether, in a State with very limited pretrial discovery,

an indigent capital defendant may be required to disclose his

entire theory of defense in order to secure his constitutional

right to an independent expert?

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the United States Constitution pro-

vides, in pertinent part, that --

No person shall .. . be deprived of life. .

- without due process of law... .

The Sixth Amendment to the United States Constitution

provides, in pertinent part, that --

In all criminal prosecutions, the accused

shall enjoy the right . . . to have the

Assistance of Counsel for his defense.

The Eighth Amendment to the United States Constitution

provides, in pertinent part, that --

Excessive bail shall not be required... nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution

provides, in pertinent part, that --

No state shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person to life, liberty or

property, without due process of law; nor deny

to any person within its jurisdiction the

equal protection of the laws.

0.C.G.A. § 42-9-39, which is specifically authorized by the

Georgia Constitution, provides in pertinent part that:

(a) The provisions of this Code section

shall be binding upon the board in granting

pardons and paroles, notwithstanding any other

provisions of this article or any other law

relating to the powers of the board.

(b) When a person is convicted of murder

and sentenced to life imprisonment and such

person has previously been incarcerated under

a life sentence, such person whall serve at

least 25 years in the penitentiary before

being granted a pardon and before becoming

eligible for parole.

sentences as the result of offenses occurring

in the same series of acts and any one of the

life sentences is imposed for the crime of

murder, such person shall serve consecutive

ten-year periods for each sentence, up to a

maximum of 30 years, before being eligible for

parole consideration.

STATEMENT OF THE CASE

Mr. Potts was indicted for the May 8, 1975, murder of

Michael Priest. He was tried, convicted and sentenced to death.

The Supreme Court of Georgia affirmed, Potts v. State, 241 Ga.

67, 243 S.E.2da 510 (1978), and this Court denied certiorari.

The Superior Court for Butts County denied his petition for

a writ of habeas corpus, and this Court denied his petition for a

certificate of probable cause. The United States Court for the

Northern District of Georgia granted Mr. Potts habeas corpus

relief with respect to penalty, and the grant of relief was

affirmed by the Eleventh Circuit. Potts v. Zant, 243 F.Supp. 326

(N.D. Ga. 1980), yemanded, 638 F.2d 727 (5th Cir. 1981), cert.

denied 454 U.S. 877 (1981), on remand, 575 F.Supp. 374 (N.D.

Ga. 1983), aff’d, 734 F.2d 526 (llth Cir. 1984), rehearing

denied, 764 F.2d 1370 (1985), vacated, U.S. __, 106 S.Ct.

3328, 92 L.Ed.2d 734 (1986), on remand sub nom. Potts v. Kemp,

814 F.2d 1512 (llth Cir. 1987). ee

Upon remand to the Superior Court for Forsyth County, a

mistrial was declared due to the impossibility of securing an

impartial jury. (V. 29 -- 4115)? Upon change of venue to

Richmond County, Mr. Potts was retried as to sentence, beginning

January 4, 1988. On January 14, 1988, after several hours’ of

deliberations, the jury sentenced Mr. Potts to death by

electrocution. (V. 41 -- 2879) Mr. Potts filed a motion for a

new trial, which was heard on April 14, 1988 (V. 42), and denied

by the trial court.

The Supreme Court of Georgia affirmed Mr. Potts’ sentence of

1 he record on appeal for Mr. Potts’ resentencing consists

of forty-two volumes of transcript, and several additional volumes

of exhibits introduced into evidence. References to each of the

numbered volumes will appear “(V. = -- __)”. ##References to

unnumbered volumes will appear with the date and page of the

volume, or, if this is not specified, other identification.

death. Potts v. State, 376 S.E.2d 851 (Ga. 1989). Since he was

without counsel, and owing to the extensive record in his case,

Mr. Potts requested an extension of time in which to file his

petition for a writ of certiorari to the Supreme Court of

Georgia. This Court granted him until June 13, 1989, in which to

file his petition.

STATEMENT OF PACTS

Jack Howard Potts was born on January 4, 1945, the third

and youngest child. His father -- now deceased -- showed no

interest in Mr. Potts, who even as a young child was left

largely to fend for himself. As a result, although an

affectionate child, Mr. Potts never received the guidance he

should have, and went joyriding through north Georgia as early

as twelve years old. (V. 40 -- 2614) Soon, as a young teenager

without parental control, Mr. Potts began to abuse alcohol (V.

40 -- 2615), and was incarcerated for his resultant delinquency

by the time he was sixteen.

During the time he was not imprisoned, Mr. Potts married,

and although it was difficult for him to find employment due to

his record (V. 40 -- 2622), when he could he worked hard to

bring up his children. However, his alcohoi and drug addiction

took its toll, and at the time of the 1975 crime, he was waking

up to drink and abuse drugs. On May 8, 1975, it was hard to

understand how Mr. Potts could even stand up, since he and those

with him had drunk large quantities of beer and liquor, and done

five dozen hits of speed. (V. 40 -- 2638) Immediately prior to

the crime for which he was subsequently sentenced to die, Mr.

Potts had engaged in a drinking contest with a friend,

persisting until she had passed out. (V. 38 -- 2094)

Under these circumstances, the tragic death of Michael

Priest occurred. Since that time, Mr. Potts has had more than a4

decade on Death Row in which to repent his terrible crime, and

seek to put his own life in order. Indeed, he has been ‘argely

successful in this, no longer abusing and abused by alcohol and

drugs. (V. 40 -- 2626)

Over thirteen years after the sad death of Mr. Priest, it

is hard to see any civilized purpose to sending Mr. Potts to the

electric chair. Indeed, it seems that the jury -- asking the

trial court to instruct them on the availability of parole (Vv.

41 -- 2874) -- reached this senseless verdict solely on the

basis of their misguided speculation about the non-existent

possibility that Mr. Pot s will ever again be out of prison.

REASONS FOR GRANTING THE WRIT

Petitioner respectfully suggests that this Court should

grant the Writ in order to resolve the following questions, each

of which is important to the administration of justice in the

courts below:

I. IN A CASE WHERE PETITIONER, IF SENTENCED TO LIFE, WOULD

CLEARLY NEVER BE RELEASED FROM PRISON, IT IS A

FUNDAMENTAL DENIAL OF THE RIGHT TO A FAIR AND RELIABLE

SENTENCING PROCEEDING TO PERMIT A JURY TO SPECULATE

INACCURATELY THAT PETITIONER WOULD RECEIVE PAROLE IN

SEVEN YEARS.

Any way you look at it, Petitioner would never be eligible

for parole, should he be sentenced to life imprisonment. With

his prior convictions, he would have to serve a mandatory minimum

25 years in Georgia. See 0.C.G.A. § 42-9-39(b). After being

released by Georgia, he would have to serve a mandatory minimum

of 25 years in Florida. (V. 8 -- 38) Since he was 30 years old

at the time of the offense, he could not possibly be paroled

until he was 80, and the likelihood of his being released then is

slim to none.

Nevertheless, Mr. Potts was not allowed to explore and

correct misperceptions shared by jurors that he would be paroled

within seven years. Furthermore, the prosecution went out of the

way to mislead the jury as to the availability of parole. As a

result, there is a strong probability that the ultimate sentence

of death was imposed because of fundamentally unreliable and

inaccurate speculation.

A. This issue is very important and has created unending

confusion in the Courts below.

Various convincing reasons may be advanced to justify the

introduction of accurate information concerning the defendant’s

ineligibility for parole. Certainly the jury should be

accurately informed when making the critical decision between

life and death. California v. Ramos, 463 U.S. 992, 103 S.Ct.

3446, 77 L.Ed.2d 1171 (1983). Certainly, the jury may consider

the issue of future dangerousness, Jurek v. Texas, 428 U.S. 262,

96 L.Ed.2d 2950, 49 L.Ed.2d 929 (1976), and, if the prosecution

introduces evidence tending to show that he will be a danger, the

accused must be permitted to rebut it. Skipper v. South

Carolina, 476 U.S. 1, 7 n.1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

Certainly, the jury must be permitted to har any evidence

Petitioner seeks to present concerning mitigating circumstances.

Leckett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978) .?

Petitioner’s eligibility or ineligibility for parole draws

all these fundamental precepts of Eighth Amendment jurisprudence

into play. Since the jury believed that Petitioner would be

paroled in seven years, rather than serve the rest of his life in

prison, the reliability principle of Ramos was abrogated.” Since

the prosecution went to great pains to show that Petitioner had

committed crimes before, and would commit them again in the

future, the principle of Skipper required that Petitioner be

permitted an opportunity to demonstrate that he would never again

be a free man. Since his lack of future dangerousness was itself

an element in mitigation, Lockett requires that the jury be

2 There is, additionally, another important principle which

impinges on the question of parole eligibilty. During any

effective voir dire process, the prejudices of jurors must be

explored to determine whether their preconceptions will interfere

with a fair determination of sentence. Turner v. Murray, 476 U.S.

28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986).

3 «Ifa juror is so convinced of the “seven year rule” that

he or she states on voir dire that it is impossible to keep the

issue out of the sentencing equation, regardless of the trial

court’s instructions, Turner requires that juror’s exclusion for

cause.

permitted to consider it.

Despite the clarity of these principles, the lower courts

have got into a thorough muddle with respect to the issue of

parole. See, generally, Paduano & Stafford Smith, Deathly

Errors: Juror Misperceptions Concerning Parole, 18 Colum. Hun.

Rts. L. Rev. 211 (1987) (hereinafter Juror Misperceptions

Concerning Parole)

In this case, the Georgia Supreme Court has held that the

defendant cannot question jurors on their prejudices concerning

parole, Potts v. State, 376 S.E.2d at 856, nor correct those

prejudices at the penalty phase. Id. at 856-57. Only if the

jurors ask a question may the issue be addressed, and then only

by telling them to ignore it. Quick v. State, 256 Ga. 780, 353

S.E.2d 497 (1987).

F A fragmented Fifth Circuit has decided also that the accused

may not voir dire jurors on their prejudices concerning parole.

King v. Lynaugh, 850 F.2d 1055 (5th Cir. 1988) (en banc). The

same court has held that the refusal to correct jurors’

misperceptions concerning pabote raises no constitutional

concerns. Q’Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

cert. denied, 465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d 245

(1984).

In contrast, the Maryland Court of Appeals has decided that

Skipper v. South Carolina requires admission of evidence on lack

of parole eligibility. Doering v. State, 545 A.2d 1281, 1295

(Md. 1988). The Mississippi Supreme Court, which once prohibited

such evidence, Gilliard v. State, 428 So.2d 576 (Miss. 1983), has

now decided that this Court’s recent pronouncements require its

admission. Davis v. State, 512 So.2d 1291, 1293 (Miss. 1987).

“See also, State v. Matthews, 373 S.E.2d 587, 592 (S.C. 1988) (no

prejudice from failure to charge jury on ineligibility for

parole, since statute restricting eligibility inapplicable to the

case). Other states run the gamut of possibilities, allowing

certain discussions of the parole issue, and prohibiting others.

See, generally, Juror Misperceptions Concerning Parole, at 214-

—— a a ae

20.

Prior to trial, Mr. Potts proffered evidence on the common

belief in this state that parole is available on a life sentence

in approximately seven years. (V. 22 -- 1683) This is strongly

supported by a recent study on the issue. See Juror Mispercep-

tions Concerning Parole, supra. Justice Weltner of the Georgia

Supreme Court has also expressed this opinion, based on his years

as a trial judge:

“I’m sure [the option of 20 to 25 years

parole ineligibility] would lower the number

of death penalties that are given,” Georgia

Supreme Court [Justice] Charles Weltner said.

“Everybody believes “hat a person sentenced to

life for murder wi]! be walking the streets in

seven years.”

Id. at 213 n. 4 (quoting Savannah News-Press, Mar. 23, 1986, at

7C, col. 2).

During pre-trial hearings (V. 8 -- 38, 12 -- 418-20, 22 --

1678 et seg.), and prior to voir dire in Forsyth County, and in

Richmond County (See, e.g., V. 30 -- 91), Mr. Potts requested

permission to voir dire jurors on their attitudes to parole.4

Through this questioning, Mr. Potts sought to determine whether

anyone’s view of the inevitability of parole was so strong that

they would not be able to put it aside. Although certain

misperceptions concerning parole became apparent during other

voir dire questioning, ° the trial court refused to permit

exploration of this most critical issue.

Since he would, in any event, not become eligible for parole

until after his eightieth birthday, Mr. Potts agreed never to

see). parole even then. His request to present this evidence to

the jury was denied.

4 mr. Potts sought permission to ask such questions as “what

the term ‘life imprisonment’ means”, see Defense Proposed Penalty

Phase Voir Dire Questions, No. 74, or whether they “believe[d)

that a life sentence (was) harsh enough for a person convicted of

murder.” Jd. No. 50; See also id. No. 54.

5 pertinent extracts from the voir dire of the jurors are

set forth as Exhibit B to this petition.

- |

During their deliberations, the jury came back with a

question:

We would like to know if given a life

sentence, would he be eligible for parole at

a later time.

(V. 41 -=- 2874) The judge proposed, and ultimately gave, an

instruction that the jury should ignore parole. The defense

objected, asking for an instruction stating that Mr. Potts would

not be paroled. The prosecutor objected, stating that Mr. Potts

would be swiftly paroled, and any statement to the contrary

"flies in the face of reality that we al] recognize,” (V. 41 --

2875) (emphasis supplied), presumabiy also recognized by the

jury.

a. The Voir Dire Issue: Identifying Misperceptions.

Just as Justice Weltner, the District Attorney, and the

commentators acknowledge, certain venirepersons called for duty

will admit an opinion concerning parole which is unshakable, even

when the judge instructs them to ignore parole. Indeed, in this

case some spontaneously announced that they believed Mr. Potts

would be paroled within seven years, and that they would not be

able to put their opinions aside even if instructed to do so by

the judge. See, generally, Exhibit B.

Limits on voir dire that create an unreasonable risk of bias

or prejudice infecting the trial process violate the constitu-

tional right to a fair sentencing proceeding. Turner v. Murray.

The general rule is that “the trial court abuses its discretion

in voir dire when the parties are denied the right to some

surface information about prospective jurors which might furnish

a basis for challenge.” United States v. Brown, 799 F.2d 134,

136 n. 3 (4th Cir. 1986) (citing, United States v. Baldwin, 607

F.2d 1295, 1297 (9th Cir. 1979)(*Discretion is not properly

exercised if the questions are not reasonably sufficient to test

the jury for bias or partiality”)).

This rule has been applied to require an opportunity to voir

dire on various issues which might bear on the defendant’s

—a*" * =e = er

Se ae

oe Bt BE

challenges, whether peremptorily or for cause. For example, the

accused in a capital case must be permitted to determine whether,

after a finding of guilt, a juror will consider mitigating

circumstances, rather than automatically opting for death. See,

e.g., Patterson v. Commonwealth, 283 S.E.2d 212 (Va. 1981);

Pierce v. State, 604 S.W.2d 185 (1980); State v. Henry, 198 So.

910, 915 (La. 1940); Stroud v. United States, 251 U.S. 15, 20-21

(1919). If the juror refuses to follow the trial judge’s

instructions in this regard, he or she must be struck for cause.

See, @e.g., Pope v. State, 256 Ga. 196, 345 S.E.2d 831 (1986);

Thomas v. State, 403 So.2d 371 (Fla. 1981);

Conversely, if a person’s ability to follow the juror’s

oath is substantially impaired by opposition to the death

penalty, he or she must similarly be struck for cause.

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968); Wainwright v. Witt, 469 U.S. 810, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985).

Equally, a juror who refuses to follow the trial judge’s

instruction to disregard the possibility of parole must also be

struck for cause. If this is so, necessarily the defense must be

permitted to ask the questions which will expose this bias.

b. The Other Issues: Correcting Misperceptions.

If Mr. Potts had been sentenced to life imprisonment, the

Georgia Constitution would have precluded the Parole Board from

even opening a file on Mr. Potts for 25 years. See 0.C.G.A.

Section 42-9-39 (1985). In the highly improbable circumstance

that Mr. Potts were actually paroled then, he would have been

sent to Florida to begin serving a life sentence without

eligibility for at least 25 years, so he could not have been

considered for parole until he was at least eighty years old.

If he did not leave the prison dead, therefore, he would come out

of the prison and into the old people’s home. Facing this

reality, Mr. Potts was willing to enter a contract stating that

he would never even seek parole. (V. 15 -- 616)

This information was, of course, highly relevant to the

jury’s decision, and the defense moved to introduce evidence to

prove it. (V. 12 -- 418) The District Attorney resisted this

motion, understanding well that the evidence would dramatically

reduce the likelihood of a death sentence. However, he did

concede in another context that the jury has the right to receive

accurate information regarding future dangerousness, arguing:

{In Skipper v. South Carolina, 476 U.S. ‘

106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the)

Supreme Court of the United States observed

that any sentencing authority must predict a

convicted person’s probable future conduct

when it engages in the process of determining

what punishment to impose. | eet, ee {I}t

would be the State’s position that the duty of

those twelve people on the jury outweigh any

interest that .. . the Parole Board may have.

(V. 19 -= 1126) However, the trial court disagreed and refused

to permit any evidence on Mr. Potts’ lack of eligibility for

parole.

With life itself at stake, this Court has long emphasized

that it is “essential that the jury have all possible

‘ information” in making their decision. Jurek v. Texas, 428 U.S.

262, 276, 96 L.Ed.2d 2950, 49 L.Ed.2d 929 (1976) (emphasis

supplied). It would seem difficult to dispute that the lack of

parole eligibility -- the accused’s lack of potential for

committing future violent acts upon society -- is one fact which

is critical to the jury’s evaluation of future dangerousness, and

whether the individual should die. ®

It is equally clear that the jury should consider reliable

information regarding future parole. In the balance between

S The availability of life imprisonment without the

possibility of parole (LWOP) as an alternative sentence to the

death penalty is probably the single most important factor in the

determination whether the accused should live or die. A study in

a Georgia capital case showed that of jurors would

be less likely to impose a death sentence if given assurances that

the accused would not get out of prison for a long time, even if

there were no actual LWOP alternative. Juror Misperceptions

Concerning Parole at 221-24. A recent statewide study in Florida

demonstrated that of those in favor of the death penalty

would be less likely to impose it in an individual case if apprised

of the LWOP alternative. See Cambridge Survey Research, Attitudes

Survey, at 34 (Washington, 1986).

= yeas

life and death, the “fundamental respect for humanity underlying

the Eighth Amendment’s prohibition against cruel and unusual

punishment gives rise to a special ‘“need for reliability in the

determination that death is the appropriate punishment”’ in any

capital case.” Johnson v. Mississippi, 486 U.S. _, 108 S.Ct.

1981, 100 L.Ed.2d 575, 584 (1988) (quoting, Gardner v. Florida,

430 U.S. 349, 363-64, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977)

(quoting, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct.

2978, 49 L.Ed.2d 944 (1976) (White, J., concurring))).

There is an intolerable probability that Jack Potts was

sentenced to die not because the jurors believed he deserved

death in an objective sense, but because they misguidedly

believed that the only alternative sentence was for him to spend

seven years in prison prior to parole. This Court should grant

certiorari, and resolve the critical issues presented by this

inequity.

II. THE FAILURE TO PERMIT APPLICATIONS FOR FUNDS

DEPRIVED MR. POTTS OF HIS RIGHTS SECURED BY THE FIFTH,

SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

This Court should use Petitioner’s case as the vehicle to

clarify an issue which has been a source of constant confusion in

the courts below: Whether the decision in Ake vy. Oklahoma, 470

U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), requires that an

indigent defendant be permitted to apply for state funds on an ex

parte basis, or whether Mr. Potts could rightfully be forced to

disclose his entire defense strategy in order to secure his

constitutional right to funds.

A. The Procedural Posture of this Issue.

Mr. Potts made continued motions for permission to proceed

ex parte on his applications for funds, both for experts’ and

for out-of-state witnesses. ® The trial court first admitted to

Y ’ e@.g., Vv. 5 -- 90, 5 -- 114, 6 -- 131, 7 -- 176,

9 -- 158, 9 == 159, 10 -- 167, 10 -- 187, 10 -- 197, 10 -- 240.

8 See, e.g., V. 12 -- 408, 12 -- 412, 14 -- 506.

not knowing what ex parte meant (V. 6 -- 160, 14 -- 510), later

thought it meant the same as “in chambers” (V. 10 -- 243), and

ultimately concluded that such hearings were not required (V. 6

-- 163), ordering that everything should be served on the

district attorney. (V. 10 -- 243) The Court ruled that if Mr.

Potts did not want to disclose something to the prosecution,

“then I suppose that would be your decision whether or not to

include that in the motion.” (V. 10 -- 244) It turned out that

the prosecutor had been applying for out of state witnesses on an

ex parte basis. (V. 14 -- 554)

On appeal, Mr. Potts claimed that he ought to have been

permitted to make his showing of need ex parte when applying for

funds for experts. See Brief on Appeal, Enumeration of Error II,

at 9 et seg. The Supreme Court of Georgia denied relief, simply

holding

The trial court did not abuse its discretion

as to the defendant’s requests... .

Potts v. State, 376 S.E.2d at 855.

B. Conflicting decisions on the right to make ex parte

By having advance notice of defense witnesses -- at the

point when the defense wished only to consult potential

witnesses, rather than make a final decision as to whether to

call them -- the prosecution was able to achieve an unfair

advantage, both directly against Mr. Potts in his own case, and

in comparison to a similarly situated defendant of means, who

would not have been required to make any such disclosures.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53

(1985), this Court ruled that the indigent defendant must be

permitted “to make an ex parte threshold showing to the trial

court” concerning the need for funds. [Id., 84 L.Ed.2d at 66

(emphasis supplied).

The need to hold such hearings ex parte is obvious,

particularly in a state like Georgia, where the accused’s right

to pre-trial discovery is so limited. See, e.g., Hartley v.

State, 159 Ga. App. 157, 282 S.E.2d 684, 688 n. 1 (1981). A

defendant has no right to access to copies of police reports,

QO’ Kelley v. State, 175 Ga. App. 503, 333 S.E.2d 838, 843 (1985),

or non-exculpatory witness statements. Griffin v. State, 168

Ga. App. 696, 310 S.E.2d 278, 281 (1983). Similarly, if a

defendant cannot have access to the state’s work product,

Mercer v. State, 169 Ga. App. 723, 314 S.E.2d 729, 734 (1984),

the constitution must protect the defense from having to expose

the work product which may be produced in the preparation of the

potential defense expert witnesses:

{T)he Due Process Clause .. . forbids

enforcement of {discovery} rules unless

reciprocal rights are given to criminal

defendants.

Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d

82 (1973).

If it is important that defense counsel have the opportunity

fully to consult with an independent expert, it is obviously

critical that the expert be available to answer questions in an

atmosphere of confidentiality. This has long been recognized in

federal cases, decided under the Criminal Justice Act, 18 U.S.C.

§ 3006(e) (1) (1964):

(The defense] expert fills a different role

{from the Court expert). He supplies the

services ‘necessary to an adequate defense.’

He can be a partisan witness. His conclusions

need not be reported in advance of trial to

the court or to the prosecution. And his

services embrace pretrial and trial assistance

to the defense as well as potential trial

testimony.

United States v. Bass, 477 F.2d 723, 725-26 (9th Cir. 1973); in

accord, United States v. Sloan, 776 F.2d 926 (10th Cir. 1985);

Blake v. Kemp, 758 F.2d 523 (llth Cir. 1985); United States v.

Theriault, 440 F.2d 713 (5th Cir. 1973) (Wisdom, J., concurring);

see also United States v. Tate, 419 F.2d 131, 132 (6th Cir.

1969). The Georgia Supreme Court has used similar language to

describe the right to an jndependent defense expert under federal

constitutional law. See, e.g., Lindsey v. State, 330 S.E.2d 563,

566-67 (Ga. 1985).

If the expert is independent, surely the prosecution cannot

have a right to hear all the privileged defense reasons for wishing

to consult with the expert. The Georgia Supreme Court held that

the prosecution should have such a right. In contrast, in federal

cases, the courts have long held that when the denial of ex parte

hearings forces the defendant to disclose not only the names but

also the substance of the expert’s testimony, it produces an

unconstitutional result: “a premature disclosure of [the defense]

case.” Marshall v. United States, 423 F.2d 1315, 1318 (10th Cir.

1970); gee also, Gather v. United States, 391 A.2d 1364 (D.C.App.

1978); United States v. Sutton, 464 F.2d 552, 553 (5th Cir.

1972).

Defining the showing of need required to invoke the federal

co..stitutional right to independent experts, other States have

Similarly concluded that “[tjhe intention of the majority of the

Ake Court that such hearings be held ex parte is manifest .

-" McGregor v. State, 733 P.2d 416 (Okla.Ct.Crim.App. 1987); cf.

Wall _v. State, 289 Ark. 570, 715 S.W.2d 208, 209 (1986); State v.

Hickey, 346 S.E.2d 646, 654 (N.C. 1986) ; State v. Poulsen, 45

Wash.App. 706, 726 P.2d 1036, 1038 (1986).

This Court should resolve this critical question, and clarify

the indigent accused’s right to make such presentations on an ex

parte basis.

Respectfully Submitted,

JACK HOWARD POTTS

Pe. ae

CEEVE"K. STAFFORD SMITH

185 Walton Street, N.W.

Atlanta, Ga. 30303.

(404) 688-1202

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The following extracts from the voir dire in this case

illustrate the statements made, sua sponte by the venirepersons,

concerning the probability that Petitioner would swiftly be paroled

should he be sentenced to life imprisonment:

The trial court asked a question which was designed to root

out those who would automatically vote for death rather than life:

THE COURT: Do you favor capital

punishment so strongly that you would refuse

to consider mercy for the Defendant,

regardless of the evidence and the

instructions of the Court?

(V. 22 == 1845) Certain jurors, all of whom were being

questioned out of the presence of the others, misunderstood this

question.

MS. ECHOLS: Well, I want to say that it

depends on what the life sentence -- if he

could get paroled, how many years it’d be

before parole that he could be out free for

the safety of the family. MThat’s the way I

look at it.

Now, if he’s going to be allowed parole,

then I would strongly go for the death

penalty. But, then I want to say like she did

with the Bible. I don’t want to be the

judgment of nobody. I want the Lord to be.

That’s for sure. But, depending on what the

sentence is when it’s a life sentence. I

would go either way, but it depends on the

life sentence. If he’s going to be allowed

parole for taking another person’s life, then

I would not.

(V. 22 -- 1845-46) Ms. Echols was honest enough to admit that

she was not going to presume that Mr. Potts would never be

paroled when she -- albeit in this case erroneously -- thought

he would be:

THE COURT: Well, if the Court instructs

you that the issue of parole is not one that

you can consider in deciding this case, can

you tell us whether or not you are irrevocably

committed before the trial has begun on the

issue of punishment to vote for the penalty of

death, regardless of the instructions of the

Court? :

MS. ECHOLS: Well, then I’d have to go

for the death penalty and just pray ot the

good Lord that he’d forgive me.

THE COURT: All right.

(Id.) Later on, Ms. Echols reiterated her refusal to follow the

trial court’s instructions on this matter:

| A. «+. + + « I would want to make sure

that the punishment was either life without

parole -- but I think the Judge does -- I know

that...

. Q. No, ma’am, you make that decision in

this case.

A. Well, life without parole?

Q. No, ma’am, there is not life without

parole.

A. Okay. All right. Okay, then, so

there’s be just the death penalty. Okay.

But, like I said, I do not favor that as

strong as I would just life sentencing.

+ * *

Q. .. . . +. if you were selected on the

jury, do you believe you would be able to, as

you put it, weigh it all out, and to détermine

whether the appropriate sentence was life, or

whether it was death?

A. No, because I’ve already heard that

the life is . .. with parole, and that right

there makes me against the life. So, knowing

what the law is, I could not. +

Q. All right, thank you.

(V. 22 == 1907, 1913)

Ms. Echols was not alone, as her views were echoed by Ms.

Ingram. Again, Ms. Ingram spontaneously voiced her concerns

regarding parole:

{DISTRICT ATTORNEY BANKS:} The jury’s

function in this case will be to determine the

appropriate sentence for the offense of

murder. The jury’s options will be life

imprisonment or the death penalty, one or the

other.

see

A. When you say ‘life imprisonment’,

does that mean until he is dead he will stay

in prison, or will he be eligible for parole

in a few years or something?

(V. 23 -- 1984) The trial court sought her assurance that she

would not take such considerations into account:

THE COURT: Ms. Ingram, the question of

parole is not one that you should be concerned

with in your consideration of this case. If

you don’t feel you could decide this case

without consideration of that question, then

you should express that feeling. But, I would

instruct you that the question of parole is

(Id.) However, Ms. Ingram admitted that she would not be able to

make a presumption that she viewed as so fundamental and so

untrue:

not . . . a question that you should concern

yourself with unless you feel that would

= you from being a fair and impartial

uror.

MS. INGRAM: Weil, I’m afraid I couldn’t

be a very fair juror.

(Questioning resumed by Mr. Banks)

Q. Bearing in mind what Judge Gault has

just told you and if you were selected on the

jury in this case, could you make the

conscious decision to set aside personal

feelings and follow what the Judge instructs

you the law is, and follow those instructions

as you sit as a juror?

A. No.

Q. Putting aside --

A. (Interposing) No, I couldn’t.

Q. Okay.

(V. 23 -- 1984-85)

Ms. Castleberry was of the same opinion.

noted,

life and death as punishments. However, when asked by the

defense:

she had previously sworn that she would consider both

Q. Would you consider the possibility of

imposing a life imprisonment sentence on

someone who had been convicted of murder?

A. You’re fixing to open a can of worms,

but if .. . a life sentence is life, I have

problems dealing with that because so many

times a life sentence doesn’t turn out to be

a life sentence.

Q. If the Court were to instruct you

that you were not to concern yourself with .

- » those types of concerns, that that wasn’t

your job in this case, do you think you could

listen to those instructions by the Judge and

put that out of your mind and not worry about

that at all when you’re considering what

punishment to impose for someone convicted of

murder?

MR. BANKS: Objection. If it pleases the

Court, the . . . juror has been previously

asked whether she would consider both life and

death as alternatives in the case, and my

recollection is that she testified that she

would.

THE COURT: Restate the question, Mr.

As the prosecutor

Jackson.

(Questioning resumed by Mr. Jackson)

Q. Considering the fact that you have

some problems with what a life sentence means,

if the Judge were to instruct you that you’re

not to concern yourself with what the meaning

of a life sentence is and that was not to

- enter your mind, do you think you could put

those concerns out of your mind completely in

deciding whether to impose the death penalty

or a life sentence on someone convicted of

murder?

A. Can I go ahead and answer?

Q. (Counsel nods head affirmatively.)

A. No.

(V. 26 == 3422)

Finally, Charles Glanzman stated that, in his opinion, this

was probably the view of almost everyone on the jury pool:

A. I also understand that it’s the

practice to give one or several life sentences

that may turn into just five, seven, ten year

stints, and I would have to take that into

account.

* . *

A. I don’t believe I could in good

conscience dispose of a sentence as being life

in prison if I had reason to believe that life

in prison would mean five to seven years.

+ . .

{THE COURT: } You had indicated some

question about your ability to impose a

sentence of life in the event that you thought

that that type sentence or that sentence would

have some possibility of parole; and I’ve

instructed you that if you are selected to sit

on the jury, you would not be allowed to

consider the question of parole in making that

determination.

A. I guess I’d be predisposed to the

death penalty to assure that he did not have

an opportunity to come out and do the same

thing he attempted to do again.

Q. You feel that you could not set those

feelings aside?

A. I don’t believe that most people in

the community could.

(V. 23 -- 2209, 2211; see also, V. 25 -- 3029; 30 -- 577-78; 30

-- 594-95)

Certificate of Service

I hereby certify that I have this day mailed a copy of the

aforegoing document, first class postage pre-paid, to the

following:

The Office of the Attorney General,

132 Judicial Building,

Atlanta, Ga. 30334.

. ial

This the | day of June 1989.

ym =

—— ———————

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.