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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 876

## Text

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED,

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.
106 S. Ct.

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

13

12

16

11

15

15

11

. . . 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 . . . . . . . . . . . . . . . .

11

15

11

15

at

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1988

No. 88-

JACK HOWARD POTTS,
Petitioner,
v.
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.

(c) When a person receives consecutive life
sentences as the result of offenses occurring
in the same series of acts and any one of the

3

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.

4

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.

9

- |

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

10

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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).
12

= 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.

13

7

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.

14

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).

15

7

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.
3

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 =

—— ———————

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0562%3A2. Public record. Not legal advice.