Opposition Brief — Kemp v. Coleman

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ROM he

ORIGINAL = -aeceiven

MAY 6 - 1986

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985 —

No. 85-1652 5 )

RALPH KEMP, Warden,

Petitioner,

WAYNE CARL COLEMAN,

Respondent

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MILLARD C. FARMER

JOSEPH M. NURSEY

P.O. Box 1978

Atlanta, Georgia 30301

(404) 688-8116

JOHN BLUME, III

P.O. Box 608

Charleston, S.C. 29402

SUPREME COURT, U.S.

QUESTION PRESENTED

Whether under the remarkable facts of this case, certiorari must be

granted to review the Eleventh Circuit's decision granting Respondent a new

trial, even though the overwhelming evidence in the record demonstrates

that, in this capital case, Respondent had no chance of receiving a fair trial

in a fair tribunal, due to the extensive and prejudicial publicity, which

saturated the rural county of approximately seven thousand persons and

predisposed the community to believe not oniy that Respondent was guilty but

much more significantly that the death penatly was the only acceptable

sentence.

TABLE OF CONTENTS

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REASONS THE WRIT SHOULD NOT BE GRANTED

CONCLUSION

THE WRIT SHOULD NOT BE GRANTED BECAUSE

THE ELEVENTH CIRCUIT CORRECTLY DECIDED

THAT UNDER THE REMARKABLE FACTS IN

THIS CASE RESPONDENT WAS ENTITLED TO A

NEW TRIAL DUF TO THE OVERWHELMING

EVIDENCE IN THE RECORD THAT EXTENSIVE

AND PREJUDICIAL PUBLICITY PREDISPOSED

THE COMMUNITY TO BELIEVE NOT ONLY THAT

RESPONDENT WAS GUILTY BUT MUCH MORE

SIGNIFICANTLY THAT THE DEATH PENALTY

WAS THE ONLY ACCEPTABLE PUNISHMENT. . .

A. The Court of Appeals Opinion .......

B. The overwhelming evidence of the extensive

and inflammatory publicity surrounding

Respondent's trial leaves no other conclusion

than that if the Respondent is not entitled to

relief then there is no federal habeas corpus

remedy for the denial of a criminal defendant's

motion for a change of venue. ..........

a ee

TABLE OF AUTHORITIES

CASES PAGES

Aetna Life Insurance Co. v. Lavoie, U.S. .

SF U.5.L.W. 490 (April 22, Testy ww tt tt ws 7

Coleman v. Balkcom, 451 U.S. 949, rhng. denied, 452 U.S. 955 (1981) 2

Coleman v. Kemp, 778 F.2d 1467 (1985) .. we vc eres evsveas errant

Coleman v. Kemp, 782 F.2d 896 (llth Cir. 1986) .......4.+4e4.2-. 2

Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), cert. denied,

-5. 909 (1977), rhrng. denied, 431 U.S. 961 (1977) .... 2

Coleman v. Zant, 708 F.2d 541 (1lth Cir. 1983) .......4..2.-. 2

Furman v. Georgia, 408 U.S. 238 (1972) ..... 2 ce 2eccerevee 13

Gardner v. Florida, 430 U.S. 349 (1977) ..... Sel hee ae al ee a 1

Grege v. Georgia, 428 U.S. 153 (1976) 2. ww ww ee cee wo ew 13 ,20

In Re Murchison, 349 U.S. 133 (1955) ..... 2. ee eee eevee 1

Irvin v. Dowd, 366 U.S. 717 (1963) ... 2. ce secre ecvvrecvevene 13,20

Lesett +. Gils, G0 U8. GOS CITE) nce ct tt ete 13

Rideau v. Louisiana, 373 U.S. 723 (1963) ..... +42 ee ee eee 11,13

Sheppard v. Maxwell, 384 U.S. 333 (1966) .. . 2... 2. 2. 2 ee eee 13

Sumner v. Matta, 455 u.S. 591 (1982) [(Sumner (II)] ......... 21

United States v. Capo, 596 F.2d 1086 (5th Cir. 1979),

cert. denied, 444 U.S. 1019 (1980). ......+.+.-. ss. 2

Wainwright v. Witt, U.S. , 105 S.Ct. 844 (1985) ....... 21

Woodson v. North Carolina, 428 U.S. 280 (1976) ......2.424++68-. 20

CONSTITUTIONAL AMENDMENTS

Eighth Amendment .......... MG oat a0 et ek Rar et Se ee 1,22

POUreeee eG Nb os eS ae eee 8 we 2 8 oe 22

STATE STATUTORY AUTHORITY

Ga. Code Ann. 24-102 SP eee ae i ee ee a oe ee ee oe ee ae a ee ee 7

Ga. Code of Judicial Conduct, Canon 3 C(1)(d)(ii), 231 Ga. A-5, A-6 7

FEDERAL STATUTORY AUTHORITY

oe. Cesc: Sees 6 ee 8 ke ee ex ee

a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No. 85-1652

RALPH KEMP, Warden,

Petitioner,

WAYNE CARL COLEMAN,

Respondent

RESPONDENT'S BRIEF IN OPPOSITION TO THE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Respondent, Wayne Carl Coleman, responds to the Attorney General

of Georgia's Petition for a Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit. Respondent maintains that the Court of

Appeals reached the only result compatible with the Fourteenth Amendment's

requirement that any criminal trial be fundamentally fair, In Re Murchison,

349 U.S. 133 (1955), and the Eighth Amendment's concern that any sentence

of death "be, and appear to be, based on reason rather than caprice."

Gardner v. Florida, 430 U.S. 349 (1977). In short, Respondent contends

that in order for this Court to reach a result, conirary to that reached by

the Eleventh Circuit, this Court will have to determine that a habeas corpus

petitioner is, under no circumstances, entitled to federal habeas corpus relief

due to a failure of the state trial court to grant a change of venue.

STATEMENT OF THE CASE

A. Procedural History

Respondent was convicted of six counts of murder and sentenced to

death in January of 1974. His convictions and sentences of death were

affirmed by the Georgia Supreme Court; this Court denied certiorari.

Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (Hill, J. dissenting on

the basis of pre-trial publicity), cert. denied, 431 U.S. 909 (1977), rhng.

denied, 431 U.S. 961 (1977).

Respondent thereafter filed a state habeas corpus petition which was

denied. The State Supreme Court denied the certificate of probable cause to

appeal; this Court denied certiorari. Coleman v. Balkcom, 451 U.S. 949,

rhng. denied, 452 U.S. 955 (1981). Thereafter, Respondent filed a federal

habeas corpus petition in the United States District Court for the Middle

District of Georgia. The Honorable J. Robert Elliott denied relief after the

submission of briefs by both parties. A certificate of probable cause to

appeal was granted. The United States Court of Appeals for the Eleventh

Circuit remanded the case to the district court for an evidentiary hearing on

the issue, inter alia, of the denial of Respondent's motion for a change cf

venue due to the extensive pre-trial publicity. Coleman v. Zant, 708 F.2d

541 (llth Cir. 1983). After extensive evidentiary hearings, Judge Elliott

again denied relief. On appeal, the Eleventh Circuit remanded the case to

the district court with instructions to issue the writ of habeas corpus

conditioned upon the state's right to retry Respondent. Coleman _v. Kemp,

778 F.2d 1487 (1985). Rehearing end rehearing en banc was denied.

Coleman v. Kemp, 782 F.2d 896 (llth Cir. 1986).

1. The evidentiary hearing held in the district court was conducted at two

different times: August 7 and November 5-8 (hereinafter Aug. Evid.

Hrng. and Nov. Evid. Hrng).

ne

B. Statement of Material Facts

The Eleventh Circuit painstakingly set forth the relevant facts mandating

a finding that Respondent was denied his basic constitutional right to a fair

trial by the trial court's failure to grant a change of venue. The truism,

"the facts speak for themselves", has seldom been as appropriate as it is in

this case. The Respondent cannot adequately summarize those facts (set out

in 45 pages in the Court of Appeals opinion) in this pleading and would refer

this Court to the panel's opinion. Among other relevant facts, the following

facts are uncontroverted:

Respondent was indicted for the murders which ultimately led to his

conviction and sentence of death along with three other persons. One of the

co-indictees, Billy Isaacs, testified for the State in exchange for a favorable

plea bargain. The other two co-indictees, Carl Isaacs and George Dungee,

were tried, convicted and sentenced to death in separate trials which began

on January 1, 1974, and January 7, 1974, respectively. Respondent

Coleman's trial was the last of the three trials, beginning on January 14,

1974,

All three trials were conducted in Seminole County. The Isaacs and

Dungee trials were concluded, and the verdicts of guilt and the death

sentences imposed at each trial were widely publicized, prior to th> jury

selection in Wayne Carl Coleman's trial.

At the time of Res>ondent's trial, Semincie County was (and is) a small

rural county in Southwest Georgia with a population of approximately 7,006

persons and 2,100 households. 2 The only town of any significant size in the

county is Donalsonville, with a population of 2,500. Agriculture is the main

industry. (T. Nov. Evid. Hrng. at 288-89). There is very little migration

into Seminole County. During the 1950's, there was a iarge migration of

young persons out of Seminole County, leaving an older population, largely

local in orientation. Consequently, most residents of Seminole County have

been there most or all of their lives. (Id. at 291-95). As a result of

2. The 1979 census indicated the county's population was 7,059 and that

there were 2,117 households.

Seminole County's small, rural, self-contained nature, with only a single town

of any significant size, its population is closely bound by ties of kinship and

friendship, attending the same churches and schools, shopping in the same

place, etc. (T. Nov. Evid. Hrng. at 296). It is also an area extremely

unaccustomed to homicides; with the exception of the murders which resulted

in Respondent's convictions and sentences of death, there were only thirteen

unlawful homicides in the ten year period from 1968-1978. (T. Nov. Hrng. at

264-66).

Among the media to which residents of Seminole County had access were

the Donalsonville News (the weekly local newspaper), the Albany Herald, the

Dothan Eagle, the Bainbridge Post Searchlight, the Atlanta Constitution: and

the Atlanta Journal,” the Georgia Network News on radio, television stations

from Tallahassee, Florida, Dothan, Alabama and Albany, Georgia and radio

stations from Donalsonville, Albany, Dothan and Bainbridge. Contained in

the Record in this case are the relevant articles from the print media and the

transcript of the Georgia Network News radio broadcasts.

Due primarily to the passage of time, transcripts of the other radio and

television broadcasts were not available; however, the media representatives

who testified at the federal evidentiary hearing noted that the radio and

television coverage was as extensive as the print media coverage. Thelma

Harrington and Watson Lee, both life long residenis of Seminole County,

recalled extensive electronic media coverage. Also, the materials that the

Asscciated Press and United Press International send out to their subscribing

newspapers (such as the Atlanta Journal) is also sent out to their electronic

subscribers, both radio and television. The AP and UPI stories are

broadcast in a shortened, although substantively similar form, as that which

appears in the print media. (T. Nov. Evid. Hrng. at 404-05; 503-06).

3. In 1973-74, the circulation of the Donalsonville News in Seminole County

was 1,800, the Albany Herald was 518, the Dothan Eagle, 315, the

Atlanta Journal was 106 and the Atlanta Constitution was 178. The

circulation of the Sunday Atlanta Journal and Constitution, in Seminole

County was 563. (T. Nov. Evid. Hrng. at 409).

Simply stated, the killing of the six members of the Alday family, one of

the (if not the) most prominent and respected family in Seminole County, was

the most significant event in the history of Seminole County. At the

evidentiary hearing, journalists who covered the event surrounding the

Aldays' deaths and the triai of Respondent and his co-indictees, as well as

long time residents of Seminole County testified concerning the impact of

these events on Seminole County.

On the day that the Aldays were killed, news of the incident spread

through the Seminole County community even before it was reported by any

media. (T. Nov. Evid. Hrng. at 477). When members of the media arrived

at the scene of the victims' home, a crowd of between 100-200 non-law

enforcement persons had alreedy gathered. (Id. at 507-09). News of the

discovery of the bodies, the search for Mary Alday, and the search for and

arrest of the suspects was widely publicized in all of the media --

newspapers, radio and television. (T. Nov. Evid. Hrng. at 178, 181-183,

199-200).

The Alday's funeral was attended by a huge crowd estimated by the

press to be in excess of 2,000 persons, almost one-third of the county's

population, and was attended by many state and local dignitaries, including

Lillian Carter, the mother of then Governor Jimmy Carter. (T. Aug. Hrng.

at 46, Nov. Hrng. at 222-23). Most stores in Donalsonville, at the request of

the town's mayor, closed on the day of the funeral. (T. Aug. Hrng. at

51). Additionally, Father's day in Seminole County was declared "Alday

Memorial Day". All churches in the county took up a collection that day for

the "Alday Memorial Fund" to be used for a new sanctuary for the Spring

Creek Baptist Church.

After the arrest of Respondent and the co-indictees, the allegations were

widely reported in the community that Respondent was a prison escapee from

Maryland and that he was a suspect in several other crimes in other states.

(T. Nov. Hrng. at 530-31). None of these widely reported allegations were

ever introduced as evidence at his trial.

Equally, if not more significant than the media coverage, was the word

of mouth dissemination of all informatica (and all rumors) throughout this

small county. In the words of ‘Vhelma Harrington, a lifetime resident of

Seminole county and a juror at the Dungee trial, word of news about the

Alday case "spread like fire in broom sage" in Seminole County. (T. Nov.

Hrng. at 176). In her words, people in the community would "have had

lockjaw not to [talk]" of the incident; everyone was "so excited and upset".

(Id. at 186). According to long time residents of Seminole County, this was

the biggest event ever in the county. (Id. at 181, 201, 482).

People in Seminole County were willing to freely express their opinions

on the case to members of the media. The only opinion heard was that

Respondent and his co-indictees were guilty, and more importantly, that the

only possible punishment for whomever was guilty was death. No contrary

opinion was heard. (T. Nov. Hrng. 513-16, 479, 485-86, T. Aug. Hrng. at

46-47). As eloquently expressed by lifetime Seminole County resident Thelma

Harrington, who sat on the Dungee jury, the unanimous sentiment of the

community, pre-trial, concerning Respondent and his co-indictees was: "fry

‘em, electrocute ‘em", "that's all I heard", “everybody knew they did it

{committed the murders}". (T. Nov. Hrng. at 187, 197). Citizens in the

community were heard to express the opinion that it was too bad that there

even had to be a trial before the execution could take place. (T. Nov.

Hrng. at 515). It was even jokingly suggested that the suspects be released

on bond in order that the execution could be accomplished outside of the

formal legal process. (Id. at 516). —

Shortly after the arrest of Respondent and his co-indictees, Bud Alday,

a family member of the victims, privately retained Peter Zack Geer to

prosecute the case. Mr. Geer, a former Lieutenant Governor of Georgia from

the southwestern section of the State,» and had previously represented the

5. He carried both Southwestern Georgia generally, and Seminole County

specifically, in his two previous races for statewide

office. (Id. at 72).

7p RE

Aldays in a civil matter. (T. Nov. Hrng. at 73). Geer was paid a fee in

the range of $5,000.00 to prosecute Respondent and his co-indictees. (Id. at

74).

This privately employed prosecutor, Peter Zack Geer, was the nephew of

the trial judge, Walter I. Geer. (T. Nov. Hrg. $75-76). At the time he was

retained by the Alday family to prosecute the case, Peter Zack Geer knew, as

did the Alday family, that his uncle would be the judge. (Id. at 82). The

Alday family also retained a second private attorney, a good friend of the

Alday family, Alto Lee, to assist in the prosecution. (Id. at 51, 56).

The prosecution of Respondent, Wayne Carl Coleman, was conducted from

start to finish by the private prosecutor, the nephew of the trial judge,

Peter Zack Geer. He "called the case", conducted the Preliminary Hearing,

(Id. at 95), and argued the State's opposition to the motion for change of

venue. At trial, Geer conducted the State's individual questioning of the

jurors on voir dire examination and he exercised the State's peremptory

challenges. He made the State's opening statement, examined the State's key

witness, Billy Isaacs, and all other state witnesses, save one, and made the

closing argument on the guilt/innocence and the closing argument at the

penalty phase.

Furthermore, the plea bargain involving Billy Isaacs was arranged by

Geer. The members of the media perceived him to be in charge of the

prosecution and went to him for any comments from the State. (T. Nov.

Hrng. at 523; Aug. Hrng. at 74-75). Whenever defense counsel needed to

confer with counsel for the State, they would confer with either Geer or the

other privately retained prosecutor, Alto Lee. (T. Farrington Dep. at

6. Judge Geer refused to recuse himself even though Georgia law requires

that a judge not sit in a case in which he is related to any party in

interest within the sixth degree of consanguinity. Ga. Code Ann.

24-102; see also, Ga. Code of Judicial Conduct, Canon 3, C(1)(d)(ii),

231 Ga. A-3, A-6. The Judge's refusal to step down was also widely

reported in the media, see e.g., Albany Herald article from September

27 titled, "Judge Won't Step Down in Alday Stayings Trial". This Court

recently held that a judge's refusal to recuse himself was an error of

constitutional magnitude. Aetna Life Insurance Co. v. Lavoie, __ U.S.

__» 54 U.S.L.W. 4381 (Ap .

33-34). The District Attorney, Mr. Ralph Foster, had no role whatsoever in

the prosecution of the case. (Id.)

After the arrest of Respondent and his co-indictees in West Virginia,

they were extradited to Georgia. Rathe> than being held in Seminole County,

they were held in the Randolph County Jail. The defendants were told by

the sheriff there that they were being held there for their safety. (T. Nov.

Hrng. at 157). When the four were brought to Seminole County for their

first appearance, a large group of citizens gathered outside the courthouse.

The transporting officers commented that they had to take the utmost

precaution to secure the suspects’ safety because of the crowd.’ (T. Nov.

Hrng. at 124, 126, 129). Security at the courthouse was extremely tight.

Bill Montgomery, a journalist with over twenty years of experience, testified

that he had never seen that level of security in a small county. (T. Aug.

Hrng. at 58). Thelma Harrington, a lifetime resident of Seminole County,

described the security as tight in order "to keep down viclence." (T. Nov.

Hrng. 191).

Prior to the trials of the co-indictees, Billy Isaacs, one of the

co-indictees, agreed to testify for the State in exchange for a favorable plea

bargain. At that point, he noted a distinct change in the community's

attitude towards h’m. After he agreed to testify for the State, people in the

community began to send him gifts such as paint sets, fruit, candy, etc. (T.

Nov. Hrng. at 130-31).

The trials of the remaining co-indictees were held during three

consecutive weeks in January, 1974. Carl Isaacs was tried first, beginning

on January 1; George Dungee's trial began on January 7. It was not until

after Isaacs and Dungee were convicted and sentenced to death that

Respondent Coleman's trial began. All three trials were held in Seminole

County.

The trials were conducted in a packed courtroom amid « xtremely tight

security. The Alday family sat on the front row in ful! view of the jury.

7. Sheriff White of Seminole County stated: "[t]heres uo doubt in my mind

that lynching has crossed the mind of everybody."

een

S tree v

Mrs. Lillian Carter, the mother of then Governor Jimmy Carter, sat with the

Alday family. (T. Nov. Hrg. at 522; T. Farrington Depos. at 11).

All the evidence, testimony, etc. from the Isaacs and Dungee trials were

widely reported in Seminole County, including the testimony of Billy Isaacs

during which he graphically described the murders. The Isaacs and Dungee

verdicts of guilt and sentences of death were known to virtually everyone in

the Seminole County community prior to Wayne Carl Coleman's trial; everyone

was discussing them and the word spread like "chaff in the wind".

Community sentiment was strongiy in favor of the guilty verdicts and death

sentences imposed. (T. Nov. Hrng. at 193-95; 491; 523-24). Furthermore,

the fact that relatives of the victims were extremely pleased with the

sentences of death imposed upon Isaacs and Dungee was also widely publicized

prior to Respondent's trial. One article in the Atlanta Constitution, headlined

"Alday Family Hoped for Death Penalty, Speak Their Feelings", concluded by

noting that the wife of one of the Alday victims smiled broadly "after the

death penalty was returned for Isaacs". Another noted that relatives of the

victims appeared pleased and relieved when the death sentence was

announced. Ali members of Respondent's petit jury knew that Isaacs and

Dungee had been found guilty and sentenced to death.

One of the jurors who sat on Wayne Carl Coleman's trial jury was Joseph

Bird. A summons for jury service intended for Joe E. Byrd was delivered to

Joseph Bird. Although Mr. Bird informed the serving officer that he was not

the person named on the summons, he was toid to come to court anyway.

(T. Nov. Hrng. at 5-7). Both prior to and during Wayne Carl Coleman's

trial, Joseph Bird was dating Marilyn Alday, a relative of the victims in this

case. He had been dating Ms. Alday since she was thirteen years old; they

are now married. (T. Nov. Hrng. at 26, 34-35). Prior to trial, Joseph Bird

and Marilyn Alday had talked about the case several times. (Id. at 27). At

his voir dire examination, Joseph Bird acted as if he barely knew the Aldays

and did not reveal that he was dating Marilyn Alday.

Other facts will be developed as they relate to Respondent's argument.

REASONS THE WRIT SHOULD NOT BE GRANTED

THE WRIT SHOULD NOT BE GRANTED BECAUSE

THE ELEVENTH CIRCUIT CORRECTLY DECIDED

THAT UNDER THE REMARKABLE FACTS IN

THIS CASE RESPONDENT WAS ENTITLED TO A

NEW TRIAL DUE TO THE OVERWHELMING

EVIDENCE IN THE RECORD THAT EXTENSIVE

AND PREJUDICIAL PUBLICITY PREDISPOSED

THE COMMUNITY TO BELIEVE NOT ONLY THAT

RESPONDENT WAS GUILTY BUT MUCH MORE

SIGNIFICANTLY THAT THE DEATH PENALTY

WAS THE ONLY ACCEPTABLE PUNISHMENT.

A. The Court of Appeals' Opinion

The Court of Appeals' application of the presumed prejudice standard

can only be fairly described as extremely cautious, recognizing that the

burden placed upon a habeas corpus petitioner "to show that pretrial

publicity deprived him of his right to a fair trial before an impartial jury is

an extremely heavy one", Coleman v. Kemp, supra, 778 F.2d at 1537. The

Court of Appeals went on to say:

Indeed, this case is a close case only because of the

extremely high standard that must be met. If there

were no constitutional right to a change of venue in

the instant case, then one can conceive of virtually

no case in which a change of venue would be a

constitutional necessity. 778 F.2d at 1538.

A review of the record makes plain that the Eleventh Circuit was not

engaging in hyperbole when it made the above statement. The "totality of

the circumstances"® surrounding Respondent's trial allow no other result.

The publicity regarding Respondent's trial saturated this small

community. This publicity did not simply consist of neutrally detailing the

facts of the crime (horrible in and of themselves) but rather characterized

8. Tne panel emphasized that in examining the "totality of the

circumstances", no single factor is dispositive. "Instead, we have

weighed each element of the prejudicial publicity, taking into

consideration the pervasiveness of the circulation thereof and how that

publicity contributed to the totality of the circumstances." 778 F.2d at

1538.

=~ 16 -

ee

the events and the defendant in a particularly hostile and negative manner”

and raised other very prejudicial facts concerning Respondent never

introduced at trial, e.g. that he had confessed to the murder of a

Pennsylvania youth, that he was an escapee from a Maryland prison, were

widely reported in the various media. Furthermore, in addition to these

"facts", there were also statements from various members of the community,

as well as editorials in several newspapers indicating not only that

Respondent was guilty but also that the only appropriate sentence was

death. !°

As the Court of Appeals found: "[{t]he clear picture that emerges from

the publicity itself [is that] "the community was predisposed to both guilt and

sentence. . ." 778 F.2d at 1539.

Furthermore, the Court of Appeals, in applying the presumed prejudice

standard of Rideau v. Louisiana, 373 U.S. 723 (1963), was faithful to the

presumption of correctness required by 28 U.S.C. 2254(d). The court,

although specifically not deciding whether "presumed prejudice" was a mixed

question of fact and law or a pure question of fact, did find that applying

"any of the relevant legal standards, be it ‘manifest error', ‘fairly supported

by the record', ‘clearly erroneous', or independent review of a mixed

question . . . under the extremely high Rideau standard . . . Coleman has

met the standard." 778 F.2d at 1537-38.

The Court of Appeals recognized that the evidence of Respondent's, as

well as his co-indictees', guilt was overwhelming. However, the panel also

9. A brief review of the language used in the articles as well as

descriptions of the defendants, will demonstrate

Respondent's point.

10. The publicity concerning the appropriateness of the death penalty began

ever. before Respondent was apprehended. The quite obvious point

these editorials and articles were making was that whoever was guilty of

the crimes should be executed. Counsel for the Petitioner

conceded this point at oral argument in the Eleventh Circuit.

- {i -

recognized that this was not dispositive because to "hold otherwise would

mean an obvicusly guilty defendant would have no right to a fair trial before

an impartial jury." 778 F.2d at 1541. The court also recognized the anamoly

of considering the strength of the evidence as to the penalty phase of

Respondent's trial, since the jury, pursuant to Georgia's death penalty

statute, has the absolute discretion to recommend mercy. 778 F.2d at 1549.

Finally, the panel extensively discussed the voir dire record in this

case. The court assumed that a voir dire record could rebut a finding of

presumed prejudice. 778 F.2d at 1541. Then the panel reviewed the record

in detail, finding that the voir dire did not rebut the presumption of

prejudice because: (i) the jurors were examined in each others' presence;

(ii) the questions asked were inadequate to discover prejudice; and,

(iii) despite the first two problems, thirty-eight of seventy-seven members of

Respondent's venire were still excused for cause for having a fixed opinion

11 278 F.2d at 1542-43.

regarding the case.

In sum, the Court of Appeals carefully reviewed the evidence and

reached the only conclusion compatible with the constitutional requirements of

a fair trial in a fair tribunal. Finally, Respondent would note that the pane!

granted relief reluctantly. In unusual language which Respondent's counsel

have not found in prior decisions from the Eleventh Circuit (or any court),

the panel stated:

No one familiar with the facts of this case and the

overwhelming evidence of guilt could fail to have

sympathy for the prolonged suffering of the families

of these victims. The fatal error of trying this case

in Seminole County was not their decision. Similarly,

the unwarranted delay in the final disposition of this

matter is not their fault. 788 F.2d at 1543, n. 27.

11. An interesting sideline to this is that one potential juror, whom the trial

judge refused to excuse for cause, had known the victims for

approximately nine years, attended the funerals, read newspaper

accounts of the murders and the first two trials and testified as a

witness for the State in the two previous trials of Respondent's

co-indictees.

- 13 -

POPES areere

B. The overwhelming evidence of the extensive and inflammatory

publicity surrounding Respondent's trial leaves no other conclusion

than that if the Respondent is not entitled to relief then there is

no federal habeas corpus remedy for the denial of a criminal

defendant's motion for a change of venue.

It is axiomatic that a defendant, in a criminal prosecution, is entitled to

a change of venue when it is shown that actual prejudice invaded the jury

box, Irvin v. Dowd, 366 U.S. 717 (1963), or that the atmosphere in which

the trial was conducted was inherently prejudicial, Rideau v. Louisiana, 373

U.S. 723 (1963); Sheppard v. Maxwell, 384 U.S. 333 (1966). If a defendant

can demonstrate that the atmosphere in the community is inherently

prejudicial, it is unnecessary to prove that actual prejudice invaded the jury

box. The facts of Respondent's case, however, demonstrate both an

inherently prejudicial atmosphere and that prejudice did indeed invade the

jury box.

It is significant that this is a capital case. The Georgia capital

sentencing scheme requires that the jury decide not only the guilt or

innocence of the accused but also whether the penalty will be a sentence of

death or life imprisonment. See generally, Gregg v. Georgia, 428 U.S. 153

(1976). Pursuant to this Court's precedent, the sentencing determination

must be made based upon both the nature of the offense committed and any

mitigating aspect of the offense or the background and character of the

defendant. Lockett v. Ohio, 438 U.S. 586 (1978).

Long before Respondent Coleman's trial, the residents of Seminole

County had determined that the only appropriate punishment for the

person(s) convicted of the Alday murders was death. }? Every witness who

answered this question, both media representatives and Seminole County

12. One of the first articles in the Donalsonville News discussing the

apprehension of the four suspects also carried an article on the same

page (the front page) regarding the new death penalty listing the

statutory aggravating circumstances. The cases were also widely

reported as a "test" case for the new statute due to this Court’ holding

in Furman v. Georgia, 408 U.S. 238 (1972). Isaac's counsel was

reported as saying that this was "exactly the kind of case" the

legislature meant for the death penalty to be used in.

- 13 -

residents, testified that the community sentiment was unanimously in favor of

the death penalty for anyone convicted of the Alday deaths. Local editorials

made this point clearly.

The May 24 edition of the Donalsonville News carried an article which

stated, in pertinent part,

There is a wide difference in the question of whether

the people here could give the suspects a fair trial,

and in our wanting to see the guilty ones punished

and removed. ....

The same edition carried another editorial which stated:

There is just no place in society for the kind of

individuals who place no value on the life of any

other individual. ...

We kill rattlesnakes because they kill anything they

come in contact with. We likewise shoot mad dogs or

other rabid animals.

When individuals become as low as these lower

animals, they lose their right to human treatment.

Another editorial, from the May 17 edition of the Bainbridge Post

Searchlight, entitled "Corner the Mad Dog” stated:

In the editorial parlance of early American

newspapers, it was not uncommon for the editor to

suggest that the perpetrator of a heinous crime

‘should be shot down like a dirty dog.'

We never liked that particular phrase, because even

the meanest dogs we have ever known would in no

way compare with the guilty person or persons who

committed the violent, outrageous, atrocious, vicious,

and beastly murders of six members of the Alday

family in Seminole County sometime last Monday night.

To make such a comparison would be speaking

disparagingly of dogs in general, and they are more

entitled to consideration than the maniac or maniacs

who snuffed out the lives of six human beings, five

men and one woman during the course of the evening

and in addition, criminally assaulted the woman before

she was killed. At least, the record shows she was

criminally assaulted either before or after death.

Fellow citizens, this is not Chicago or Heil's Kitchen.

This happened in South Georgia. Even the Mafia

would refrain from the magnitude of such a crime.

A sex maniac is running free in our area. A mad

dog is on the "loose".

We are staunch believers in law and order, and we

believe those who commit capital felonies shouid be

brought before the bar of justice, but this is one

case where we hope the guilty will resist arrest, and

will be felled where they are cornered.

a To

SS ee

We must find this criminal or criminals if we have to

irack them to the four corners of the world. We

must bring the ghoul or ghouls to bay and the guilty

must be removed from our society just as a dog with

rabies is removed. Permanently.

Another editorial from the same paper was entitled, "A Case for Capital

Punishment". It stated:

It is remarkable how anyone could be aware of the

atrocities such as the Alday murders and still contend

that capital punishment is too harsh, that is has no

place in modern society, or that it is not an effective

deterrent to criminals.

The May 31 edition of the Donalsonville News contained the following

editorial, which stated in pertinent part:

The brutal, senseless murders of six members of

the Aldey family should serve as another warning to

all society that there is a need for capital punishment

in this country. How can anyone who is aware of

this heinous crime, _ still maintain that capital

punishment is too harsh and should be stricken from

our society for all time?

The Alday case is a perfect case for capital

punishment. It shows all too well our system of

today with dealing with criminals is not working.

Three of the persons charged with the execution style

killings, escaped from a prison that was preparing

them for life on the outside. They wer> to be

released soon back into society. It seems clear that

there are some criminals that just cannot be

rehabilitated and should not be returned to society to

destroy the lives of innocent, hard-working people

like the Aldays.

* * * * * *

Those who oppose capital punishment argue that

it is not a deterrent to brutal crimes. But it has

been so long since we had an execution in Georgia

thet there is [sic] really no current statistics for an

accurate evaluation. On the other hand, brutal

crimes have climbed out of sight in the past several

years and that ought to tell the "do-gooders"

something about capital punishment.

Look at it this way. When a person is convicted

by the courts beyond a reasonable doubt of a crime

like the slaughter of the Alday family, it seems to me

there is nothing else society can do. It is absurd to

accept the argument that such a criminal can be made

to see the error of his ways. As long as such a

criminal lives, he is indeed a threat to society. If he

is put into prison, he has the opportunity for escape

or parole. If he is executed, society has nothing

more to fear from such a criminal.

As Thelma Harrington, a lifetime resident of Seminole County, who sat

on co-indictee Dungee's jury said: everyone's opinion of the appropriate

punishment was to "Fry ‘em; electrocute ‘em". The Clerk of Court of

Seminole County, the most hostile witness to Respondent imaginable, testified

that at least by the end of the Isaacs trial, he had determined that Wayne

Carl Coleman should receive the death penalty. (T. Nov. Hrng. at 232).

The Sheriff of Seminole County made the statement, widely reported in the

media, that the death penalty was not enough punishment for Respondent and

his co-indictees. According to then Sheriff White:

If I had my way about it, I'd have me a large oven

and I'd precook them for several days, just keep

them alive and iet them punish .... And I don't

think that would satisfy me.

I don't see where they could put up any plea for

mercy .. . . The acts of these men are lower than

animals.

If a citizen gets out of hand and starts shooting

people up, there's only one way to arrest and that's

with a shotgun.

Any man that believes in God believes in capital

punishment ... . I could throw the switch to the

electric chair and never lose a minute's sleep.

Not one witness was presented at the evidentiary hearing to contradict

the evidence that the community in which Respondent was convicted and

sentenced to death hac prejudged punishment in this case and had determined

before his trial that death was the only acceptable punishment. Even

Respondent's trial counsel underscored the community's sentiment. One of

Wayne Coleman's appointed trial lawyers stated to the press: "this is the

worst thing that's ever happened to me professionally. There is just no way I

can get out of it. I pleaded with the judge. ..." Other counsel were

quoted as saying that "they planned to provide the best courtroom defense,

but with reluctance." At the penalty phase of Coleman's trial, counsel told

the jury at closing argument that the judge had appointed him against his

- 16 -

Lge

——

wishes. 13

Respondent was further disadvantaged by the fact that he was tried

third. Before his trial, the media had widely reported in Seminole County

the details of the evidence presented at the Isaacs and Dungee trials and the

verdicts and death sentences imposed at those trials. In fact, every juror in

Coleman's case knew that his co-indictees had been convicted and had

received the death penalty.

Seminole County was saturated by newspaper and magazine articles

concerning this case. The newspaper articles concerning this case circulated

in Seminole County accounted for 209 stories, consuming some 4,858 column

inches. (T. Nov. Hrng. at 412). The testimony presented at the

evidentiary hearing indicated tnat radio and television coverage was just as

extensive. The transcript of the Georgia Network News broadcasts showed 33

days of broadcasts concerning this case which continued from the day of the

commission of the offense until the completion of the trials. There is reason

to believe that the coverage by the other electronic media was equally

extensive. The Court of Appeals exhaustively discussed the articies, etc.,

regarding the Alday killings. A good deal of the material was factual.

However, a significant percentage was not and either presented the

defendants and/or the facts in an inflammatory manner or discussed

prejudicial facts generally involving other crimes commited by Respondent and

his co-indictees never introduced at Respondent's trial.

The extensive media publicity was only the springboard to more

extensive word of mouth publicity concerning this case. As the testimony at

the evidentiary hearing demonstrated, Seminole County is a small, tightly knit

13. One attorney, J. Willis Conger, stated: 7

I'd like very much to be relieved. I don't know

of any lawver in Georgia who would want the case. I

don't know of anybody who wants it.

I feel the feeling in Seminole County and this

part of Georgia is such that I don't want it . It is

not the kind of case I want to get involved in.

= 1% «

community in which word of mouth is virtually as important as the formal

media in spreading prejudicial publicity concerning this case.

The effect of the publicity !4 is most easily demonstrated by reviewing

Respondent's venire and petit jury. Approximately fifty percent (50%) or 38

out of 77 venirepersons drawn for Coleman's trial were dismissed for having

fixed opinions as to the guilt of the accused. Given the sentiment of the

community, there is every reason to believe that there was an attempt on the

part of prospective jurors to attempt to be placed on the jury so that they

could avenge the members of the Alday family. As strong as this may sound,

an example will demonstrate Respondent's point. Mrs. Robert Hines, a

prospective juror, denied having a fixed opinion. Mrs. Hines testified on

voir dire that she had known the victims for 8 or 9 years, attended the

funeral, read the newspapers, heard the news and testified as a witness for

the State in the two previous trials of Respondent's co-indictees. She stated,

however, that she had not been infiuenced by what she had heard and that

she could give the defendant a fair trial. (Trial Tr. Vol. V, p. 478-479).

The Respondent's challenge to this juror for cause was overruled. (Trial Tr.

Vol. VI, p. 482).

The twelve jurors' level of awareness and concern about the killings was

indicative of the effect the extensive publicity surrounding Respondent's

trial. Justice Hill, in his dissent from the majority opinion affirming

Respondent's convictions and sentences on direct appeal to the Georgia

Supreme Court, recognized the disposition of the jurors when he stated:

On voir dire, the twelve jurors who served

testified as follows:

Juror No. | testified that he knew the victims

when he saw them. Although he did not go to the

funeral, two days after their deaths he went by the

trailer to pay his respects. He knew the two other

cases were tried and their outcome and had discussed

14. To underscore the point, it is Respondent's position that the effect of

the inflammatory and extensive publicity was enhanced in this case by

the prominence of the victims and the inherent nature of a small rural

isolated locality such as Seminole County. If this were not enough in

and of itself, the additional fact that the victim retained a _ special

prosecutor, a former lieutenant governor of Georgia, who was very

popular in Southwest Georgia, as well as the nephew of the trial judge,

gave Respondent no chance at a fair trial.

«~ 18 =

those trials. He had read a lot about the cases in

the newspapers and had seen and heard about the

homicides on television and radio. ‘The things he had

heard did not make him think the defendant was

probably guilty.

Juror No. 2 (later selected as foreman) testified

that he had known the victims for eight years and

had worked with two of them. They had never

visited in his home nor he in theirs and he did not

attend the funeral. He knew that two. other

defendants had been tried and both were found guilty

but he had not discussed it with anyone. He had

read newspaper articles and heard on television and

radio about the crimes, Although the news he had

read and heard pointed to defendant's guilt, the

reports did not sway him one way or the other.

Juror No. 3 did not know the Aldays. He did

know of the prior trials and convictions and he knew

that this defendant was the fourth man. Although he

had read about he case in the newspaper, he had

seen it on television only once or twice. Although

the publicity indicated that the defendant was guilty,

he felt he could be impartial.

Juror No. 4 lived five or six miles from the

trailer and knew all the Aldays but did not attend the

funeral. He had read and heard some news accounts

and knew that two other cases had been tried and

verdicts of guilty returned.

Juror No. 5 did not know the victims. He had

read news reports and knew about the trials but was

not swayed by them.

Juror No. 6 had met one of the victims five or

six years earlier in connection with an insurance

claim. He had read and heard news of the homicides

and of the trials.

Juror No. 7 knew all of the Aldays except Mary

and went to the funeral. He had seen newspaper and

television accounts of the crimes and trials.

Jury No. 8 knew ali of the Aldays that were

killed except Mary but did not know them well enough

to visit them and did not attend their funeral. She

had read newspapers and knew the outcomes of the

other trials.

Juror No. 9 did not know the Aldays. She kept

up with the cases on television and by newspaper and

had discussed the matter with a friend. She knew

the outcome of the earlier trials.

Juror No. 10 knew the victims by sight and had

seen newspaper and television accounts of the other

trials. She also had read a magazine article about

the matter. The information she had read was

unfavorable to the defendant but she felt she could

be impartial.

= 3) «

Juror No. ll did not know the victims personally.

She has read in the paper about the cases and prior

convictions. The information she had read was

unfavorable to the defendant and sie believed to some

extent the things she had read but felt she could be

impartial.

Juror No. 12 knew the victims when he saw them

but did not know them personally. He had read news

reports of the homicides and knew there were two

prior convictions. He had not discussed the case.

In summary, four of the empaneled jurors

thought that the publicity indicated that the

defendant was guilty but felt that they could be

impartial. Another juror attended the Alday funeral

and another went to the trailer to pay his respects.

A majority of the jurors knew one or more of the

victims. All twelve were aware of the outcome of the

two earlier trials of co-defendants. [where both

co-defendants were convicted and sentenced to death]

Coleman v. State, 237 Ga. 84, 96-100, 226 S.E.2d 911

(1976).

As this Court stated in Irwin v. Dowd, supra: "With his life at stake,

it is not requiring too much that petitioner be tried in an atmosphere

undisturbed by so huge a wave of public passion." 366 U.S. at 728.

Furthermore, to have Respondent's sentence decided in an atmosphere in

which it had already been decided that the only appropriate acceptable

punishment was death would contravene the Eighth Amendment's requirement

that any sentence of death must be individualized. See Gregg v. Georgia,

supra. In sum, a sentence imposed under such circumstances would be

tantamount to a mandatory death penalty and therefore violate this Court's

holding in Woodson v. North Carolina, 428 U.S. 280 (1976). Considering the

small size of Seminole County, the overwhelming level of- prejudicial publicity,

the status of the Alday family in the community and the prejudice invading

the jury box itself, if the Respondent is not entitled to habeas corpus relief

due to the deniai of his motion for a change of venue, then it can be safely

said that there is no recourse in the federdl courts for such violations

occurring in state criminal proceedings. As the Court of Appeals recognized,

= 9) -

ee

it is hard to conceive of a stroriger case.

Finally, the Respondent takes issue with the Attorney General's

contention that the Court of Appeals did not give proper deference to state

court findings of fact as required by 28 U.S.C. 2254(d). First, this Court

has never held that the presumption of correctness applies to a state court

findings regarding presumed prejudice. It would seem at the very least to be

15

& mixed question of law and fact. Cf. Wainwright v. Witt, = U.S. ,

105 S.Ct. 844 (1985). The Attorney General's brief in the Eleventh Circuit

conceded that the issue was a mixed question of law and fact. See State's

Supplemental Brief at 17. However, the court below did not expressly

resolve the issue because it determined that even assuming that presumed

prejudice was a question of fact, the state court findings were not entitled to

the presumption. 778 F.2d at 1537. The panel reached this conclusion for

two reasons. First, it did not believe that material facts as found by the

state courts were adequately developed at the state court hearing. 778 F.2d

at 1537, n.18. Second, the facts as found were not fairly supported by the

record, 778 F.2d at 1537. Either one of these reasons is a legitimate reason

pursuant to 2254(d), for a federal court not to defer to state court findings

of fact. 28 U.S.C. 2254(a)(3) & (8); see also Sumner v. Matta, 455 U.S.

591 (1982) (Sumner (II).

In Sumner this Court stated:

Of cecurse, the federal courts are not necessarily

bound by the state court's findings. Section 2254(d)

permits a federal court to conclude, for example, that

a state finding was ‘not fairly supported by the

record.' But the statute does require the federal

courts to face up to any disagreement as to the facts

and to defer to the state court unless one of the

factors is found. 455 U.S. at 597-98.

The Court of Appeals "faced up" to its task with all, and possibly more,

deference than is statutorily required in Respondent's case. The remarkable

thing is that Respondent's case has proceeded so far through our system of

justice before some tribunal did.

15. The Eleventh Circuit has previously treated it as a mixed question of law

and fact. See, e.g. United States v. Capo, 596 F.2d 1086, 1090 (5th

Cir. 1979), cert. 4S ed 4470.5. 1019 71980),

——_—_

- 21 -

CONCLUSION

The Respondent, Wayne Carl Coleman, submits that for all the reasons

stated above, the Eleventh Circuit correctly decided that he was entitled to a

new trial and sentencing hearing in conformity with the requirements of the

Eighth and Fourteenth Amendments. Therefore, Respondent requests that

certiorari be denied.

Respectfully submitted,

JOSEPH M, NURSEY

Post Office Box 1978

Atlanta, GA 30301

(404) 688-8116

JOHN H. BLUME, III

Post Office Box 608

Charleston, SC 29402

= 99 -

CERTIFICATE OF SERVICE

I hereby certify that I have this day served counsel for the opposing

party with a copy of the foregoing pleading by placing same in the United

States Mail with adequete first-class postage annexed thereto addressed to

Ms. Susan Boleyn, Assistant Attorney General, 132 State Judicial Bldg., 40

Capitol Square, S.W., Atlanta, Georgia 30334.

Wik he —

Millard Farmer

This 5th day of May, 1986.

95-1659

FILING STATEMENT

I hereby certify that on May 7, 1986, within the time period

permitted by the Supreme Court Rules I personally deposited this

Brief in Opposition to Petition For a Writ of Certiorari in the

United States Mail with correct First Class Postage prepaid in

conformity with Supreme Court Rule 28.2.

This 7th day of May, 1986.

v7 poe ¥ Brrom~, .

James C. Bonner, Jr.