Appendix — Clark v. Florida

Supreme Court brief1981

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

Case No. 79-6309

RAYMOND ROBERT CLARK,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDICES FOR

SUPPLEMENTAL BRIEF OF PETITIONER

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

. €

IN THE ao

SUPREME COURT OF FLORIDA

CASE NO. S4, 737.

JOSEPH GREEN BROWN, ALVIN BERNARD FORD, JESSE RAY RUTLEDGE,

CARL ELSON SHRINER, DANIEL MORRIS THOMAS, AUBREY DENNIS ADAMS,

JR., FRED LYMAN BRUMBLEY, DANIEL L. COLER, VERNON RAY COOPER,

GREGORY SCOTT ENGLE, DAVID LIVINGSTON FUNCHESS, ROBERT D.

HEINEY, MARVIN E. JOHNSON, LESLIE R. JONES, ROBERT FP. LEWIS,

BOBBY EARL LUSK, THOMAS McCAMPBELL, CHARLES DWIGHT MESSER,

FLOYD MORGAN, DONALD PERRY, JAMES LEROY PHIPPEN, JAMES DAVID

RAULERSON, JIMMIE LEE SMITH, WILLIAM GILVIN, BRYAN JENNINGS,

RICHARD KING, GREGORY MILLS, ROBERT LEWIS BUFORD, WILLIAM

CHRISTOPHER, RAYMOND ROBERT CLARK, ROBERT COMBS, RAYMOND L.

DRAKE, EARL ENMUND, WILLIAM JENT, AMOS LEE KING, HAROLD

GENE .LUCAS, ANTHONY RAY PEEK, RALEIGH PORTER, M.C.

RUFFIN, DONALD WALSH, JOHNNY PAUL WITT, STEVEN BEATTIE,

MCARTHUR BREEDLOVE, ALONZO BRYANT, BOBBY MARION FRANCIS, ©

MARVIN FRANCOIS, LENSON HARGRAVE, RONALD JACKSON, ANTONIO

MENENDEZ, THOMAS PERRI, WARDELL RILEY, LEON SCOTT, ROY STEWART,

MERLE STURDIVAD, GARY TRAWICK, MANUEL VALLE, JAMES ADAMS, LEVIS

LEON ALDRIDGE, ALLEN L. ANDERSON, DAVID ROSS DELAP, WILLIAM

DUANE ELLEDGE, GEORGE VICTOR FRANKLIN, WILLIAM LANAY HARVARD,

JAMES E,. HITCHCOCK, MONROE HOLMES, JOHN P. MAGGARD, NOLLIE

LEE MARTIN, WINDFORD MINES, ELDRED LONNIE MOODY, JAMES A.

MORGAN, TOMMY LEE RANDOLPH, JAMES FRANKLIN ROSE, PAUL WILLIAM

SCOTT, WILLIE CLAYTON SIMPSON, TERRY MELVIN SIMS, HENRY PERRY

SIRECI, JR., JOSEPH ROBERT SPAZIANO, JESSE JOSEPH TAFERO,

SOLOMON WEBB, WILLIAM GLENN WELTY, WILLIAM MELVIN WHITE, GARY

ELDON ALVORD, ANTHONY ANTONE, LUIS CARLOS ARANGO, SAMPSON

ARMSTRONG, ELLWOOD BARCLAY, RICHARD BLAIR, BERNARD BOLANDER,

STEPHEN TODD BOOKER, THEODORE BUNDY, JOHNNY COPELAND, PRESTON

CRUM, WILLIE JASPER DARDEN, BENNIE DEMPS, ERNEST JOHN DOBBERT,

HOWARD VIRGIL LEE DOUGLAS, JOHN E. FERGUSON, CHARLES KENNETH

FOSTER, ARTHUR FREDERICK GOODE, III, FREDDIE LEE HALL, CARL

JACKSON, ELIGAAH ARDALLE JACOBS, THOMAS KNIGHT, JOHN WALLACE

LeDUC, PAUL EDWARD MAGILL, ROY McKENNON, DOUGLAS RAY MEEKS,

MARK MIKENAS, EDDIE ODOM, TIMOTHY PALMES, CHARLES WILLIAM

PROFFITT, MICHAEL SALVATORE, FRANK SMITH, CARL RAY SONGER,

WALTER STEINHORST, RUFUS STEVENS, RAYMOND R. STONE, RONALD

STRAIGHT, ROBERT A. SULLIVAN, WILLIAM LEE THOMPSON, CHARLES

VAUGHT, DAVID LEROY WASHINGTON, JAMES BUFORD WHITE,

Petitioners,

-V.-

LOUIE L. WAINWRIGHT, Secretary, Department of Corrections;

State of Florida,

Respondent.

APPLICATION FOR EXTRAORDINARY RELIEF AND

PETITION FOR WRIT OF HABEAS CORPUS

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™~

Petitioners, through their undersigned counsel, apply

to this Honorable Court for relief from their unconstitutional

sentences of death and further appropriate relief, and, in

support thereof, state:

PARTIES

Petitioners are all death-sentenced inmates pre-

sently incarcerated at Florida State Prisoh in Starke, Florida,

whose convictions and sentences were affirmed by or whose

appeals are currently pending before this Court. (See Appenaix

A filed herewith).

Respondent, Louie L. Wainwright, is the Secretary of

the Department of Corrections in whose custody the petitioners

are detained.

‘ ' nr.

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to Article V, Section 3(b) (1), (7) and (9) of the Constitution

of the State of Florida (1980). See Adams v. State, 380 So2da

421(Fla.1980); Graham v. State, 372 So2d 1363(Fla. 1979);

Proffitt v. State, 360 So2d 771(Fla. 1978). Petitioners seek

relief in this Court because the issues raised herein involve

this Court's appellate review of capital cases and do not:

involve the proceedings in the trial courts. Petitioners have

filed jointly in the interest of judicial economy because of

the common issues of law and fact presented. See In Re Baker,

267 So2d 331(Fla.1972).

TII.

FACTUAL BASIS FOR RELIEF

This Court, since at least as early as 1975, has

engaged in the continuing practice of requesting and receiving

information concerning capital appellants which was not pre-

sented at trial and not a part of the trial record or record

on appeal. The information includes but is not limited to:

presentence investigation reports concerning the capital offense

under review or prior convictions unrelated to the capital

offense; psychiatric evaluations or contact notes; psychological

screening reports; recitations of a capital defendant's refusal

on Sun

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to submit to a psychiatric examination from which a report could

be prepared; post-sentence investigation reports; probation or

parole violation reports; and state prison classification and

admissions wenidatus. Documentation of the practice is provided

by the correspondence attached as Appendix B which is merely

exemplary. Petitioners also attach in Appendix C newspaper

accounts of the practice. While such accounts are admittedly

hearsay, they are well-substantiated by the documents in Appendix

B. ; . -

moupt as to some of the presentence investigations

pertaining to the offense on appeal the above information was

requested and received without notice to the capital appellants

or their attorneys.

Upon information and belief, a quantity of the infor-

mation received by the Court, and of records reflecting the

practice of requesting and receiving te 0s alleged in the pre-

ceeding paragraph, has at the Court's direction been destroyed

or purged from this Court's files. AS a result, it issno longer

possible for petitioners to identify all of the cases in which .

such information was requested or received.

Iv.

LEGAL CLAIMS

The request or receipt by this Court of undisclosed

information in capital cases, as described above, violates

inter alia, petitioners' rights under the Due Process Clause

of the Fourteenth Amendment to the Constitution of the United

States and Article I, Section 9 of the Constitution of the

State of Florida; the right to counsel as guaranteed by the

Sixth and Fourteenth Amendments to the Constitution of the

United States and Article I, Section 16 of the Constitution of

the State of Florida; the Eighth Amendment to the Constitution

of the United States and Article I, Section 17 of the Con~

stitution of the State of Florida; the privilege against self-

incrimination as guaranteed by the Fifth Amendment to the

Constitution of the United States and Article I, Section 9

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of the Constitution of the State of Florida; the right to

confrontation as guaranteed by the Sixth Amendment and Article

I, Section 16 of the Constitution of the State of Florida; and

the Equal Protection Clause of the Fourteenth Amendment to

the Constitution of the United States and Article I, Section

2 of the Constitution of the State of Florida.

A. The Due Process Right to Fair Capital procedures*

The practice described above violates Gardner v.

Florida, 430 U.S. 349(1977). In Gardner, the United States

Supreme Court held unconstitutional the imposition of a death

sentence where, in considering what sentence to impose, a

Florida circuit court had ordered and relied on a pre-sentence

investigation ‘report, portions of which were not disclosed to

the parties. The plurality emphasized that, in capital cases,

it is now clear that the sentencing process

as well as the trial iteself, must satisfy

the requirements of the Due Process Clause .- + +

Id. at 358 (opinion of Mr. Justice Stevens). It held that due

process was denied since "the death sentence was imposed, at

least in part, on the basis of information which [petitioner]

had no opportunity to deny or explain." Id. at 362. See also

Green v. Georgia, 442 U.S. 95, 97(1979) and Presnell v.- Georgia,

439 U.S. 14, 16(1978).

Gardner requires a similar conclusion here. The

only real difference between Gardner and these cases is that

here the secret information was gathered on appeal rather than

at trial. Rather than providing a basis on which to distinguish

these cases, this fact aggravates the unfairness to petitioners.

The preparation of a pre-sentence report is a relatively normal

and expectable occurrence in the trial court, and defense

counsel might legitimately be expected to be on notice that such

an erent may happen, and, before Gardner at least, might engender

confidential information. No lawyer familiar with Florida.

‘statutes, rules and procedures could be expected to anticipate,

however, that without notice to the lawyer or the lawyer's client,

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this Court would request or receive intcraation dehors the record.

Here, certainly no less than in Gardner, it would be a violation

of the Fourteenth Amendment's Due Process Clause "to impose the

death sentence on the basis of confidential information which is

not disclosed to the defendant or his counsel.” Gardner v.

Florida, supra, 430 U.S. at 358.

It is a further violation of Due Process for this

Court to have consulted “evidential facts not spread upon the :

record,” Ohio Bell Telephone Co. v. Public Utilities Commission

of Ohio, 301 U.S. 292,300(1937), so that "even now we do not

know the particular or evidential facts of which the {Court}...

took judicial notice and on which it rested its conclusion.”

Id. at 302.

It is also a violation of due process for an

appellate court to rely for disposition of an appeal upon factual

grounds other: than those relied upon by the trial court. Presnell

v. Georgia, supra; Eaton v. City of Tulsa, 415 U.S. 697(1974);

Cole v. Arkansas, 333 U.S. 196(1948). To the extent that the

affirmance of any of petitioners’ cases was affected by infor~

mation outside the trial record, their due process rights were

further violated.

The Court's sua sponte consultation of extra-record

materials and information in the consideration of capital appeals

contravenes petitiorters' fundamental rights to due process of

law.

B. The Right to the Effective Assistance of Counsel

The guarantee of the effective assistance of counsel

is as applicable on appeal as at trial. Anders v. California,

386 U.S. 738(1967); Ross v. State, 287 So2d 372(Fla.2d DCA 1973);

Davis v. State, 276 So2d 846(Fla.2d DCA i973), aff'd 290 So2d

30(Fla.1974). This right is denied not merely by the denial

of counsel but by any hampering "restrictions upon the function

of counsel in defending a criminal prosecution in accord with

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the traditions of the adversary fact-finding process.” Herring v.

New York, 422 U.S. 853,857(1975). Accord: Ferguson v. Georgia,

365 U.S. 570(1961); Brooks v. Tennessee, 406 U.S. 605(1972);

Geders v. United States, 425 U.S. 80(1976). In Gardner v.

Florida, 428 U.S. 908,909(1976) certiorari was granted on both

a Sixth and a Fourteenth Amendment question. In its decision,

the Supreme Court of the United States held that "[e]ven though

the defendant has no substantive right to a particular sentence ;

within the range authorized by statute, the sentencing is a .

critical stage of the criminal proceeding at which he is

entitled to the effective assistance of counsel." [Citing Mempa

v. Rhay, 389 U.S. 128(1967) and Specht v. Patterson, 386 U.S..

605(1967)]. Gardner v. Florida, 430 U.S. 349,358(1977).

Implementing Gardner, this Court has recognized that counsel

must be afforded adequate time to prepare pertinent rebuttal

evidence in order for a defendant to be given a meaningful.

"opportunity to be heard.” Barclay & Dougan v. State, 362

So2d 657,658(Fla.1978). This Court's request for or receipt of

confidential information, without notice to or access by peti-

titioners and their counsel, violates the petitioners’ rights

because their counsel are afforded no opportunity to explain,

deny, or place in context the information. The exclusion of

counsel from the process of weighing such information proceeds

from the:

erroneous premise that the participation of

counsel is superfluous to the process of

evaluating the relevance and significance

of aggravating and mitigating facts. Our :

belief that debate between adversaries is

often essential to the truth-seeking function

of trials requires us also to recognize the

importance of giving counsel an opportunity

to comment on facts which may influence the

sentencing decision in capital cases,

Gardner v. Florida, supra, 430 U.S. at 360. On the appeal of

a capital case, no less than at trial, the Sixth Amendment

guarantees "the guiding hand of counsel" to a criminal defendant.

Powell v. Alabama, 287 U.S. 45,57(1932).

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Cc. The Right to Confrontation

The Sixth Amendment provides that "{iJnm all crimi-

nal prosecutions the accused shall enjoy the right... to be

confronted with the witnesses against him." See generally

Pointer v. Texas, 380 U.S. 400(1965); Douglas v. Alabama, 380

U.S. 415(1965).

The primary object of the constitutional

provision in question was to prevent depositions

or ex parte affidavits, such as were sometimes

admitted in civil cases, being used against

the prisoner in lieu pf a personal examination

_ and cross-examination of the witness, in which

the-accused has an opportunity, not only of

testing the recollection and sifting the

conscience of the witness, but of compelling him

to stand face to face with the juxy in order

that they may look at him, and judge by his

demeanor upon the stand and the manner in which

atl tg his testimony whether he is worthy of

elie

Mattox v. United States, 156 U.S. 237, 242-243(1895). A de-

fendant's Confrontation Clause rights are not limited to trial

of the case but attach wherever evidence is admitted relevant

to the issues to be adjudicated. "A leading principle that per-

vades the entire law of criminal procedure is that, after inéiet-

ment found, nothing shall be done in the absence of the prisoner.”

Lewis v. United States, 146 U.S. 370, 373(1892). A defendant is

entitled to confront the witnesses against him in any proceeding

"after the case is called for trial which involves his substan-

tial rights." Hopt v. Utah, 110 U.S. 574, 578(1884). See also

Rogers v. United States, 422 U.S. 35, 39-40(197%). ‘he evidence

which this Court has received has never been tested by the

equivalent of cross-examination, cf. Ohio v. Roberts, U.S.

100 S.Ct. 2531(1980), and is of a notoriously unreliable sort

(See ¥ D. infra). While in some limited circumstances, hearsay

reports might be admissible if the prosecution makes a solid

factual showing of the preparer's "unavailability" as a witness

at the time of exited ent if, in addition, the report bears

adequate "‘indicia of reliability'", Mancusi v. Stubbs, 408

U.S. 204, 213(1972), in the present cases, defense counsel

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* We:

were unaware of the very existence of the kepeices that may have

affected the appeals in petitioners’ cases, There was no

opportunity here to confront the reports themselves and the

consequences of this Court's request or receipt of the reports,

let alone the preparers of the reports. |

D. The Eighth Amendment Right to Reliability in

Capital Sentencing

In Woodson v. North Carolina, 428 U.S. 280, 305(1976)

the Supreme Court recognized that, under the Eighth Amendment

“death is a punishment different from all other sanctions in

' kind rather than in degree." "[T)his qualitative difference

between death and other penalities calls for a greater degree

of reliability when the death sentence is imposed." Lockett

v. Ohio, 438 U.S. 586, 604(1978). Accordingly,

{t]o insure that the death penalty is

indeed imposed on the basis of ‘reason

rather than caprice or emotion,’ we have

invalidated procedural rules that tended

to diminish the reliability of the sen-

tencing determination.” The same reasoning

must apply to rules that diminish the

reliability of the guilt determination.

(Footnote omitted). Beck v. Alabama,

U.S. , 100 S.Ct. 2382, 2389-90

(i980).

It is hard to conceive of evidence more fraught with danger

when considered ex parte than the subjective psychiatric/

psychological/correctional reports received by this Court,

unsubjected to professional explanation and adversarial cross~

examination. Addington v. Texas, 441 U.S. 418(1979); Smith

v. Estelle, 602 F.2d 694(5th Cir.1979), cert. granted, 100 S.Ct. —

1311(1980). See generally, Ennis & Litwack, Psychiatry and the

Presumption of Expertise: Flipping Coins in the Courtroom, 62

Calif. L. Rev. 693(1974). As the Supreme Court of the United

States stated in Kent v. United States, 383 U.S. 541, 563(1966):.

{T)here is no irrebutable presumption of

accuracy attached to staff reports. If

a decision on [the sentence of life or

death) . . . is ‘critically important’

it is equally of ‘critical importance’

that the material submitted to the

judge . . . be subjected, within reasonable

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s ati, 2

limits ... to examination, criticism '

and refutation,

The risk that an appellant may be the victim of

inaccurate information is precisely the same here as in Gardner.

In a case where a mistake may send an appellant to his

electrocution, the risk is simply not a constitutionally

acceptable one:

From the point of view of the defendant

{the penalty of death) is different in

both its severity and its finality.

From the point of view of society, the

action of the sovereign in taking the

. _ Life of one of its citizens also differs

“ dramatically from any, other legitimate

State action. It is of vital importance

to the defendant and to the community

that any decision to impose the death

sentence be, and appear to be, based

on reason rather than caprice or emotion.

newereny

ae)

Id. at 357-358. See also Godfrey v. Georgia, U.S. r 64

L.Ed. 2d 398, 409(1980). In the words of Mr. Justice Overton,

"often secrecy is considered the opposite of credibility,”

Forbes v. Earle, 298 So2d 1, 4(Fla. 1974).

tae

E. The Eighth Amendment Right to Proportionality

in Capital Sentencing

The Eighth Amendment requires that the death penalty

be applied in accordance with a rational and regular sentencing

procedure which takes into account both the nature of the crime

and the culpability of the individual offender. Woodson v.

North Carolina, 428 U.S. 280, 303(1976). ‘The constitutionality

of Florida's capital punishment statute was upheld in 1976 on

the explicit assumption that review in this Court would be satis~_

factory to guard against capricious and disproportionate infliction

of the death penalty:

- [MJeaningful appellate review of each...

[death] sentence is made possible, and

the Supreme Court of Florida . .. con-

siders its function to be to '[guarantee]

that the [aggravating and mitigating]

reasons present in one case will reach

a similar result to that reached under

similar circumstances in another case....

in light of the other decisions and determine

whether or not the punishment is too great’.

State v. Dixon, 283 So2d 1, 10(1973).

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eels, ea i

Proffitt v. Florida, 428 U.S. 242, 251(1976). The secret use

of sentencing evidence by this Court "creates the risk that the

death penalty will be imposed in spite of factors which may call

for a less severe penalty. When the choice is between life ana

death, that risk is unacceptable and incompatible with the commands

of the Eighth and Fourteenth Amendments," Lockett v. Ohio, 438

U.S. 586, 605(1978). Accord: Beck v. Alabama, U.S. _, 100

~ey

S.Ct. 2382, 2389(1980).

_ ‘The sua sponte request and receipt of evidence by

this Court makés.it impossible to assure cither that the Court's

general appellate function or the Court's role as the third step

in the “trifurcated" sentencing process will not result in the

capricious or disproportionate imposition of the death penalty.

The formal record on the basis of which the death semtence is

imposed will necessarily be incomplete, with parts of it invisi-

ble to counsel, to the trial courts, to the federal courts, and

to this Court itself as Justices change over time. Whis is a

constitutional defect, for the handling and treatment of Gonfi-

dential sentencing information in a death case is rol simply

a matter of this Court's discretion. In Gardner v. Florida,

supra, the State argued that “trial judges can be trusted to

exercise their discretion in a responsible manner, even though

they may base their decisions on secret information.” 430 U.S.

at 360. The Court expressly rejected this argument as "clearly

foreclosed," ibid., by Furman v. Georgia, 408 U.S. 238(1972)

and "inconsistent with the basis upon which the Plorida capital-

sentencing procedure was upheld, Proffitt v. Florida, 428 U.S.

at 254," id. at 360 n, 11. The Court recognized an Eighth

Amendment right to a full and complete record in order to insuxe

that the death penalty is applied proportionately and non~

arbitrarily:

Since the State must administer its

capital sentencing procedures with an

even hand, see Proffitt v. Florida,

428 U.S. at 250, it is important

that the record on appeal disclose to

the reviewing court the considerations

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which motivated the death sentence in

every case in which it is imposed.

Without full disclosure of the basis

for the death sentence, the Florida

capital-sentencing procedure would

be subject to the defects which re-

sulted in the holding of unconstitu-

tionality in Furman v. Georgia.

Gardner v. Florida, supra, 430 U.S.

8 at 361 (footnote omitted).

rerthes, where this Court opens itself to a major

category or kind. of information in some cases, but not others,

proportionality is precluded. :

Where neither the trial records nor this Court’s

decisions reflect accurately all of the information before the

court in deciding capital cases, trial and appellate counsel,

trial judges, and federal courts on review are deprived of the

necessary basis on which to compare cases and insure that con-

sistent standards are being applied in capital sentencing.

The receipt by this Court of different information

in different cases -- information which was not before the trial

jury or judge -- has eviscerated the system of checks ,and

balances the trifurcated Florida death penalty structure was

designed to guarantee. See Proffitt v. Florida, supra; Miller

v. State, 332 So2d 65(Fla. 1976); Messer v. State, 330 So2a 137

(Fla. 1976). It has destroyed the statewide "consistency, fairness,

and rationality in the evenhanded operation of the state law”

which the Supreme Court of the United States believed to be

guaranteed by the Florida capital sentencing procedure when it

found that procedure facially constitutional in Proffitt v.

Florida, supra, 428 U.S. at 260. The Court's practice thus has

prejudiced all capital appellants, both those for whom information

may have been received and those for whom it was not.

F. The Right Against Self-Incrimination and the

Right of the Assistance of Counsel in Deciding

Whether to Exercise that Right

An interview with correctional employees or mental

health professionals who are obtaining information from an inmate

is fundamentally unlike a court-ordered psychiatric examination

after .a defendant has himself put his sanity in issue. In the

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latter case, the defendant may be deemed to have waived the right

to object to such an interview. In the formers case, however, the

Fifth Circuit has recently held that the State may not interview

an inmate without notice and waiver of his rights, when the inter-

view will subsequently be admitted in a capital sentencing proceed-

ing, because the inmate has a Fifth Amendment right to refuse to

participate in the interview and a Sixth Amendment right to consult

with his counsel concerning whether to be interviewed. Smith v.

Estelle, 602 F.2d 694(5th Cir. 1979), cert. granted, 100 S.Ct.

1311(1980) . |

It appears clear that in the present: cases, as in

Smith, the death row prisoners were not told that the information

derived from interviews conducted by correctional employees

or mental health professionals would be forwarded to this Court,

nor were they told that they had a right to refuse to participate

in the interviews. See Smith v. Estelle, supra at 602 F.2d

707-708. If, under the Fifth Amendment, "a defendant may not be

compelled to speak to a psychiatrist -~who can use his, statements

against him at the sentencing phase of a capital trial.” Smith

v. Estelle, supra, 602 F.2d at 708, then that right was completely

negated here.

Furthermore, petitioners were denied the advice of »

counsel ata oxitical stage of the sentencing proceedings in

their cases. For, while an attorney may have no right to ‘be

present with an inmate during an interview by a psychiatrist,

see United States v. Cohen, 530 F.2d 43(5th Cir.1976), the

attorney has a highly important role in assisting the inmate to

decide whether the inmate should waive his Fifth Amendment rights:

This is a vitally important decision,

literally a life or death matter. It

is a difficult decision even for an

attorney; it requires a knowledge of

what other evidence is available,

of the particular psychiatrist's biases

and predilections, of possible alternative

strategies at the sentencing hearing. ° *

For a lay defendant, who is likely § -

have no idea of the vagaries of expert

testimony and its possible role ina

._ capital trial, and who may well find it

difficult to understand, even if he is

told, whether a psychiatrist is examining

his competence, his sanity, his long-term

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Cangerousness for purposes of sentencing,

his short-term dangerousness for purposes

of civil commitment, his mental health

for purposes of treatment, or some other

thing, it is a hopelessly difficult de-

cision. There is no reason to force the

defendant to make it without ‘the guiding

hand of counsel’ Powell v. Alabama,

287 U.S. 45, 57, 53 S.Ct. 55, 20 LEA.

158 (1933).

Smith v. Estelle,supra, 602 F.2d at 708-709. See also Brewer

v. Williams, 430 U.S. 387, 398(1977). ‘These petitioners have

been deprived of the advice of counsel as to their decisions ©

whether to put their lives in the hands of prison personnel

or other agents of the State. "The guiding hand of counsel is

needed lest the unwary concede that which only bewilderment or

ignorance could justify or pay a penalty which is greater than

the law of the State exacts for the offense which they in fact

and in law committed.” Tomkins v. Missouri, 323 U.S. 485,489

(1945). Just as "a prisoner is not ‘to be made the deluded

instrument of his own conviction,’ 2 Hawkins, Pleas of the

Crown(8th ed. 1824) ,595," Culombe v. Connecticut, 367 U.S. 568,

581(1961) (opinion of Mr. Justice Frankfurter), neither may he

be made the deluded instrument of his own execution.

G. Conclusion

The practice of this Court of requesting or re-

ceiving undisclosed information in capital cases has infected

and prejudicially skewed its review of every death sentence.

Under the Florida death penalty scheme, the ultimate safeguard for

insuring that the process of imposing death sentences is fair,

reliable and even-handed is the appellate review required to be

provided by this Court. All capital appellants have suffered

from this Court's practice of securing secret information. The

capital sentencing process in Florida has been distorted from

the form in which it was approved by the Supreme Court of the

United States, and has become tainted at its highest and ‘most

important judicial level.

When the Court's decision is one involving the

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ultimate penalty of death, the Constitution cannot tolerate anything

short of full notice and disclosure of any and all facts being

fed into the life and death equation. One of the tripartite

pillars of the trifurcated sentencing process of Florida has

become cracked.

PRAYER FOR RELIEF

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Based upon the foregoing, petitioners respectfully :

request their unconstitutional sentences of death be vacated

and that the Court grant such other relief as may be deemed

proper.

Respectfully submitted,

MARVIN E. FRANKEL

Proskauer, Rose, Goetz & Mendelsohn

300 Park Avenue

New York, New York 10022

ALBERT J. DATZ

SAMUEL S. JACOBSON :

Datz, Jacobson and Lembcke

Suite 27902 Independent Square

Jacksonville, Florida 32202

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

JOHN CHARLES BOGER

DEBORAH FINS

JAMES S. LIEBMAN

Suite 2030

10 Columbus Circle

New York, New York 10019

DAVID E. KENDALL

Williams and Connally

Hill Building

839 Seventeenth Street, N.W.

Washington, D.C. 20006

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONERS:

Joseph Green Brown

Alvin Bernard Ford

Jesse Ray Rutledge

Carl Elson Shriner

Daniel Morris Thomas

-14-

MICHAEL J. MINERVA

Public Defender

Second Judicial Circuit of Florida

P.O. Box 671

Tallahassee, Florida 32302

DAVID J. BUSCH

Assistant Public Defender

LOUIS G. CARRES

Assistant Public Defender

MICHAEL M. CORIN .

Assistant Public Defender ae

JUDITH J. DOUGHERTY

Assistant Public Defender

MARGARET GOOD

Assistant Public Defender

THEODORE E. MACK

' Assistant Public Defender

CARL S. McGINNIS

Assistant Public Defender

ATTORNEYS FOR PETITIONERS:

Aubrey Dennis Adams, Jr.

Fred Lyman Brumbley

Daniel Coler

Vernon Ray Cooper

Gregory Scott Engle _

David Livingston Funchess

Robert D. Heiney

Marvin E. Johnson

Leslie R. Jones

Robert F. Lewis

Bobby Earl Lusk

Thomas McCampbell

Charles Dwight Messer

Floyd Morgan

Donald Perry

James Leroy Phippen

James David Raulerson

Jimmie Lee Smith

JAMES B. GIBSON

Public Defender

Seventh Judicial Circuit of Plorida

Volusia County Courthouse Annex

Daytona Beach, Florida 32014

JAMES R. WULCHAK

Assistant Public Defender

ATTORNEYS FOR PETITIONERS:

William Gilvin

Bryan Jennings

Richard King

Gregory Mills

“*

o1S—

JACK O. JOHNSON

Public Defender

Tenth Judicial Circuit of Florida

495 Carpenter Street

Bartow, Florida 33830

PAUL C. HELM

Assistant Public Defender

DOUGLAS LOCKWOOD :

Assistant Public Defender

DAVID DAVIS

Assistant Public Defender

Ce) Pe

ATTORNEYS FOR PETITIONERS:

Robert Lewis Buford

William Christopher

Raymond Robert Clark

Robert Combs

Raymond L. Drake

Earl Enmund

William Jent

Amos Lee King

Harold G. Lucas

Anthony Ray Peek

Raleigh Porter

M. C. Ruffin

Donald Walsh

Johnny Paul Witt

BENNETT HK. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

Metro Justice Building

1351 N.W. 12th Street

Miami, Florida 33125

** te

KAREN M. GOTTLIEB

Assistant Public Defender

ELLIOT H. SCHERKER

Assistant Public Defender

BETH C. WEITZNER

Assistant Public Defender

WARREN S. SCHWARTZ

Assistant Public Defender

HOWARD K. BLUMBERG

Assistant Public Defender

ROBERT R. SCHRANK

Assistant Public Defender

BRUCE ROSENTHAL

Assistant Public Defender

ATTORNEYS FOR PETITIONERS:

Steven Beattie

McArthur Breedlove

Alonzo Bryant

Bobby Marion Francis

Marvin Francois

-16-

Lenson Hargrave

Ronald Jackson

Antonio Menendez

Thomas Perri

Wardell Riley

Leon Scott

Roy Stewart

Merle Sturdivad

Gary Trawick

Manuel Valle

RICHARD L. JORANDBY

Public Defender

Fifteenth Judicial Circuit of Florida

224 Datura Street/l3th Floor

Harvey Building

West Palm Beach, Florida 33401

CRAIG S.° BARNARD

Chief Assistant Public Defender

JERRY L. SCHWARZ

Assistant Public Defender

RICHARD B. GREENE

Assistant Public Defender

ELLEN S. MORRIS

Assistant Public Defender

JON MAY

Assistant Public Defender

ATTORNEYS FOR PETITIONERS:

James Adams

Levis Leon Aldridge

Allen L. Anderson

David Ross Delap

William Duane Elledge

George Victor Franklin

William Lanay Harvard

James E. Hitchcock

Monroe Holmes

John P. Maggard

Nollie Lee Martin

Windford Mines

Eldred Lonnie Moody

James A. Morgan

Tommy Lee Randolph

James Franklin Rose

Paul William Scott

Willie Clayton Simpson

Terry Melvin Sims

Henry Perry Sireci, Jr.

Joseph Robert Spaziano

Jesse Joseph Tafero

Solomon Webb

William Glenn Welty

William Melvin White

~-17-

€

——_

WILLIAM J. SHEPPARD

Sheppard and Carithers, P.A.

215 Washington Street

Jacksonville, Florida 32202

ATTORNEY FOR PETITIONERS:

Gary Eldon Alvord

Charles Vaught

ANGELO FERLITA

601 Twiggs Street

Suite 203

Tampa, Florida 33602

ATTORNEY FOR PETITIONER:

Anthony Antone

VINCENT J. FLYNN

1414 Coral Way

Miami, Florida 33145

ATTORNEY FOR PETITIONER:

Luis Carlos Arango

ROBERT PYLE

P.O. Box 557

Lake Alfred, Florida 33850

ATTORNEY FOR PETITIONER:

Sampson Armstrong. -.

BARTLEY KENNETH VICKERS

437 E. Monroe Street

Jacksonville, Florida 32202

ATTORNEY FOR PETITIONERS:

Ellwood Barclay

Roy McKennon

Timothy Palmes

GARY SMIGIEL

P.O. Box 5548

Daytona Beach, Florida 32018

ATTORNEY FOR PETITIONER:

Richard C. Blair

G. P. DELLA FERA

2699 Biscayne Blvd., Suite 3

Miami, Florida 33137

ATTORNEY FOR PETITIONER:

Bernard Bolander

STEPHEN N. BERNSTEIN

Assistant Public Defender

P.O. Box 1063

Gainesville, Florida 32602

ATTORNEY FOR PETITIONER:

Stephen Todd Booker

~18-

“ee

P72)

CLIFFORD L. DAVIS

216 W. College Avenue, Suite 121

Tallahassee, Florida 32301

ATTORNEY FOR PETITIONERS:

Theodore Bundy

Johnny Copeland

Walter Steinhorst

WILLIAM H. STONE

798 Montrose Street

P.O. Drawer 520

Clermont, Florida 32711

ROBERT Q. WILLIAMS

Cauthen, Robuck, Cyrus & Hennings :

131 W. Main Street

Tavares, Florida 32778

ATTORNEYS FOR PETITIONER:

Preston Crum, Jr.

ROBERT AUGUSTUS HARPER, JR.

735 E, University Avenue

P.O. Box 804

Gainesville, Florida 32602

ATTORNEY FOR PETITIONER:

Willie Jasper Darden

JOHN L. CARROLL

Southern Poverty Law Center

1001 S. Hull Street

Montgomery, Alabama 36104

ATTORNEY FOR PETITIONER:

Bennie Demps

LOUIS 0. FROST, JR.

Public Defender

Fourth Judicial Circuit of Florida

Duval County Courthouse, Room 221

330 E. Bay Street

Jacksonville, Florida 32202

WILLIAM P. WHITE, III

Chief Assistant Public Defender

ATTORNEYS FOR PE'PITIONER:

Ernest John Dobbert

ELLIOTT C.METCALFE, JR.

Public Defender '

Twelfth Judicial Circuit of Florida

2058 Main Street

Sarasota, Florida 33577

ATTORNEY FOR PETITIONER:

Howard Virgil Lee Douglas

-19-

——_

MICHAEL S. HACKER

Suite 1400

14 N.E. lst Avenue

Miami, Florida 33132

ATTORNEY FOR PETITIONER:

John E. Ferguson

W. C. McLAIN

Smith, Carter & Ringsmuth

P.O. Box 2446

Ft. Myers, Florida 33902 j

ATTORNEYS FOR PE CLVLONER:

Arthur Frederick Goode, III

H. D. ROBUCK, JR...

Cauthen, Robuck, Cyrus & Hennings

131 W. Main Street

Tavares, Florida 32778

MORTON D. AULLS

703 E. Burleigh Boulevard

Tavares, Florida 32778

ATTORNEYS FOR PETITIONER:

Freddie Lee Hall

BILL SALMON

204 W. University Avenu

Suites =

Gainesville, Florida 32601

LARRY G. TURNER

204 W. University Avenue

Suite 6

Gainesville, Florida 32601

ATTORNEYS FOR PETSVIONER:

Carl Jackson

LESTER BALES, JR.

507 8th Street

Zephyrhills, Florida 33599

ATTORNEY FOR PETITIONER:

Eligaah Ardalle Jacobs

FLETCHER N. BALDWIN,JR.

Holland Law Center

University of FPlorida

Gainesville, Florida 32611

ATTORNEY FOR PETITIONER:

Thomas Knight

JOHN H. HALL

STEVEN KLUGMAN

MITCHELL A. KARLAN

Debevoise, Plimpton, Lyons & Gates

299 Park Avenue

New York, New York 10017

~-20-

HARRY L. WITTE

1215 Thomasville Road

Tallahassee, Florida 32303

ATTORNEYS FOR PETITIONER:

John W. LeDuc

PATRICK D. DOHERTY

619 Turner Street

Clearwater, Florida 33516

ATTORNEY FOR PETITIONER:

Paul Edward Magill

JUNE RICE

STEPHEN D. STITT

3915 S.W. 18th Street

Gainesville, Florida 32608

ATTORNEYS FOR PETITIONER:

Douglas Ray Meeks

ELLEN M. CONDON

10409 Ojus Drive

Tampa, Florida 33617

ATTORNEY FOR PETITIONER:

Mark Mikenas

J. CRAIG WILLIAMS =

‘335 E. Bay

Jacksonville, Florida 32202

ATTORNEY FOR PETITIONER:

Eddie Odom

KATHRYN EMMETT

8 Pheasant. Lane

Stamford, Connecticut 06903

DAVID GOLUB

Silver, Golub & Sandak

733 Summer Street

Stamford, Connecticut 06905

ATTORNEYS FOR PETITIONER:

Charles William Proffitt

PAUL MORRIS

Rivergate Plaza

Suite 711

444 Brickell Avenue

Miami, Florida 33131

ATTORNEY FOR PETITIONER:

Michael Salvatore

=2i-

PHILLIP JONN PADOVANO

518 N. Calhoun Street

P.O. Box 527

Tallahassee, Florida 32302

ATTORNEY FOR PETITIONERS:

Frank Smith

Raymond R. Stone

JOSEPH JORDAN

324 Datura Street

Suite 211

West Palm Beach, Florida 33401

‘ °

ATTORNEY FOR PETITIONER:

Carl Ray Songer

JOHN R. FORBES

817 N. Main Street .

Jacksonville, Florida 3220

ATTORNEY FOR PETITIONER:

Rufus Stevens

H. RANDOLPH FALLIN

1239 King Street

Jacksonville, Florida 32205

ATTORNEY FOR PETITIONER:

Ronald Straight

ROY E. BLACK

N.E. Airlines Building

Suite 1402 :

150 S.E,. 2nd Avenue

Miami, Florida 33131

._ ATTORNEY FOR PETITIONER:

Robert A. Sullivan

HAROLD SOLOMON

Solomon & Mendelow

4299 N.W. 36th Street

Miami Springs, Plorida 33166

ATTORNEY FOR PETITIONER:

William Lee Thompson

RICHARD FE. SHAPIRO

Southern Prisoners Defense Committee

344 Camp Street, Suite 705

New Orleans, Louisiana 70130 .

ATTORNEY FOR PETITIONERS:

Charles Kenneth Foster

David Leroy Washington

THOMAS G. MURRAY, JR.

1481 N.W. North River Drive

Miami, Florida 33125

ATTORNEY FOR PETITIONER:

James Buford White

an 29.

BY: Biren C7 $2, rece Br)

MARVIN E, potter 2

DEBORAH FINS

DAVID E. REND LL ;

silts De a AM

fife Kf {Md le a

MICHAEL 7 rapt /

bavi BUSCH Cs ies

aut girrt- oe

RGA HI GOOD .

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THEODORE E. el,

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McGINNES

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GD WWongl 7 wy a

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(ALL: “yA . h ctilil

KAREN M. GOTTLIEB _ (oy hie\

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RICHARD” L. JORANDBY a

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CRAIG s. "BARNARD

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RICHARD B. GREENE

WILLIAM P. WHITE, III

mes 2 Pile

PHI fe JOHN ,PADOVANO

re 1G Srrclor

EPH JORDAN , (ay 44)

~24-—

wer

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that a copy hereof has been

furnished to the Honorable Jim Smith, Attorney General, The

Capitol, Tallahassee, Florida 32304 by hand delivery this

29th day of September, 1980.

SAMUEL S. JACOBS

of counsel

"Yt

=2S-

“—

IN THE SUPREME COURT OF FLORIDA

JOSEPH GREEN BROWN, et al.,

Petitioners

-V.-

CASE NO. 57, 752

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

State of Florida,

Respondent.

ee ee ee ee ee ee Se ee ee ee we we

APPENDICES TO

APPLICATION FOR EXTRAORDINARY RELIEF AND

PETITION FOR WRIT OF HABEAS CORPUS

«€

——_

APPENDIX A

(Petitioners' Names & Case Numbers)

Joseph Green Brown

Alvin Bernard Ford

Jesse Ray Rutledge

Carl Elson Shriner

Daniel Morris Thomas

Aubrey Dennis Adams, Jr.

Fred Lyman Brumbley

Daniel L. Coler

Vernon Ray Cooper

Gregory Scott Engle

David Livingston Funchess

Robert D. Heiney

Marvin E. Johnson

Leslie R. Jones

Robert F. Lewis

Bobby Earl Lusk

Thomas McCampbell

Charles Dwight Messer

Floyd Morgan

Donald Perry

James Leroy Phippen

James David Raulerson

Jimmie Lee Smith

William Gilvin

Bryan Jennings

Richard King

' Gregory Mills

Robert Lewis Buford

William Christopher

Raymond Robert Clark

Robert Combs

Raymond L. Drake

Earl Enmund

William Jent.

Amos Lee King

Harold G. Lucas

Anthony Ray Peek

Raleigh Porter

M.C. Ruffin

Donald Walsh

Johnny Paul witt

Steven Beattie

McArthur Breedlove

Alonzo Bryant

Bobby Marion Francis

Marvin Francois

Lenson Hargrave

Ronald Jackson

Antonio Menendez

Thomas Perri

Wardell Riley

Leon Scott

Roy Stewart

Merle Sturdivad

Gary Trawick

Manuel Valle

. James Adams

Levis Leon Aldridge

Allen L. A.derson

David Ross Delap

William Duane Elledge

George Victor Franklin

William Lanay Harvard

James E. Hitchcock

Monroe Holmes

#46,925

#47,059

#48,801

#51,749

#51,692

#56,134

#56, 006

#54,250

#45,966

#57,708

#47,828

#56,778

#56,167

#56,199

#50,851

#59,146

#57,026

#49,780

#54,939

#53,003

$54,664

#47,991

#55,961

#58,743

#59,299

#59,464

#59,140

#54,010

#55,698

#52,716

#59,425

#54,580

#48,525

#58,744

#52,185

#51,135

$54,226

#55,841

#55,684

$59,512

$45,796

58,329

$56,569

#56,811

#53, 230

$50,127

#54, 461

#48,135

#47, 269

$49,294

$57,142

#49, 666

$56,419

$57,971

#59, 416

$57,077

#54,572

#45, 450

$46,598

$52,771

$56,235

$52,272

852,971

$47,052

$51,108

$48,392

John P. Maggard

Nollie Lee Martin

Windford Mines

Eldred Lonnie Moody

James A. Morgan

Tommy Lee Randolph

James Franklin Rose

Paul William Scott

Willie Clayton Simpson #49,681.

Terry Melvin Sims.

#51,614

$55,716

$50,996

$52,907

#53,418

$54,869

£51,724

$58,588

#57,510

Henry Perry Sireci, Jr.#50,905

Joseph Robert Spaziano #50,250

Jesse Joseph Tafero

Solomon Webb

William Glenn Welty

William Melvin White

Gary Eldon Alvord

Anthony Antone

Luis Carlos Arango

Sampson Armstrong

“Ellwood Barclay

Richard Blair

Bernard Bolander

Stephen Todd Booker

Theodore Bundy

Johnny Copeland

Preston Crum

_ Willie Jasper Darden

Bennie Demps ee

Ernest John Dobbert =

Howard Virgil Douglas

John E. Ferguson

#49,535

#58, 306

#55,497

$55,875

#45,542

57,810

#50,240

#59,678

#48,516

#47,260

#58,072

#59,333

#55,568

$57,772

$57,788

$57,487

#45,056

45,108

$54,249

#45,558

$44,864

#55,137

55,498

Charles Kenneth Foster £48,380

Arthur F. Goode, III

Freddie Lee Hall

Carl Jackson

$51,480

59,453

$54,423

54,561

#48,165

Eligaah Ardalle Jacobs #49,345

Thomas Knight

John Wallace LeDuc

Paul Edward Magill

Roy McKennon

Douglas Ray Meeks

Mark Mikenas

Eddie Odom

Timothy Palmes

Charles W. Proffitt

Michael Salvatore

Frank Smith

Carl Ray Songer

Walter Steinhorst

Rufus Stevens

Raymond R. Stone

Ronald Straight

Robert A. Sullivan

William Lee Thompson

Charles Vaught

David L. Washington

James Buford White

#47,599

$47,953

$51,699

€54,172.

$47,533

48,080

$49,928

£50,575

$52,045

#45,541

#48,513

57,743

$45,584

52,642

#55,087

#57,738

#48,275

#52, 460

$44,750

£55,697

#52,835

#50 ,832

50,833

50,850

$54,292

INDEX TO APPENDIX Bb

Jimmie Lee Jones Memo of 1-11-75

or 9-11-75

Michael E. Provence Memo of 8-29-75

Order of 9-19-75

Memo of 9-23-75

Order of 9-25-75

Letter of 9-26-75

Letter of 9-29-75

Charles D. Messer Memo of 9-10-75

Petition for Rehearing

of 5-10-79

Clarence R. Purdy Memo of 9-10-75

George T. Vasil Memo of 9-10-75

Ronald Jackson Order of 12-3-75

Docket Sheet

David L. Funchess Memo of 12-35-75

Order of 12-16-75

a Letter of 12-18-75

Douglas R. Meeks Letter of 3-22-76

PSR of 3-31-75

Acknowledgment

Letter of 3-30-76

Benjamin Huckaby Acknowledgment

Card of 3-26-76

Franz P. Buckrem Order of 4-14-76

with Acknowledgment

Card of 4-19-76

Letter of 4-]6-76

with Acknowledqment

Card of 4-15--76

Letter - undated

Glen S. Chambers Memo undated

Order of 5-11-76

Letter of 5-18-76

PAGE(S)

on fo YY S&S we NE

LS) ~ ~ w

o wo t=) i

21-22

Richard H. Gibson

Elwood Barclay

Jacob J. Dougan

Monroe Holmes

Mark Mikenas

Rodney W. Malloy

Jesse R. Rutledge

Fred Lyman Brumbley

Joseph G. Brown

Order of 6-3~-76

Letter of 5-12-77

Order of 6-7-76

Letter of 6-11-76

Acknowledgment

Letter of 6-8-76

Order of 6-7~-76

Letter of 6-11-76

Acknowledgment

Letter of 6-8-76

Acknowledgment

Letter of 6-8-76

Letter of 1-21-77

Letter of 2-14-77

Order of 2-17-77

Letter of 2-17-77

Letter of 2~22-77

Letter of 2-24-77

Acknowledgment

Cards dated 2-25-77

and 2-28-77

Order of 4-21-77

Letter of 4-21-77

Letter of 5-5-77

Documentation of Tele-

phone Contact of 4-25-77

Order of 9-13-79

Letter of 9-19-79

Letter of 9-26-79

Order of 5-11-77

Letter of 5-11-77

Letter of 5-16-77

PAGE(S)

~ :

43 ,

48°

49.

50 |

" 56

57 |

Robert F. Lewis

Jesse L. Hall

Enoch Lewis

Harold G. Lucas

Derrick M. Manning

Arthur F. Goode

Carl R. Songer

Daniel M. Thomas

Jon S. Miller

Bobby M. Francis

‘Ns.

—

Paul Magill

Letter of 8-4-77

Letter of 8-22-77

Letter of 8-24-77

Letter of 8-26-77

Letter of 9-7-77

Acknowledgment

Letter of 9-8-77

Letter of 10-5-77

Letter of 10-24-77

Acknowledgment

Card of 10-27-77

Letter of 10-5-77

Letter of 10-24-77

Letter of 10-5-77

Letter of 10-24-77

Letter of 10-25-77

Letter of 11-18-77

Letter of 11-23-77

Letter of 12-2-77

Letter of 1-20-78

Letter of 5-9-78

Letter of 1-28-78

Letter of 1-31-78

Letter of 2-2-78

Letter of 2-8-78

Letter of 2-10-78

Letter of 2-16-78

Acknowledgment

Card of 2-23-78

Letter of 2-20-78

Motion to Inspect

of 6-21-78

Order of 6-23-78

PSR of 6-7-77

Letter of 6-23-78

PAGE (S)

Clyde Foster

John E. Ferguson

William L. Thompson

Raleigh Porter

Freddie Lee Hall

Jimmy Lee Smith

Manuel Valle

Raymond L. Drake =

Marvin E. Johnson

Leslie R. Jones

Rufus E. Stevens

James A. Morgan’

Preston Junior Crum

Order of 5-17-79

Order of 8-3-79

Memo of 8-22-79

Memo of 8-24-79

Order of 8-3-79

Order of 8-16-79

Response of 8-16-79

Order of 9-28-79

Letter of 10-23-79

, Order of 1-15-80

Letter of 1-18-80

Order of 10-15-79

Letter of 10-26-79

Order of 10-15-79

Letter of 10-25-79

Order of 11*26-79

Letter of 12-5-79

Order of 1-15-80

Letter of 1-18-80

Order of 1-25-80

Letter of 1-31-80

Acknowledgment

Card of 2-4-80

Order of 4-10-80

Letter of 4-30-80

Order of 5-21-80

Letter of 6-3-8090

with Acknowledgment

Card of 6-9-80

Letter of 6-9-80

Order of 6-9-80

Letter of 6-16-80

@ "ALS Pam

PAGE(S)

106

101

102

103

104 °

105

106

107.

108

109

‘=110

111

112

113

114

115

116

117

118

119

120

121

122

123

* wel

aa ae

PAGE(S)

George V. Franklin Order of 6-9-80 124

Letter of 6-16-80 125

Frank Smith, Jr. Order of 8-6-80 126

Letter of 8-18-80 127

Letter of 8-26-80 128 F

Rocco Surace & ; | ;

Anthony Antone Affidavit of 8-28-80 _ 129

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* 1? “Tinight havescen one,” said tien Decne

Profiles ‘im yaw

“pot read them. “The answer to your question ie it would ;

_be pretty outrageous if we considered something like that, !

Pa wie ed

ob gm |

site

H °

C. Adkins, .

_ ' “T-would have casually overlooked it if I did. I've never ;

; * “should.” ay: re

‘Tead one. I wouldn't pay any attention to it. I would never :

_Fequest anything like that. I'm just not one of them that

"does requests anything further. I don’t think we .

£-* Joseph W. Hatchett, who left the court in 1979 to be-

come a federal appeals judge, would not comment. “You ;

have to understand, there could be litigation on that mat- |:

ter, and I was a member of the court at the ti ” Hat-

est...

=. Ji Joseph

do it ( er the reports) would be if the trial record indi-

cated there was some reason to.” . :

were not aware their clients were being psycho ically

evaluated for the Supreme Court's review. “If the lawyer

didn’t get notified, I think that’s very interesting. The

court would Like to know why that happened,” Boyd said.

: + Even if justices did read the psychological reports,

Justice Overton said, they wouldn't have pe rohe: them

in determining the appropriateness of the sentence.

“Judges are trained to make their consideration based

solely on what Is admissible,” Overton said,

’” Fred Karl, the seventh member of the court when the

reports were being received, could not be contacted,

** Records of the Supreme Court and the Corrections

Department show that 19 psychological reports on con-

— a — sent hs the court between No-

vernber 1976 a 1978. A psychological report on

death row innate Douglas Ray Meeks was requested and

sent to the court as early a» March 1976. Gov. Bob Gra-

ham signed a death warrant for Meeks on Jan. 9, 1980, but

Meeks won a stay of execution. 4 .

“* Most of the men are still on Gtath row, but the Su-

preme Court granted new sentencings or actually reduced

the sentences to life for a few of the men, Among the cases

*" - Carl Ray Songer, convicted of murdering a Florida

Highway Patrol trooper in Citrus County in 1973 after es-

caping from an Qk\ahoma prison. : :

” Anthony Antone, convicted in the 1975 murder of

Tampa policeman Richard Cloud.

limited control in stressful situations ... and

”

. ™ Arthur F. Goode III, convicted of killing an 11-

year-old boy from Fella Church, Va. and » 9-year-old boy’

santa 3:8, ed MO ee

” Daniel Morris ‘Thomas, twice sentenced to death’

for his role'as Jeader of the ski-unask gang, which terror. :

ized towns in Central Florida in late 1975 and early 1976,

A PSYCHOLOGICAL REPORT was also request.

ed and received on Jesse Lamar Hall, who was convicted |

in Pinellas County in 1976 of the murder of two Palin Har.

bor teenagers. Hall's conviction waa reversed by the Flori«{

da Supreme Court, late last year: Before a retrial,’ Hall »

pleaded no contest to murder and was senlenced tolife in

os he @reuntient ne

* The request for the reports spparently stopped in f

mid-1978, after an exchange between a defense attorney.

and Overton during oral arguments in the Pau) McGill!

e030. Toe ssten 3 ae ee

McGill, 18, had been convicted and sentenced to death

for robbing, raping and murdering a young female conven-

ience-storeclerk near Ocala. On appeal, Overton asked an~

assistant attorney genural about McGill's reactions under

stress and his suicide} tendencies. - 9,06" PoP eem es

“We have a copy of a psychological screening report

and that screening report says in part that he ad very

en also.

shows that he will become possibly suicidal,” Overton

said during the hearing. .

igs

Margaret Good, a Tallahassee publie defender who

was arguing McGill's case, told the justices she didn't

have a of the report end didn’t know it was part of

the cccord in the case.

The next day she fileda motion to get a copy, and the

court gave her one. But the same day, Ms. Good received

a letter from Court Clerk Sid White stating that the psy-

chological report had been “stricken” from the case.

Overton said he recalls that he was the one who discov-

ered that the reports were in the files, but he does not

recell whether it was because of the McGill case. | 2755

oc 3 ee Si

OVERTON SAID THE reports, including the one

in the McGill case, were obtained by roistake during the

court's effort to fulfill the edict of the U.S. Supreme

Daniel Wilbur Gardner was convicted and sentenced

to death for the stabbing murder of his wife in Citrus

County. But the U.S. Supreme Court, while upholding

the conviction, overturned (lie death sentence because

the judge considered a “confidential” portion of a pro-

sentence report, which Cardnes’s attorneys had not been

permitted toseo, - ny pee tun

The U.S. Supreme Court said Garduer was denied due

process of law because he could not deny or explain infor-

mation in the report before ho was sentenced to death.

The Flori’ Supreme Court hod ‘said that the practico

was constitutional. Wires er

Gardner was resentenced to life in prison, * > -..

After the U.S. Supreme Court's ruling, Overton ssid,

the Florida Supreme Court made a special effort to acek

any information the trial jzdge had when he sentonced a

4 information

4 We were not

maa SUppOsed to

see.’

4 — Justice

1 Ben F.

4 Overton

convicted man to death.

For example, a “Gardner order” form was printed and

sent to each trial judge who sentenced a convicted man to

death. The order asks the judge to return a sworn state-

ment saying whether he or she considered any informa-

' tion that the defendant or his defense attorney didn't

know about. — Rea a

«: . ANOTHER PART OF THE court's effort, Overton

, said, was to ask the Florida Department of Probation and

Parole for any background report on the death row

inmate, called a pre-sentence investigation (PSI) report,

that the trial judge had.

' “What we asked for was the PSI, and we ended up get-

; ting a post-sentence report and the psychologicals,” Over-

» - ton said. “It’s not unusual that it (a psychological report)

¢ would be attached to the post-sentence report. That is

joe} what we intended to have or what we should have

ois

ue But the psychological reports were not attached sim-

ply as a matter of routine. Court Clerk White's office sent -

* >a separate letter asking for them.

One letter ordered the PSI, and copies of the leiter

" were sent to prosecutors and defense attorneys.

“The second letter went to the Department of Offender

- Rehabilitation, which has since been renamed the Depart-

‘. ment of Corrections. “This is to request a copy of the lat-

* est psychiatric evaluation made on the above-named

inmate who is on death row.” In only one case is there a

notation that copies of the letter were sent to lawyers in-

' volved in the case, and that defense attorney says he nev-

er got the court's letter or a copy of the psychological rs-

port. é

Overton said he did not direct White to send separate

letters. “They were to get the necessary information,

that’s all,” Overton said.

. After he decided the court shouldn’t have gotten the

¢ espe, saor reports, Overton said, he directed Sid

ite to “review everything in the files and make sure we

didn’t have anything that was done subsequent to sen-

_ tencing.”

WHITE, WHO IS IN charge of al) court records,

ssid Overton told him to remove all the reports from the’.

files. The reports wero destroyed, Whitesaid. -,'- °°

Overton could a noe pes if ae a dene

routine following the Gardner decision, re-

ports were requested on some death row defendants and -

not others. And the court requested at least five of the

profiles before, rather than after, the U.S. Supreme -

Court's rulingin Gardner. eta 2

White says the assistant clerk who wrote the letters: ° -

misunderstood his instructions and roistakenly wrote the -

letters zequesting the psychological reporta. oo ‘- ae

Overton later called The Times tosay he had found

the form letter from which the assistant typed the

requests. It indicates that copies should bp sent to al at-

torneysa, Overton sail. It was a clerk's exror, he said, that

no copies of the Supreroe Court requests were actually

sent to the lawyers. ne ”

“T'ra not saying that people don’t geof,” Overton said. .

“Even newspapers make mistakes.” —-. ;

He added, “There was no intent to hide ing or no

intent to get any information the lawyers didn’t have.”

In one of the cases the court was considering, there

was a roention of a psychological evaluation done. on- |

cert with the pre-sentence investigation, Overton said. *

The court wanted tosee that, and White’soffice interpret.’

ed that as an order to get psychological reports in ell

cases, he said. ee : he ots

Vernon Bradford, a spokesman for the Department of”

Corrections, confirmed thet the Supreme Court request-.}

ed the reports. There is no record, he said, of exactly how

many were requested or when the practice stopped. |

_ THE PRISON SYSTEM employs a full-time psy."

chiatrist, # full-time clinical psychologist and two psy-.

chologists with master’s degrees. + 44

All prisoners, including death row inmates are tested ~~

when they enter the prison system and “from time tv

time” as part of a review of their progress, Bradford said.

The prisoners aro interviewed and given standardized .

tests. Their lawyers are not routinely notified. .+° is;

IS eR ee

These are the reports that were sent to the court: of

Bradford said. fe r

“Now you havo to considee, what are the legal conso-

quences of that mistake?” said Rogo of Nova University.”

“Wes there any harm caused? Each attorney will have to *

review his or her cose, look at the whole record and meas- -

ure this against it.” .

a — ——

TAMPA TRIBUNE - WEDNESDAY, AUGUST-20, 1980

ices Admit A To Death i R |

Justices Admit.Access To Death-Row Inmate eporis

TALLAHASSEE (UPI) — Supreme *“Gniy tie sentence. In one case, he said, reference was chologically evaiuited and wants to

~ Court justices admitted Tuesday they”. .. The St. Petersburg Times revealed ™#¢tOapsy. ‘ogical report that was — know why they weren't told.

had access to psychological reports on’. in a copyrighted story Tuesday that the tin the file. : ' ‘Two other justices on the court at

20 death-row inmates that they should " "court, without the knowledge of de- __ Od® judge (nobody now ¢an the tine — Fred Karl and Joseph

not have seen while reviewing the ap- ~ fense attorneys, obtained psychological ¢™*™@™ber which -one) noticed it and Harchett — are no longer members.

-propriatencss of the penalty in the profiles of at least 20 men waiting on | 29*¢¢ the clerk to get the report." wari is in private practice and Hatchett

ceses — but denied it influenced their death row for the court to review their O¥e*ton Said. One of the deputies inter- ig 2 fadoral appeals judze.

Cecisions on whether the men should sentences. The reports were made by. feted the instruction to mean that psy- One of the cases in which a report

live or die. * the Department of Correction’s parole ological reports were to be required was requested was that of Douglas Ray

“I am satisfied to a moral certainty and probation section between 1976 in all cases, rather than just the ene: . - — y¢c0ks for whom the governor signed a

that the reports did not influence the _ 3.4 mid-1978. Overton can recall reading only the ~ death warrant last January: Meeks won

outcome of any case,”-Chief -Justice ~:~ a. ys Supreme Court has ruled *@POrt on the case which prompted the 4 sovorexccution-~ ;

Alan Sundberg said in an interview.: ~ _ thatthe courts cannot use any informa. °° ™Plaint. Sundberg can't recall any of None’of the 20 has been ted |.

“To the extent that anyone caM _ tion in sentencing a convicted murderer _ ‘he Dut said if they were a part of the oui man tn 0 ca ee ray |

set amas preindica,” be said, Tbe | that le not aleo avaliable t0 defense at- _Tecord, he must have'read one os more frre yore fac Foetal

c : st enterta “appeals we . - - _ - . 7 . 2 a ° : . ;

have to take it on a case-by-case basis.” —"* Ben Overton was chief jus- “But I am confident it did not affect - a Oe costenees to Be for a

" _, Tallahassee attorney Ted Mack has ~ tice at the time the post-sentencing psy- *2¢ outcomeofa single case," he said.s wr lOMwm senemwwrere

raised the issue on behalf of convicted -. “chological “reports were received. Ile Justice Arthur England recalled sce- Among the cases.are Car} Ray Song-

killer Charles Dwight Messer. He asked“ ssid they were obtained by mistake by 8 the reports, but said he didn'ttead _ er, sentenced for killing a highway pa-

for 4 hearing to determine if the court “: the clerk's office. When the error was ‘2©™ adding, “it would be pretty outra- - trolman in Citrus County in 1973; Ar-

received a psychological - report -on «discovered, he said, the reports were geous if we’ considered something lixe thur Goode III, convicted of killing a

Messer and whether the justices read it: “removed that because it's not part of the record. young Cape Coral boy in 1976; Anthony

> “I think there's a serious legal and" thedenartioent ns emt © - acd we haven't” Justice James Adkins -Antone, sentenced te thé 1078 owe

ethical question that the Supreme —. - Overton said the court wanted to be Jr. said he might have seen one or more of Tampa policeman Richard Cloud;

Cost ageing to heave to anewer ta,"he sure it had all the information available © Ut Never read them.Justice Joe Boyd and Daniel Thomas, leader of a sxy-

“*s "6 to the trial judge in sentencing a con- said he didn’t know attorneys were’ tn-“ “mask fang that terrorized central Flor-

If the court should find error, it - aware that their clients were being psy- id: vith a series of killings in 1975.

would not affect the ¢ _ Nicted killer to death rather than life in A < :

Me . oe 6 ——. 4 . | * Tf %<e a ee 6 ke

ee ce SS Popes PRR ATEN | 2B ee ght Pe AR

ce mm

= WF RS Bee

TF - a 3

i jon g

NMWH = NURSDAY, wecohiieninisie fe Luuo

* Cla

Papers barred,

yet high court

looked at them

BARBAHA MALONE end KEM WALTON

ba mont owe Boperbers

Defense stlorneys across the state ate preparing to

attack the death sentences of afl — on Florl-

a's death row, contending that the Florida Supreme

Court looked at psychological # on some of the

damned in violation of » U.S. Supreme Court ruling.

The defense lawyers say that the Floride postions

oleted the Sup Court decision by looking at re

the

preper

US. Supreme Court has held that it is just wot

fale In death case for # jedge to base 2 desih sentence

on secret information — that « defense attorney has «

right to hnow what the Information Is In order to argue

I ageinst Kt.” sald Deborah Fina, an attorney whh the

NAACP Legal Defense Fuad whe Is helping to coordi.

nen boot

e en

mates bad po warning thet whet (hey fold prison pry-

chologists might later be ward by # court in deciding

whethee they should live or die.

The justices schnowledge the court should not have

hed the reports, but say they uever based # lile-or-

drath ruling of one of them.

4 The delense Lawyers clan the court wrongly:

Decided on its own to obtala the reports, which

weren't in trtal court files,

plain whet criteria it uied In deciding when to obtain

them.

Didn't tell the lawyers on either side when It

was obtaining them.

The defense lawyers say they don't know on how

meny occasions, of for how bong, the court obtalnrd

the 1 reports in death cases.

stice Ben Overton sald the reports found their

way into the Court files “inadvertently” be-

cause of an by 2 deputy clerk. He said he asked

the clerk to get s copy of » pre-sentence prycholngical

report that had been considered by the trial Judge but

wes not in the court file,

According to Overton, the deputy clerk misinier-

preted his request, and began routinely ordering post:

sentencing psychological reports made by sell pry-

chologists at the Department of Corrretions, Overton

was chief justice at the time, Overton said he cannot

remember the name of the deputy clerk.

Miami lawyer Robert Shevin, who as atlorney gra

eret successfully srgued the consitutionality of Plurk

dass demh alty beforr he US. Supreme Court in

1974, said the attack ts just a tactic to stall executions,

“Whenever you're desling with the death pensity,

those condemned te die are toing to look for anything

they con to — tne said Shevin.

He predicted that the legal atteck might result ta

deleying executions “pin months of « year,” bul that It

prin | er resuli in any reversals of the desth penally.

Defense attorneys say they expect [lve members

the court to become witnesses, They ere Chief Justice

Alen Sundberg end Justices Overton, James Adkins,

Joseph Boyd and Arther England. The other two jus

Uces, Parker McDonald and James Alderman, were not

on the court when It obtained (he reports.

‘Two former justices whe sat on the court when it

hed the reports also are expected to be called os wit-

nesses. They ere Joseph Metchett, now & judge on the

US. Fifth Cirewit Court of Appeals, and Fred Karl, who

ts In private law practice.

The St. Petersburg Times reported tact month that

the court In 1976-78 hed Inoked at reports on seme Con

é 4 men with Asclosing them to defense stior-

“In some cases, we ended up with Information we

were not supposed to are,” Justice Overton told the

Times.

Justice Adkins told The Misint News he wes op-

posed to the practice, “t didn't like whet wes going

on,” be sard, “It looked to me like it was overreech-

ing.

. White several justices achnowledged thet they read

the reports while considering drath seatences, they

said they didn’t rely on the reports in meking decisions

on executions.

Detense attorneys say the legal attack will be filed

in both state and federst court. The challenge will con-

tend that the court deprived death row lar notes of due

process of law because their lawyers couldn't explain

hips .

‘ So MO RCt, Bales

ies >

PSY yt £3

SF ry" ™ ay

L ,

‘ »

* § re

tag ta eg

tals yw

. we:

iat ats

Yio i;

i sae Fe

ee ae x

)

Nar?) . d

; A

‘

x . <n ay, ad} JIN

de a tos, ag Cit ts

ote an haNty swe Suhents

or refute Information in the reports.

The flest defense attorney tu learn of the practice

was Anststont Public Dielender Margerct tit of Valle.

besser, who in mid- 1918 was arguing agains ihe death

atty on behalf wf Poul McGill, an IB-yrar-old seme

lenced to die for robbing. raping and murdering & com

verience-siore clerk meat Ovala

Overton questioned God shoul MeCill’s mental

condition, referring to “se pavchological sererming te-

= (which) seve ia part that he (eris very liented come

olin siresstvt sitwations..."

Good told thé court shé did Hal have & rapy of the

report. She later filed « motion and obtained one.

The court leter reduced McGill's sentence to tile, It

4id not comment in its openion on whether the paycho-

logical report had played » part in the decison

The incident occurteé more than a yeer alter the

U.S. Supreme Court held in March 1977, in Gardner v,

Florida, that defense attorneys in Geath penoity cases

are entitled to any confidential Ininrmation relied on by

the trial judge

Doniet Cardner bed been sentenced to death for

stabbing his wile to death in Citrus County, The US

me Court upheld his conviction, but overturned

the death sentence heeauce the trlal prige cowshdered

“contidential” material not disclosed to the delendant’s

attorneys

Since that tlme, defense aitorneys (rom around the.

state have been pooling information styovt @raih cases

end have concluded that the psychological reports

were conddered by the Plorida Supreme Court le at

least 20, and prssibly more, death cones

Marthe tail, # former law clerk tor Justice England

when he was chief justice, told The Miami News that

she was told to go through adout 40 death row files in

August of September of 1978 — shurily aller Good hed

learned of the reports — and to pull out all psychotogi-

cal feports.

Hall, who ts now general cowrs! for the Depart-

ment of Environmental Regulation, seid she flownd te-

ports in about 30 files and removed them. She sald that

alter cotlecting the reports tne manila tuider, she be-

llenge to death penalty

Wasa

“Cc 4

F5 a Wes sas

Peet bel Lif

Neves she had them

shredded.

whose reports she femeved, end that she conn fe-

member the names,

Holl said Engtand’s chief law clerk, Mike Rasen,

told her to get rid of the reporin Rosen, whe is now

wlth « Tallahassee law firm, said be dors ant recall

saylng thet.

England seid he did nut recall seeing any pve the

logical evaluations, nr ordering their gemeval [rom the

file,

“[ don't recall having ceom & psychological evalua

thon, bul (nat doesn't mean t Reven't read one. | pt

don't remember,” England sa4,

“} don't remember having @ eterk remove the tr

ports from the files, etther, But W Marty (Martha tall)

says | tuld her to do it. | mst have told her,” Bogiand

said.

Overton seid he comiders psychologicst repeats im-

portent hecause & crath sentence may be mitigated if

the delradant wes suffering from extsemns mental dis-

tus bance oF Could not controt his conduct, Hut when he

discovered psychological reports (hat bad no? been pro-

vided to defense counsel were bn the Mies, he said, he

tried to reetily the divatinn

“Alier | lownd out what happened € ordered the

ptychological evatuations pulled frorm the files because

they did not belong there.” Overton said.

During the period wien the psychnlogical reports

were Deing sent to the Supreme Court, the court upheld

the death sentence of Jonn Sproketian, who wes exe

cuted ta May, 0°79. Speahetok was the first — and 50

os me only — innate to be executed in blorida since

3964

Records in the Supreme Court clerk's office contain

no ladication that a grvehot gical report om Spranctic’

wes ordered belure his death sentence wes uphold, ac-

cording to deputy clerk Drtow Cowsseoun.

Hatehert raid he exapects the psychological reperts

to result in guts and he will have to excuse Wiwerll

ee ee ee ere me ——--<

Please eve DEATH, CA

—

I Set

ae}

4333 Ht

=33 ak

i ail

- a alae

appeals court judge # because, “Tm of th

a witness.”

: DEATH, from SA

would be relevasi oaly la cases la

deve grully EYP UL 2

lip Hid 2H a3

pit hi i [ie

iges ette? Giz calf

saat Gedy Ba Ee:

2438 begs! sa u3

3528 w2533 ru Ug

eauidll aul

4 pais Hu i

bec ee 3

F Mere

y ibaa read every wotd hat wee eval

prychological reports. But, he sald, “I

sever voted on a death case unless |

a Hut

Ra aH

a cagtie!

te 3

Hoe

e333

4 =

ine

te.

wee Se nee ee aan ~ aan oe

nd nt

Yn ane i e u

atiention™ to them. “The

bed

judge

ph An

that the trial

in achnawiedted sels ing some of the reporis,

“didn't pay any

lowe

“pecioud

fet Hi Rue

$423 |

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