City of New Orleans v. Barthe Motion to Dismiss or Affirm

    33mtei> States (Court uf Appeals
fo r  the

Eleuentij (Circuit
No. 82-8408 

JAMES LEE SPENCER,

Peti tio n er-A pp ellan t,

-against-

WALTER D. ZANT, Superintendent, Georgia Diagnostic & 
Classification Center,

Respondent-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA 

AUGUSTA DIVISION

REPLY BRIEF FOR PETITIONER-APPELLANT 
(HABEAS CORPUS)

BARRINGTON D. PARKER, JR. 
CLAUDIA J. FLYNN 
MARTIN S. HIMELES, JR.

415 Madison Avenue 
New York, New York 10017

EDWARD P. TOLLEY 
304 East Washington Street 
Athens, Georgia 30601

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 

Ten Columbus Circle 
New York, New York 10019

A ttorneys for Petitioner-Appellant

(13457)



TABLE OF CONTENTS

Page No.

Table of Authorities................................ . (jj

Argument

I. Spencer's Early, Multiple, Pro Se 
Challenges To The Jury Array Were 
Sufficient To Preserve His Objection
To Its Unconstitutional Composition . . . . .  \

II. The Trial Court's Instructions 
Relieved The State Of Its Burden Of 
Proving Every Element Of The Crime
Beyond A Reasonable Doubt . . . . . . . . . .  4

III. The Trial Court Directed A Verdict 
Against Petitioner On His Special
Plea Of I n s a n i t y ........ ...................7

IV. Petitioner Did Not Receive An 
Adequate Opportunity To Introduce 
Evidence In The District Court 
Demonstrating The Arbitrary And 
Discriminatory Imposition Of The
Death Penalty In G e o r g i a ................... 8

Conclusion . . . . . . . . . . . . . . .  ........  • • 11



TABLE OF AUTHORITIES

Page

Albuquerque v. Bara,
628 F . 2d 767 (2d Cir. 1980) ..................3

Henry v. Mississippi,
379 U.S.443 (1965) . . . . . . . .  ........  3

Holloway v. McElroy,
632 F .2d 605 (5th Cir. 1980), cert, denied,
451 U.S. 1028 (1981) ............... 5

Lamb v. Jernigan,
683 F . 2d 1332 (11th Cir. 1982) .  ........ 5

Mason v. Balkcom,
669 F . 2d 222 (5th Cir. 1979) ............... 7

Mullaney v. Wilbur,
421 U.S. 684 (1975) .......................... 6

Proffitt v. Wainwright,
685 F .2d 1227 (11th Cir. 1982) .  ........  10

Sandstrom v. Montana,
442 U.S. 510 (1979) ..........................  4, 5, 8

Sapp v. Rowland,
CV-176-94 (S.D. Ga. May 20, 1 9 7 7 ) ........ .. 1, 3

Smith v, Balkcom,
671 F .2d 858 (5th Cir. 1982) (per curiam). . . 10 

Spencer v. Hopper,
243 Ga. 532, 255 S.E.2d 1, cert, denied,
444 U.S. 885 (1979)................... .. 3, 4

Spinkellink v. Wainwright,
578 F .2d 582 (5th Cir. 1978), cert, denied,
440 U.S. 976 (1979).........................  8 , 10

United States v. Chiantese,
560 F .2d 1244 (5th Cir. 1977)(en banc),
cert, denied, 441 U.S. 922 (1979)...........5

(i)



Page

United States v. Hull,
565 F .2d 917 (5th Cir. 1 9 7 8 ) ...............  2, 3

In re Wainwright,
678 F .2d 951 (11th Cir. 1982) ............. 10

Wainwright v. Sykes,
433 U.S. 72 (1977) ...................... 1, 3

In re Winship,
397 U.S. 358 (1970) .................... 6

(ii)



IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

No. 32-8408

JAMES LEE SPENCER,
Petitioner-Appellant, 

-against-
WALTER D. ZANT, Superintendent, 

Georgia Diagnostic & Classification Center,
Respondent-Appellee.

On Appeal From The United States District Court 
For The Southern District Of Georgia 

Augusta Division

REPLY BRIEF FOR PETITIONER-APPELLANT 
(HABEAS CORPUS)



ARGUMENT

I. SPENCER'S EARLY, MULTIPLE, PRO SE 
CHALLENGES TO THE JURY ARRAY WERE 
SUFFICIENT TO PRESERVE HIS OBJECTION 
TO ITS UNCONSTITUTIONAL COMPOSITION

In his main brief, petitioner demonstrated that at 

the beginning of his trial, before the jury had been impaneled, 

he made multiple, unambiguous objections on constitutional 
grounds to the racial and sexual composition of the array from 

which his trial jury was selected. (See Brief for Petitioner- 

Appellant at 5-12) He further demonstrated that the objec­

tions were meritorious ones because shortly after his trial 
the United States District Court for the Southern District of 

Georgia examined the composition of the Burke County jury 

panels, found unlawful racial and sexual discrimination, and 
enjoined such discrimination. See Sapp v, Rowland, CV-176-94 

(S.D. Ga. May 20, 1977).
In response, the State argues that the challenge was 

waived since it occurred after the jury had been "put on" 

Spencer and, in any event, was abandoned during trial. The 

State also insists that "cause" for relief from the waiver 

does not exist'and that in the absence of evidence that the 
array was improperly constituted in 1975, the year Spencer 

was tried, "prejudice" has not been demonstrated. See Wain- 

wright v. Sykes, 433 U.S. 72 (1977).
Neither of these contentions has merit. As the 

Court's perusal of the record will undoubtedly show, Spencer



challenged this array before it was "put on" him. Spencer 

challenged it in unmistakable terms at the very beginning of 
his trial both in his removal petition and in his pro se 

motion. Both were presented before the jury had been selected 

and well before the trial on the merits commenced. Further­

more, at the conclusion of the trial, Spencer again unambiguously 

indicated that he had intended to raise a challenge to the jury 

array, that he had done so before the jury was impaneled, and 

that the motion had been ignored by the trial court. (Trial 

Tr. 842-43) Significantly, neither the prosecutor nor the 

trial court indicated that Spencer's challenge was late or 

suffered from any other procedural infirmity. They simply 
ignored it.

But even if the State's hostile reading of its 

waiver provisions were accepted, petitioner has established 

ample "cause" and has shown sufficient "prejudice" to require 

a federal court to reach the merits. Spencer does not contend, 

as the State cautiously suggests, that the "cause" for the 

waiver stemmed from the inadvertance of his counsel, although 

that may have been a contributing factor. See United States v. 

Hull, 565 F.2d 917, 920 (5th Cir. 1978). "Cause" is adequately 

demonstrated by the difficulties in complying with an imprecise, 

confused state procedural requirement. Significantly, the 

Georgia Supreme Court itself evidenced this confusion by hold­

ing that the jury was "put on" Spencer both on January 7 and

-2-



January 15. Spencer v. Hopper, 243 Ga. 532, 535, 255 S.E.2d 

1, cert, denied, 444 U.S. 885 (1979). If the Georgia Supreme 

Court is confused as to when a jury is "put on" a defendant, 

the rule should not be permitted to serve as the predicate in 

a capital case for the waiver of so important a right as that 

to a trial by a lawfully constituted jury. Henry v,

Mississippi, 379 U.S. 443, 447-48 (1965); Albuquerque v. Bara, 

628 F.2d 767, 776 (2d Cir. 1980)(Brieant, J., concurring).

Cause is also supplied by the fact that Spencer was, in connec­

tion with his jury challenge, a pro se defendant acting without 

the assistance of counsel. See United States v. Hull, supra. 

Even without the assistance of counsel, he made early, precise 

objections which the trial court undoubtedly understood but 

ignored. No valid policy otherwise served by the Wainwright v. 

Sykes rule requires Spencer to have done anything more.

Finally, the State argues that prejudice was not 

demonstrated because Sapp v. Rowland involved the Burke County 

jury composition in 1976. Although Sapp standing alone is a 

powerful indication that Spencer was correct, he went beyond 

that case and showed discrimination in the array from which 

his jury was selected. In state habeas proceedings he intro­

duced binding admissions of the Burke County Jury Commissioners 

that established the illegal underrepresentation of blacks and 

women on the 1975 traverse jury list. (See Appellant's Brief 

at 12, Brief for Petitioner-Appellant in Forma Pauperis at

-3-



21, Spencer v. Hopper (Appeal to Georgia Supreme Court from 

Denial of State Habeas Corpus Petition))

II. THE TRIAL COURT'S INSTRUCTIONS RELIEVED 
THE STATE OF ITS BURDEN OF PROVING 
EVERY ELEMENT OF THE CRIME CHARGED BEYOND 
A REASONABLE DOUBT__________

Spencer was convicted on the basis of a charge that 

permitted the jury to presume homicide if a deadly weapon was 
used. The charge violated due process. The State defends 

that unconstitutional murder instruction by arguing that the 

instruction only created a permissive inference, and that even 

if it were an error the error was harmless. Neither argument 

has merit.
The Supreme Court held in Sandstrom v. Montana, 442 

U.S. 510, 518-19 (1979), that the mere possibility that a jury 

might interpret an instruction as creating an irrebuttable, 

burden-shifting presumption is sufficient to establish a due 

process violation. The deficiency in the charge here was 

equally serious since the jury charge here permitted the jury 

to presume the existence of intent. Intent unquestionably is 

a factual issue under Georgia law. (See Brief for Petitioner- 

Appellant at 36) More important, it was virtually the only 

disputed issue for the jury's consideration.
Since Sandstrom, in case after case, courts have 

concluded that instructions identical in all material respects 

to the instructions here fail to pass constitutional muster.

-4-



E . g . , Lamb v. Jernigan, 683 F.2d 1332, 1336-37 & n.8 (11th 

Cir. 1982) ("the law presumes that every homicide is malicious"); 

Holloway v. McElroy, 632 F.2d 605, 619-36 (5th Cir. 1980)(same), 

cert, denied, 451 U.S. 1038 (1981). Indeed, in Sandstrom 

itself, the court found that the instruction " [t]he law presumes 

that a person intends the ordinary consequences of his 

voluntary acts" might be interpreted by the jury as creating 

an irrebuttable presumption and was, therefore, improper. Id. 

at 513 (emphasis added).
The State seeks to rescue the improper instruction 

by pointing to the trial judge's instruction that the burden 

was on the State to prove intent. An identical argument was 

rejected in Sandstrom. As the court pointed out there, the 

jury might have interpreted the instructions as indicating 

that, although the burden of proof was on the State, it could 

meet that burden by resort to the presumption. 442 U.S. at 

518 n.7. Thus, it is settled that a burden-shifting instruc­

tion is not saved by general instructions with respect to the 

burden of proof. See Lamb v. Jernigan, 683 F.2d at 1341;
United States v. Chiantese, 560 F.2d 1244, 1255 (5th Cir. 1977) 

(en banc), cert, denied, 441 U.S. 922 (1979).*

*The State also points to the court's instruction that the 
presumptions were rebuttable. The argument takes the instruc­
tion out of context. The jury was instructed:

I give you certain presumptions of law that are 
applicable to this case. A presumption is a 
conclusion that the law draws from given facts.

(footnote continued on next page)

-5-



The State is therefore left with its harmless error

argument, but that argument does not withstand analysis.

Though the bulk of its argument is devoted to harmless error, 

the State fails to cite a single capital case in which the 

doctrine has been applied. As we demonstrated in our main 

brief, the cases all indicate the harmless error rule does 

not salvage a deficient charge in a capital case. (See Brief 

for Petitioner-Appellant at 38-40)

Since it cannot really defend the charge, the State 

argues the evidence of intent was overwhelming. The fact is, 

however, that there was sufficient doubt about petitioner's 

sanity for the trial judge to feel obligated to charge the 

jury on the issue. In light of the dispute as to petitioner's 

state of mind, as well as the fact that petitioner's life is 

at stake, an argument that an instruction that unconstitution­

ally shifted the burden of proof on that issue was harmless

(footnote contined from previous page)
Each of these presumptions are [sic] rebuttable, 
that is, they are subject to being overcome by 
evidence to the contrary, and they are: [recital
of presumptions follows].

Trial Tr. 797. It is quite clear that the instructions referred 
only to the list of presumptions which immediately followed, 
and not to the presumption challenged here, which appears a 
full nine pages later in the transcript. Moreover, placing 
the burden on the petitioner to overcome a presumption afforded 
to the State on an element of a crime is prohibited by In re 
Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S.
684 (1975).

-6-



error should be rejected. Mason v. Balkcom, 669 F.2d 222,

227 (5th Cir. 1979) .

III. THE TRIAL COURT DIRECTED A VERDICT 
AGAINST PETITIONER ON HIS SPECIAL 
PLEA OF INSANITY___________________

The trial court's instruction that a preponderence of 

the evidence sufficient to carry defendant's burden of proof 

is "evidence that a person with a reasonable and impartial mind 

would believe is stronger that the evidence which has been 

produced by this witness" was unquestionably reversible error. 

Indeed, the State itself is unable to deny that the charge was 

insufficient. As we pointed out in our main brief, the error 

was a reversible one because under Georgia law the determina­

tion of what constitutes a preponderence of the evidence is 

for the jury to determine. And, of course, the Constitution 

requires that a defendant be tried only when he is legally 

competent. (See Brief for Petitioner-Appellant at 40-41)

In the face of a clearly erroneous charge, the State 

argues that the "witness" referred to is one of the psychia­

tric witnesses and not Spencer. This is naked speculation.

The State offers this conjecture without the slightest record 

support. Since, by the time of jury charge, it would have 
been natural for the various witnesses, particularly expert 

witnesses, to have departed the courtroom, the context in 

which the reference was made unquestionably suggests that it 

was directed at Spencer. In any event, any reasonable juror

-7-



could have concluded that the "witness" was Spencer— as it 

undoubtedly was— and the charge could easily have been con­

strued as directing a verdict against Spencer. In Sandstrom 

the Court emphasized that the mere possibility that a juror 

could have interpreted an instruction as constituting such 

a presumption violated due process. 442 U.S. at 524.

IV. PETITIONER DID NOT RECEIVE AN ADEQUATE
OPPORTUNITY TO INTRODUCE EVIDENCE IN THE 
DISTRICT COURT DEMONSTRATING THE 
ARBITRARY AND DISCRIMINATORY IMPOSITION 
OF THE DEATH PENALTY IN G E O R G I A _____

In District Court proceedings Spencer sought an evi­

dentiary hearing to support his claims that the death penalty 

is systematically imposed in an arbitrary and discriminatory 

manner in Georgia. The request was denied. The State argues 

that the State hearing was adequate and the rejection of 

additional evidence was proper under this Court's decision in 

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert, 

denied, 440 U.S. 976 (1979). The State claims that the only 

reason that the evidence was not presented in state court was 

a purported lack of funds by Spencer, a claim belied by the 

later availability of the same evidence in the District Court, 

notwithstanding the same ostensible lack of funds.

This contention totally misconstrues Spencer's claim. 

To be sure, not only did Spencer, an indigent pro se defendant, 

not have adequate funds to procure and present the type of

-8-



evidence that was later available, the most important and 

persuasive evidence that Spencer sought to introduce, and 

which was rejected by the District Court, was the work of 

Dr. David Baldus. Baldus' study, exhaustively demonstrating 

the arbitrary, discriminatory nature of the imposition of 

the death penalty in Georgia in the post-Furman period, 1973- 

1979, was simply not available at the time of state habeas 

proceedings.
The State makes two additional arguments in support 

of its contention that the evidentiary record before the 

District Court was complete. First, it argues that the record 

before the District Court was adequate because appellant had 
called expert witnesses to testify at his state habeas hearing, 

citing the testimony of Dr. David Lawrence Sjoquist, Brian 

Forst, and Ms. Stephanie Auerbach. Although they testified, 

they did not testify at all on racial discrimination or 

arbitrariness but on totally different issues. Brian Forst 

testified on the absence of any correlation between the death 

penalty and deterrence. Dr. Sjoquist testified that, due to 

its lack of deterrent effect, the death penalty is without 

any valid penological justification. Stephanie Auerbach did 

not testify at all. Her research covered the period 1943 to 
1965 and was deemed not probative or admissible by the State 

court.
Finally, the State argues that even the evidence

-9-



that Spencer sought to admit, including the Baldus study, 

would not have been admissible under Spinkellink v. Wainwright, 

supra. As we pointed out in our main brief, however, decisions 

of this court since Spinkellink have discarded the view that it 

bars a federal evidentiary hearing on Spencer's claims.

Proffitt v. Wainwright, 685 F .2d 1227, 1262 n .52 (11th Cir.

1982); see In re Wainwright, 678 F2d 951 (11th Cir. 1982);

Smith v. Balkcom, 671 F.2d 858 (5th Cir.)(per curiam). Baldus' 

evidence directly addresses the evidentiary issues this court 

identified in Smith on rehearing. The Smith court identified 

these issues as: whether charges or indictments grew out of

reported incidents; whether murder or another crime was involved 

and, if murder, what degree; whether mitigating circumstances were 
advanced or found; whether there were aggravating circumstances 

sufficient to warrant submission of the death penalty to the jury; 

and whether there were incidents resulting in not guilty 

verdicts. Smith v. Balkcom, 671 F.2d at 860 n.33. Dr. Baldus' 

evidence demonstrates that the statistically significant 

racial discrimination in Georgia's capital sentencing system, 

based on the race of the defendant and the race of the victim, 
persists even when only those homicides resulting in murder 

indictments— 'including that subset of murder indictments 
accompanied by aggravating circumstances— are examined. More­

over, the discrimination persists even in the subset of those 

cases submitted to a 'jury at a capital sentencing phase. The

-10-



absence or presence of mitigating circumstances in the various 

cases does not provide a sufficient basis rationally to 

explain the discrimination found. Therefore, not only was the 

evidence Spencer sought to present admissible, but it was 

exactly the evidence sought by the Smith court to support a 

claim of arbitrary and discriminatory imposition of the death 

penalty.

CONCLUSION

For the reasons set forth above, petitioner urges 

this Court to grant the relief sought in his main brief.

Dated: New York, New York
January 14, 1983

Respectfully submitted,

BARRINGTON D. PARKER, JR.
CLAUDIA J. FLYNN 
MARTIN S. HIMELES, JR.

415 Madison Avenue 
New York, New York 10017

EDWARD P. TOLLEY
304 East Washington Street 
Athens, Georgia 30601

JACK GREENBERG 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER

Ten Columbus Circle 
New York, New York 10019

ATTORNEYS FOR PETITIONER-APPELLANT

-11-



CERTIFICATE OF SERVICE

I do hereby certify that I have this day served 

the within and foregoing brief, prior to filing the same, 

by depositing a copy thereof, postage prepaid, in the United 
States Mail, properly addressed upon:

VIRGINIA H. JEFFRIES, ESQ.
132 State Judicial Building 
40 Capitol Square, S.W.
Atlanta, Georgia 30334

This 14th day of January, 1983.



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