Furman v. Georgia Brief for Petitioner

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Fights for Criminal Justice

    IN THE

Supreme Court of the United States

No. 69-5003

WILLIAM HENRY FURMAN, Petitioner, 

v.

GEORGIA, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF GEORGIA

BRIEF FOR PETITIONER

J ack  G r e e n b e r g  
J ames M. N a b r it , III 
J ack  H im m elstein  
E liza b eth  B. Du Bois 
J e f f r y  A. M in tz  
E la in e  R. J ones

10 Columbus Circle, 
Suite 2030
New York, N.Y. 10019

B. C la r en c e  Ma y f ie l d  

910 West Broad Street 
Savannah, Georgia 31401 

Mic h a e l  Me l t sn e r

Columbia University Law School
435 West 116th Street
New York, New York 10027

An t h o n y  G. Am sterd a m

Stanford University Law School 
Stanford, California 94305

Attorneys for Petitioners



INDEX

Page

OPINION BELOW ................................................................. .. 1

JURISDICTION...................................   1
CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED................................................................................  2

QUESTION PRESENTED.......................................................   2
STATEMENT OF THE CASE.......................................................  2

HOW THE CONSTITUTIONAL QUESTION WAS
PRESENTED AND DECIDED BELOW ................................. 10

SUMMARY OF ARGUMENT..................................................  11

ARGUMENT:
I. The Death Penalty for Murder Violates Contempo­

rary Standards of Decency in Punishment....................  11
II. Petitioner’s Sentence of Death Imposed Without 

Adequate Inquiry Concerning His Manifestly Im­
paired Mental Condition Violates the Eighth 
Amendment .................................................................... 12

CONCLUSION................................................................................  20
APPENDIX A: STATUTORY PROVISIONS INVOLVED------ la

APPENDIX B: PSYCHIATRIC REPORTS................................. lb

TABLE OF AUTHORITIES

Cases:

Caritativo v. California, 357 U.S. 549 (1958) ............................ 19
Crampton v. Ohio, reported sub nom. McGautha v. Califor-

Nia, 402 U.S. 183 (1971)..................................................  18

Ex parte Medley, 134 U.S. 160 (1890)........................................  16
Musselwhite v. State, 215 Miss. 363, 60 So.2d 807 (1952) . . .  15
Nobles v. Georgia, 168 U.S. 398 (1 8 9 7 )...................................... 19
Pate v. Robinson, 383 U.S. 375 (1966) ...................................... 18
Phyle v. Duffy, 334 U.S. 431 (1 9 4 8 )...........................................

(i)



(ii)

Rogers v. State, 128 Ga. 67, 57 S.E. 227 (1 9 0 7 )....................... 16
Solesbee v. Balkcom, 339 U.S. 9 (1950 )..............................  13, 14, 18
Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932) . . .  16
Witherspoon v. Illinois, 391 U.S. 510 (1968) ............................ 3

Constitutional and Statutory Provisions:
Eighth Amendment, U.S. Constitution ........................................ 2, 10,

11, 12, 18, 19,20

Fourteenth Amendment, U.S. Constitution............................2, 10, 18

28 U.S.C. § 1257(3)....................................................... ................  1
Ga. Code Ann. § 26-1001 ............................................................. 2, 6
Ga. Code Ann. § 26-1002  ......................................................  2, 6

Ga. Code Ann. i 26-1005 .............................................................   2,7
Ga. Code Ann. § 26-1009 .............................................................. 2 ,8
Ga. Code Ann. § 27-2512  .................................................  2, 7
Ga. Code Ann. § 27-2602 .............................................................. 2,18
Ga. Code Ann. § 27-2604 .............................................................. 2,18

Other Authorities:
4 BLACKSTONE, COMMENTARIES (1803) ............................ 13, 14

Bluestone & McGahee, Reaction to Extreme Stress:
Impending Death by Execution, 119 AM. J.
PSYCHIATRY 393 (1 9 6 2 ).......................................................  17

Brief for Petitioner, Aliens v. California, O.T. 1971, No.
68-5027...................................................................................11, 12, 17

Camus, Reflections on the Guillotine, in CAMUS,
RESISTANCE, REBELLION AND DEATH (1961) ...........  16

CHITTY, CRIMINAL LAW (Earle ed. 1 8 19 )..............................  13
COKE, THIRD INSTITUTE (1644) ................................... .. 13, 14
Zifferstein, Crime and Punishment, 1 THE CENTER 

MAGAZINE (No. 2) 84 (Center for the Study of 
Democratic Institutions 1968) ...............................................  I7

DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962) . . .  I7

DUFFY & JENNINGS, THE SAN QUENTIN 
STORY (1950 ).......................................... 17



Ehrenzweig, A Psychoanalysis o f  the Insanity Plea-Clue to 
the Problem o f  Criminal Responsibility and Insanity in 
the Death Cell, 1 CRIM. L. BULL. (No. 9 3 (1965)
[cited as Ehrenzweig] ..........................................................14, 17, 19

ESHELMAN, DEATH ROW CHAPLAIN (1962) ....................... 17
Feltham, The Common Law and the Execution o f  Insane

Criminals, 4 MELBOURNE L. REV. 434 (1 9 6 4 ) .................. 19-20
Gottlieb, Capital Punishment, 15 CRIME & DELINQUENCY

1 (1969) ...................................................................................  17
1 HALE, PLEAS OF THE CROWN (1678 )................................. 13

1 HAWKINS, PLEAS OF THE CROWN (1716) ....................... 13
Hawles, Remarks on the Trial of Mr. Charles Bateman, 11

Howell State Trials 474 (1 8 1 6 )..........................................13, 14, 15
Hazard & Louisell, Death, the State, and the Insane:

Stay o f  Execution, 9 U.C.L.A. L. REV. 381 (1962)
[cited as Death, the State, and the Insane] ............................ 15, 19

LA WES, LIFE AND DEATH IN SING SING (1928) ...............  16, 17
LA WES, TWENTY THOUSAND YEARS IN SING SING

(1932)........................................................................... ..............  17

ROYAL COMMISSION ON CAPITAL PUNISHMENT,
MINUTES OF EVIDENCE (1949) [cited as ROYAL 
COMMISSION M INUTES]..........................................................13, 14

ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949- 
1953, REPORT (H.M.S.O. 1953)[Cmd. 8932] [cited as 
ROYAL COMMISSION] .....................................................13, 14, 19

WEIHOFEN, MENTAL DISORDER AS A CRIMINAL
DEFENSE (1954)     14, 19

WEIHOFEN, THE URGE TO PUNISH (1956)............................ 14
West, Medicine and Capital Punishment, in Hearings Before 

the Subcommittee on Criminal Laws and Procedures o f  
the Senate Committee on the Judiciary, 90th Cong., 2d 
Sess., on S. 1760, To Abolish the Death Penalty (March 
20-21 and July 2, 1968) (G.P.O. 1970) 16



IN THE

Supreme Court of the United States

No. 69-5003

WILLIAM HENRY FURMAN, Petitioner, 

v.

GEORGIA, Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF GEORGIA

BRIEF FOR PETITIONER

OPINION BELOW

The syllabus opinion of the Supreme Court of Georgia 
affirming petitioner’s conviction of murder and sentence of 
death by electrocution is reported at 225 Ga. 253, 167 S.E. 
2d 628, and appears in the Appendix [hereafter cited as 
A.____] at A. 66-68.

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C.
§ 1257(3), the petitioner having asserted below and assert­
ing here a deprivation of rights secured by the Constitution 
of the United States.



The judgment of the Supreme Court of Georgia was 
entered on April 24, 1969. (A. 68.) A petition for certio­
rari was filed on July 23, 1969, and was granted (limited 
to one question) on June 28, 1971 (A. 69).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Eighth Amendment to the Con­
stitution of the United States, which provides:

“Excessive bail shall not be required, nor exces­
sive fines imposed, nor cruel and unusual punish­
ments inflicted.”

It involves the Due Process Clause of the Fourteenth 
Amendment.

It further involves Ga. Code Ann. §§ 26-1001, 26-1002, 
26-1005, 26-1009, 27-2512, 27-2602, 27-2604 which are 
set forth in Appendix A to this brief [hereafter cited as 
App. A, pp.____], at App A, pp. la - 4a, infra.

QUESTION PRESENTED

Does the imposition and carrying out of the death pen­
alty in this case constitute cruel and unusual punishment 
in violation of the Eighth and Fourteenth Amendments?

STATEMENT OF THE CASE

Petitioner William Henry Furman was convicted of mur­
der and sentenced to die following a one-day jury trial in 
the Superior Court of Chatham County, Georgia, on Sep­
tember 20, 1968. (A. 10-65.) The trial was very brief. 
Jury selection began at about 10:00 a.m.;1 the taking of

'One venireman was excused for cause over petitioner’s objec­
tion (A. 13-14 [Tr. 6-9]) because of his opposition to the death pen 
alty. He was asked if he would refuse to impose capital punishment



3

evidence and the court’s charge to the jury were concluded 
by approximately 3:30 p.m. (A. 64 [Tr. 119]); the jury 
retired at 3:35 p.m. (ibid.) and returned its death verdict 
at 5:10 p.m. (ibid.).

The murdered man was William Joseph Micke, Jr. His 
widow testified at the trial that Mr. Micke was twenty-nine 
years old, and lived with her and five children—ranging in 
age from one to fifteen—in a house in the City of Savannah. 
(A. 17-18 [Tr. 12-13.]) Mr. Micke was employed by the 
Coast Guard; and on August 11, 1967, he began work at a 
second job, at the Tiffany Lounge, to supplement his in­
come. (A. 18 [Tr. 13].) He returned home from that job 
at about midnight; then he and his wife retired for the 
night. (Ibid.)

Between 2:00 and 2:30 a.m., Mr. and Mrs. Micke heard 
noise coming from the dining room or kitchen area of the 
house. They thought that it was their eleven year-old son 
sleepwalking, and Mr. Micke went to investigate. Mrs. Micke 
heard him call the boy, heard his footsteps quicken, then 
heard “a real loud sound and he screamed.” (A. 19 [Tr.
15]; see A. 17-19 [Tr. 13-15].) She ran and locked her­
self with her children in her daughters’ bedroom, where they 
all began to shout for the neighbors. The neighbors came 
in a few minutes, and Mrs. Micke immediately phoned the 
police who arrived shortly thereafter. (A. 19-20, 21-22 
[Tr. 15-16, 19-20].) From her testimony and that of an 
investigating officer, the jury could find that Mr. Micke’s 
assailant had entered the rear porch of the house through

in a case regardless of the evidence, and said, “I believe I would” (A.
13 [Tr. 5]); when asked whether his opposition to the death penalty 
would affect his decision as to a defendant’s guilt, he said “I think 
it would” (Ibid.). Veniremen were not excused for cause who, 
although opposed to capital punishment, said that they could impose 
it in some circumstances, and that their attitudes toward capital 
punishment would not prevent them from making an impartial deter­
mination of the defendant’s guilt. (A. 12, 14-15 [Tr. 4, 7-9].) The 
Georgia Supreme Court held that this form of death qualification was 
proper under Witherspoon v. Illinois, 391 U.S. 510 (1968). (A. 66.)



4

a screen door (which might or might not have been locked), 
had moved a washing machine away from the porch wall 
outside the kitchen window, and had reached through the 
kitchen window to unlatch the kitchen door from the in­
side. (A. 19-21, 25 [Tr. 16-19, 24].)

The investigating officer, responding to a call at the 
Mi eke house at about 2:30 a.m., found Mr. Micke lying 
dead on the kitchen floor. (A. 24-26 [Tr. 23-26].) The 
cause of death was later determined to be a single pistol 
wound which entered Mr. Micke’s upper chest near the mid- 
line and passed through the lung causing severe hemorrhag­
ing. (A. 32 [Tr. 35-36].) The bullet which produced this 
wound had been fired through the kitchen door from the 
outside while the door was closed. (A. 27, 29-30 [Tr. 28, 
31-32].) Only one bullet hole was found in the door (A.
55 [Tr. 92-93]), which was constructed of solid plywood 
with no window (A. 20, 22, 29 [Tr. 17, 20-21, 31 ]). The 
prosecution adduced no evidence that more than this one 
shot was fired at the Micke house that night.2

Petitioner Furman was identified as Mr. Micke’s killer 
because his fingerprints, taken following his arrest, matched 
several latent prints that were lifted from the surface of the 
washing machine on the Mickes’ rear porch. (A. 33-34, 35- 
36 [Tr. 40-43, 50-55].) Petitioner was also seen and ap­
prehended leaving the area with the murder weapon shortly 
after the killing, under the following circumstances.

One of the officers who had been called to the Micke 
house went thence to a street bordering a wooded area 
south of the house. He saw a man emerge from the woods, 
walking from the north. The man saw the officer and 
began to run. The officer called several other officers who

2When petitioner was arrested in possession of the murder gun 
shortly thereafter (see text, infra), the gun contained three live bul­
lets and three expended shells. (A. 42 [Tr. 65].) However, there is 
no evidence that more than one of these shells was fired at the Micke 
house. (A. 55 [Tr. 92].)



5

took up pursuit. Two followed foot-tracks left by the flee­
ing man in the rain. These led to the nearby house of Mr. 
James Furman, petitioner’s uncle. (A. 38-39 [Tr. 59-61].) 
The officers followed the tracks around the house to an 
area which gave entrance to the space under the house. 
They shined their flashlights in, saw petitioner under the 
house, and called him out. (A. 39-40 [Tr. 61-62].) Peti­
tioner “reached as if he was reaching for his back pocket 
and [one officer] . . . pulled [his] . . . pistol and . . . 
pointed it at him and . . . told him to come out and don’t 
make any move.” [A. 40 [Tr. 62].) The officers then 
pulled petitioner out from under the house, searched him, 
and found a .22 caliber pistol in “his right front pocket.” 
(A. 42 [Tr. 64]; see also A. 40 [Tr. 63].) This pistol was 
later identified ballistically as the one which fired the bul­
let that killed Mr. Micke. (A. 42, 43, 49-50 [Tr. 65, 67- 
68, 80-81].)

Petitioner was the only eyewitness to the circumstances 
of Mr. Micke’s killing. Two versions of those circumstances 
were put before the jury at the trial. A detective who ques­
tioned petitioner after his arrest testified that petitioner 
said:

“that he was in the kitchen; the man came in the 
kitchen, saw him in there and attempted to grab 
him as he went out the door; said the man hit the 
door-instead of catching him, he hit the door, the 
door slammed between them, he turned around and 
fired one shot and ran.” (A. 47 [Tr. 77]; see also 
A. 44-45; 49 [Tr. 71-73, 79].)

In his unsworn statement at trial,3 petitioner denied mak­
ing this declaration (A. 54-55 [Tr. 91-92]); he said:

“I admit going to these folks’ home and they did 
caught me in there and I was coming back out,

3Under Georgia practice following Ferguson v. Georgia, 365 U.S. 
570 (1961), a criminal defendant may elect to testify under oath, 
questioned by his attorney and cross examined by the prosecutor, or 
to make an unsworn statement without questioning or cross exami­
nation. Petitioner “elected” the latter course. See note 8 infra.



6

backing up and there was a wire down there on the 
floor. I was coming out backwards and fell back 
and 1 didn’t intend to kill nobody. 1 didn’t know 
they was behind the door. The gun went off and 
I didn’t know nothing about no murder until they 
arrested me, and when the gun went off I was down 
on the floor and I got up and ran. That’s all to it.” 
(A. 54-55 [Tr. 91].)

It is impossible to know, of course, which of those ver­
sions of the facts—if either—the trial jury believed. But, as 
the case comes to this Court, it must be taken to be one 
in which the Georgia courts have permitted the imposition 
of a death sentence for an unintended killing, committed 
by the accidental discharge of a pistol during petitioner’s 
flight from an abortive burglary attempt. This is so for sev­
eral reasons.

First, Georgia law allows the imposition of the death sen­
tence upon such a basis. Like the common law, but unlike 
the statutory law of most American jurisdictions today, 
Georgia does not divide murder into degrees. It maintains 
two crimes of homicide: murder and manslaughter. Ga.
Code Ann., § 26-1001, App. A, p. la infra. The hallmark 
of murder is, as at common law, “malice aforethought,” see 
Ga. Code Ann., § 26-1002, App. A, p. la infra; but a pro­
viso to Ga. Code Ann., § 26-1009 creates a form of con­
structive malice, or of “felony-murder,” by providing that 
even unintended killings are murder if they “happen in the 
commission of an unlawful act which, in its consequences, 
naturally tends to destroy the life of a human being, or is 
committed in the prosecution of . . .  a crime punishable by 
death or confinement in the penitentiary.” App. A, p. 2a 
infra. The punishment for murder by any person seventeen 
years of age or older is death by electrocution, except that
(1) the jury may make a binding recommendation, in its 
sole discretion, that the punishment shall instead be life 
imprisonment; and (2) if the conviction is based solely on 
circumstantial testimony, the presiding judge is also given 
discretion to impose a sentence of life imprisonment not­



7

withstanding the jury’s death verdict. Ga. Code Ann. §§ 26- 
1005, 27-2512, App. A, pp. la-3a infra.

Second, the jury charge in this case permitted a murder 
conviction, and thereby a death sentence, if petitioner’s 
killing of Mr. Micke was found to be either (a) actuated by 
“express malice” (i.e., an intentional killing) (A. 61-62 [Tr. 
114-115]), or (b) the product of “implied malice,” defined 
to include “the killing of a human being by the intentional 
use of a weapon that as used is likely to kill and a killing 
without justification, mitigation or excuse” (A. 62 [Tr. ■
115 ]), or (c) “an involuntary killing . . .  in the commission of 
an unlawful act which in its consequences naturally tends to 
destroy the life of a human being or . . .  in the prosecution 
of a crime punishable by . . . confinement in the peniten­
tiary” (A. 62-63 [Tr. 115-116])—here, the crime of bur­
glary (A. 62-63 [Tr. 116-117)]. The jury was specifically 
instructed:

“If you believe beyond a reasonable doubt that 
the defendant broke and entered the dwelling of the 
deceased with intent to commit a felony or a lar­
ceny and that after so breaking and entering with 
such intent, the defendant killed the deceased in the 
manner set forth in the indictment, and if you find 
that such killing was the natural, reasonable and 
probable consequence of such breaking and enter­
ing then, I instruct you that under such circum­
stances, you would be authorized to convict the 
defendant ol murder and this you would be author­
ized to do whether the defendant intended to kill 
the deceased or not.” (A. 63 [Tr. 117].)4 5 4

4Petitioner challenged this instruction as erroneous in paragraph 
7 of his Amended Motion for New Trial (R. 34, 42-43), which was
overruled (R. 46). [Here and hereafter, references in the form R.__
designate pages of the Clerk’s Record in the Superior Court of Chat­
ham County, which is contained in the original record filed in this 
Court.] The same claim was incorporated by reference in paragraph 
7, p. 2, of his Enumeration of Errors filed March 28, 1969, in the



8

Third, the Georgia Supreme Court rejected petitioner’s 
claim of insufficiency of the evidence upon the express 
ground that even an involuntary killing in the course of a 
burglary was murder, and in express reliance upon petitio­
ner’s trial statement:

“The admission in open court by the accused in 
his unsworn statement that during the period in 
which he was involved in the commission of a crim­
inal act at the home of the deceased, he accidentally 
tripped over a wire in leaving the premises causing 
the gun to go off, together with other facts and cir­
cumstances surrounding the death of the deceased 
by violent means, was sufficient to support the ver­
dict of guilty of murder. . . (A. 67-68.)

The jury which sentenced petitioner to die knew nothing 
about him other than the events of one half-hour of his life 
on the morning of August 12, 1967-as just recited-and 
the fact that he was black.* 6 However, additional facts ap­
Georgia Supreme Court. [This document is contained in, but is not 
paginated as a part of, the original record in this Court.]

sThe court further charged the jury that, if it convicted the peti­
tioner of murder, it might sentence him to death by electrocution or 
to life imprisonment without giving “any reason for its action in fix­
ing the punishment at life or death.” “The punishment is an alter­
native punishment and may be one or the other as the jury sees fit.” 
(A. 64 [Tr. 118].)

6The cursory nature of the trial which determined that petitioner 
would die resulted from his indigency. Because petitioner was a pau­
per, the court appointed counsel to represent him. Under Georgia 
practice, appointed counsel was compensated $150 for defending a 
capital murder case. See the affidavit of B. Clarence Mayfield, Esq., 
dated May 5, 1969, filed in the Georgia Supreme Court and included 
in the original record in this Court. Counsel sought by written pre­
trial motions: (1) funds for a defense investigator, (2) “reasonable 
compensation [for counsel] to enable them [sic: him] to devote the 
necessary time to prepare a case of this kind,” and (3) relief from 
the requirement that counsel “advance the expenses in the prepara­
tion of a trial in the lower court without knowing whether or not 
such expenses will be reimbursed to him.” (Motions, paragraphs 2,
3, 4, R. 12-13.) Each of these requests was denied. (Order, R. 15.)



9

pear in the record which this Court may properly consider 
as bearing on the question whether the State of Georgia will 
be carrying out a cruel and unusual punishment if it elec­
trocutes William Henry Furman. Those facts indicate, in 
summary, that Petitioner Furman is both mentally deficient 
and mentally ill.

On October 24, 1967—ten weeks after Mr. Micke’s killing 
and almost a year prior to petitioner’s trial—the trial court 
ordered petitioner committed to the Georgia Central State 
Hospital at Milledgeville for a psychiatric examination upon 
his special plea of insanity. (A. 8.) On February 28, 1968, 
the Superintendent of the Hospital reported by letter to the 
court that a unanimous staff diagnostic conference on the 
same date had concluded “that this patient should retain 
his present diagnosis of Mental Deficiency, Mild to Mode­
rate, with Psychotic Episodes associated with Convulsive 
Disorder.” The physicians agreed that “at present the 
patient is not psychotic, but he is not capable of cooperat­
ing with his counsel in the preparation of his defense;” and 
the staff believed “that he is in need of further psychiatric 
hospitalization and treatment.” (App. B, p. 2b infra.)1 
By a subsequent letter of April 15, 1968, the Superintend­
ent reported the same staff diagnosis of “Mental Deficiency, 
Mild to Moderate, with Psychotic Episodes associated with 
Convulsive Disorder,” but concluded that petitioner should 
now be returned to court for trial because “he is not psy­
chotic at present, knows right from wrong and is able to 
cooperate with his counsel in preparing his defense.” (Id., 
at 3b-4b.) At the time of trial, petitioner was twenty-six

7The reference is to Appendix B to this brief. That Appendix 
sets forth the texts of the two letters described in this paragraph, and 
explains why they may properly be considered by this Court although 
they were not before the Georgia Supreme Court.



10

years old,8 had gotten to the sixth grade in school,9 and 
was visibly confused by aspects of the proceedings against 
him.10

HOW THE CONSTITUTIONAL QUESTION 
WAS PRESENTED AND DECIDED BELOW

Paragraph 3 of petitioner’s Amended Motion for New 
Trial, filed by leave of court, contended that the death sen­
tence which had been imposed upon him was a cruel and 
unusual punishment forbidden by the Eighth and Four­
teenth Amendments to the Constitution of the United 
States. (R. 34, 38-39.) The motion was overruled. (R. 46.) 
Paragraph 4 of petitioner’s Enumeration of Errors in the

Petitioner recited his age in Iris unsworn statement to the jury.
(A. 54 [Tr. 91].)

9Petitioner’s level of schooling was elicited from him, out of the 
presence of the jury, while he was being questioned by his counsel 
and the court in order to determine whether he wished to take the 
stand. (A. 53 [Tr. 89].)

10At the conclusion of the prosecution’s case, the jury was ex­
cused, and petitioner’s court-appointed counsel asked leave of the 
court to put the defendant on the stand “to ascertain from him 
whether or not, for the record, he wishes to make a sworn or unsworn 
statement or no statement at all.” (A. 50 [Tr. 84]). See note 3 
supra. In yes-and-no responses to counsel’s questioning, petitioner 
stated that counsel had previously talked with him and advised him 
concerning his making a statement to the jury; and petitioner said 
and repeated that he did not want to make such a statement. (A. 
51-52 [Tr. 85-86.]) The court and counsel then advised petitioner 
again concerning his rights to make a sworn or unsworn statement 
or no statement; petitioner was asked if he understood “what we are 
trying to ask you” ; and he replied: “Some of it I don’t.” (A. 52-53 
[Tr. 86-89].) He then answered “yes” to the court’s question 
whether he wanted to tell the jury anything, and repeated this “yes.” 
(A. 53 [Tr. 89].) Without further inquiry regarding the reasons for, 
or advisedness of, petitioner’s unexplained change of mind, counsel 
and the court treated this response as an election to make an un­
sworn statement; the jury was recalled; and petitioner took the 
stand. (A. 54 [Tr. 90].)



Georgia Supreme Court made the same contention.11 The 
Georgia Supreme Court rejected it upon the merits. (A. 67.)

! I

SUMMARY OF ARGUMENT

I. Petitioner’s sentence of death is a rare, random and 
arbitrary infliction, prohibited by the Eighth Amendment 
principles briefed in Aikens v. California.

II. The Eighth Amendment forbids affirmance of a death 
sentence upon this record, which casts doubt upon petitio­
ner’s mental soundness. To relegate petitioner to the tor­
ments and vicissitudes of a death sentence without appro­
priate inquiry into his mental condition is to subject him
to cruel and unusual punishment.

I.

THE DEATH PENALTY FOR MURDER VIOLATES 
CONTEMPORARY STANDARDS OF 

DECENCY IN PUNISHMENT

The Brief for Petitioner in A ik en s  v. California 12 fully 
develops the reasons why we believe that the death penalty 
is a cruel and unusual punishment for the crime of murder, 
as that penalty is administered in the United States today. 
At the heart of the argument is the principle that the 
Eighth Amendment condemns a penalty which is so oppres­
sive that it can command public acceptance only by spora­
dic, exceedingly rare and arbitrary imposition.

Petitioner’s case epitomizes that characteristic of the 
penalty of death for murder. His was a grave offense, but 
one noways distinguishable from thousands of others for

n P. 1 of the Enumeration of Errors, filed March 28, 1969. [This 
document is contained in, but is not paginated as a part of, the origi­
nal record filed in this Court.]

n 0.T. 1971, No. 68-5027.



12

which the death penalty is not inflicted. Following a brief 
trial which told the jury nothing more than that petitioner 
had killed Mr. Micke by a single handgun shot through a 
closed door during an armed burglary attempt upon a dwell­
ing—and which permitted his conviction whether or not the 
fatal shot was intentionally fired—he was condemned to die. 
The jury knew nothing else about the man they sentenced, 
except his age and race.

It is inconceivable to imagine contemporary acceptance 
of the general application of the death penalty upon such 
a basis. Only wholly random and arbitrary selection of a 
few, rare murder convicts makes capital punishment for 
murder tolerable to our society. For the reasons stated in 
the Aikens brief, it is not tolerable to the Eighth Amend­
ment.

II.

PETITIONER’S SENTENCE OF DEATH IMPOSED WITHOUT 
ADEQUATE INQUIRY CONCERNING HIS MANIFESTLY IM­
PAIRED MENTAL CONDITION VIOLATES THE EIGHTH 
AMENDMENT

But there is an additional reason why the sentence of 
death imposed on this petitioner cannot constitutionally 
stand. The record in this case bears plain indications that 
petitioner is mentally ill. The imposition of a death sen­
tence upon him without adequate inquiry concerning either 
his competency to be executed or his capability to with­
stand the stress of such a sentence violates the Eighth 
Amendment.

(1) This Court need not look to evolving standards of 
decency for evidence that the execution of a mentally dis­
ordered person offends the most basic human precepts 
embodied in our legal history. Coke in 1644 wrote that in 
earlier years it had been provided that:

“. . . if a man attainted of treason become mad, 
that notwithstanding he should be executed which



13

cruell and inhuman law lived not long, but was re­
pealed, for in that point also it was against the com­
mon law, because by intendment of law the execu­
tion of the offender is for example, ut poena ad 
paucos, metus ad omnes perveniat, as before is said: 
but so it is not when a mad man is executed, but 
should be a miserable spectacle, both against law 
and of extreme inhumanity and cruelty, and can be 
no example to others.” (COKE, THIRD INSTI­
TUTE (1644), 6.)13

The British Royal Commission on Capital Punishment 
concluded that:

“It has for centuries been a principle of the com­
mon law that no person who is insane should be 
executed . . . (ROYAL COMMISSION ON CAP­
ITAL PUNISHMENT 1949-1953, REPORT (H.M.S.O. 
1953) [Cmd. 8932] [hereafter cited as ROYAL 
COMMISSION], 13.14 * * * *

The Commission found that “the Home Secretary is under 
a statutory obligation to order a special medical inquiry if 
there is reason to believe that a prisoner under sentence of 
death is insane, and similar inquiries are often held where 
a lesser degree of abnormality is suspected.” ROYAL COM-

13See also, 1 HAWKINS, PLEAS OF THE CROWN (1716), 2; 4 
BLACKSTONE, COMMENTARIES (1803), 24; Hawles, Remarks 
on the Trial of Mr. Charles Bateman, 11 Howell State Trials 474, 476 
(1816); CHITTY, CRIMINAL LAW (Earle Ed. 1819), 525; 1 HALE, 
PLEAS OF THE CROWN (1678), 35, 370; and the authorities cited 
in the dissenting opinion of Mr. Justice Frankfurter in Solesbee v. 
Balkcom, 339 U.S. 9, 16-20, (1950).

14See also ROYAL COMMISSION 123; Testimony of Sir John
Anderson, ROYAL COMMISSION ON CAPITAL PUNISHMENT, 
MINUTES OF EVIDENCE (1949) [hereafter cited as ROYAL COM­
MISSION MINUTES], 363:

“As was stated in the House of Commons in the case of 
Ronald True, ‘the principle that an insane man should not 
go to execution has been enshrined in the Common Law 
since the days of Coke and Hale.’ ”

See also, e.g., id. at 3, 40, 128.



14

MISSION 13. In the event the doctors who examined the 
condemned man found him insane, the Home Secretary was 
required to respite the sentence.

“ [I]t is not only right and proper that the Home 
Secretary should respite the sentence of death and 
direct the prisoner’s removal to Broadmoor or to a 
mental hospital, but it is his imperative duty to do 
so, both under the statute and because it is contrary 
to the common law to execute an insane criminal.” 
(ROYAL COMMISSION 127.)15

The reasons advanced for this traditional prohibition have 
been varied. They include the notions that an insane per­
son can not bring evidence on his own behalf to defeat the 
sentence,16 that the execution of an insane person cannot 
reasonably be thought to deter others,17 that an insane per­
son is not mentally fit to make peace with his maker,18 that 
he has already been punished sufficiently by God or by the 

" fk  devil,19 * and that the execution of an insane person would 
------------

k * * 15See also ROYAL COMMISSION MINUTES 3, 47, 372, 380.
C%C-*1' |_ ^  For general discussion of the British procedure, see ROYAL COM-

MISSION 2, 124-130; ROYAL COMMISSION MINUTES 2, 40, 246, 
f  jV 256, 352, 522; WEIHOFEN, THE URGE TO PUNISH (1956), 52-53.

V  See also WEIHOFEN, THE URGE TO PUNISH (1956), 52-53. See
«|Vt, . “\also WEIHOFEN, MENTAL DISORDER AS A CRIMINAL DEFENSE

\ A ^ / ( i 9 5 4 ), 463-470; Solesbee v. Balkcom, 339 U.S. 9, 26-32 (1950) (dis­
senting opinion of Mr. Justice Frankfurter).

16See, e.g. 4 BLACKSTONE, COMMENTARIES (1803), 24-25; 
Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 Howell 
State Trials 474, 476-477 (1868).

17See, e.g., COKE, THIRD INSTITUTE (1644), 6, p. 13 supra.

18See e.g., Hawles, Remarks on the Trial of Mr. Charles Bateman, 
11 Howell State Trials 474, 477 (1868): “ [It] is inconsistent with 
religion, as being against Charistian charity to send a great offender 
quick, as it is stiled, into another world, when he is not of a capacity 
to fit himself for it.”

19Ehrenzweig, A Psychoanalysis o f the Insanity Plea-Clues to the 
Problems o f Criminal Responsibility and Insanity in the Death Cell,
1 CRIM. L. BULL. (No. 9) 3, 21 (1965) [hereafter cited as Ehrenz- 
weig].

O h * ,

1



15

not satisfy the extreme judgment inflicted on him.20 How­
ever, “ [wjhatever the reason of the law is, it is plain the 
law is so.” Hawles, Remarks on the Trial of Mr. Charles 
Bateman, 11 Howell State Trials 474, 477 (1816).

“When we seek the purpose of the rule we are 
met with diverse explanations of varying persuasive­
ness. The very multiplicity of explanations suggest 
that the rule may have been devised to meet an 
earlier theoretical or practical need or special con­
sensus and has survived the obsolescence of the 
original cause.” Hazard & Louise!!, Death, the 
State, and the Insane: Stay o f Execution, 9
U.C.L.A. L. REV. 381, 383 (1962) [hereafter cited 
as Death, the State, and the Insane].

Its survival, we suggest, manifests a common and unwaver­
ing recognition—albeit expressed through quite wavering and 
often unsatisfactory rationalizations—of Coke’s basic obser­
vation that the execution of the mentally ill constitutes “a 
miserable spectacle,” smacking of “extreme inhumanity and 
cruelty,” supra 21

(2) The record in this proceeding concerning petitioner’s 
mental condition is scant, due in part to the negligible re­
sources allowed his appointed trial counsel,22 and in part 
to Georgia practice which forbids a capital defendant to put 
in evidence of mental impairment relevant to the question 
of sentencing.23 However, enough appears, we think to

20Musselwhite v. State, 215 Miss. 363, 367, 60 So. 2d 807, 809 
(1952): “it is revealed that if he were taken to the electric chair he 
would not quail or take account of its significance.” See also Ehren- 
zweig, at 14-15.

21See also, e.g., Hawles, Remarks from the Trial of Mr. Charles 
Bateman, 11 Howell State Trials 474, 477 (1816): “ [TJhose on 
whom the misfortune of madness fall, it is inconsistent with human­
ity to make examples of them. . . .”

22See note 6, supra.

23A defendant may assert incompetency to be tried, and may 
present evidence on that question; or he may contest guilt on the 
grounds of criminal irresponsibility at the time of the offence. E.g.,



16

establish significant mental abnormality. Petitioner was diag­
nosed on February 28, 1968, to be afflicted with “Mental 
Deficiency, Mild to Moderate, with Psychotic Episodes asso­
ciated with Convulsive Disorder,” and was found incapable 
of cooperating with counsel in his defense. (App. B, p. 2b 
infra.) Although this latter incapacity was found no longer 
to exist on April 15, 1968, the same diagnosis was reported. 
(App. B, p. 3b infra.) Petitioner was not found to be psy­
chotic; and the character and extent of his condition are 
not otherwise disclosed; but the record at the least reveals 
grounds for the gravest doubt of his mental stability.

(3) For any man, be he mentally firm or infirm, con­
demnation under a sentence of death and the “thousand 
days” on death row create conditions of mind-twisting 
stress.24

“He hopes by day and despairs of it by night. As 
the weeks pass, hope and despair increase and 
become equally unbearable. . . .  He is no longer a 
man but a thing waiting to be handled by the execu­
tioners.” (Camus, Reflections on the Guillotine, in 
CAMUS, RESISTANCE, REBELLION AND DEATH 
(1961), 200-201.)25

Dr. Louis J. West has described death row as a “grisly labo­
ratory [which] . . . must constitute the ultimate experimen­
tal stress in which he [sic: the] condemned prisoner’s per­
sonality is incredibly brutalized.”26 Dr. Isidore Zifferstein 
writes that:

Rogers v. State, 128 Ga. 67, 57 S.E. 227 (1907); Summerour v. Fort- 
son, 174 Ga. 862, 164 S.E. 809 (1932).

24LAWES, LIFE AND DEATH IN SING SING (1928), 161-162; 
West, Medicine and Capital Punishment, in Hearings Before the Sub­
committee on Criminal Laws and Procedures o f  the Senate Commit­
tee on the Judiciary, 90th Cong., 2d Sess., on S. 1760, To Abolish 
the Death Penalty (March 20-21 and July 2, 1968) (GP.O. 1970) 
[hereafter cited as Hearings], 124, 127.

2sSee also Ex parte Medley, 134 U.S. 160, 172 (1890).

26West, Medicine and Capital Punishment in Hearings, at 127.



17

“Modern techniques of execution have aimed at 
minimizing the physical pain of dying (although we 
do not really know how much pain is experienced 
in electrocution or execution by gas). But these 
modern techniques have retained to the fullest the 
exquisite psychological suffering of the condemned 
man.

27Zifferstein, Crime and Punishment, 1 THE CENTER MAGA­
ZINE (No. 2) 84 (Center for the Study of Democratic Institutions 
1968). We must admit that the published literature concerning the 
psychological impact of the “thousand days” upon condemned men 
is limited and unsystematic. This is one of the subjects concerning 
which counsel for petitioner have, in other litigations, unsuccessfully 
sought to present evidence. See Brief for Petitioner, in Aikens v. 
California, supra, n. 120. The literature contains enough, however, 
to glimpse the extent of the pressures upon the condemned. As exe­
cution approaches, some prisoners exhibit grossly psychotic reactions, 
see, e.g., ESHELMAN, DEATH ROW CHAPLAIN (1962), 159-161; 
DUFFY & HIRSHBERG, 88 MEN AND 2 WOMEN (1962), 221-223, 
229-230; Ehrenzweig 11, while other prisoners respond to the stress 
with psychological mechanisms involving major personality distortion. 
See Bluestone & McGahee, Reaction to Extreme Stress: Impending 
Death by Execution, 119 AM. J. PSYCHIATRY 393 (1962).

Institutional practices on death row recognize the likelihood of 
extreme reactions from the condemned, particularly suicide attempts. 
“The ‘cheating of the chair’ by escape or suicide is rendered practi­
cally impossible by . . . extraordinary precautions against these con­
tingencies.” LAWES, LIFE AND DEATH IN SING SING (1928), 
161. In Warden Lawes’ experience, these precautions cover the minu­
test detail, including paring the fingernails of the condemned once 
or twice a week “as long nails could be used to cut the arteries of 
the wrist.” Id. at 163-164. In spite of these precautions, attempts 
at suicide are not rare phenomena, id. at 163, 177, and occasionally 
succeed, id., 165, 180; LAWES, TWENTY THOUSAND YEARS IN 
SING SING (1932), 334; DUFFY & JENNINGS, THE SAN QUEN­
TIN STORY, (1950) 108-109; ESHELMAN, DEATH ROW CHAP­
LAIN (1962), 161-164. Such attempts have sometimes required sur­
gical intervention to save the life of the condemned man in order 
that he could be properly executed. LAWES, LIFE AND DEATH 
IN SING SING (1928), 165, 177; DUFFY & HIRSHBERG, 88 MEN 
AND 2 WOMEN (1962), 51-52; ESHELMAN, DEATH ROW CHAP­
LAIN (1962), 164-165. See generally Gottlieb, Capital Punishment,
15 CRIME & DELINQUENCY 1, 8-10 (1969).



18

(4) Under these circumstances, we believe that a judg­
ment inflicting a sentence of death upon petitioner, in the 
absence of further inquiries into his mental state, subjects 
him to a cruel and unusual punishment. We recognize that 
in the Crumpton case28 this Court declined to hold that the 
Due Process Clause required any particular form of proce­
dure by which facts relevant to the sentencing decision in a 
capital case could be put into the record. But the question 
here is not one concerning forms of procedure: it is
whether, once facts are called to the trial court’s attention 
which convey notice that its process may be unconstitu­
tional, it is required by the Constitution to conduct an ade­
quate inquiry into those facts. Cf. Pate v. Robinson, 383 
U.S. 375 (1966). We think that it is, where the effect of 
its process subjects a man who may be mentally ill not only 
to the jeopardy of electrocution, but to the devastating 
stresses of death row.

(5) We must also recognize, of course, that the tradi­
tional Anglo-American inhibition upon the execution of the 
insane has been enforced by post-conviction, non-judicial 
process; and that Georgia provides a form of such process 
for an inquiry into the insanity of the condemned. See Ga. 
Code Ann., § 27-2602 (1970 Cum. pocket part), App. A,
p. 3a infra; Solesbee v. Balkcom, 339 U.S. 9 (1950). Pur­
suant to that statute, the Governor may, in his discretion, 
cause a condemned man to be mentally examined; and if 
the Governor finds that he has become insane subsequent 
to his conviction, the Governor may commit him to a state 
hospital until his sanity is restored. When his sanity is re­
stored he is returned to Court, a new death warrant for his 
execution is signed, and he is executed. Ga. Code Ann.
§ 27-2604 (1953), App. A, p. 3a infra.

Solesbee sustained the constitutionality of this procedure 
as a corrective against insanity supervening trial and sen-

2% Crampton v. Ohio, reported sub nom. McGautha v. California, 
402 U.S. 183 (1971).



19

tence. But we do not think that its existence, or even its 
constitutionality in that context, warrants a court imposing 
a sentence of death upon a man of manifestly questionable 
mentality without first making its own thorough inquiry 
and determination whether he is competent to be put to 
death and capable of receiving a death sentence.29 This is 
so for two basic reasons.

First, the Georgia Governor’s'process can reprieve a con­
demned man from death, but not from the torments of a 
death sentence. Those torments are agonizing even for 
a mind of normal stability, but may be unbearable for an 
unstable one. Without adequate judicial inquiry into the 
mental state of the defendant, a death sentence may be tan­
tamount to a sentence of insanity.

Second, the gubernatorial reprieve merely sets in motion 
a procedure by which the condemned man is hospitalized 
and healed enough to kill. Georgia’s insistence upon exe­
cuting a condemned man following his restoration to sanity 
is consistent with prevailing American practice.30 It is, how­
ever, a plain barbarity which the Eighth Amendment should 
condemn. In England, at least since 1840, “there has been 
no case where a prisoner has been executed after being cer­
tified insane under the statute in force at the time.”31 In 
principle as well as in fact, the Royal Commission found:

“. . . If a prisoner under sentence of death is cer­
tified insane and removed to Broadmoor, it is 
unthinkable that the sentence should ever be car­
ried out in the event of his recovery. . . ,”32

29See also Nobles v. Georgia, 168 IJ.S. 398 (1897); Phyle v. Duffy, 
334 U.S. 431 (1948); Caritativo v. California, 357 U.S. 549 (1958).

30w e ih o f e n , m e n t a l  d is o r d e r  a s  a  c r im in a l  d e ­
f e n s e  (1954) 468-470; Death, the State, and the Insane 382-383; 
Ehrenzweig 11.

31 ROYAL COMMISSION 128.

32ROYAL COMMISSION 157-158. See also Feltham, The Com­
mon Law and the Execution o f  Insane Criminals, 4 MELBOURNE 
U.L. REV. 434, 475 (1964): “if such a medical inquiry finds a priso-



20

A judicial sentence of death imposed upon a man in the 
same condition—or for want of inquiry upon notice that he 
may be in the same condition—seems to us equally unthink­
able. It is no less so because thereafter, by executive grace, 
he may be permitted to vacillate between insanity and 
death’.

CONCLUSION

The death sentence imposed upon petitioner William 
Henry Furman should be set aside as a cruel and unusual 
punishment.

Respectfully submitted,

JACK GREENBERG
JAMES M. NABRIT, III
JACK HIMMELSTEIN
ELIZABETH B. DuBOIS
JEFFRY A. MINTZ
ELAINE R. JONES

10 Columbus Circle, Suite 2030 
New York, New York 10019

B. CLARENCE MAYFIELD 
910 West Broad Street 
Savannah, Georgia 31401

MICHAEL MELTSNER
Columbia University Law School
435 West 116th Street
New York, New York 10027

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305

A tto rn e y s  fo r  Petitioners

ner insane; there should be a mandatory duty upon the executive to 
reprieve. This, although not required by law, has been the invariable 
practice in England since 1840 and is no more than common decency 
and humanity requires.”



A-i

TABLE OF AUTHORITIES 
APPENDICES

Page
Statutory Provisions:

Ga. Code Ann., § 26-1001 (1953 Rev. vol.)................................. la

Ga. Code Ann., § 26-1002 (1953 Rev. vol. ) ..............................  la
Ga. Code Ann., § 26-1005 (1970 Cum. pocket p a rt) ..................  la-2a
Ga. Code Ann., § 26-1009 (1953 Rev. vol.).................................  2a
Ga. Code Ann., § 27-2512 (1953 Rev. vol.)................................. 2a-3a

Ga. Code Ann., § 27-2602 (1970 Cum. pocket p a rt) .................. 2a
Ga. Code Ann., § 27-2604 (1953 Rev. vol.)................................. 3a-4a
Ga. Crim. Code, § 26-1101 (1970 Rev. v o l . ) ..............................  4a

Ga. Crim. Code, § 26-3102 (1970 Rev. v o l . ) ..............................  4a-5a



la

APPENDIX A
STATUTORY PROVISIONS INVOLVED

Ga. Code Ann., § 26-1001 
(1953 Rev. vol.) 

effective prior to July 1, 1969

26-1001. (59 P.C.) Definition; kinds.—Homicide is the 
killing of a human being, and is of three kinds—murder, 
manslaughter, and justifiable homicide. (Cobb, 783.)

Ga. Code Ann., § 26-1002 
(1953 Rev. vol.) 

effective prior to July 1, 1969

26-1002. (60 P.C.) Murder defined.—Murder is the un­
lawful killing of a human being, in the peace of the State, 
by a person of sound memory and discretion, with malice 
aforethought, either express or implied. (Cobb, 783.)

Ga. Code Ann. § 26-1005
(1970 Cum. pocket part) 

effective prior to July 1, 1969
26-1005. (63 P.C.) Punishment for murder; recommen­

dation by jury.—The punishment for persons convicted of 
murder shall be death, but may be confinement in the pen­
itentiary for life in the following cases: If the jury trying 
the case shall so recommend, or the the conviction is founded 
solely on circumstantial testimony, the presiding judge may 
sentence to confinement in the penitentiary for life. In the 
former case it is not discretionary with the judge; in the 
latter it is. When it is shown that a person convicted of 
murder had not reached his 17th birthday at the time of 
the commission of the offense, the punishment of such per­
son shall not be death but shall be imprisonment for life.

Whenever a jury, in a capital case of homicide, shall find 
a verdict of guilty, with a recommendation of mercy, instead 
of a recommendation of imprisonment for life, in cases



2a

where by law the jury may make such recommendation, 
such verdict shall be held to mean imprisonment for life.
If, in any capital case of homicide, the jury' shall make any 
recommendation, where not authorized by law to make a 
recommendation of imprisonment for life, the verdict shall 
be construed as if made without any recommendation. 
(Cobb, 783. Acts 1875, p. 106; 1878-9, p. 60; 1963, p. 122.)

Ga. Code Ann., § 26-1009 
(1953 Rev. vol.) 

effective prior to July 1, 1969

26- 1009. (67 P.C.) Involuntary manslaughter defined.— 
Involuntary manslaughter shall consist in the killing of a 
human being without any intention to do so, but in the 
commission of an unlawful act, or a lawful act, which prob­
ably might produce such a consequence, in an unlawful 
manner: Provided, that where such involuntary killing shall 
happen in the commission of an unlawful act which, in its 
consequences, naturally tends to destroy the life of a human 
being, or is committed in the prosecution of a riotous 
intent, or of a crime punishable by death or confinement
in the penitentiary, the offense shall be deemed and 
adjudged to be murder. (Cobb, 784.)

Ga. Code Ann., § 27-2512 
(1953 Rev. vol.)

27- 2512. Electrocution substituted for hanging; place of 
execution.—All persons who shall be convicted of a capital 
crime and who shall have imposed upon them the sentence 
of death, shall suffer such punishment by electrocution 
instead of by hanging.

In all cases in which the defendant is sentenced to be 
electrocuted it shall be the duty of the trial judge, in pass­
ing sentence, to direct that the defendant be delivered to 
the Director of Corrections for electrocution at such penal 
institution as may be designated by said Director, However, 
no executions shall be held at the old prison farm in Bald-



3a

win county. (Acts 1924, pp. 195, 197; Acts 1937-38, Extra 
Sess., p. 330.)

Ga. Code Ann., § 27-2602 
(1970 Cum. Pocket part)

27-2602. (1074 P.C.) Disposition of insane convicts.
Cost of investigations.—Upon satisfactory evidence being 
offered to the Governor, showing reasonable grounds to 
believe that a person convicted of a capital offense has 
become insane subsequent to his conviction, the Governor 
may, in his discretion, have said person examined by such 
expert physicians as the Governor may choose, the cost of 
said examination to be paid by the Governor out of the 
contingent fund. It shall be the responsibility of the Gover­
nor to cause said physicians to receive written instructions 
which plainly set forth the legal definitions of insanity as 
recognized by the laws of this State, and said physician shall, 
after making the necessary examination of the prisoner, 
report in writing to the Governor whether or not reasona­
ble grounds exist to raise an issue that the prisoner is insane 
by the standards previously specified to them by the Gover­
nor. The Governor may, if he shall determine that the per­
son convicted has become insane, have the power of com­
mitting him to the Milledgeville State Hospital until his san­
ity shall have been restored or determined by laws now in 
force. (Acts 1903, p. 77; 1960, pp. 988, 989.)

Ga. Code Ann., § 27-2604 
(1953 Rev. vol.)

27-2604. (1076 P.C.) Resentence and warrant on recov­
ery of convict.—If the convict mentioned in the preceding 
section should recover, the fact shall be at once certified by 
the superintendent of the Milledgeville State Hospital to the 
judge of the court in which the conviction occurred. When­
ever it shall appear to the judge by said certificate, or by 
inquisition or otherwise, that the convict has recovered and 
is of sound mind, he shall have the convict removed to the



4a

jail of the county in which the conviction occurred, or to 
some other safe jail, and shall pass sentence, either in term 
time or vacation, upon the convict, and he shall issue a new 
warrant, directing the sheriff to do execution of the sen­
tence at such time and place as may be named in the war­
rant, which the sheriff shall be bound to do accordingly.
The judge shall cause the new warrant, and other proceed­
ings in the case, to be entered on the minutes of said super­
ior court. (Acts 1874, p. 30.)

Ga. Crim. Code, § 26-1101 
(1970 Rev. vol.)

(effective July 1, 1969)

26-1101. Murder.—(a) A person commits murder when 
he unlawfully and with malice aforethought, either express 
or implied, causes the death of another human being. 
Express malice is that deliberate intention unlawfully to take 
away the life of a fellow creature, which is manifested by 
external circumstances capable of proof. Malice shall be 
implied where no considerable provocation appears, and 
where all the circumstances of the killing show an aban­
doned and malignant heart.

(b) A person also commits the crime of murder when in 
the commission of a felony he causes the death of another 
human being, irrespective of malice.

(c) A person convicted of murder shall be punished by 
death or by imprisonment for life.

(Acts 1968, pp. 1249, 1276.)

Ga. Crim. Code § 26-3102 
(1970 Rev. vol.) 

effective July 1, 1969

26-3102. Capital offenses—jury verdict and sentence.— 
Where, upon a trial by jury, a person is convicted of an 
offense which may be punishable by death, a sentence of 
death shall not be imposed unless the jury verdict includes 
a recommendation that such sentence be imposed. Where



5a

a recommendation of death is made, the court shall sen­
tence the defendant to death. Where a sentence of death 
is not recommended by the jury, the court shall sentence 
the defendant to imprisonment as provided by law. Unless 
the jury trying the case recommends the death sentence in 
its verdict, the court shall not sentence the defendant to 
death. The provisions of this section shall not affect a sen­
tence when the case is tried without a jury or when the 
judge accepts a plea of guilty.

(Acts 1968, pp. 1249, 1335; 1969, p. 809.)



lb

APPENDIX B 
PSYCHIATRIC REPORTS

Pursuant to petitioner’s commitment for a pretrial men­
tal examination in this case (A. 8), the following two letters 
were written by the Superintendent of the Georgia Central 
State Hospital to the trial court below. They were subse­
quently made a part of the record of the trial court by 
express written order;lb and petitioner’s notice of appeal 
requested the clerk to transmit the entire record to the 
Georgia Supreme Court.2b However, for reasons unknown 
to us, the clerk of the trial court neglected to transmit the 
letters as a part of the appellate record; and they were not 
before the Georgia Supreme Court. Subsequent to this 
Court’s order granting certiorari, petitioner’s counsel noticed 
their absence and asked the clerk of the Chatham County 
Supreme Court to certify the records of the Georgia 
Supreme Court. The clerk did so; whereupon the clerk of 
the Georgia Supreme Court transmitted them to this Court 
under certification reciting that they were not a part of the 
record in the Georgia Supreme Court.

Under these circumstances, we think that the letters are 
properly a part of the record upon which this Court may 
consider the case. Petitioner did all that he was required 
to do in order to include them in the appellate record, and 
is not responsible for the clerk’s neglect. The authenticity 
of the letters cannot be questioned; they are a part of the 
trial court record; and their absence from the record before 
the Georgia Supreme Court did not affect the course of the 
litigation in any way. That court’s decision of the Eighth 
Amendment question was perfunctory in any event, since

lbOrder, dated February 20, 1969 (R. 44): “FURTHER
ORDERED that the Psychiatric Report of the Movant WILLIAM 
HENRY FURMAN be and is made a part of this record.”

2bNotice of Appeal, dated March 3, 1969 (R.l): “The clerk will 
please include the entire record on appeal.”



2b

the question was foreclosed by—and decided summarily on
authority of—several prior Georgia decisions.

* * *

STATE OF GEORGIA 
CENTRAL STATE HOSPITAL 

MILLEDGEVILLE, GEORGIA 31062

February 28, 1968

Honorable Dunbar Harrison 
Judge, Superior Court 
Eastern Judicial Circuit 
c/o Courthouse 
Savannah, Georgia

Re: William Henry Furman 
Case No: 157 086 
Binion 4

Dear Judge Harrison:

The above named patient was admitted to this hospital 
on October 26, 1967, by Order of your Court.

The patient was presented to a staff meeting today, Feb­
ruary 28, 1968. It was the unanimous opinion of the mem­
bers of the staff, Dr. Elpidio Stincer, Dr. Jose Mendoza, and 
Dr. Armando Gutierrez, that this patient should retain his 
present diagnosis of Mental Deficiency, Mild to Moderate, 
with Psychotic Episodes associated with Convulsive Disor­
der.

It was also agreed that at present the patient is not psy­
chotic, but he is not capable of cooperating with his coun­
sel in the preparation of his defense.

We feel at this time that he is in need of further psychia­
tric hospitalization and treatment. He will be reevaluated 
at a later date and presented to the staff again for a deci-



3b

sion as to his final disposition. We will notify you of the 
results of that meeting.

Yours very truly,
N
James B. Craig, M.D. 
Superintendent
By: E. Stincer, M.D.
Senior Staff Physician

ES:jfh

STATE OF GEORGIA 
CENTRAL STATE HOSPITAL 

MILLEDGEVILLE, GEORGIA 31062

April 15, 1968

Honorable Dunbar Harrison 
Judge, Superior Courts [sic]
Eastern Judicial Circuit 
c/o Courthouse 
Savannah, Georgia

Re: William Henry Furman 
Case No. 157 086 
Binion 4

Dear Judge Harrison:

The above named patient was admitted to this hospital 
on October 26, 1967 by Order of your Court.

An evaluation has been made by our staff and a diagno­
sis of Mental Deficiency, Mild to Moderate, with Psychotic 
Episodes associated with Convulsive Disorder, was made. It 
is felt that he is not psychotic at present, knows right from 
wrong and is able to cooperate with his counsel in prepar­
ing his defense.



4b

It is recommended that he be returned to the court for 
disposition of the charges pending against him. Please have 
a duly authorized person to call for him at your earliest 
convenience.

Yours very truly,

/s /
James B. Craig, M.D. 
Superintendent
By: E. Stincer, M.D. 
Senior Staff Physician

ES:jfh
CC: Hon. Andrew Joe Ryan, Jr.

Solicitor General
Hon. Carl A. Griffin 
Sheriff, Chatham County