Singleton v Jackson Municipal School District Appeal

    IN THE

CInurt rtf tljp llmti'ii States
O c t o b e r  T erm , 1978

No. 78-6140 
(A-697)

ALPHONSO MORGAN,
Petitioner,

v.

STATE OF GEORGIA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

F r e d e r ic k  A. O. S c h w a r z , J r ., 
One Chase Manhattan Plaza, 

New York, N.Y. 10005 
Counsel for Petitioner

Of Counsel:
J o h n  H. P ic k e r in g ,

1666 K Street N.W.,
Washington, D.C. 20006

T ho m as  J. D o u g h e r t y ,
M a rk  P. S c h n a p p ,
C a t h e r in e  M. R a y m o n d ,
F r a n c is  P. B a r r o n ,

C r a v a t h , S w a in e  & M o o r e ,
One Chase Manhattan Plaza,

New York, N.Y. 10005 March 24, 1979.





TABLE OF CONTENTS

O p in io n  B e l o w ..........................................................................  1
J u r is d ic t io n ..........................................     2
T h e  S ta y  in  t h is  C o u r t .......................................................... 3
C o n s t it u t io n a l  a n d  St a t u t o r y  P r o v isio n s  I n ­

v o l v e d  ................................................................................    3
Q u e st io n s  P r e s e n t e d .............................................................  4

On the Merits.......................................................  4
On the Imposition of the Death Penalty...... ....... 4
On the Denial of Counsel..................    6

Sta tem en t  o f  t h e  C ase ...............     6
How t h e  F ed era l  Q u e st io n s  W ere R a is e d ...............  16
R easons  for  G r a n t in g  th e  W r it ....................................  18

Page

I. P e t it io n e r ’s c o n fe ssio n s  w e r e  in ­
a d m issible  IN THAT THEY WERE TAINTED 
BY HIS UNLAWFUL ARREST AND WERE IN­
VOLUNTARY. T h e  fa il u r e  of t h e  t r ia l
COURT TO HOLD A FULL AND FAIR HEARING 
ON THE ADMISSIBILITY OF HIS POST-ARREST 
STATEMENTS DENIED PETITIONER DUE PRO­
CESS OF LAW.................... ........................................  19

II. The JURY INSTRUCTIONS APPROVED BY 
G e o r g ia ’s S u pr em e  C o u r t  are fla tly  
INCONSISTENT WITH THIS COURT’S RECENT 
RULINGS AS TO WHEN A DEATH SENTENCE 
MAY CONSTITUTIONALLY BE IMPOSED............ 21

A. The Jury Was Not Told Its Decision on
Life or Death Must Include Focus on 
the Particular Characteristics of the 
Defendant..........................................  22

B. The Term “Mitigating” Was Not De­
fined for the Jury, and Concrete Ex­
amples of Mitigating Circumstances 
Were Not Provided............................  23

C. The Jury Also Was Not Informed That
It Should Weigh “Mitigating” Cir­
cumstances Against Aggravating Cir­
cumstances .........................................  26



ii

D. The Jury Also Was Not Told It Could
Impose a Life Sentence Even if It 
Found One of the Statutory 
Aggravating Circumstances. Indeed 
the Overall Impact of the Charge 
Was To Suggest It Could Not............  26

E. The Decision Below Is Based Upon
Misunderstanding of This Court’s 
View of the Constitutional Require­
ments in Death Cases...................... .........  27

III. T h e  d ea th  pe n a l t y  in s t r u c t io n s  also
RAISE THE IMPORTANT AND RECURRING 
QUESTION AS TO WHETHER, WHERE THE 
STATUTORY SCHEME PROVIDES THAT THE 
JURY’S DECISION ON DEATH MUST BE FOL­
LOWED BY THE TRIAL JUDGE, THE JURY MAY 
NONETHELESS BE LED TO BELIEVE THAT ITS 
ROLE IS ONLY TO “ RECOMMEND” OR “ ASK”
FOR DEATH................................................................  28

IV. C o n tr a r y  t o  t h is  C o u r t ’s e x pe c t a t io n s
AS EXPRESSED IN Gregg, THE GEORGIA 
COURTS HAVE NOT NARROWED THE VAGUE 
AND OVERBROAD STATUTORY AGGRAVAT­
ING CIRCUMSTANCE USED AGAINST PETI­
TIONER. T h u s , h is  d ea th  sen ten c e  w a s ,
FOR THAT ADDITIONAL REASON, THE UN­
CONSTITUTIONAL RESULT OF UNFETTERED
JURY DISCRETION...................................................  30

V. T h e  G e o r g ia  Su pr em e  C o u r t  a lso  has
ABANDONED THE APPELLATE REVIEW PRO­
CESS WHICH WAS ASSUMED BY THIS COURT 
IN Gregg TO BE AN IMPORTANT CON­

Page

STITUTIONAL SAFEGUARD.......... ...............   33
VI. F a il u r e  t o  t r a n sc r ib e  th e  a r g u m e n t s  t o

THE JURY AND TO PROVIDE THEM TO THE 
APPELLATE COURT DEPRIVED PETITIONER 
OF DUE PROCESS OF LAW.....................................  37

VII. T h e  in c o n s is t e n t  trea tm en t  o f  c a p it a l
CASES BY THE GEORGIA COURTS RENDERS
a ll  G e o r g ia  d ea th  sen ten ces  u n c o n ­
s t it u t io n a l ............................................................  39

VIII. T h e  case also  sh o u l d  be h ea r d  so  as t o
reiterate the fundamental principal
THAT COUNSEL MAY NOT BE DENIED WHERE 
LIFE IS AT STAKE...................................................... 40



Ill

TABLE OF AUTHORITIES

Cases Page

Aguilar v. Texas,
378 U.S. 108 (1964).........................................  19

Andres v. State,
333 U.S. 740 (1948).........................................  21

Banks v. State,
237 Ga. 325, 227 S.E.2d 380 (1976), cert, 

denied, 430 U.S. 975 ( 1977)......................... 31-32
Berger v. United States,

295 U.S. 78 ( 1935)........................................... 38
Berry hill v. State,

235 Ga. 549, 221 S.E.2d 185 (1975), cert,
denied, 429 U.S. 1054 (1977).......................  37

Birt v. State,
236 Ga. 815, 225 S.E.2d 248, cert, denied, 429

U.S. 1029 (1976).......................................... 37
Blake v. State,

239 Ga. 292, 236 S.E.2d 637, cert, denied, 434 
U.S. 960 (1977)............................................ 36

Bollenbach v. United States,
326 U.S. 607 (1946) ........... .............................  29

Brown v. Illinois,
422 U.S. 590 (1975)..... ...................... ........... . 19,20

Gallon v. Utah,
130 U.S. 83 (1889)........................................... 21

Coker v. Georgia,
433 U.S. 584 (1977)......................................... 24

Coolidge v. New Hampshire,
403 U.S. 443 (1971) 20



IV

Cases Pjjgg

Dix v. State,
238 Ga. 209, 232 S.E.2d 47 (1977)......... . 36

Dobbert v, Florida,
432 U.S. 282 (1977)...... ......... ....... ..... ..... . 29-30

Douglas v. California,
372 U.S. 353 (1963).......... ..............................  40

Duhart v. State,
237 Ga. 426, 228 S.E.2d 822 (1976)..... . 35, 40

English v. State,
234 Ga. 602, 216 S.E.2d 851 (1975)............ . 35

Fleming v. State,
240 Ga. 142, 240 S.E.2d 37 (1977)................  29

Floyd v. State,
233 Ga. 280,210 S.E.2d 810 (1974)......... . 37

Frazier v. Cupp,
394 U.S. 731 (1969)....... .................................  21

Furman v. Georgia,
401 U.S. 238 (1972)....... ......................... .......  17,18,28,

37, 39
Gardner v. Florida,

430 U.S. 349 (1977)........................... ......... . 37, 39
Gibson v. State,

236 Ga. 874, 226 S.E.2d 63 (1976).... .............  37
Gillespie v. State,

236 Ga. 845, 225 S.E.2d 296 (1976)................  35
Groyned v. City of Rockford,

408 U.S. 104 (1972)................ ................... . 33
Gregg v. Georgia,

428 U.S. 153 (1976)........................................ . Passim
Griffin v. California,

380 U.S. 609 (1965)........................................ 38



V

Cases Page

Haley v. Ohio,
332 U.S, 596 (1948)......................................... 21

Harris v. State,
237 Ga. 718, 230 S.E.2d i (1976), cert, de­

nied, 431 U.S. 933 ( 1977)............................. 32,36
Hawes v. State,

240 Ga. 327, 240 S.E.2d 833 ( 1977)...... . 29, 38
Heflin v. United States,

358 U.S. 415 ( 3959)......................................... 2
House v. State,

232 Ga. 340, 205 S.E.2d 217, cert, denied, 428
U.S. 910 (3974).............. .............................  36,37

Jackson v. Denno,
378 U.S. 368 (1964).........................................  20

Jarrell v. State,
234 Ga. 410, 216 S.E.2d 258 ( 1975), cert.

denied, 428 U.S. 910 (1976).........................  37
Jurek v. Texas,

428 U.S. 262 (1976).........................................  22,26,27
Lego v. Twomey,

404 U.S. 477 (1972).............. ............. ........... . 20
Lisenba v. California,

314U.S. 219 (1941)......................................... 23
Lockett v. Ohio,

-  U.S. _ , No. 74-329, slip op. (July 3, 1978). 23,29 
Mason v. State,

236 Ga. 46, 222 S.E.2d 339 (1975), cert.
denied, 428 U.S. 910 (1976)......................... 13,28

Mayer v. City o f Chicago,
404 U.S. 189 ( 1971)................ ........................  39

McCorquodale v. Georgia,
233 Ga. 369, 211 S.E.2d 577 (1974), cert.

denied, 428 U.S. 910 (1976)......................... 31, 36, 37



VI

Cases Pggg

MeGautha v. California,
402 U.S. 183 (1971)...................................... . 22

McKenna v. Ellis,
280 F.2d 592 (5th Cir. 1960) ................. .........  41

Payton (Riddick) v. New York,
No. 78-5420 (Oct. Term 1978)..... .............. 20

Perez v. United States,
297 F.2d 12 (5th Cir. 1961)..................... ...........  29

Pollard v. United States,
352 U.S. 354 (1957)................... .......... ..........  18

Powell v. Alabama,
287 U.S. 45 (1932)...........................................  19,40

Prevatte v. State,
233 Ga. 929, 214 S.E.2d 365 (1975)................  29, 38

Proffitt v. Florida,
428 U.S. 242 (1976) .........................................  22, 26, 28, 29

Roberts v. Louisiana,
428 U.S. 325 (1976)........... ........... .................  23

Sanchez v. State,
236 Ga. 848, 225 S.E.2d 296 (1976)................. 35

Sanders v. State,
235 Ga. 425, 219 S.E.2d 292 (1976)........ .....  25,35

Schacht v. United States,
398 U.S. 58 (1970)............ ................. .......... 2

Schmidt v. Hewitt,
573 F.2d 794 (3d. Cir. 1978).......... ............. . 21

Silber v. United States,
370 U.S. 717 (1962)........................................  18

Smith v. United States,
230 F.2d 935 (6th Cir. 1977)................ ........ 29

Spano v. New York,
306 U.S. 315 (1959)......................................... 21



Spinelli v. United States,
393 U.S. 410 (1969).........................................  19

Spinkellink v. Wainwright,
No. 78-6048 (filed Jan. 16, 1979)....................  6

Spivey v. Georgia,

vii

Cases Page

241 Ga. 477, 246 S.E. 288 (1978), cert, de­
nied, No. 78-5460, slip. op. (Dec. 4, 1978)... 17, 19, 27,

28, 39
Stanley v. State,

240 Ga. 341,241 S.E.2d 273 (1977)................  37
Stephens v. Hopper,

241 Ga. 596, 247 S.E.2d 92 (1978), cert, 
denied, — U.S. —, No 78-5544, slip. op.
(Nov. 27, 1978)............................................  38,39

Stovall v. State,
236 Ga. 840, 225 S.E.2d 292 (1976).............. 25, 35

Taglianetti v. United States,
394 U.S. 316 (1969).... ....................................  2

Taylor v. Kentucky,
436 U.S. 478 (1978)........... .............................  21

Thomas v. State,
240 Ga. 393, 242 S.E.2d 1 (1977), cert. de- 

nied, 436 U.S. 914 (1978).............................  36,37
United States v. Atkinson,

297 U.S. 157 (1936).......... ............................... 18
United States v. Pope,

561 F.2d 663 ( 6th Cir. 1977)................... .......  29
United States v. Woods,

487 F.2d 1218 (5th Cir. 1973).........................  41
Vachon v. New Hampshire,

414 U.S. 478 (1974) . 18



VU1

Coses Page

Wong Sun v. United States,
371 U.S. 471 (1963).........................................  19,20

Woodson v. North Carolina,
428 U.S. 280 (1976) ............................. ............ 18, 19, 22, 23

Young v. State,
239 Ga. 53, 236 S.E.2d 1, cert, denied, 434 

U.S. 1002 (1977)........ .................................  37
Other Authorities
Cardqzo, Law and Literature (1931).......... ........... 22
Stern and Gressman, Supreme Court Practice, 5th 

ed-1978)...... ....................................... ........... . 2,17
Statutes
28 U.S.C. § 1257(3)..... ...........................................  2
28 U.S.C. § 2101(d)............................................... . 2
Ga. Code Ann. § 27-2503(b)...................................  27
Ga. Code Ann. § 27-2514.........................................  13,28
Ga. Code Ann. § 27-2534.1 ......................... ........... . 24
Ga. Code Ann. § 27-2534.1 (b )(7 )..........................  31
Ga. Code Ann. § 27-2534.1(c) ................. ..............  26
Ga. Code Ann. § 27-2537(a)...................................  7, 15
Ga. Code Ann. § 27-2537(e)................................ . 34
Ga. Code Ann. § 27-2537(c)(3).............................  34
Rules and Regulations
Rule 34 of the Supreme Court of Georgia...............  59a



IN THE

(&smtt %  In M
October Term, 1978

No, 78-6140 
(A-697)

ALPHONSO MORGAN,
Petitioner,

v.

STATE OF GEORGIA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioner Alphonso Morgan respectfully prays that a 
Writ of Certiorari issue to review the judgment of the 
Supreme Court of Georgia affirming his conviction for 
murder, kidnapping and armed robbery, and—by a 4-3 
vote—affirming his sentence of death for murder.

OPINION BELOW
The opinion of the Supreme Court of Georgia affirm­

ing Petitioner’s conviction and sentence, and the opinion 
dissenting from the imposition of the death penalty, are 
reported at 241 Ga. 485, 246 S.E.2d 198 (1978), and 
printed in Appendix E at 11a.*

* References to the Appendices are designated by the suffix “a”.



2

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C 
§ 1257(3).

The judgment of the Supreme Court of Georgia was 
entered on June 28, 1978.

The untimeliness of the petition is not jurisdictional, 
at least in criminal cases of this sort, where the statute (28 
U.S.C. § 2101(d)) authorizes this Court to fix the time by 
rule.1

This Court should here exercise its discretion to waive 
the normal time limits: first, because death is unique and 
irreversible;2 second, because of the seriousness of the 
constitutional errors involved—including the complete 
failure by the Georgia courts to fulfill the expectations that 
a plurality of this Court relied upon in concluding in 1976 
that the Georgia death penalty statute could be adminis­
tered constitutionally; and, third, because of the abandon­
ment of petitioner, an incarcerated indigent black youth, 
by his Georgia assigned counsel both before and after the 
decision of the State Supreme Court.3

1 See Schacht v. United States, 398 U.S. 58, 63-64 ( 1970) 
Taglianetti v. United States, 394 U.S. 316 (1969); Heflin v. United 
States, 358 U.S. 415, 418 n.7 (1959); see also Stern and G ressman, 
Supreme Court Practice, 389-95 (5th ed. 1978), listing numerous 
examples of late filings permitted by this Court, including cases from 
state courts where Rule 22(1) would be applicable.

2 See Stern and G ressman, op. cit, at 391(d) and 393(k).
3 Following the decision of the Georgia Supreme Court, assigned 

counsel did absolutely nothing but tell petitioner (by telephone) that 
he had been “turned down.” See Motion for Stay of Execution at 2. 
He did not even advise petitioner of his possible remaining remedies. 
Petitioner made numerous unsuccessful attempts to obtain counsel 
and advice as to his legal options (App. at 42a, 53a, 54a, 64a.) It was 
only on January 30, 1979—with his electrocution scheduled for 
February 7—that petitioner finally was able to secure legal assistance. 
Motion for Stay of Execution at 2; App. at 3a.



3

THE STAY IN THIS COURT

On or about January 30, 1979, petitioner was notified 
that he would be electrocuted on February 7, 1979 (App. 
at 3a).

Millard Farmer thereupon agreed to represent peti­
tioner in order to seek a stay of execution from this Court 
and to obtain other counsel to represent him in petitioning 
this Court. An application for a stay was filed on 
February 1, 1979, accompanied by a hurried certiorari 
petition, required to obtain the stay. That petition in­
dicated that within 30 days new pro bono counsel would 
convert the “overnight petition” into a “meaningful legal 
document”. Petition at 8; see Motion for Stay of Execu­
tion at 2.

On February 2, 1979, Mr. Justice Powell stayed 
execution of the death sentence pending disposition of 
petitioner’s writ of certiorari (App. at 6a).

On February 24, 1979, the Clerk of this Court advised 
the undersigned by letter (App. at 10a) that petitioner 
would have until March 24, 1979, to supplement the 
petition.4 Undersigned counsel concluded that this self- 
contained petition would best serve the interests of peti­
tioner and the interests of justice, and thus the previously 
filed “overnight petition” need only be referenced as 
background.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The relevant provisions of the United States Con­
stitution and the Georgia statutes are printed in Appendix 
V at 88a.

4 The undersigned meanwhile had been requested by petitioner 
(initially through the NAACP Legal Defense Fund) to represent him 
in these proceedings.



4

QUESTIONS PRESENTED 

On the Merits
1. Whether petitioner’s confessions should have been 

excluded:
(a) as the fruit of an unlawful arrest where (i) 

there was only conclusory testimony that information 
supporting probable cause was reliable, (ii) no war­
rant was obtained for the daybreak arrest in petition­
er’s home (although the police conceded facts which 
demonstrated time to secure a warrant), and (iii) the 
trial court declined to rule on the legality of the arrest;

and
(b) as involuntary where the trial court ruled the 

confession admissible after a “hearing” (i) in which 
it excluded testimony suggesting that petitioner did 
not realize that his oral statements could be used 
against him; (ii) which it cut off before the circum­
stances of the confession (including police deception) 
had been revealed; and (iii) in which it failed to 
consider petitioner’s youth and education and his 
interrogation by at least four police officers at day­
break?

On the Imposition of the Death Penalty 
In Gregg v. Georgia, 428 U.S, 153 (1976), this Court 

upheld the facial constitutionality of the Georgia capital 
sentencing scheme based on assumptions that the jury’s 
discretion could and would be guided by the trial court’s 
instructions, and that mandatory appellate review could 
and would prevent arbitrariness and caprice. This case 
raises the important constitutional issue whether the 
Georgia scheme, as actually administered, meets the 
requirements of the United States Constitution. More 
specifically, this petition raises the questions:



5

2. Whether the death penalty may be constitutionally 
imposed on the basis of jury instructions that: (a) fail to 
instruct the jury to focus on the characteristics of the 
defendant as well as the nature of the crime, (b) fail to 
explain the term “mitigating”, or to direct the jury’s 
attention to specific mitigating circumstances present in 
the case, while expressly commenting on particular 
aggravating circumstances, (c) do not guide the jury to 
weigh mitigating circumstances against aggravating cir­
cumstances, and (d) do not inform the jury that even if it 
finds a statutory aggravating circumstance it may nonethe­
less decide in favor of a life sentence?

3. Whether, where the trial judge must follow a jury 
death verdict, it is constitutional for the court to suggest to 
the jury that its function is only to “ask” for or “recom­
mend” death or life?

4. Whether the statutory “aggravating circumstance” 
upon which the jury relied in deciding upon death is so 
overbroad and vague that petitioner’s sentence based 
upon this statutory provision was unconstitutional?

5. Whether the Georgia Supreme Court has failed to 
follow the appellate review process which this Court 
assumed in Gregg to be necessary to the constitutionality 
of the Georgia statutory scheme?

6. Whether failure to transcribe the prosecutor’s 
summations to the jury in a death case deprives a defend­
ant of due process because it necessarily means the record 
made available cannot disclose all the considerations 
which motivated the jurors to impose the death sentence?

7. Whether the inconsistent treatment of death 
penalty cases by the Georgia courts has so enhanced the 
risk of arbitrary and capricious imposition of the death



6

penalty that such imposition is now unconstitutional in any 
case?5

On the Denial of Counsel
8. Whether, in a capital case, there has been an 

unconstitutional denial of counsel when (a) Georgia 
appointed as counsel a lawyer who had less than two years 
of experience, not in the criminal field, to represent an 
indigent black youth who had not finished high school, in 
a highly publicized murder case which was to be tried 
before a jury; (b) both the trial and the appellate court 
were aware that defendant sought new assigned counsel, 
and assigned trial counsel had told the trial court that 
because of the lack of cooperation by his client he was 
unable to put on a defense through the client; and (c) on 
the mandatory review of defendant’s death sentence, 
assigned trial counsel failed even to appear at oral argu­
ment, and the court subsequently asked the state—but not 
the defendant—to brief the issue of the death penalty 
instructions?

STATEMENT OF THE CASE

The charge for which petitioner was arrested, tried, 
convicted and sentenced to death was that he acted in 
concert with Jose High and Judson Ruffin to murder 
James Gray on August 22, 1976.6 Petitioner was tried 
alone.

5 By reference to Petition for Writ of Certiorari at 43-45, 47 n. 46 
and Appendix F, Spinkellink v. Wainwright, No. 78-6048 (filed Jan. 
16, 1979), petitioner also raises the question whether in light of the 
growing body of data indicating that racial factors play a role in death 
sentencing the death penalty can be constitutionally imposed in 
Georgia?

6 The indictment is Appendix G at 35a.



7

Petitioner. Petitioner is a black youth; he was 17 or 
18 in August 1976. He had not completed high school. 
He had no prior criminal record.7

Petitioner’s Assigned Counsel. Assigned counsel had 
less than two years experience, and did not specialize in 
criminal law. During trial, he announced that “lack of 
cooperation” precluded submitting a defense through 
petitioner (Tr. 193). After his client was convicted and 
sentenced to death, assigned counsel took no interest in 
the case. Petitioner himself filed a notice of appeal. 
Assigned counsel had to be ordered to file a brief by the 
Georgia Supreme Court. He did not even attend oral 
argument. After the Georgia Supreme Court decision, 
assigned counsel did nothing to help petitioner.8

Dates of Arrest and Trial. Petitioner was arrested 
without a warrant, charged with Gray’s murder, and taken

7 Race appeared from observation and from numerous references 
to black persons in the trial transcript. The arresting officer testified 
that petitioner said his age was 17 (Tr. 115); the trial judge’s Report, 
submitted in the form of a questionnaire (see Ga. Code Ann. 
§2537(a)) to the Georgia Supreme Court (App. at 67a) said he was 
bom on “ 1/1/58”, which would have made him 18. Education is 
shown by Tr. 115 and the Report (App. at 67a). Lack of prior record 
is shown by the Report (App. at 71a).

References to “Tr.” are to the transcript of petitioner’s trial, a 
copy of which is being filed with the Clerk of this Court.

8 In his Report, the judge checked a box indicating that ap­
pointed counsel had less than five years experience, and that the 
nature of his practice was “general” (App. at 71a). The Georgia 
State Bar records show he had been admitted for less than two years 
as of August, 1976. Counsel’s lack of interest in petitioner’s case is 
shown by petitioner’s pro se notice of appeal, petitioner’s letters to the 
authorities seeking counsel, and by the letter from the Georgia 
Supreme Court ordering him to file a brief or face sanctions (App. at 
59a). The Clerk of the Georgia Supreme Court reported by telephone 
on March 20, 1979, that counsel did not appear for oral argument. 
The records of the Georgia Supreme Court show that assigned 
counsel—unlike the State—was not asked to submit a brief on the 
crucial issue of the death penalty instructions.



8

into custody on August 28, 1976. His trial did not take 
place until July 1977.9

The Trial: Jury Selection. Every potential juror was 
examined about the death penalty, first by the court as a 
group, and then individually (in each other’s presence) by 
counsel (Tr. 3-68).10 Twenty-one of the thirty examined 
were also asked by the prosecutor if they would agree to 
“recommend” or “impose” death in cases of murder with 
“aggravating” circumstances.

Aggravated murder, though undefined, thus became 
a familiar term to the panel. The term “mitigating” was 
not mentioned during voir dire.

On 18 separate occasions during voir dire, it was 
indicated that the crime (in the first instance) and the trial 
(contemporaneously) were the subject of extensive pub­
licity.

The Trial: Evidence Relating to Whether or Not 
Morgan Was Guilty. It was undisputed that Gray had 
been shot at close range and that earlier he had been 
driving in an area where three unidentified blacks had 
been seen drinking.

The only evidence implicating petitioner, however, 
were confessions.

9 At his trial, petitioner contended that the State, after first 
indicting him in 1976, had reindicted him in the May 1977 grand jury 
term in order to circumvent his right to a speedy trial. The 
prosecutor’s only response was to confirm that the trial was in fact on 
the later indictment. The court, without addressing the merits, then 
simply asked the prosecutor to swear in the jury and proceeded with 
the trial (Tr. 70-71).

10 The prosecutor struck all jurors who said they were opposed to 
the death penalty (Tr. 5, 57). The prosecutor also struck (i) a juror 
who was “undecided” about the death penalty (Tr. 35), (ii) a juror 
who believed in the death penalty only in “some cases” (Tr. 31-32), 
(iii) a juror who, when asked if he was strongly in favor, lukewarm, 
or undecided about the death penalty, said “I would have to hear the 
evidence” (Tr. 46), and (iv) two jurors who had some doubt about 
whether they could impose the death penalty (Tr. 17, 59).



9

J. B, Dykes, County Sheriff’s investigator, testified 
that he, the Sheriff, a third named officer, and “a number 
of other officers” arrested Morgan in his home at “day­
break” on August 28, 1976 (Tr. 108).

At this point, a hearing was held outside the presence 
of the jury (Tr. 108-23). Morgan challenged the legality 
of his warrantless arrest and the voluntariness of the 
confession that ensued. At the hearing, the substance of 
the police testimony was as follows:

Dykes testified that Jose High had been arrested 
when it was “just getting dark” on August 27, and at 
about 3:30 or 4:00 the next morning had confessed 
“numerous crimes”, implicating petitioner in the Gray 
murder and other crimes (Tr. 111-12).11

The police proceeded to arrest Morgan in his home 
“immediately” after 3:30 or 4:00, or at “daybreak”. They 
did not have, or seek, an arrest warrant (Tr. 119-20). 
Dykes said they feared Morgan would be gone when he 
found out High had been arrested (Tr. 112). But the 
police had the area “completely surrounded” (Tr. 119).

Dykes testified that Miranda warnings were read to 
Morgan in his house and in a car going down to the police 
station. Morgan said he knew nothing about the charges 
(Tr. 115.)

By approximately 7:00 a.m., Morgan was in the 
county jail. Dykes, plus the Sheriff and two other named 
police officers, and with “other officers present”, began to 
interrogate Morgan some more, without, said Dykes,

11 Dykes said the police concluded that the information in High’s 
confession was “very reliable” (Tr. 112). He did not explain this 
answer, but presumably it referred to evidence involving High 
himself, as opposed to Morgan, because the State never introduced 
any evidence linking Morgan to the crime other than his own 
confession. Dykes also said that, at a lineup which included High, 
some unidentified person gave a name of “something like Alonzo” 
(Tr. 117).



10

using any threats or promises. (Tr. 116-17.) A con­
fession apparently ensued—but there was no testimony 
during the hearing as to the circumstances immediately 
preceding Morgan’s confession in the county jail. Each 
time Dykes attempted to transcribe the statements, Mor­
gan would stop talking (Tr. 121).

At the conclusion of the hearing, the court ruled that 
a confession had been “prima facie” voluntarily made. 
The court declined to rule on whether the arrest had been 
illegal, thereby infecting the ensuing confession—stating 
that it was “not essential to my ruling on the question of 
the confession at this time”. (Tr. 122-23.)

The circumstances of the actual confession were 
described to the jury. Dykes said he again read Morgan 
his Miranda rights in the jail (Tr. 127). Morgan contin­
ued his denials. Then Dykes for the first time testified that 
he had deceived Morgan by telling him that his finger­
prints were on a gun placed on the table before him, and 
that he had a photograph of Morgan’s footprint at the 
crime scene. Dykes testified that Morgan then said, “All 
right, I was there. Jose made me shoot him. He’s the only 
one I killed”. (Tr. 128.)

Dykes—who conceded that he had no writing re­
garding the confession, and indeed that Morgan would 
“just quit talking” whenever he tried to take notes or tape 
record (Tr. 121, 133)—testified that petitioner had further 
admitted that High, Ruffin and he had abducted the 
victim from his truck, placed him in the trunk of Ruffin’s 
car, and took him to an airfield. There High blindfolded 
the victim, and Ruffin and petitioner shot him. (Tr. 131- 
32.)

Dykes later testified that the next day he and two 
fellow officers again interrogated petitioner. According to 
Dykes, when asked the reason for the murder, petitioner 
responded “because he’s white”. (Tr. 143.)



11

Only one witness was called by petitioner’s assigned 
counsel—an agent of the Georgia Bureau of Investigation, 
originally scheduled to testify for the State (Tr. 196). The 
agent testified that on August 29 he had taken written 
notes of a statement made by Morgan, which Morgan had 
signed.12 Morgan had said that he was under threat of his 
life when he shot the victim:

“Jose said to shoot him. I said I’m going to 
shoot—I said I’m not going to shoot. ‘If you don’t 
shoot him, kneel down and I’ll shoot you and the man 
both.’ Jose put the hand on my face, turned my head, 
and then I fired shotgun. He didn’t die. I shot him in 
the shoulder. The Cowboy [Ruffin] shot him with 
double barrel shotgun one time. I saw the man’s 
head bust open. I cried and went back to the car. 
Jose said, ‘Don’t cry like a baby. You’re a grown 
man now. You’re part of the family. If you tell the 
police, I’ll kill you and your family.’ Jose had man’s 
wallet in his hand, then we left in the Roadrunner 
and stopped at Church’s Chicken on Gwinnett Street 
and talked. Jose laughed, then they took me home.” 
And it was signed, ‘Alphonso Morgan’.” (Tr. 202- 
203.)
The agent testified that Ruffin, in a separate con­

fession, stated that both he and petitioner shot Gray (Tr. 
204). High had told the agent in his confession that he 
was the leader of a “family” whose object was to “kill and 
rob and rape people” (Tr. 200). High, however, denied 
forcing either petitioner or Ruffin to shoot Gray (Tr. 204). 
During the interrogation by the agent, High showed no 
remorse for his participation in the Gray murder or other 
murders (Tr. 209).

12 The agent said Dykes had told him he had talked with Morgan 
but that he had not related any statement by Morgan (Tr. 198-99).



12

Charge13 and Conviction. The court instructed the 
jury that coercion (a reasonable belief that an act was 
necessary to prevent imminent death or great bodily 
injury) would be a defense to any crime, except murder.

The jury’s verdict said we “find” defendant guilty as 
charged (App. at 29a).

The Punishment Phase. Neither side introduced any 
additional evidence.

Counsel for both sides argued to the jury, but their 
arguments were not transcribed.

The court’s charge on punishment (App. at 30-32a) 
was primarily devoted to discussion of “aggravating cir­
cumstances”. The court told the jury there were three 
possible statutory aggravating circumstances:

(i) the offense was “outrageously or wantonly 
vile, horrible, or inhuman in that it involved torture, 
or depravity of mind, or an aggravated battery to the 
victim”;

(ii) the offense was committed in the course of 
another capital felony, armed robbery; and

(iii) the offense was committed for the purpose 
of receiving money (App. at 31a).
The trial judge did not define any of the broad terms 

in the first above-quoted circumstance except for “aggra­
vated battery”, which was defined so broadly that the act 
of murder itself would constitute an “aggravated battery” 
(A/.)-14

After an extensive treatment of aggravating circum­
stances, the trial judge did not tell the jurors either (i) that

13 The charge on the merits is printed at App. at 20a.
14 The definition was: “maliciously causes bodily harm to anoth­

er by depriving him of a member of his body, or by rendering a 
member of his body useless, or by seriously disfiguring him, his body, 
or a member thereof’ (App. at 31a).



13

they should weigh “mitigating” against aggravating cir­
cumstances, or (ii) that even if they found a statutory 
aggravating circumstance they could nonetheless vote for 
life imprisonment,

The trial judge also did not tell the jurors that in 
voting for death or life they must focus upon the defend­
ant himself, as well as on the crime. The trial judge did 
not tell the jurors that they could consider the defendant’s 
age, his claim of mortal duress (which they had just been 
told was irrelevant to the issue of guilt for murder), or his 
lack of prior criminal record. The court did not explain 
the term “mitigating”. The only mention of the legal term 
“mitigating” was in the midst of a sentence at the end of 
the first paragraph of the charge which told the jury “You 
should consider all of the facts and circumstances of the 
case, including any mitigating or aggravating circum­
stances” (App. at 30a).

The court’s final instruction to the jury on their role
was:

“You must designate in writing in your verdict 
on the indictment the aggravating circumstance or 
circumstances which you find to have existed with 
respect to the offense for which you recommend the 
death penalty.” (App. at 32a, emphasis supplied.) 
Although the judge had earlier stated (as is correct 

under Georgia law)15 that he would be required to follow 
a jury death verdict, he also had stated that if the jury 
favored death, the form of its verdict should be to 
“recommend” it (App. at 32a).

The jury returned with the written statement:
“We ask the death penalty for the offense of 

murder was outrageously and wantonly vile, horrible,
15 Ga. Code Ann. §27-2514; see Mason v. State, 236 Ga. 46, 222 

S.E.2d 339, 342, ( 1975), cert, denied, 428 U.S. 910 ( 1976).



14

or inhuman in that it involved torture, depravity of
mind and aggravated battery to the victim. May God
rest his soul.” (App. at 33, 35a, emphasis supplied.)
The trial judge thereupon ordered petitioner’s elec­

trocution to take place on August 17, 1977 (App. at 34a).
From start to finish—jury selection, opening state­

ment of the prosecution,16 testimony of 13 witnesses, 
“hearing” on the confession, argument, instructions, jury 
deliberation and verdict, further argument and instruc­
tions on punishment, further jury deliberation, the death 
verdict, and the sentence of electrocution— petitioner’s 
trial took two days.

Petitioner’s Appeal. On July 19, 1977, petitioner 
himself filed a handwritten notice of appeal. This was 
coupled with a request that counsel be appointed to 
represent him on his appeal. (App. at 40a.)

The request was ignored.
Shortly before December 19, 1977, petitioner wrote a 

three-page handwritten letter to the Georgia Supreme 
Court stating that he was innocent, that at trial his 
appointed lawyer “gave me no cooperation”, and that his 
appointed lawyer had given him no report about his case 
(App. at 54a).

Still continuing to ignore petitioner’s request for 
appellate counsel, and his complaints about trial counsel, 
the Georgia Supreme Court ordered petitioner’s pre­
viously assigned trial counsel to file a brief. That 
brief—only 11 pages—was filed on December 29, 1977.

Oral argument was held on January 9, 1978. Mor­
gan’s previously assigned trial counsel did not even ap­
pear, and so no argument was made on Morgan’s behalf.

16 Counsel for petitioner did not make an opening statement at 
any stage of the proceedings.



15

At the oral argument, the court asked the State to file 
a supplemental brief addressing the adequacy of the trial 
court’s sentencing charge, and, in particular, its treatment 
of mitigating and aggravating circumstances. Neither 
Morgan nor his counsel was asked to file a brief on that 
crucial issue (on which the Georgia Supreme Court later 
divided 4-3).

The record made available to the Georgia Supreme 
Court did not include the prosecutor’s arguments in favor 
of the death penalty, which had not been transcribed.

By statute, the trial judge in death cases is supposed 
to prepare answers to a questionnaire about the defend­
ant, the offense, and the circumstances of the trial, and to 
send it to the Georgia Supreme Court with the record. Ga. 
Code Ann. §27-2537(a). The record went to the State 
Supreme Court on October 17, 1977. But the question­
naire was not filled out by the trial judge until March 27, 
1978—about half a year later, and almost three months 
after the oral “argument”.

The questionnaire (App. at 67a) (i) contains clearly 
inaccurate statements, (ii) is internally inconsistent and 
(iii) on its face, reveals deficiencies in the trial judge’s 
death penalty charge. Thus,

(i) the trial judge told the Georgia Supreme 
Court there was no evidence of “mitigating circum­
stances”—even though the questionnaire form itself 
specifies as possible mitigating circumstances 
“youth”, “duress”, and lack of prior criminal activity; 
(App. at 69-70a)17

17 The record plainly showed defendant’s youth and his con­
tention of duress, and did not show any history of prior criminal 
activity. In other parts of the questionnaire, the trial judge himself 
reported that defendant had no record of prior convictions, that he 
had been bom “ 1/1/58”, that he had not finished high school (also 
shown at Tr. 115), and that he had only a “medium” (“IQ 70-100” ) 
intelligence level (App. at 67a).



16

(ii) the trial judge said race was not an 
issue—even though the prosecutor had ended his 
direct examination of investigator Dykes after the 
“because he’s white” statement referenced above 
(App. at 72a);

(iii) the trial judge conceded that there had been 
“extensive publicity” about the case, but said the jury 
had not been instructed to disregard the publicity 
(id.),

(iv) the trial judge also conceded that the jury 
had not been instructed to “avoid any influence of 
passion, prejudice or any other arbitrary factor when 
imposing sentence” (stating at the same time his view 
that there was “no evidence” that the jury had been 
so influenced) (id.).
On June 28, 1978, the Georgia Supreme Court issued 

its opinion. The official reporter shows petitioner as 
having represented himself pro se, in addition to the 
appointed trial counsel who had abandoned him (App. at 
11a).

The decision was unanimous on the merits, but 
divided 4-3 on the death sentence.

The one-vote majority, without any explanation 
whatsoever, said it found “no error” in the sentencing 
charge, and went on to approve the sentence of death 
(App. at 14a).

HOW THE FEDERAL QUESTIONS WERE RAISED

Understandably, because of the lack of counsel at 
critical stages, the Federal questions involved were not 
raised and pressed with the precision that is desirable. 
Nevertheless, they were sufficiently raised and considered 
by the Supreme Court of Georgia to sustain this Court’s



17

jurisdiction, particularly given the circumstances and the 
fact that petitioner’s life is at stake.

1. The illegality of the arrest and the ensuing 
confession were raised in the trial court and on appeal, 
and were explicitly decided by the Georgia Supreme 
Court on Federal constitutional grounds, citing decisions 
of this Court.

2. The propriety of the death penalty instructions was 
focused upon in the Georgia Supreme Court as part of its 
mandatory death sentence review. While the opinion does 
not explicitly state that the point was resolved on Federal 
grounds, that is necessarily so (i) given the court’s reliance 
on Spivey v. Georgia, 241 Ga. 477, 246 S.E.2d 288 ( 1978), 
cert, denied, No. 78-5544, slip. op. (Nov. 27, 1978), 
decided 20 days previously, which explicitly purported to 
decide the death penalty instructions issue based upon this 
Court’s views on the United States Constitution, (p. 27, 
infra), and (ii) in light of Gregg v. Georgia, 428 U.S. 153 
(1976), and Furman v. Georgia, 408 U.S. 238 (1972), 
which make the adequacy of the procedures used to 
sentence a defendant to death matters of Federal con­
stitutional law.

The language of the opinion sufficiently indicates that 
these federal questions were considered and disposed of.18 
Petitioner should not be prejudiced because the Georgia 
Court chose to be cryptic—particularly since its standard­
less review of death cases in general itself raises a serious 
and substantial federal constitutional issue.

3. Petitioner’s contention that he was uncon­
stitutionally denied counsel was raised in the Court below 
by petitioner himself, albeit without legal sophistication 
(App. at 54a). The issue was obvious to the Georgia 
Supreme Court. Indeed, that court declined even to ask

18 See Stern and G ressman at 220 and cases there discussed.



18

petitioner or his counsel to submit papers on what that 
court itself perceived as a crucial issue—the death penalty 
instructions.

Jurisdiction to review each of the foregoing matters 
and the others raised by petitioner is also supported by (i) 
the abandonment of petitioner by counsel throughout the 
Georgia proceedings, see Pollard v. United States, 352 
U.S. 354, 359 (1957); (ii) the unique and irreversible 
nature of the death penalty; (iii) this court’s power to 
notice “plain error” even though the argument was not 
“made in constitutional form” to the state supreme court, 
see, e.g., Vachon v. New Hampshire, 414 U.S. 478, 481
(1974); and (iv)

“. . . In exceptional circumstances, especially in 
criminal cases, appellate courts, in the public interest, 
may, of their own motion, notice errors to which no 
exception has been taken, if the errors are obvious, or 
if they otherwise seriously affect the fairness, integrity 
or public reputation of judicial proceedings”. Silber v. 
United States, 370 U.S. 717, 718 (1962) (quoting 
United States v. Atkinson, 297 U.S. 157, 160 (1936)).

' REASONS FOR GRANTING THE WRIT 
In 1972, this Court held that death penalty statutes, 

as then administered, were unconstitutional. Furman v. 
Georgia, 408 U.S. 238. In 1976, this Court ruled that, 
while some new death penalty statutes were uncon­
stitutional, e.g., Woodson v. North Carolina, 428 U.S. 280, 
others, including Georgia’s, appeared on their face to 
contain sufficient safeguards, so that they could be applied 
constitutionally, e.g., Gregg v. Georgia, 428 U.S. 153.

Now the question arises as to how the Georgia 
scheme is actually being administered—not at all the way 
this Court assumed in Gregg. Thus, petitioner—at peril 
for his life—asks this Court to carry forward what it



19

began, to the necessary next step—i.e., this Court should 
require that the safeguards which it has held can make the 
death penalty constitutional be rigorously observed and 
applied. It should hear the case to grant this particular 
petitioner his constitutional rights before imposition of the 
“unique and irretrievable” penalty of death. Woodson, 
428 U.S. at 281. It should also resolve these issues now 
because the Georgia Supreme Court—itself closely di­
vided on the constitutional questions raised herein—now 
faces a “tide” of death penalty cases.19

This petition also raises a classic constitutional con­
frontation on the legality of a warrantless arrest and on 
the process required to determine the voluntariness of a 
confession.

Finally, thirty-seven years after Powell v. Alabama, it 
is—amazingly—once again necessary to hear a capital 
case in which counsel has been just plain denied.

I. PETITIONER’S CONFESSIONS WERE INADMISSIBLE 
IN THAT THEY WERE TAINTED BY HIS UNLAWFUL AR­
REST AND WERE INVOLUNTARY. THE FAILURE OF THE 
TRIAL COURT TO HOLD A FULL AND FAIR HEARING ON 
THE ADMISSIBILITY OF HIS POST-ARREST STATEMENTS 
DENIED PETITIONER DUE PROCESS OF LAW.

Petitioner’s confessions were the fruit of a warrantless 
arrest without probable cause and should have been 
suppressed. Brown v. Illinois, 422 U.S. 590, 604-605
(1975); Wong Sun v. United States, 371 U.S. 471, 484 
(1963).

First, the bare conclusory statement that High’s 
information was reliable was insufficient to establish 
probable cause. Spinelli v. United States, 393 U.S. 
410, 416 (1969); Aguilar v. Texas, 378 U.S. 108, 114
19 See the dissent in Spivey v. Georgia, 241 Ga. 477, 246 S.E.2d

288, 293, cert, denied,------ U.S. _____, No. 78-5544, slip op. (Nov.
27, 1978), discussed infra at p. 27.



20

(1964). Moreover, High’s information was not 
shown to be the fruit of a lawful arrest. Wong Sun v. 
United States, 371 U.S. at 488.

Second, the arresting officer conceded the ab­
sence of the one claimed exigent circumstance for the 
warrantless arrest—fear that petitioner might flee his 
home after discovery of High’s arrest.20 As Officer 
Dykes testified, the police had petitioner’s house 
surrounded,, thereby providing sufficient time to test 
their right to arrest before a neutral magistrate. See 
Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Third, the trial court erroneously failed to rule on 
the legality of the arrest. The mere finding that a 
confession after Miranda warnings was voluntary, 
cannot dissipate the taint of a prior unlawful arrest. 
Brown v. Illinois, 422 U.S. at 604.
Petitioner contends that in any event his confession 

was involuntary and that he was denied his right to the 
full and fair hearing which would have shown it to be 
involuntary. Lego v, Twomey, 404 U.S. 477 (1972); 
Jackson v. Denno, 378 U.S. 368 (1964).

First, the court improperly excluded crucial testi­
mony as to voluntariness suggesting that petitioner 
did not understand that his oral statements could be 
used against him. The court precluded cross- 
examination as to the reason petitioner refrained 
from making further statements each time Officer 
Dykes attempted to transcribe the confession. (Tr 
121. )

Second, the court cut short the hearing before the 
circumstances surrounding the confessions were even 
discussed. The fact that the police had deceived

20 The constitutionality of a warrantless arrest in the home absent 
exigent circumstances is before the Court in Payton (Riddick) v. New 
York, No. 78-5420 (October Term, 1978). Petitioner adopts the 
arguments made therein.



21

petitioner by stating that his fingerprints were on the 
murder weapon and that his footprints were found at 
the crime scene was not revealed until after the 
confession had been ruled inadmissable (Tr. 122- 
128). Although not controlling, deception is a rele­
vant factor that must be considered in a voluntariness 
determination. See Frazier v. Cupp, 394 U.S. 731, 
739 (1969); Schmidt v. Hewitt, 573 F.2d 794 (3d Cir. 
1978). See also Lisenba v. California, 314 U.S. 219, 
237 (1941).

Third, in holding the confession voluntary on the 
basis of the truncated hearing, the court improperly 
took no account of petitioner’s youth and intelligence, 
e.g., Haley v. Ohio, 332 U.S. 596, 600-601 (1948), or 
the daybreak interrogation by a group of police 
officers, e.g., Spano v. New York, 360 U.S. 315 
(1959).

II. THE JURY INSTRUCTIONS APPROVED BY 
GEORGIA’S SUPREME COURT ARE FLATLY INCONSISTENT 
WITH THIS COURT’S RECENT RULINGS AS TO WHEN A 
DEATH SENTENCE MAY CONSTITUTIONALLY BE IM­
POSED.

It is “quite simply a hallmark of our legal system that 
juries be carefully and adequately guided in their deliber­
ations.” Gregg v. Georgia, 428 U.S. 153, 193 (1976). “In 
death cases”, moreover, as this Court recognized long 
before its wider rulings in Furman, doubts about the 
clarity of instructions should be “resolved in favor of the 
accused”. Andres v. United States, 333 U.S. 740, 752 
(1948). See also Calton v. Utah, 130 U.S. 83, 87 (1889) 
(“fundamental” in cases involving death that instructions 
be clear and explicit).

Although criminal defendants are entitled to instruc­
tions clear to laypersons as well as legal scholars, Taylor v. 
Kentucky, 436 U.S. 478, 484 (1978), it is particularly true 
in death cases that instructions should be (as Mr. Justice



22

Frankfurter put it) in clear “simple, colloquial English”, 
and (as then Chief Judge Cardozo wrote) given “directly 
and not in a mystifying cloud of words”.21

The instructions below do not pass those general 
tests. More specifically, they depart in four separate but 
reinforcing respects from the very elements of the Georgia 
statutory scheme which this Court in Gregg held saved 
that scheme from constitutional attack.

A. The Jury Was Not Told Its Decision on Life or 
Death Must Include Focus on the Particular Character­
istics o f the Defendant,

The instructions leading to the death verdict against 
petitioner say not one word about the need to weigh the 
defendant’s particular characteristics, as well as the spe­
cific circumstances of the crime. Thus, they conflict with:

(i) Gregg and the other 1976 decisions holding 
that certain death penalty statutes can, if properly 
administered to focus on the individual defendant, 
meet the requirements of the Constitution;22

(ii) Woodson and the other 1976 decision hold­
ing mandatory death penalty statutes unconstitutional

21 The first quote is in the Justice’s concurring opinion in Andres, 
333 U.S. at 766; the second from Law and Literature (1931) cited in 
McGautha v. California, 402 U.S. 183, 199 (1971).

22 E.g. :
(i) In Gregg, this Court emphasized the constitutional 

obligation to focus specifically on the defendant in at least six 
places in the plurality opinion. 428 U.S. at 189-90, 190, 192, 197, 
199 and 206.

(ii) In Jurek v. Texas, 428 U.S. 262 (1976) this Court 
upheld the statute because it “guides and focuses the jury’s 
objective consideration of the particularized circumstances of the 
individual offense and the individual offender before it can impose 
a sentence of death”. 428 U.S. at 274 (emphasis added).

(iii) In Proffitt v. Florida, 428 U.S. 242 (1976), the statute 
was held constitutional in part because the sentencing authority 
must “ focus” on “the circumstances of each individual homicide 
and individual defendant”. Id. at 258.



23

because they exclude consideration of mitigating fac­
tors and the circumstances of the defendant;23 and

(hi) Lockett v. Ohio, _  U.S. No. 76-6997, 
slip op. (July 3, 1978), which held that in death cases 
the sentencing authority must be given a “full 
opportunity” to consider “mitigating circumstances”, 
including “any aspect of the defendant’s character 
and record”. Id. at 17.
B. The Term “Mitigating” Was Not Defined for the 

Jury and Concrete Examples of Mitigating Circumstances 
Were Not Provided.

Buried in the last sentence of the first paragraph of 
the death penalty charge is a blind reference to the word 
“mitigating” (App. at 30a).

To slip into one sentence the single word “mitigating” 
without any explanation is to give no “direction” or 
“guidance” at all—and certainly falls far short of the 
careful, adequate and suitable guidance and direction that 
is constitutionally required.

Even had the word been emphasized rather than 
buried, the legal term “mitigation” is not sufficiently 
meaningful to a jury of lay persons. In contrast to the 
obscure one word legalism buried away in Morgan’s

23 See:
(i) E.g., Woodson v. North Carolina, 428 U.S. 280 (1976), 

“A process that accords no significance to relevant facets of the 
character and record of the individual offender” is uncon­
stitutional because it excludes from consideration the possibility 
of “compassionate or mitigating factors stemming from the 
diverse frailties of humankind”. Id. at 304.
(ii) Roberts v. Louisiana, 428 U.S. 325 (1976) (“no meaningful 

opportunity” for “consideration of mitigating factors” presented by 
“the particular crime or by the attributes of the individual offender”.) 
Id. at 333-34.



24

charge, the jury in Gregg was given a definition of the term 
“mitigating”.24

In addition, this Court’s decisions—and a fair reading 
of the Constitution—call for more than a definition of 
“mitigating”. They require that particular mitigating 
factors, relevant in light of the record, be called to the 
jury’s specific attention as examples of what they could 
weigh against the aggravating circumstances which the 
court did call to the jury’s attention.

Here there were at least three such factors—Morgan’s 
youth, his claim that he shot Gray because of duress 
(High’s threat to kill him if he did not), and his lack of a 
prior criminal record.25 26

In Gregg, this Court assumed that such factors would 
be specifically called to the sentencing authority’s atten­
tion. Under a fair reading of the constitutional require­
ments in death cases they clearly should be.

The Georgia statute states flatly that the trial judge 
“shall include” in his instructions “any mitigating circum­
stances.” Ga. Code Ann. § 27-2534.1.2® This Court, in

24 The jury was told that the term covered circumstances “which 
do not constitute a justification or excuse for the offense in question, 
but which, in fairness and mercy, may be considered as extenuating or 
reducing the degree of moral culpability or punishment”. Record, 
Trial Transcript at 480, Gregg v. Georgia, 428 U.S. 153 ( 1976).

The same definition was used in Coker v. Georgia, 433 U S 584 
590-91 (1977).

25 Footnote 44 in Gregg sets forth, inter alia, the proposed 
mitigating circumstances from the Model Penal Code, which include 
as items (a), (f) and (g) the items which should have been 
specifically included here for Morgan’s jury to “consider”. 428 U S at 
193-94.

26 The statute, more fully, provides that “the judge shall consider 
or he shall include in his instructions to the jury for it to consider, any 
mitigating circumstances or aggravating circumstances otherwise au­
thorized by law and any of the following statutory aggravating 
circumstances which may be supported by the evidence.. . . ”

While it is not clear whether either the words “otherwise 
authorized by law” or “which may be supported by the evidence”



25

upholding the Georgia scheme, repeatedly assumed that 
that would, and should, be done. 428 U.S. at 164, 192, 
193, 194 n.44,27 28 197. Indeed, in one of the many passages 
which state that the jury’s attention must be “focused on 
the characteristics of the person who committed the 
crime” (point A above), this Court gave examples of what 
it expected the jury’s attention to be “focused” upon. 
Those included factors present in this cast —i.e., whether 
the defendant had “a record of prior convictions for 
capital offenses”, and “any special facts about this defend­
ant that mitigate against imposing capital punishment 
(e.g., his youth . . . . ) ”. Id., at 197.28

serve to modify, specify, or limit the duty to “include” “any” 
mitigating circumstances in the instructions, it is clear that the Georgia 
statute creates the duty to mention to the jury any relevant mitigating 
circumstances for it to “consider”.

27 In the body of the opinion the court rebutted the contention 
that standards to guide a jury’s discretion could not be formulated by 
referencing the Model Penal Code’s listing of the “main circum­
stances” of mitigation and aggravation which “should be weighed and 
weighed against each other”.

28 That focus upon mitigating circumstances can make a life or 
death difference is evident from the following analysis of the pool of 
cases available to the Supreme Court of Georgia for comparison 
purposes at the end of 1977:

(i) 36 of the 48 offenders for whom either youth, or lack of a 
prior criminal record was reported as a mitigating factor by the 
trial judge (where the death penalty was imposed), or by the 
court’s assistant (where it was not), received life sentences (see 
App. T, Tables 1 and 2):

(ii) the two offenders for whom both youth and no prior 
record were reported received life sentences (despite the fact that 
in both cases (Sanders v. State, 235 Ga. 425, 219 S.E.2d 768
(1976) and Stovall v. State, 236 Ga. 840, 225 S.E.2d 292 
(1976)) the offenders were found guilty of brutal murders;

(iii) there are no cases where youth, no record, and evidence 
of duress are reported, see note at p. 35 infra.
The need to make some reference to Morgan’s claim of duress 

was particularly compelling here since the trial judge had just finished 
telling the jury in his instructions on the merits that duress was 
irrelevant to a charge of murder (App. at 23a).



26

C. The Jury Also Was Not Informed That It Should 
Weigh “Mitigating” Circumstances Against Aggravating 
Circumstances.

Apart from not defining the legalism “mitigating” for 
the jury or providing particularized examples, the jury 
instructions are also constitutionally deficient in that the 
jury was not specifically informed that it should weigh 
mitigating against aggravating circumstances. In contrast, 
under the Model Penal Code referenced in Gregg, and 
under the Florida statute approved in Proffitt, the sen- 
tencer is specifically informed that it should weigh mitiga­
ting against aggravating circumstances, 428 U.S. at 248- 
251, 258. Similarly, in Jurek the question which a jury 
must answer before imposing the death sentence neces­
sarily requires such balancing. This Court in Coker also 
assumed such an instruction was required, 433 U.S. at 
589-91.

While a particular form of words may not con­
stitutionally be required, surely it is not constitutional to 
leave the jury totally at sea as it was left here.

D. The Jury Also Was Not Told That It Could Impose 
a Life Sentence Even i f  It Found One of the Statutory 
Aggravating Circumstances. Indeed, the Overall Impact of 
the Charge Was To Suggest It Could Not.

Most of the death penalty charge was devoted to 
discussion of possible statutory aggravating circum­
stances—at least one of which must be found by the jury 
before it is authorized to consider imposing the death 
penalty. Ga. Code Ann. § 27-2534.1 (c).

But the trial judge did not tell the jury that even if it 
found such a circumstance it could nonetheless decide to 
impose a life sentence.

This particular deficiency was emphasized by the 
three judges who dissented below.



27

Such a charge departs from Gregg (where the jury 
was so informed29), and ignores the statutory scheme 
which this Court held made the Georgia scheme con­
stitutional.30 Indeed, it turns this statute into an uncon­
stitutional mandatory death sentence scheme whenever a 
jury concludes that one of the statutory aggravating 
circumstances is present.

E. The Decision Below is Based Upon Misunder­
standing of This Court’s View of the Constitutional 
Requirements in Death Cases.

The Georgia Supreme Court, in its 4-3 decision in this 
case, relied on its 5-2 decision a few days earlier in Spivey 
v. State, 241 Ga. 477, 246 S.E.2d 288 (1978), cert, denied, 
No. 78-5460, slip op. (December 4, 1978). Spivey, 
without a single mention of Gregg, relied upon this Court’s 
decision in Jurek v. Texas, 428 U.S. 262 (1976), to 
approve an instruction that did not even mention the word 
“mitigating”.

But the Texas scheme is significantly different from 
Georgia’s, and the difference makes constitutionally fal­
lacious the reasoning of the Georgia court. Under the 
Texas statute, the questions which a sentencing jury has to 
answer necessarily focus attention upon “particularized 
mitigating factors” and the scheme thus “guides and 
focuses the jury’s objective consideration of the particu­
larized circumstances of the individual offense and the 
individual offender”. Jurek v. Texas, 428 U.S. at 272, 274 
(emphasis supplied). But the Georgia scheme does not

29 In Gregg, the trial judge first defined the relevant statutory 
aggravating circumstances, then said that, if one was found, the jury 
could “consider” imposing a death sentence, and then told them they 
would consider aggravating and mitigating circumstances (defining 
the term and giving examples) in actually making their decision. 
Record, Trial Transcript, at 458, 478-80.

30 Ga. Code Ann. §27-2503(b) specifically requires that after 
“appropriate instructions”, the jury shall determine whether any 
mitigating or aggravating circumstances exist, and it then adds—“and 
whether to recommend mercy for the defendant.”



28

do so, absent instructions of the sort present in Gregg but 
lacking here.31

The dissent in Spivey concluded that the “incoming 
tide of death penalty cases” had “worn away the court’s 
resolve” to insist upon appropriate instructions where life 
was at stake. We cannot comment on the Georgia court’s 
motive. But such a “tide” makes it all the more important 
that this Court hear this case. And we submit that what 
has really been “worn away” are this Court’s rulings in 
Gregg.

III . T H E  D E A T H  P E N A L T Y  I N S T R U C T I O N S  A L S O  R A IS E  
T H E  I M P O R T A N T  A N D  R E C U R R IN G  Q U E S T I O N  A S  T O  
W H E T H E R , W H E R E  T H E  S T A T U T O R Y  S C H E M E  P R O V ID E S  
T H A T  T H E  J U R Y ’S  D E C IS IO N  O N  D E A T H  M U S T  B E  F O L ­
L O W E D  B Y  T H E  T R IA L  J U D G E , T H E  J U R Y  M A Y  N O N E T H E ­
L E S S  B E  L E D  T O  B E L IE V E  T H A T  I T S  R O L E  I S  O N L Y  T O  
“ R E C O M M E N D ” O R  “ A S K ” F O R  D E A T H .

If a Georgia jury votes in favor of death the trial 
judge must order execution.32

Here, however, the trial judge’s last statement to the 
jury as to its role was that it must decide whether to 
“recommend” the death penalty. Previously the judge 
had instructed the jury that if it decided on death the form 
of its verdict should be: “we recommend his punishment 
as death”. And when the jury returned it said: “We ask 
the death penalty”. (App. at 33 and 35a.)

While in other, earlier parts of the instructions the 
Court also used the word “fix” (and indeed said if they

31 In the course of looking at a case arising in another jurisdiction 
with a different statutory scheme, the Georgia court would have found 
more relevant enlightenment in Proffitt v. Florida, 428 U.S. 242 
(1976), whose procedures were characterized by this Court as “like” 
Georgia’s. Id. at 251, 259. There, Furman was said to be satisfied 
because the sentencing authority’s discretion would be “guided and 
channelled” by requiring examination of “specific factors that argue in 
favor of or against imposition of the death penalty”, and by requiring 
“ focus” on the “individual characteristics” of “each defendant” as 
well as the particular crime. Id. at 258.

32 Ga. Code Ann. §27-2514; see Mason v. State, 236 Ga. 46, 222 
S.E.2d 339, 342, (1975), cert, denied, 428 U.S. 910 (1976).



29

did fix punishment by death a sentence of death by 
electrocution would be required), this is no cure. 
“Particularly in a criminal trial, the judge’s last word is apt 
to be the decisive word”.33 Moreover, it is clear from their 
own words that the jurors in fact believed that their actual 
function was to “ask” for death, not to decree death.

Does the confusion make a constitutional difference? 
It should.

The death penalty is unique and irreversable. The 
“responsibility of decreeing death” is “truly awesome”. 
Lockett v. Ohio, No. 76-6997, slip op. (July 3, 1978). 
Those who have that responsibility should know they 
do.34

Both the Georgia Supreme Court and this Court have 
recognized, in other contexts, that a death penalty jury 
may decide differently depending on whether or not it 
believes its word controls. Thus, in Georgia, death 
sentences have been reversed where the prosecutor argued 
to the jury that its decision would be reviewed on ap­
peal.35 Similarly, in Dohbert v. Florida, 432 U.S. 282 
(1977), Mr. Justice Rehnquist’s opinion for the Court 
reasoned (in rejecting an argument based on change in 
the Florida law) that

“. . . The jury’s recommendation may have been
affected by the fact that the members of the jury were

33 Bollenbach v. United States, 326 U.S. 607, 612 (1946). See 
also Smith v. United States, 230 F.2d 935, 939 (6th Cir. 1956) (the 
fact that one part of the charge is correct does not cure a later 
inconsistency). Accord, United States v. Pope, 561 F.2d 663 (6th Cir. 
1977); Perez v. United States, 297 F.2d 12, 16 (5th Cir. 1961).

34 As is indicated by Profitt, it is not constitutionally required that 
a jury make the death decision. But what is required is that whichever 
person or body in fact has that awesome responsibility should know 
that its decision will determine the sentence.

33 See, e.g., Hawes v. State, 240 Ga. 327, 240 S.E,2d 833 ( 1977); 
Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); Prevatte v. 
State, 233 Ga. 929, 214 S.E.2d 365 (1975).



30

not the final arbiter of life and death. They may have 
chosen leniency when they knew that that decision 
rested ultimately on the shoulders of the trial judge, 
but might not have followed the same course if their 
vote were final.” 432 U.S. at 294, n, 7.
A fortiori, where, as here, the jury was erroneously 

led to believe that the trial judge would be the “final 
arbiter” it “may” have been more willing to “ask” for 
death, particularly in a case where there had been very 
substantial local publicity.

All human experience points in that direction. As one 
potential juror said, when asked if he supported the death 
penalty, “its one thing saying and doing is another” (Tr. 
56-57). But here the trial judge led the jury to believe that 
they would do the saying and let someone else decide on 
the doing.

The instinct to wash one’s hands of life or death 
decisions is as old as Pontius Pilate. No doubt the 
Members of this Court have themselves felt the difference 
between the discussion of death and the decision to put 
someone to death. Perhaps the difference cannot be 
scientifically proven, but the risk is nonetheless real. And 
in this country we do not let the courts take risks with life.

IV . C O N T R A R Y  T O  T H I S  C O U R T ’S  E X P E C T A T IO N S  A S  
E X P R E S S E D  IN  GREGG, T H E  G E O R G IA  C O U R T S  H A V E  N O T  
N A R R O W E D  T H E  V A G U E  A N D  O V E R B R O A D  S T A T U T O R Y  
A G G R A V A T IN G  C IR C U M S T A N C E  U S E D  A G A IN S T  P E T IT IO N ­
E R . T H U S , H I S  D E A T H  S E N T E N C E  W A S , F O R  T H A T  A D D I­
T IO N A L  R E A S O N , T H E  U N C O N S T IT U T IO N A L  R E S U L T  O F  
U N F E T T E R E D  J U R Y  D IS C R E T IO N .

Under the Georgia statutory scheme, the jury must 
find at least one “aggravating” circumstance before a 
death sentence can be imposed. The jury here found only 
one of the circumstances enumerated in the statute, and 
that circumstance is unconstitutionally vague and over­
broad.



31

The seventh aggravating circumstance provided for in 
the Georgia statute, and found by the jury here, is that the 
offense be

“outrageously or wantonly vile, horrible or in­
human in that it involved torture, depravity of 
mind, or an aggravated battery to the victim.” 
Ga. Code Ann. § 27-2534.1(b)(7).

This Court recognized in Gregg that this language could 
be construed to cover any murder, a construction which 
would clearly make the provision overbroad. 428 U.S. at 
201. This Court assumed, however, that the Georgia 
courts would narrow the provision’s facially overbroad 
language. That assumption was supported, the plurality 
reasoned, by McCorquodale v. State, 233 Ga. 369, 211 
S.E.2d 577 ( 1974), the only pre-Gregg- decision upholding 
a jury’s death sentence based solely on the seventh 
aggravating circumstance. That case was characterized by 
this Court as a “horrifying, torture murder”, 428 U.S. at 
201.36

Contrary to this Court’s expectations, the seventh 
circumstance has not been narrowed. Rather, the Georgia 
Supreme Court has, in its decisions since Gregg and in this 
case, left the provision’s application to the unguided 
discretion of juries.

Within two weeks of this Court’s decision in Gregg, 
the Georgia Supreme Court discussed the seventh circum­
stance in Banks v. State, 237 Ga. 325, 227 S.E.2d 380 
(1976), cert, denied, 430 U.S. 975 (1977). Dividing 4-2 
(with the seventh justice voting to hold Georgia’s death 
penalty generally unconstitutional), the court held that the 
jury’s finding of the seventh circumstance was supportable

36 McCorquodale involved the strangulation of a 17 year old 
female victim after the defendant had, over a substantial period, beat, 
whipped, burnt, bit and cut his bound victim, put salt in her wounds, 
and sexually abused her.



32

where the two victims were each successively shot, first in 
the back and then, after time for reloading, again in the 
head. This time interval—not present here—was said to 
permit a finding of “torture to at least one of the victims” 
as well as “depravity of the mind” 227 S.E.2d at 382. In 
dissent, Justice Hill stated

“In my view, the majority in this case has now 
adopted an open-ended construction on ground 7 and 
has placed at least that ground of our statute in peril 
of being held invalid as being vague and overbroad 
and thus capable of capricious and unconstitutional 
application.” Id. at 384.
Thereafter, in Harris v. State, 237 Ga. 718, 230 

S.E.2d 1 (1976), cert, denied, 431 U.S. 933 ( 1977), the 
Court simply noted that the terms used in the seventh 
circumstance were defined in “ordinary dictionaries, 
Black’s Dictionary, or Words and Phrases”. 230 S.E.2d at 
10. Although the court stated that it had “no intention” of 
allowing the circumstance to become a “catchall”, its 
reference to the dictionaries and legal phrase books (a) 
indicates a lack of appreciation of Gregg’s expectation that 
narrowing would occur, and ( b) would hardly be of help 
to juries without explanatory instructions.

Here, the jury was given no guidance whatsoever on 
any of the many broad terms except for “aggravated 
battery”, where what was said (App. at 31a) was the 
functional equivalent of saying that any shooting by the 
defendant himself would be covered—precisely what this 
Court in Gregg suggested would be overbroad.

Apart from the failure to explain or narrow the terms 
“torture”, “depravity of mind”, “aggravated battery”, 
“outrageously or wantonly”, “vile”, “horrible”, or “in­
human”, and the concomitant risk that the jury in its 
unbridled discretion could apply the words to “any mur­
der”, here there was in fact no evidence of torture,



33

aggravated battery, or depravity of mind other than the 
actual death.37

Because of Georgia’s failure to place meaningful 
limits on it, the seventh circumstance can now be classed 
as too vague under the due process clause generally—an 
issue expressly not reached in Gregg, 428 U.S. at 201 
n.51 —as well as too vague under the Eighth Amendment 
as incorporated in the Fourteenth. Here, as in Groyned v. 
City o f Rockford, 408 U.S. 104 (1972), vagueness means 
that “basic policy matters” are impermissibly delegated to 
judges and juries for “resolutions on an ad hoc and 
subjective basis” with the “attendant dangers of arbitrary 
and discriminatory application”. Id., at 108-109. Where, 
as here, the “matter” is life or death and where it appears 
that the Georgia courts have not carried out this Court’s 
assumptions about safeguarding against “arbitrary and 
discriminatory” executions, further review by this Court is 
called for.

V. THE GEORGIA SUPREME COURT ALSO HAS ABAN­
DONED THE APPELLATE REVIEW PROCESS WHICH WAS 
ASSUMED BY THIS COURT IN GREGG TO BE AN IMPOR­
TANT CONSTITUTIONAL SAFEGUARD.

The Georgia mandatory appeal process was assumed 
in Gregg to be a necessary part of avoiding arbitrary' and 
capricious, and thus unconstitutional, imposition of the 
death penalty. 428 U.S. at 198, 201 (plurality opinion), 
and at 222-23 (opinion of Mr. Justice White).

Particularly singled out, and relied upon, by this 
Court was the requirement that the Georgia Supreme 
Court must determine:

. whether the sentence of death is excessive or 
disproportionate to the penalty imposed in sim-

37 The state medical examiner testifed that there was “no evi­
dence really of any foul play or trauma to the body” beyond the gun 
shot wound (Tr. 94).



34

ilar cases, considering both the crime and the 
defendant.” Ga. Code Ann. § 27-2537 (c)(3).

To implement that requirement, the Georgia Supreme 
Court is required to “include in its decision a reference to 
those similar cases which it took into consideration.” Ga. 
Code Ann. § 27-2537 (e).

In this case (and generally since Gregg) the Georgia 
Supreme Court has rendered meaningless that “important 
additional safeguard against arbitrariness and caprice” 
428 U.S. at 198, which this Court had relied upon.

First, the expectation of this Court—and the 
practice of the Georgia court prior to Gregg (see Mr. 
Justice White’s opinion at n.5)— was that the sentence 
under attack would be compared not only against 
other death sentences but also against comparable 
cases in which death was not imposed. But here, in 
every single one of the 14 cases listed in the appendix 
to the Georgia court’s decision, the death penalty was 
imposed.

Second, at the time of Gregg, as Mr. Justice 
White stated, there was no support for Gregg’s con­
tention that the Georgia court would consider only 
cases in which an appeal was taken. 428 U.S. at 223, 
n il- But now, in this case, that court has conceded 
(App. at 15a) that it only compared cases in which 
appeals were taken.

Third, it was assumed in Gregg that the Georgia 
court would, as required by the statute, compare other 
cases not only based upon the nature of the crime, but 
also based upon the defendant. The plurality opinion 
assumed that the court “compares each death sen­
tence with the sentences imposed on similarly situated 
defendants” 428 U.S. at 198. Nothing suggests that 
was done. Indeed it is dear it was not. For there are 
numerous cases, not referenced by the Georgia court,



35

in which the offender was “similar” in “youth” or the 
lack of evidence of a prior criminal record.38
38And, as we show in the note at p. 25, supra, in the over­

whelming majority of those cases the death penalty was not imposed. 
Among the cases where it was reported that the offender was youthful, 
had no record, or both, there are several where the reported circum­
stances of the offense were also similar and the sentence was life. 
Thus, in petitioner’s case, the court ignored:

(i) Stovall v. State, 236 Ga. 840, 225 S.E.2d 292 (1976) 
( defendant and two friends, high school seniors, planned and 
carried out a “gangland-type” slaying of another youth by setting 
up a meeting with him and emptying a pistol and rifle into his car 
when he arrived);

(ii) Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975) 
(youth raped his employer’s wife and, after tying her up, shot her 
in the head; jury instructed that they could find the seventh 
aggravating circumstance, but declined to impose the death 
penalty);

(iii) English v. State, 234 Ga. 602, 216 S.E.2d 851 ( 1975) 
(youth planned to rob victim and, in the course of the robbery, 
shot and killed him; as in petitioner’s case, the jury was instructed 
on the second and fourth statutory circumstances, but declined to 
impose the death penalty);

(iv) five other cases in which (a) the court charged the jury 
on some or all of the aggravating circumstances charged in 
petitioner’s case, (b) the defendant was reported either as 
youthful or as having no prior record, and (c) a life sentence was 
imposed (App. T, Tables 1 and 2).
Moreover, because of inaccuracies in the Georgia Supreme 

Court’s record keeping, the number of available comparison cases 
where the facts pertaining to offense and offender were similar to 
those in petitioner’s case was probably substantially understated. 
Thus, for example, the following cases, in which the offenders were 
sentenced to life imprisonment, were not listed as having mitigating 
circumstances, despite the fact that the offenders were all teen-age 
boys:

(i) the two companion cases to Stovall, supra, involving the 
“gangland-type” slaying, Gillespie v. State, 236 Ga. 845, 225 
S.E.2d 296 ( 1976); and Sanchez v. State, 236 Ga. 848, 225 
S.E.2d 297 (1976);

(ii) Duhart v. State, 237 Ga. 426, 228 S.E.2d 822 (1976) 
(youth accosted a couple, firing a gun, intentionally shot the 
woman between the legs, and then robbed and killed the taxi 
driver whom he had called for a ride).



36

Fourth, neither here—nor in any other death 
case since Gregg—has the Georgia court given the 
slightest hint as to the standards it is applying in 
comparing cases. Simple ipse dixits do not serve as an 
“important additional safeguard” to prevent arbi­
trariness and caprice.

Fifth, the standardless “thumbs down” decision 
of the Georgia Supreme Court is also shown by the 
wide variance between the facts of this case and the 
facts in the fourteen cases cited in the appendix to the 
decision (App. at 15a).

(i) The offenses are all more aggravated 
than the offense presented here.39

(ii) Nine of the fourteen include (or are 
limited to) statutory aggravating circumstances 
other than the seventh circumstance solely in­
volved here. In those nine cases the jury found 
either or both the second circumstance (murder 
committed in the course of another capital fel­
ony) or the fourth circumstance (murder com­
mitted for money). Those circumstances were 
also charged here—but they were not found.40

39This is so from the first case listed—House, in which a man first 
committed anal sodomy on two 7-year-old boys and then choked 
them to death—to the last case listed — Thomas, in which victim was 
hit with hammer, then shot five times, then beaten and cut with shovel 
being used to dig his grave, then buried alive, and finally, after 30 
minutes in grave death caused by swallowing blood and dirt, vomit­
ing, and inhaling regurgiated mixture into lungs).

40The five cases in the Appendix to the decision which rely on the 
seventh circumstance alone are House and McCorquodale, the more 
aggravated facts of which are set forth above, plus Blake ( defendant 
in act of revenge against girl friend abducted her two year old 
daughter and threw her off a 100 foot bridge, having previously 
threatened to put knife through the heart of his own son and having 
stabbed his seven months pregnant wife); Harris (victim shot once in 
car, then shot again, then still again after defendant had gotten out of 
the car); and Dix (former wife “deliberately and methodically 
tortured by being cut and carved as well as strangled before being put 
to death” with three stab wounds).



37

(iii) Four involved sex offenses as part of 
the murder.41

(iv) Six involved children, either as victims 
or as forced witnesses to the death of a parent.42

(v) Six involved multiple murders.43
Obviously any murder—including a murder like that

for which petitioner was accused—must be condemned. 
But before a defendant is convicted or condemned to 
death for such a crime, process fairer and better than the 
standardless “thumbs down” justice of Georgia’s court 
must be followed.

V I. F A IL U R E  T O  T R A N S C R IB E  A R G U M E N T S  T O  T H E  
J U R Y  A N D  T O  P R O V ID E  T H E M  T O  T H E  A P P E L L A T E  C O U R T  
D E P R IV E D  P E T IT IO N E R  O F  D U E  P R O C E S S  O F  L A W .

In Gardner v. Florida, 430 U.S. 349, 361 (1977), this 
Court ruled that:

“it is important that the record on appeal dis­
close to the reviewing court the considerations 
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 resulted in the holding of 
unconstitutionality in Furman v. Georgia” 

Where, as here, the arguments made to the jury are not 
transcribed, it is, by definition, impossible for the review­
ing court to analyze the considerations which “motivated” 
the death sentence.

The constitutional error here is, if anything, more 
serious than that which led to reversal in Gardner. There, 
what was missing from the record on appeal was a 
“portion” of a confidential presentence investigation re-

41House; McCorquodale; Jarrell; Gibson.
42House; McCorquodale; Floyd; Berryhill; Gibson; Blake. 
43House; Floyd; Birt; John Young; Thomas; Stanley.



38

port; the trial judge’s findings did not indicate there was 
anything in it of “special importance”. Id. at 353.44

Arguments to juries of laypersons are surely as impor­
tant. Cf Griffin v. California, 380 U.S. 609 (1965); 
Berger v. United States, 295 U.S. 78, 88 (1935).

In addition, the expectations of this Court in Gregg 
have again been dashed. Under Georgia’s mandatory 
death penalty appeal scheme, the trial court must transmit 
“the entire record and transcript” to the Appeals Court. 
Ga. Code Ann. § 27-2537(a). And, independent of any 
error raised on appeal, the Georgia Supreme Court must 
review the record and reverse if it concludes the sentence 
was imposed under the influence of “passion, prejudice or 
any other arbitrary factor”. Ga. Code Ann. § 27- 
2537(c)(1). Here, without the arguments, the entire 
record by definition was not transmitted. Moreover, it is 
the prosecutor’s arguments which are the most likely 
source of passion, prejudice and other arbitrary factors.

The Georgia Supreme Court itself has recognized 
this. It has held improper prosecutorial argument in death 
case transcripts to be grounds for reversal, even where 
unobjected to at trial. See Hawes v. State, supra; Prevatte 
v. State, 233 Ga. 929, 214 S.E.2d 365 (1975). But the 
Georgia court has held in Stephens v. Hopper, 241 Ga. 
596, 247 S.E.2d 92 (1978), cert, denied, No. 78-5544, slip 
op. (Nov. 27, 1978), that while closing arguments 
“should” be transcribed in death cases, failure to do so 
would not lead to reversal 247 S.E.2d at 95-96. Stephens 
is distinguishable in that there, trial counsel was expressly 
told that arguments would not be transcribed absent a

44In Gardner, this Court held that failure of defense counsel to 
request access to the confidential portion of the report “cannot justify” 
submission of a record to the reviewing court less complete than that 
available to the sentencing authority. 430 U.S. at 361.

Similarly, the Georgia Supreme Court has held that improper 
remarks in a prosecutor’s summation, in a death case, require reversal 
even though trial counsel made no objection. Hawes v. State, 240 Ga. 
327, 240 S.E.2d 833, 839 ( 1977).



39

request. Id. In any event, Stephens is inconsistent with 
this Court’s reasoning in Gardner, and with the assump­
tions in Gregg (where the argument had been transcribed) 
about the nature of Georgia’s mandatory appeal scheme.

Even where the penalty imposed was only $250, this 
Court has ruled that relevent portions of the record, 
including the prosecutor’s argument, should be provided 
to indigents. Mayer v. City of Chicago, 404 U.S. 189 
(1971). Surely with life in the balance, a state’s capital 
sentencing scheme should ensure that a full record— 
including each part that may have “motivated the death 
sentence” ( Gardner, 430 U.S. at 361)—is available for 
review.

VII. THE INCONSISTENT TREATMENT OF CAPITAL 
CASES BY THE GEORGIA COURTS RENDERS ALL GEORGIA 
DEATH SENTENCES UNCONSTITUTIONAL.

Each of the foregoing points illustrates Georgia’s 
abandonment in this case of the safeguards which this 
Court had held necessary to save a capital punishment 
scheme from unconstitutionality. The rubber stamp
“thumbs down” form of appellate review has now become 
endemic, and Georgia’s treatment of death sentence in­
structions is increasingly a general problem. See the 
dissent below, and the Appendix to this petition sum­
marizing 29 Georgia cases on instructions (App. at 81a).

An even more fundamental point arises out of the 
Georgia Supreme Court’s decision to give carte blanche to 
Georgia trial courts to charge a jury on a matter of life and 
death as long as a “reasonable juror” would know that he 
or she could consider mitigating circumstances See Spivey 
v. State, 246 S.E.2d at 291. Since some Georgia trial 
courts continue nevertheless to give accurate and complete 
charges, this necessarily creates a substantial and unneces­
sary risk that similarly situated defendants will not receive 
similar penalties.45 The lesson of Furman and all that

45The wide variation in the accuracy and clarity of jury charges 
from case to case is obvious from the summary chart printed in the 
Appendices at 81a. That this creates a substantial risk that similarly



40

followed it is that where the state’s capital punishment 
scheme has created such a risk, death has become an 
unconstitutional punishment.

V III. T H E  C A S E  A L S O  S H O U L D  B E  H E A R D  S O  A S  T O  
R E IT E R A T E  T H E  F U N D A M E N T A L  P R IN C IP L E  T H A T  C O U N ­
S E L  M A Y  N O T  B E  D E N IE D  W H E R E  L IF E  I S  A T  S T A K E .

In 1932—more than thirty years before the general 
rule of Gideon—this Court held that the accused in a 
capital case “requires the guiding hand of counsel at every 
step in the proceedings against him”. Powell v. Alabama, 
287 U.S. 45, 68-69 (1932). And the Court must make an 
“effective appointment” of counsel. Id., at 71. That right 
to counsel continues through appeal of a state criminal 
conviction. Douglas v. California, 372 U.S. 353 (1963).

Petitioner was denied counsel in the Georgia courts in 
three respects.* 46

First. The Georgia Supreme Court knew that 
petitioner, rather than counsel, had filed his notice of

situated defendants will not receive similar penalties is shown by the 
fact that in Duhart, supra, where the jury opted for life, the charge (i) 
instructed the jury to consider aggravating and mitigating circum­
stances, (ii) clearly defined the legal term “mitigating”, (iii) in­
structed the jury to consider the mitigating circumstances which the 
defendant had raised, (iv) authorized the jury to return a life sentence 
even if aggravating circumstances were found, and (v ) made clear to 
the jury that if it returned a death sentence “the court would be 
required to sentence defendant to death by electrocution”. 228 S.E.2d 
at 825-827. A comparison of both the jury charges, and the facts, of 
Duhart as against those in petitioner’s case suggests that the jury 
instruction may have caused dissimilar penalties where both the 
offense and the offender were substantially similar.

46Petitioner does not raise as a ground for appeal at this stage 
issues concerning the ineffectiveness of appointed counsel—in those 
“steps in the proceedings” where counsel chose to participate. There 
appear to be serious issues regarding effectiveness—but as a matter of 
fairness to that counsel, and of orderly judicial process, such issues 
should, if ever necessary, be raised in a lower court where, among 
other things, that counsel could be heard.

The point raised here—the state’s denial of counsel at crucial 
stages of the proceedings—requires no further development, however.



41

appeal, and that petitioner had asked for new counsel 
to be appointed. It ignored that request. The court 
knew that it had to order previously assigned counsel 
to file a brief, that counsel’s brief did not cover an 
issue it regarded as crucial (the death sentence), and 
that counsel did not appear for oral argument.

On those facts alone, petitioner was denied coun­
sel in the mandatory Georgia appeal process, which 
this Court- held was an “important” part of what 
saved Georgia’s scheme from unconstitutionality.

In addition, when the Georgia Court asked for 
briefs on the issue it found crucial to whether petition­
er would live or die—the sentencing instructions—it 
decided that petitioner would not be represented.

That alone made a mockery of the proceedings 
below.

Second. __ Both the Georgia Supreme Court 
(which said that it had examined the whole record) 
and the trial court (to whom the comment was 
made) knew that appointed counsel had said that 
because of “lack of cooperation” from his client he 
could not put on an effective defense (p. 6, supra).

Third. To appoint as counsel in a jury trial 
where life is at stake, an attorney with only two years 
experience, and not a specialist in the criminal field 
(p. 7, supra), is itself a denial of the effective 
appointment of counsel. Cf United States v. Woods, 
487 F.2d 1218 (5th Cir. 1973); McKenna v. Ellis, 280
F.2d 592 (5th Cir. 1960).



42

Conclusion
For these reasons, a Writ of Certiorari should issue to 

review the judgment and opinion of the Georgia Supreme 
Court.

Respectfully submitted,

F rederick A. O. Schwarz, Jr., 
One Chase Manhattan Plaza, 

New York, N. Y. 10005

Counsel for Petitioner

Of Counsel:
John H. P ickering,

1666 K Street N.W., 
W ashington, D.C. 20006 

Thomas J. D ougherty,
Mark P. Schnapp,
Catherine M. R aymond, 
F rancis P. Barron,
Cravath, Swaine & Moore, 

One Chase Manhattan Plaza, 
New York, N.Y. 10005 March 24, 1979.