Morgan v. Georgia Petition for a Writ of Certiorari to the Supreme Court of Georgia
Public Court Documents
March 24, 1979
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Brief Collection, LDF Court Filings. Morgan v. Georgia Petition for a Writ of Certiorari to the Supreme Court of Georgia, 1979. 0d1eafba-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/59aa6467-8d5f-476c-b09c-050f7b866b39/morgan-v-georgia-petition-for-a-writ-of-certiorari-to-the-supreme-court-of-georgia. Accessed December 04, 2025.
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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.