Gregg v. Georgia Brief Amicus Curiae

    I n  t h e

(tart 0! tip ^tat^
October T erm, 1975 

No. 74-6257

Troy L eon Gregg,
Petitioner,

—v.—

T he S tate oe Georgia,
Respondent.

ON W R IT  OF CERTIORARI TO T H E  SU PR EM E COURT OF GEORGIA

BRIEF FOR THE N.A.A.C.P. LEGAL. DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

J ack Greenberg 
J ames M. Nabrit, III 
P eggy C. Davis 
David E. K endall

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

A nthony G. A msterdam

Stanford University Law School 
Stanford, California 94305

T im F ord

2200 Smith Tower 
Seattle, Washington 98104

Attorneys for the N.A.A.C.P. Legal 
Defense and Educational Fund, Inc.



I N D E X

Statement of Interest of the N.A.A.C.P. Legal Defense 
and Educational Fund, Inc........-.......... ............. .... . 1

Question Presented .................. ............. ...... ................. 2

Constitutional and Statutory Provisions Involved ..... 3

Statement of the Case ..................................— ...... — 14

How the Federal Question Was Raised and Decided 
Below...... - .......-....... ..............................—...... —.........  21

Summary of Argument  .................. —-.......-......— - 22

I. Introduction   ............................ -....................  24

II. The Arbitrary Infliction of Death ............... —  29
A. At the Pre-sentence Hearing .......... .......—  29

1. Georgia's 1973 Death Penalty Legislation
Is Explicitly Discretionary .........................29

2. The Consideration of Aggravating and
Mitigating Circumstances Does Not Con­
trol Arbitrariness in the Georgia Capital 
Sentencing Process ..................................  30

3. Appellate Reconsideration of Death Sen­
tences Merely Ratifies the Arbitrariness 
of the Georgia Capital Sentencing Proc­
ess .................................      40

4. The Results of the Georgia Sentencing
Process: Caprice and Arbitrariness ___  49

B. Before and After the Pre-Sentencing Hear­
ing .........       53

PAGE



11

1. Prosecutorial Charging Discretion ........  54
2. Plea Bargaining ...........    55
3. Jury Discretion.......................................... 58
4. Executive Clemency ................................. 65

III. The Excessive Cruelty of Death .......................... 67

Conclusion .....................................  68

A ppendix ....................................................................................  l a

T able op A uthorities

Cases:
Alford v. Eyman, 408 U.S. 939 (1972) .....-................... 40
Allen v. State, 233 Ga. 200, 210 S.E.2d 680 (1974).... . 51
Alvarez v. Nebrasxa, 408 U.S. 937 (1972) ................. 40,52
Arkwright v. Georgia, 408 U.S. 936 (1972) ...............   24
Atkins v. State, 228 Ga. 578,187 S.E.2d 132 (1972)...... 46

Ballard v. State, 131 Ga. App. 847, 207 S.E.2d 246
(1974) ...........................................................................  56

Banks v. State, 227 Ga. 578, 182 S.E.2d 106 (1971) .... 59 
Barker v. State, 233 Ga. 781, 213 S.E.2d 624 (1975)..... 47
Barrow v. State, Ga. Sup. Ct., No. 30322  .................  51
Billingsley v. New Jersey, 408 U.S. 934 (1972)..........  52
Bowen v. State, 225 Ga. 423, 169 S.E.2d 322 (1969).... 59
Brannen v. State, -----Ga.------ , 220 S.E.2d 264 (1975) 51
Brooks v. Sturdivant, 177 Ga. 514, 170 S.E. 369 (1933) 41 
Brown v. State, Ga. Sup. Ct., No. 30362, Dec. 2, 1975

37, 38, 49
Brown v. State, 228 Ga. 215, 184 S.E.2d 655 (1971)..... 64

PAGE



PAGE

Caldwell v. Paige, 230 Ga. 456, 197 S.E.2d 692 (1973) 57
Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972) 25
Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975)

38, 49, 51, 64
Coker v. Georgia, No. 75-544-4 ...... .............................. . 2
Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975)

38, 39, 45, 49, 51
Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974)

22, 29, 33-34, 41, 45, 49, 51, 53
Collier v. State, 115 Ga. 803, 42 S.E. 226 (1902) ....... 41
Commonwealth v. Edwards, 380 Pa. 52, 110 A.2d 216

(1955) ......... ............. ...... ........................ .............. .....  40
Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241

(1959) ............................................................... ........... 41
Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84

(1948) ................ ...................................... ................... 40
Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540

(1967) ........... ............ .................................................. 40
Cummings v. Georgia, 408 U.S. 935 (1972) .................  24

Davis v. Connecticut, 408 U.S. 935 (1972) ...................  52
Duling v. Ohio, 408 U.S. 936 (1972) ....... ........... .......... 52
Dutton v. State, 228 Ga. 850, 188 S.E.2d 794 (1972) 46

Eberheart v. Georgia, No. 74-5174 ..... ..... ................ ....  2
Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974)

22, 45, 49, 51
Echols v. State, 46 Ga. App. 668, 168 S.E. 790 (1933) 59 
Edwards v. State, 121 Ga. 590, 49 S.E. 674 (1905) ..... 55

Fesmire v. Oklahoma, 408 U.S. 935 (1972) ........... . 40
Fesmire v. State, 456 P.2d 573 (Okla. Ct. Cr. App.

(1969) ........ .......................................................... ...... 40
Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974)

33, 45, 49



IV

Fowler v. North Carolina, No. 73-7031 ..................... 23, 53
Furman v. Georgia, 408 U.S. 238 (1972) ....2, 6, 23, 24, 34, 43,

48, 50, 51, 52, 53

Gaines v. State, 232 Ga. 727, 208 S.E.2d 798 (1974).... 39 
Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (1975)

40, 51
Grant v. State, 120 Ga. App. 244, 170 S.E.2d 55 (1969) 64
Grantling v. State, 229 Ga. 746, 194 S.E.2d 405 (1972) 25
Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974) ....22,31,

44, 48, 49, 51, 59
Griffin v. State, 12 Ga. App. 615, 77 S.E. 1080 (1913)

55, 56, 57

Henderson v. State, 227 Ga. 68, 179 S.E.2d 76 (1970)
48, 59

Henderson v. Georgia, 408 U.S. 938 (1972)................ 24
Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975) 59
Herron v. Tennessee, 408 U.S. 937 (1972) ...... ............  52
Hicks v. Brantley, 102 Ga. 264, 29 S.E. 459 (1897) ......54,55
Hill v. State, 232 Ga. 800, 209 S.E.2d 153 (1974) ..........  46
Holcomb v. State, 230 Ga. 525, 198 S.E.2d 179 (1973) 62
Holston v. State, 103 Ga. App. 373, 119 S.E.2d 302

(1961) .................. ....... .... .....................-.............. -....56,57
Hooks v. Georgia, No. 74-5954 .......................... ...........  2
Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974) .... 45,

49, 51,56
House v. Georgia, No. 74-5196 .................................... — 2
House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974) .... 22,

34, 48, 49
Hurst v. Illinois, 408 U.S. 935 (1972) ........... ............. ... 40

PAGE

Jackson v. Georgia, 230 Ga. 181, 195 S.E.2d 921 (1973) 25
Jackson v. Georgia, 408 U.S. 238 (1972) ...................... 24



V

Jackson v. Georgia, 409 U.S. 1172 (1972) .....................  24
Jackson v. State, 234 Ga. 549, 216 S.E.2J 834 (1975) . . 46
Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975)

31, 46, 49

PAGE

Jarrard v. State, 206 Ga. 112, 55 S.E.2d 706 (1949) .. . 63
Jessen v. State, 234 Ga. 791, 218 S.E.2d 52 (1975) 39
Jones v. Smith, 228 Ga. 648, 187 S.E.2d 298 (1972) ...... 61
Jones v. State, 233 Ga. 662, 212 S.E.2d 832 (1975) ...... 39, 51
Jordan v. State, 233 Ga. 929, 214 S.E.2d 365 (1975) 49 
Jurek v. Texas, No. 75-5394 .......................................23,53

Lane v. Wilson, 307 U.S. 268 (1938) .........................29,48
Leach v. State, 234 Ga. 467, 216 S.E.2d 326 (1975) ....46, 51 
Lee v. Georgia, 408 U.S. 936 (1972) ............................  24
Lee v. State, 74 Ga. App. 212, 39 S.E.2d 426 (1946) 59 
Leonard v. State, 113 Ga. 435, 66 S.E.2d 251 (1909) 59 
Lereh v. State, 234 Ga. 857, 218 S.E.2d 571 (1975) ....46,51 
Lewis v. State, 451 P.2d 399 (Okla. Ct. Grim. App.

1969) ..................................... ............. ................ ........ 41
Linder v. State, 132 Ga. App. 624, 208 S.E.2d 630

(1974) ............................    59,61
Lundy v. State, 119 Ga. App. 585, 168 S.E.2d 199

(1969) .....................................   63

Manor v. Georgia, 408 U.S. 935 (1972) .................... . 24
Mason v. State, Ga. Sup. Ct., No. 30338, decided Jan.

7, 1976 ....     38,48,49
Massey v. State, 220 Ga. 883, 142 S.E.2d 832 (1965) 56
Massey v. State, 229 Ga. 846, 195 S.E.2d 28 (1972) ....25, 56
McCorquodale v. Georgia, No. 74-6557 ............    2
McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577

(1974) ........................................    45,49,56
McCrary v. State, 229 Ga. 733, 194 S.E.2d 480 (1972) 25
McGabee v. State, 133 Ga. App. 964, 213 S.E.2d 91

(1975) 55



VI

McGautha v. California, 402 U.S. 183 (1971) .............. 52
Miller v. Georgia, 408 U.S, 938 (1972) ......................... 24
Miller v. State, 226 Ga. 730, 177 S.E.2d 253 (1970) .... 38 
Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975)

32, 45, 49
Mitchell v. State, 229 Ga. 781, 194 S.E.2d 414 (1972) .... 24
Moore v. Illinois, 408 U.S. 786 (1972) ____________  52
Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975)

33, 40, 42, 44, 45, 46, 
47, 49, 55, 56

Morris v. State, 228 Ga. 39, 184 S,E.2d 82 (1971) ___  46
Myers v. State, 97 Ga. 76, 25 S.E. 252 (1895) ..............  41

Nichols v. State, 17 Ga. App. 593, 87 S.E. 817 (1916) 54

Park v. Georgia, 408 U.S. 935 (1972) .........................  24
Park v. State, 206 Ga. 675, 58 S.E.2d 142 (1950) ......  66
Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971) ....46, 56
Patterson v. State, 124 Ga. 408, 52 S.E. 534 (1905)....  38
Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974)..... 62
People v. Black, 367 111. 209, 10 N.E.2d 801 (1937)....  52
People v. Crews, 42 I11.2d 60, 244 N.E.2d 593 (1969).... 41 
People v. Hurst, 42 I11.2d 217, 247 N.E.2d 614 (1969).... 40
People v. Sullivan, 245 111. 87, 177 N.E. 733 (1933)......  52
Perry v. State, 78 Ga. App. 273, 50 S.E.2d 709 (1948) 59
Phelan v. Brierly, 408 U.S. 939 (1972).........................  40
Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975)

36, 37, 51

Ramsey v. State, 232 Ga. 15, 205 S.E.2d 286 (1974).... 38 
Reeves v. State, 22 Ga. App. 628, 97 S.E. 115 (1918).... 59 
Revill v. State, 235 Ga. 71, 218 S.E.2d 816 (1975)........ 64
Roberts v. Louisiana, No. 75-5844 ........................... .....  53
Robinson v. State, 6 Ga. App. 696, 651 S.E. 792 (1909) 41

PAGE



Y ll

Robinson v. State, 109 Ga. 506, 34 S.E. 1017 (1900)..,. 61
Ross v. Georgia, No. 74-6207 ........ ................................  2
Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974)...... 47, 49
Ross v. State, 135 Ga. App. 169, 217 S.E.2d 170 (1975) 64
Rowland v. State, 72 Ga. App. 793, 35 S.E.2d 372 (1945) 57

Scott v. State, 53 Ga. App. 61, 185 S.E. 131 (1936).... 55
Shearer v. State, 128 Ga. App. 809, 198 S.E.2d 369

(1973) ............................................-........-...................  56
Sims v. State, 234 Ga. 177, 214 S.E.2d 902 (1975) ...... 51
Sims v. State, 203 Ga. 665, 47 S.E.2d 862 (1948) ...... . 58
Sirmans v. State, 229 Ga. 743, 194 S.E.2d 476 (1972) 25
Smith v. Embry, 103 Ga. App. 375,119 S.E.2d 45 (1961) 55
Smith v. Strozier, 226 Ga. 283, 174 S.E.2d 417 (1970) 54
Smithwick v. State, 199 Ga. 292, 34 S.E.2d 28 (1945) .... 41
Stapleton v. State,----- Ga. ——, 220 S.E.2d 269 (1975) 47,

51
State v. Alford, 98 Ariz. 124, 402 P.2d 551 (1965) ......  40
State v. Floyd Allen, Gwinnett County Superior Court,

Indictment No. 9475 ............................. ..... .............—. 19
State v. Alvarez, 182 Neb. 358, 154 N.W.2d 746 (1967) 40
State v. Eaton, 19 Ohio St. 145, 249 N.E.2d 897 (1969) 52
State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964) ..  41
State v. Maloney, 105 Ariz. 348, 464, P.2d 793 (1970) 41
State v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963)......  52
State v. Tudor, 154 Ohio St. 249, 95 N.E.2d 285 (1950) 52
Stein v. New York, 346 TJ.S. 156 (1953) ....................... 65
Stevens v. State, 228 Ga. 621, 187 S.E,2d 281 (1972) .... 46
Sullivan v. Georgia, 408 TJ.S. 935 (1972) ........... .......... 24
Sullivan v. State, 229 Ga. 731, 194 S,E.2d 411 (1972) 25
Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951) 52

Tamplin v. State, 235 Ga. 20, 218 S.E.2d 779 (1975)
37,46-47, 49, 51

Thacker v. Georgia, 408 TJ.S. 936 (1972) .....................  24

PAGE



V lll

Thomas v. State, 233 Ga. 237, 210 S.E.2d 675 (1974) 51 
Thomason v. Caldwell, 229 Ga. 637, 194 S.E.2d 112

(1972) ...... ................. -........................................... -.... 57

Underhill v. State, 129 Ga, App. 65, 198 S.E.2d 703
(1973) ..........................................................................  55

Walker v. Georgia, 408 U.S. 936 (1972) .....................  24
Walker v. State, 5 Ga. App. 606, 63 S.E. 605 (1909) .... 38 
Walker v. State, 132 Ga, App. 476, 208 S.E.2d 350

(1974) ............................................... - ........................  41
Waller v. State, 107 Ga. App. 609, 131 S.E.2d 111

(1963) .............................. ................................ - .....--  59
Ward v. State, 231 Ga. 484, 202 S.E.2d 421 (1973) ....61, 62 
Waters v, Walkover Shoe Shop, 142 Ga. 137, 82 S.E.

537 (1914) .................................................................- 55
Watson v. State, 229 Ga. 787, 194 S.E,2d 407 (1972) 25
Webb v. Henlery, 209 Ga. 447, 74 S.E.2d 7 (1953) .... 54
Wilburn v. State, 230 Ga. 675, 198 S.E.2d 857 (1973) 25
Williams v. Georgia, 408 U.S. 936 (1972) .............. . 24
Williams v. State, 126 Ga. 454, 191 S.E.2d 100 (1972) 63
Williams v. State, 232 Ga. 203, 206 S.E.2d 37 (1974)....63, 64
Witherspoon v. Illinois, 391 U.S. 510 (1968) ........... . 53
Wood v. State, 234 Ga, 758, 218 S.E.2d 47 (1975) ..... 51
Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843 (1932) 52
Woolfolk v. State, 81 Ga. 558, 8 S.E. 724 (1889) . 41

York v. State, 226 Ga. 281, 174 S.E.2d 418 (1970) .... 63

Ga. ------, 219 S.E.2d 389 (1975)
46, 47, 51

PAGE

Zirkle v. State,



IX

Statutes:
United States Constitution, Eighth Amendment ........  3
United States Constitution, Fourteenth Amendment .... 3
Ariz. Rev. Stat. §13-1717 (1956) .................................. 40
Conn. Gen. Stat. Ann. §53-10 (1967) .................... ......  52
Ga. Const. Ann. §2-3011 (1972) ..................... .............. 65, 66
Ga. Code Ann. §24-2908(2), (1971) ...........................  54
Ga. Code Ann. §26-505 (1972) ....................................  58
Ga. Code Ann. §26-901 (a) (1972) ......    62
Ga. Code Ann. §26-901 (f) (1972) ............................... 63
Ga. Code Ann. §26-902 (1972) .................................. 62-63
Ga. Code Ann. §26-1004 (1972) ..........................    61
Ga. Code Ann. §26-1101 (1972) ..............................3, 59-60
Ga. Code Ann. §26-1102 (1972) ..................................... 60
Ga. Code Ann. §26-1303 (1972) ..................................... 61
Ga. Code Ann. §26-1305 (1972) ..................................... 32
Ga. Code Ann. §26-1311 (1972) .....................  3,32
Ga. Code Ann. §26-1902 (1972) ..................................... 4
Ga. Code Ann. §26-2001 (1972) ...................   4
Ga. Code Ann. §26-2201 (1972) ....................................  5
Ga. Code Ann. §26-2401 (1972) ..................................... 26
Ga. Code Ann. §26-3102 (1975 Supp.) ........ 5,25,28,33,35
Ga. Code Ann. §26-3301 (1972) .........    5
Ga. Code Ann. §27-1801 (1973) ..................................... 55

PAGE



X

Ga. Code Ann. §27-2302 (1975 Snpp.) .......................  6
Ga. Code Ann. §27-2508 (1972) .............    61
Ga. Code Ann. §27-2512 (1972) ....................................  7
Ga. Code Ann. §27-2514 (1975 Supp,) ......      7
Ga. Code Ann. §27-2527(c) (3) ...    44
Ga. Code Ann. §27-2528 (1975 Supp.) ......... 14,25,55,56
Ga. Code Ann. §27-2534.1 (1975 Snpp.) .............. 8,25,26
Ga. Code Ann. §27-2534.1(b) (1975 Supp.) ....25,26,31,36
Ga. Code Ann. §27-2534.1(b) (1) (1975 Supp.) .29,35
Ga. Code Ann. §27-2554.1(b) (2) (1975 Supp.) .........31,35
Ga. Code Ann. §27-2534.1(b) (3) (1975 Supp.) ..........  35
Ga. Code Ann. §27-2534.1(b) (4) (1975 Supp.) ........ 31
Ga. Code Ann. §27-2534.1(b) (5) (1975 Supp.) ........ 31
Ga. Code Ann. §27-2534.1 (b) (6) (1975 Supp.) ..........  31
Ga. Code Ann. §27-2534.1 (b) (7) (1975 Supp.) ........32,33,

35
Ga. Code Ann. §27-2534,1(e) (1975 Supp.) ...... 28,33,36
Ga. Code Ann. §27-2537 (1975 Supp.) .............. 10,25,28
Ga. Code Ann. §27-2537(c) (1975 Supp.) ......... .28,43,44,

47, 48
Ga. Code Ann. §27-2537(e) (1975 Supp.) .................  28
Ga. Code Ann. §27-2537(f) (1975 Supp.) .................  48
Ga. Code Ann. §77-501 (1973) .....      65
Ga. Code Ann. §77-511 (1972) ....................................  65

PAGE



X I

Ga. Code Ann. §77-513 (1975 Supp.) .........................65-66
Ga. Laws 1973, Act. No. 74 ..................... .12, 25, 28, 33, 38
Ga. Laws 1974, Act. No. 854 ....................................... 6,12
111. Eev. Stat. c. 38, §1-7(c)(1) .................................... 52
Neb. Eev. Stat. §29-2308 (1943) ....................................  40
N.J. Stat. Ann. §2A: 113-4 (1969) ................................  52
Tenn. Code Ann. §39-2406 (1955) ............ .......... ......... 52

PAGE

Other Authorities:
Black, Capital P unishm ent; T he I nevitability op 

Caprice and Mistake (1974) .............................23, 35, 50, 57

Brewster, The Georgia Death Penalty Statute—Is It 
Constitutional, Even After Revision? 3 Ga. J. Corr,
(No. 1) 14 (1974) ............................................................ 43,47

Browning, The New Death Penalty Statutes: Per­
petuating a Costly Myth, 9 Gonzaga L. E ev. 651
(1974) .....................................................................................  31

Cardozo, L aw and L iterature (1931) ............................... 58

Comment, Constitutional Law—Capital Punishment— 
Furman v. Georgia and Georgia’s Statutory Re­
sponse, 24 Mercer L. R ev. 891 (1973) ........................36, 39

Note, Discretion and the New Death Penalty Statutes,
87 H arv. L. Rev. 1690 (1974) .........................................  31

Note, Executive Clemency in Capital Cases, 39 N.Y.U.
L. R ev. (1969) ................................................

Goldstein : The Insanity Defense (1967)

66

64



K alvin & Zeisel : T he A merican J ury (1966) ..... ....62, 64
P resident’s Commission on L aw E nforcement and 

the A dministration of J ustice, T ask F orce Re­
port :The Courts 9 (G.P.O. 1967) ........................... 57

R oyal, Commission on Capital P unishment 1949-1953, 
R eport 174 (H.M.S.O. 1973) ...................................... 52

X l l

PAGE



I n t h e

Court of %  Inttrtu Stairs
October T erm, 1975 

No. 74-6257

Troy Leon Gregg,
Petitioner,

—v.—

T he State of Georgia,
Respondent.

ON W R IT OF CERTIORARI TO T H E  SU PR EM E COURT OF GEORGIA

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE

Statement o f Interest of the N.A.A.C.P. Legal Defense 
and Educational Fund, Inc.

(1) The N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., is a non-profit corporation formed to assist 
black citizens in securing their constitutional rights by the 
prosecution of lawsuits.

(2) The experience of Legal Defense Fund attorneys in 
handling capital cases over a period of many years con­
vinced us that the death penalty is customarily applied in 
a discriminatory manner against racial minorities and the 
economically underprivileged. Further study and reflec­
tion led us to the conclusion that the evil of discrimination 
was not merely adventitious, but was rooted in the very



2

nature of capital punishment. Accordingly, in 1967, the 
Legal Defense Fund undertook to represent all condemned 
men in the United States, regardless of race, for whom ade­
quate representation could not otherwise he found. Addi­
tionally, the Fund provided consultative assistance to at­
torneys representing a large number of other condemned 
defendants.

(3) Since this Court’s decision in Furman v. Georgia, 
408 U.S. 238 (1972), the Legal Defense Fund has continued 
to provide legal assistance to indigent condemned prisoners 
of all races. Fund attorneys now represent on appeal more 
than one hundred death-sentenced defendants. Among these 
are a number of prisoners condemned under Georgia’s 1973 
death penalty statutes; and we have filed certiorari peti­
tions in this Court on behalf of six such prisoners. Eber- 
heart v. Georgia, No. 74-5174; House v. Georgia, No. 
74-5196; Hoolcs v. Georgia, No. 74-5954; Ross v. Georgia, 
No. 74-6207; McCorquodale v. Georgia, No. 74-6557; Coker 
v. Georgia, No. 75-5444.

(4) The Court’s decision in the instant case may resolve 
the constitutional issues upon which the lives of these six 
men and our other Georgia clients depend.

(5) Consent has been given by petitioner and respondent 
for the filing of this brief amicus curiae.

Question Presented

Whether the imposition and carrying out of the sen­
tence of death for the crime of murder under the law of 
Georgia violates the Eighth or Fourteenth Amendment to 
the Constitution of the United States?



3

Constitutional and Statutory Provisions Involved

1. This case involves the Eighth Amendment to the 
Constitution of the United States, which provides:

“Excessive hail shall not he required nor excessive fines 
imposed, nor cruel and unusual punishment inflicted.”

It also involves the Due Process Clause of the Fourteenth 
Amendment.

2. This case further involves the following provisions 
of the Code of Georgia:
Ga. Code Ann. %26-UOl (1972)

“Murder, (a) A person commits murder when he 
unlawfully and with malice aforethought, either ex­
press or implied, causes the death of another human 
being. Express malice is that deliberate intention 
unlawfully to take away the life of a fellow creature, 
which is manifested by external circumstances cap­
able of proof. Malice shall be implied where no con­
siderable provocation appears, and where all the cir­
cumstances of the killing show an abandoned and 
malignant heart.

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

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

Ga. Code Ann. %26-13U (1972)

“Kidnapping, (a) A person commits kidnapping 
when he abducts or steals away any person without



4

lawful authority or warrant and holds such person 
against his will.

(b) A person over the age of 17 commits kidnap­
ping when he forcibly, maliciously, or fraudently leads, 
takes, or carries away, or decoys or entices away, any 
child under the age of 16 years against the will of 
the child’s parents or other person having lawful 
custody.

A person convicted of kidnapping shall be punished 
by imprisonment for not less than one nor more than 
20 years: provided that a person convicted of kid­
napping for ransom shall be punished by life im­
prisonment or by death.”

Ga. Code Ann. %26-1902 (1972)

“Armed robbery. A person commits armed robbery 
when, with intent to commit theft, he takes property 
of another from the person or the immediate presence 
of another by use of an offensive weapon. The offense 
robbery by intimidation shall be a lesser included 
offense in the offense of armed robbery. A person 
convicted of armed robbery shall be punished by death 
or imprisonment for life, or by imprisonment for 
not less than one nor more than 20 years.”

Ga. Code Ann. %26-2001 (1972)

“Rape. A person commits rape when he has carnal 
knowledge of a female, forcibly and against her will. 
Carnal knowledge in rape occurs when there is any 
penetration of the female sex organ by the male sex 
organ. A person convicted of rape shall he punished 
by death or by imprisonment for not less than one 
nor more than 20 years. No conviction shall be had 
for rape on the unsupported testimony of the female.”



5

Ga. Code Ann. %26-2201 (1972)

“Treason. A person owing allegiance to the State 
commits treason when he knowingly levies war against 
the State, adheres to her enemies, or gives them aid 
and comfort. No person shall be convicted of treason 
except on the testimony of two witnesses to the same 
overt act, or on confession in open court. When the 
overt act of treason is committed outside this State, 
the person charged therewith may be tried in any 
county in this State. A person convicted of treason 
shall be punished by death, or by imprisonment for 
life or for not less than 15 years.”

Ga. Code Ann. §26-3301 (1972)

“Definition: punishment; continuing offense; juris­
diction.

A person commits hijacking of an aircraft when he
(1) by use of force; or (2) by intimidation, by use 
of threats or coercion, places the pilot of an aircraft 
in fear of immediate serious bodily injury to himself 
or to another, causes the diverting of an aircraft 
from its intended destination to a destination dic­
tated by such person. A person convicted of hijacking 
an aircraft shall be punished by death or life im­
prisonment. The offense of hijacking is declared to 
be a continuing offense from the point of beginning 
and jurisdiction to try a person accused of the offense 
of hijacking shall be in any county of Georgia over 
which the aircraft is being operated.

Ga. Code Ann. §26-3102 (1975 Supp.)

“Capital offenses; jury verdict and sentence. Where, 
upon a trial by jury, a person is convicted of an of­
fense which may be punishable by death, a sentence



6

of death shall not be imposed unless the jury verdict 
includes a finding of at least one statutory aggravat­
ing circumstance and a recommendation that such sen­
tence be imposed. Where a statutory aggravating 
circumstance is found and a recommendation of death 
is made, the court shall sentence the defendant to im­
prisonment as provided by law. Unless the jury try­
ing the case makes a finding of at least one statutory 
aggravating circumstance and recommends the death 
sentence in its verdict, the court shall not sentence 
the defendant to death, provided that no such finding 
of statutory aggravating circumstance shall he neces­
sary in offenses of treason or aircraft hijacking. The 
provisions of this section shall not affect a sentence 
when the case is tried without a jury or when the 
judge accepts a plea of guilty.”

Ga. Code Ann. §27-2302 (1975 Supp.)1
“Recommendation to mercy. In all capital cases, 

other than those of homicide, when the verdict is

1 At the time of petitioner’s trial, Ga. Code Ann. §27-2302 pro­
vided :

“In all capital cases, other than those of homicide, when the 
verdict is guilty, with a recommendation to mercy, it shall be 
legal and shall mean imprisonment for life.”

“When the verdict is guilty without a recommendation to 
mercy it shall be legal and shall mean that the convicted per­
son shall be sentenced to death. However, when it is shown 
that a person convicted of a capital offense without a recom­
mendation to mercy had not reached his seventeenth birthday 
at the time of the commission of the offense the punishment 
of such person shall not be death but shall be imprisonment 
for life.”

Sec. 27-2302 was part of Georgia’s capital-sentencing laws before 
Furman v. Georgia, and was not amended by the 1973 statute, 
whose provisions (Ga. Code Ann. §§26-3102, 27-2534.1 (c)) were 
consistent with it. The present language is the result of a 1974 
amendment. Ga. Laws, 1974, p. 353, Act. No. 854. See Editorial 
Comment to Ga. Code Ann. §27-2302 (1975 Supp.).



7

guilty, with a recommendation to mercy, it shall be 
a recommendation to the judge of imprisonment for 
life. Such recommendation shall be binding upon the 
judge.”

Ga. Code Ann. %27-2512 (1972)

“Electrocution substituted for hanging; place of exe­
cution. All persons who shall be convicted of a capital 
crime and who shall have imposed upon them the sen­
tence of death shall suffer such punishment by electro­
cution instead of hanging.”

Ga. Code Ann. %27-25M (1975 Supp.)

“Sentence of death; copy for penitentiary superin­
tendent. Time and mode of conveying prisoner to peni­
tentiary. Expenses. Upon a verdict or judgment of 
death made by a jury or a judge, it shall be the duty 
of the presiding judge to sentence such convicted per­
son to death and to make such sentence in writing, 
which shall be filed with the papers in the case against 
such convicted person, and a certified copy thereof 
shall be sent by the clerk of the court in which said 
sentence is pronounced to the superintendent of the 
State penitentiary, not less than 10 days prior to the 
time fixed in the sentence of the court for the execu­
tion of the same; and in all cases it shall be the duty 
of the sheriff of the county in which such convicted 
person is so sentenced, together with one deputy or 
more, if in his judgment, it is necessary, and provided 
that in all cases the number of guards shall be ap­
proved by the trial judge, or if he is not available, by 
the ordinary of said county in which such prisoner is 
sentenced, to convey such convicted person to said 
penitentiary, not more than 20 days nor less than two



8

days prior to the time fixed in the judgment for the 
execution of such condemned person, unless otherwise 
directed by the Governor, or unless a stay of execu­
tion has been caused by appeal, granting of a new trial 
or other order of a court of competent jurisdiction, 
and the expense for transporting of said person to 
the penitentiary for the purpose of electrocution shall 
be paid by the ordinary of the county wherein the 
conviction was had, or the board of county commis­
sioners, the county commissioner, or other person or 
persons having charge of the county funds, out of any 
fines on hand in the treasury of such county.”

Ga. Code Ann. §27-2534.1 (1975 Supp.)

“Mitigating and aggravating circumstances; death 
penalty, (a) The death penalty may be imposed for 
the offenses of aircraft hijacking or treason, in any 
case.

(b) In all cases of other offenses for which the death 
penalty may be authorized, the judge shall consider, 
or he shall include in his instructions to the jury for 
it to consider, any mitigating circumstances or aggra­
vating circumstances otherwise authorized by law and 
any of the following statutory aggravating circum­
stances which may be supported by the evidence:

(1) The offense of murder, rape, armed robbery, or 
kidnapping was committed by a person with a prior 
record of conviction for a capital felony, or the of­
fense of murder was committed by a person who has 
a substantial history of serious assaultive criminal 
convictions.

(2) The offense of murder, rape, armed robbery, or 
^  kidnapping was committed while the offender was en-



9

gaged in the commission of another capital felony, or 
aggravated battery, or the offense of murder was 
committed while the offender was engaged in the com­
mission of burglary or arson in the first degree.

(3) The offender by his act of murder, armed rob­
bery, or kidnapping knowingly created a great risk 
of death to more than one person in a public place by 
means of a weapon or device which would normally 
be hazardous to the lives of more than one person.

(4) The offender committed the offense of murder 
for himself or another, for the purpose of receiving 
money or any other thing of monetary value.

(5) The murder of a judicial officer, former judicial 
officer, district attorney or solicitor or former district 
attorney or solicitor during or because of the exercise 
of his official duty.

(6) The offender caused or directed another to com­
mit murder or committed murder as an agent or em­
ployee of another person.

(7) The offense of murder, rape, armed robbery, or 
kidnapping was outrageously or wantonly vile, hor­
rible or inhuman in that it involved torture, depravity 
of the mind, or an aggravated battery to the victim.

(8) The offense of murder was committed against „__
any peace officer, corrections employee or fireman while 
engaged in the performance of his official duties.

(9) The offense of murder was committed by a per­
son in, or who has escaped from, the lawful custody of 
a peace officer or place of lawful confinement.

(10) The murder was committed for the purpose of 
avoiding, interfering with, or preventing a lawful ar-



1 0

rest or custody in a place of lawful confinement, of 
himself or another.

(c) The statutory instructions as determined by the 
trial judge to be warranted by the evidence shall be 
given in charge and in writing to the jury for its de­
liberation. The jury, if its verdict be a recommenda­
tion of death, shall designate in writing, signed by the 
foreman of the jury, the aggravating circumstance or 
circumstances which it found beyond a reasonable 
doubt. In non-jury cases the judge shall make such 
designation. Except in cases of treason or aircraft 
hijacking, unless at least one of the statutory aggra­
vating circumstances enumerated in section 27-2534.1 
(b) is so found, the death penalty shall not be imposed.”

Ga. Code Ann, §27-2537 (1975 Supp.)

“Review of death sentences, (a) Whenever the death 
penalty is imposed, and upon the judgment becoming 
final in the trial court, the sentence shall be reviewed 
on the record by the Supreme Court of Georgia. The 
clerk of the trial court, within ten days after receiving 
the transcript, shall transmit the entire record and 
transcript to the Supreme Court of Georgia together 
with a notice prepared, by the clerk and a report pre­
pared by the trial judge. The notice shall set forth 
the title and docket number of the case, the name of 
the defendant and the name and address of his attor­
ney, a narrative statement of the judgment, the of­
fense, and the punishment prescribed. The report shall 
be in the form of a standard questionnaire prepared 
and supplied by the Supreme Court of Georgia.

(b) The Supreme Court of Georgia shall consider 
the punishment as well as any errors enumerated by 
way of appeal.



11

(c) With regard to the sentence, the court shall 
determine:

(1) Whether the sentence of death was imposed un­
der the influence of passion, prejudice, or any oilier 
arbitrary factor, and

(2) Whether, in cases other than treason or aircraft 
hijacking, the evidence supports the jury’s or judge’s 
finding of a statutory aggravating circumstance as 
enumerated in Code section 27-2534.1 (b), and

(3) Whether the sentence of death is excessive or 
disproportionate to the penalty imposed in similar 
cases, considering both the crime and the defendant.

(d) Both the defendant and the State shall have the 
right to submit briefs within the time provided by the 
court, and to present oral argument to the court.

(e) The court shall include in its decision a refer­
ence to those similar cases which it took into consider­
ation. In addition to its authority regarding correc­
tion of errors, the court, with regard to review of 
death sentences, shall be authorized to :

(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for 

resentencing by the trial judge based on the record 
and argument of counsel. The records of those similar 
cases referred to by the Supreme Court of Georgia in 
its decision, and the extracts prepared as hereinafter 
provided for, shall be provided to the resentencing 
judge for his consideration.

(f) There shall be an Assistant to the Supreme 
Court, who shall be an attorney appointed by the Chief 
-Justice of Georgia and who shall serve at the pleasure



12

of the court. The court shall accumulate the records 
of all capital felony cases in which sentence was im­
posed after January 1, 1970, or such earlier date as 
the court may deem appropriate. The Assistant shall 
provide the court with whatever extracted information 
it desires with respect thereto, including but not lim­
ited to a synopsis or brief of the facts in the record 
concerning the crime and the defendant.

(g) The court shall be authorized to employ an ap­
propriate staff and such methods to compile such data 
as are deemed by the Chief Justice to be appropriate 
and relevant to the statutory questions concerning the 
validity of the sentence.

(h) The office of the Assistant shall be attached to 
the office of the Clerk of the Supreme Court of Georgia 
for administrative purposes.

(i) The sentence review shall be in addition to direct 
appeal, if taken, and the review and appeal shall be 
consolidated for consideration. The court shall ren­
der its decision on legal errors enumerated, the fac­
tual substantiation of the verdict, and the validity of 
the sentence.”

Ga. Laws, 1973, p. 159, 162, Act. No. 74?

“At the conclusion of all felony cases heard by a 
jury, and after argument of counsel and proper charge 
from the court, the jury shall retire to consider a ver­
dict of guilty or not guilty without any consideration 
of punishment. Where the jury or judge returns a 2

2 This section was modified in certain respects by Ga. Laws, 1974, 
pp. 355-358, Act No. 854, which also provided that the section 
would he designated Ga. Code Ann. §27-2503. These modifications 
were insubstantial with respect to the trial of capital felonies.



13

verdict or finding of guilty, the court shall resume the 
trial and conduct a pre-sentence hearing before the 
jury or judge at which time the only issue shall be 
the determination of punishment to be imposed. In 
such hearing, subject to the laws of evidence, the jury 
or judge shall hear additional evidence in extenuation, 
mitigation, and aggravation of punishment, including 
the record of any prior criminal convictions and pleas 
of guilty or pleas of nolo contendere of the defendant, 
or the absence of any such prior criminal convictions 
and pleas; provided, however, that only such evidence 
in aggravation as the State has made known to the 
defendant prior to his trial shall be admissible. The 
jury or judge shall also hear argument by the defen­
dant or his counsel and the prosecuting attorney, as 
provided by law, regarding the punishment to be im­
posed. The prosecuting attorney shall open and the 
defendant shall conclude the argument to the jury or 
judge. Upon the conclusion of the evidence and argu­
ments, the judge shall give the jury appropriate in­
structions and the jury shall retire to determine the 
punishment to be imposed. In cases in which the death 
penalty may be imposed by a jury or judge sitting 
without a jury, the additional procedure provided in 
Code section 27-2534.1 shall be followed. The jury, or 
the judge in cases tried by a judge, shall fix a sentence 
within the limits prescribed by law. The judge shall 
impose the sentence fixed by the jury or judge, as pro­
vided by law. If the jury cannot, within a reasonable 
time, agree to the punishment, the judge shall impose 
sentence within the limits of the law ; provided, how­
ever, that the judge shall in no instance impose the 
death penalty when, in cases tried by a jury, the jury 
cannot agree upon the punishment. If the trial court



14

is reversed on appeal because of error only in the pre­
sentence hearing, the new trial which may be ordered 
shall apply only to the issue of punishment.”

Ga. Code Ann, %27-2528 (1975 Supp.)
“Sentence to life imprisonment or lesser punishment 

hy judge on plea of guilty to an offense punishable by 
death. Any person who has been indicted for an of­
fense punishable by death may enter a plea of guilty 
at any time after his indictment, and the judge of the 
superior court having jurisdiction may, in his discre­
tion, during term time or vacation, sentence such per­
son to life imprisonment, or to any punishment au­
thorized by law for the offense named in the indict­
ment. Provided, however, that the judge of the supe­
rior court must find one of the statutory aggravating 
circumstances provided in Code section 27-2534.1 be­
fore imposing the death penalty except in cases of 
treason or aircraft hijacking.”

Statem ent o f the Case

Petitioner Troy Leon Gregg was indicted by a Gwinnett 
County, Georgia, grand jury, upon two counts of murder 
and two counts of armed robbery for the November 21, 
1973 killings of Fred Edward Simmons and Bob Dur- 
wood (“Tex”) Moore. The indictments alleged that Gregg 
“unlawfully with malice aforethought” killed each of the 
victims “by shooting [him] . . . with a certain pistol” 
(T. 424, 425), and that “with the intent to commit theft” 
he did “take from the person” of the two victims “A red 
and white 1960 Pontiac, Florida Tag Number 7W85381” 
and “Four hundred dollars” “hy the use of a certain 
pistol, . . .  an offensive weapon . . . (T. 424, 425).



15

On November 21, 1973, petitioner was hitchhiking from 
St. Cloud, Florida to his home in Ashville, North Caro­
lina, accompanied by one Floyd Ralford “Sam” Allen. 
(T. 122, 309-311). They were picked up just outside of 
St. Cloud by two men, Fred Simmons and Bob Moore, 
in a 1960 Ford. (T. 312.) Though it was early morning, 
Moore and Simmons had been drinking, and after a few 
miles asked petitioner Gregg to drive. (T. 313.)

Gregg complied, but after some distance, the Ford broke 
down. (T. 313.) A passing Florida Highway Patrolman, 
Daniel James Cobb, saw the disabled vehicle and called 
a wrecker. Leaving Gregg and Allen at the site of the 
breakdown, the patrolman then took Simmons and Moore 
to a used ear dealer in nearby Winter Garden, where 
Simmons purchased another car, a 1960 red and white 
Pontiac. (T. 209-210.) Trooper Cobb noticed that Moore 
had what “looked like a considerable amount of money” 
at the time of the purchase. (T. 212.)

Simmons and Moore returned to pick up Gregg and 
Allen, and the four continued north, again with Gregg 
driving. (T. 314.) In northern Florida they encountered 
another hitchhiker, Dennis Weaver, who rode with them 
until they reached his destination, Atlanta, at approx­
imately eleven o’clock that evening. (T. 120-130.) WTeaver 
testified that during this time there was no evidence of 
hostility among the men in the car, though Moore and 
Simmons were drinking heavily (T. 125-126), and though 
he was frightened by Simmons’ and Moore’s talk about 
their jail experiences and by “the situation” (T. 146-147),

After letting Weaver out, the four men continued north­
ward into Gwinnett county to the intersection of 1-85 
and Georgia Highway 20, where Moore and Simmons asked 
Gregg to stop the car so they could relieve themselves.



16

(T. 319.) Their bodies were found there early the next 
morning. (T. 221.) Autopsies showed that both men had 
died of gunshot wounds to the head from a small caliber 
pistol. (T. 92, 96.) Moore had been shot once in the 
right cheek and once in the back of the head (T. 92), 
Simmons once near the right temple (T. 97). Both men 
had several bruises and abrasions of unknown origin 
about the face and head (T. 95, 107-110),3 and both bodies 
had blood alcohol contents indicating that the two men 
were heavily intoxicated at the time of death (T. 101).

On November 23, Dennis Weaver read in an Atlanta 
newspaper about the discovery of the dead men and con­
tacted the Gwinnett County Police Department. (T. 131- 
133.) He told the police of his contact with the four men 
two days before, gave them a description of Gregg and 
Allen and of Simmons’ Pontiac, and gave them his im­
pression that their destination was Ashville, North Caro­
lina. (T. 134, 239.) Based on this information the police 
broadcast a description of the car and suspects (T. 239), 
which resulted in petitioner’s arrest at three o’clock the

3 Dr. James Bryan Dawson, who performed the autopsies, was 
unable to determine whether these minor injuries were incurred 
before or after the gunshot wounds, though as to Simmons he _was 
able to say they were inflicted “not earlier than two to three hours 
before” death. (T. 104-105, 109-110.) He noted that the wounds 
were all “consistent with the face of the subject having been 
dragged or pushed along . . .  a surface” similar to the embank­
ment next to which the bodies were found. (T. 112.) He agreed 
that some of the injuries, to Simmons, at least, could have resulted 
from a fight (T. 102, 105), but concluded that they “were prob­
ably sustained from a fall into this ditch.” (T. 105.) Dr. Dawson 
also testified that he found dried blood on Moore’s right hand that 
“was not like the remainder of the dried blood that was found on 
the face . . .  or around the body” (T. 106), but which he did not 
analyze (ibid.), though he “particularly looked for signs of in­
juries to the hands which might have suggested that there was 
some sort of altercation or . . . defense . . . and found nothing on 
either one of the subject’s hands, which suggested that this might 
have taken place” (T. 110).



17

next afternoon. (T. 164-165.)4 At the time of his arrest 
Gregg was driving the 1960 Pontiac which Simmons had 
purchased (T. 165, 169), and had in his pocket $107.00 
in cash and a pistol later shown to be that which killed 
Moore and Simmons (ibid.). A search of the car inci­
dent to this arrest produced Simmons’ bill of sale for 
the car. (T. 168.)

Gregg was given Miranda warnings about five minutes 
after he was stopped (T. 170-171), and signed a written 
waiver of his rights at 3:17 p.m. (T. 516). He was not in­
terrogated until eleven o’clock that evening, when he told 
Detective Bert H. Blannott of the Gwinnett County Police 
that “he understood his rights” (T. 281),5 and made a 
partially exculpatory statement. He admitted shooting 
Simmons and Moore, but claimed to have done it in self- 
defense. (T. 282-283.) In the statement, which he read 
and signed (T. 322), Gregg said that Moore and Sim­
mons were “going to put me and Sam out” and “wouldn’t 
give us our clothes and stuff and we got in a fight.” 
(T. 518.)

“Fred smacked me down, a bank and then him and Tex 
both jumped on Sam. Fred had some kind of pipe 
and I backed up and fell in the ditch again. One of 
them had a knife and I wasn’t about to let either one 
of them cut me. . . .  I  shot Fred to keep him off of me 
and I shot Tex twice. Then we took about four or five 
hundred dollars off them and left in their car.”

4 The constitutionality of this warrantless arrest for “investiga­
tion” (T. 183), and the admissibility of its fruits, was the subject 
of considerable dispute at trial (T. 183-203), and a ground of 
Gregg’s appeal.

5 The Miranda warnings that had been given prior to 3 :17 p.m. 
were not repeated before the 11:00 p.m. interrogation. (T. 297.)



1 8

(Ibid.) Shortly after the conclusion of his statement, how­
ever, when Ashville police officer William Gibson asked 
Gregg “why he shot these people,” Gregg answered “by 
God I wanted them dead” (T. 379).

At approximately one o’clock on November 25, Gregg 
(together with Allen) was removed from Ashville to Law- 
renceville, Georgia, by the Gwinnett County Police and Dis­
trict Attorney. (T. 284.) At approximately 5:00 they 
stopped at the scene of the killings “to establish in our own 
minds with the help of the defendants just exactly [what] 
had taken place.” (T. 290.) All of the parties got out of 
the cars, and Detective Blannott asked Allen, in Gregg’s 
presence, what had happened. (T. 286.) According to Blan- 
nott’s testimony:

“Sam [Allen] told us as soon as [Simmons and Moore]
. . . got out, Troy [Gregg] turned around and told him, 
he said, get out, we’re going to rob them. Sam told us 
that he got out and walked toward the back of the car 
and looked around and could see Troy at the car, with 
a gun in his hand, laying up on the car, so he could 
get a good aim, the two men had gone down the bank 
and had relieved themselves and as they were coming 
back up the bank, according to Say [sic], Troy fired 
three shots, one of the men fell, the other staggered, 
Troy then circled back around the back, or rear of the 
car and approached the two men, both of which were 
now laying in the ditch. He placed the gun to ones [sic] 
head and pulled the trigger then went quickly to the 
other one and placed the gun to his head and pulled 
the trigger again, he then took the money, whatever 
contents were in their pockets, he told Sam, to get 
in the car and they drove away.”

(T. 287.) Blannott testified that Gregg was then asked “if 
that was how it happened” and said “yes, it was.” (Ibid.)



19

“Chief Crcmkleton then asked him . . . ‘yon mean yon 
shot these men down in cold blooded murder just to 
rob them’ and Troy replied, ‘yes,’ and Chief asked him 
why and he said he didn’t know.”

(T. 288.)
Petitioner’s trial began February 4, 1974. A jury was 

selected,6 and four days of proceedings were held. The 
State’s evidence is summarized above.7 Petitioner was the 
sole witness in his own behalf. He testified at trial, as he 
had claimed when first interrogated following his arrest, 
that he had shot Moore and Allen in self-defense and de­
fense of Allen. (T. 320.)8 On cross-examination the State 
produced a letter written by Gregg to Allen asking Allen 
to renounce his previous statements and provide a “State­
ment for you” containing a version of the killings consistent 
with Gregg’s trial testimony. (T. 350-354, 521-528.) Gregg

6 Three veniremen were challenged by the state and excused by 
the court without objection because of their affirmative answer’s 
when asked if they would “vote against imposition of the death 
penalty without regard to any evidence that might be developed 
at the trial of the case.” (T. 2, 3, 31.)

7 “Sam” Allen did not testify at Gregg’s trial, but his statement 
in Gregg’s presence was recounted (T. 286), and he appeared in 
court to be identified (T. 138). The murder charges pending 
against him at the time were “nol pressed” when he pled guilty 
to the robbery counts, receiving concurrent twenty-year sentences, 
six weeks later. See State v. Floyd Allen, Gwinnett County Supe­
rior Court, Indictment #9475.

8 Petitioner admitted making the signed statement containing his 
earlier claim of self-defense (T. 322), but denied agreeing with 
Allen’s version of the facts at the scene of the killings. (T. 323, 
350). He also denied Officer Gibson’s testimony that he had said 
he shot Moore and Simmons because “I wanted them dead.” (T. 
381.) He said that he had not taken any money from the dead 
men (T. 346), hut suggested that Alien may have done so. He 
testified that Allen had paid for everything that the two men had 
purchased after the killings (T. 329-330), and that Gregg had been 
given the money found on him at the time of his arrest as repay­
ment of a loan after his return to Ashville. (T. 331-336.)



20

admitted writing parts of the letter hut denied writing 
others. {Ibid.) In rebuttal the State called a document 
examiner who testified that the whole letter was written 
by Gregg. (T. 361.)

The trial judge submitted the murder charge to the jury 
on both felony-murder and non-felony-murder theories. 
(T. 428-429.) It instructed on the issue of self-defense 
raised by petitioner’s testimony (T. 430-431) but declined 
to instruct on manslaughter (T. 451). On the murder 
counts, it therefore authorized the jury to return verdicts 
of guilty or not guilty (T. 441); and on the robbery counts 
it authorized verdicts of guilty of armed robbery, guilty of 
robbery by intimidation, or not guilty (Ibid.). The jury 
returned verdicts of guilty on all four counts. (T. 453.)

A pre-sentence hearing was conducted the same day. No 
evidence was offered at that hearing (T. 459), but counsel 
for both sides made lengthy arguments, dealing generally 
with the propriety of capital punishment under the cir­
cumstances and with the weight of the evidence of guilt. 
(T. 459-477.)

The court charged the jury that it could recommend 
either a death sentence or a prison sentence upon each 
count. (T. 478.) It further charged that, in order to rec­
ommend a death sentence upon any count, the jury first 
had to find true beyond a reasonable doubt one of three 
aggravating circumstances:

“One—That the offense . . . was committed while the 
offender was engaged in the commission of two other 
eapitol [sic] felonies, to wit [the armed robbery or 
murder of Simmons and Moore], . . .
Two—That the offender committed the offense . . . for 
the purpose of receiving money and the automobile 
described in the indictment.



21

Three—The offense .. , was outrageously and wantonly 
vile, horrible and inhuman, in that [it] . . . involved 
the depravity of the mind of the defendant.”

(T. 478, 479.) The jury was told that it could consider 
“the facts and circumstances in mitigation and aggrava­
tion.” (T. 480.) “Mitigating circumstances” were defined 
as

“those which do not constitute a justification of [sic] 
excuse for the offense in question, but which, in fair­
ness and mercy maybe [sic] considered as a extenuat­
ing [sic] or reducing the degree of moral culpability 
of punishment [sic].”

(T. 480.) “Aggravating circumstances” were defined as
“those which increase the guilt or innormity [sic] of 
the offense or add to its injurious consequences.”

(Ibid.)
The jury recommended a death sentence on each count. 

(T. 483-485.) It found true, as to each count, all but the 
third “aggravating circumstance.” (Ibid.) The court ac­
cordingly imposed four death sentences upon petitioner.

How the Federal Q uestion Was Raised and 
D ecided Below

In the Supreme Court of Georgia, petitioner’s Enumera­
tion of Error No. 3 asserted that:

“The lower Court erred in submitting to the jury the 
issue of punishment by death in that punishment by 
death constitutes cruel and inhumane punishment con­
trary to the provisions of the Eighth and Fourteenth 
Amendments to the Constitution of the United States.”



2 2

On the authority of Coley v. State, 231 Ga. 829, 204 S.E. 
2d 612 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 
(1974) and Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 
(1974), a majority of the Supreme Court of Georgia af­
firmed petitioner’s sentences of death for the crime of mur­
der, Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), 
one judge dissenting on the ground that the Georgia death 
penalty statutes are unconstitutional, id. at 668 (opinion 
of Mr. Justice Gunter, concurring and dissenting). The 
death sentences imposed for the crime or armed robbery 
were vacated on the grounds that the penalty was rarely 
imposed for that offense and that the jury improperly 
considered the murders as aggravating circumstances for 
the robberies after having considered the armed robberies 
as aggravating circumstances for the murders. Id. at 667.

An application for rehearing, in which petitioner again 
challenged the constitutionality of his death sentences, was 
denied. Order dated October 29, 1974.

Summary of Argument

I
Georgia’s 1973 capital punishment statute provides a 

bifurcated trial procedure for selecting some convicted 
capital offenders to be killed while others live. The statute 
has been upheld by the Supreme Court of Georgia over 
the objection that it “permits the exercise of a discretion 
that extinguishes one man’s life and permits another man 
to live, both of whom have committed exactly the same 
crime.” Coley v. State, 231 Ga. 829, 204 S.E.2d 612, 620 
(opinion of Mr. Justice Gunter, concurring and dissenting). 
Experience to date in the administration of the statute 
confirms that life sentences and death sentences may be 
and are imposed “with no meaningful basis for distinguish-



23

mg” the people who get them. Furman v. Georgia, 408 U.S. 
238, 313 (1972) (concurring opinion of Mr. Justice White). 
Detailed examination of the new statute and its use demon­
strates that, far from assuring regularity, it merely per­
petuates the arbitrariness condemned in Furman.

The explicit capital sentencing discretion is itself only 
one of several mechanisms by which an arbitrary fraction 
of death-eligible offenders is selected to be actually put to 
death. Prosecutorial charging and plea-bargaining discre­
tion, jury discretion to convict of one or another amor­
phously distinguished “capital” or non-capital crime, and 
gubernatorial discretion to grant or withhold clemency are 
all equally uncontrolled and uncontrollable. In its parts and 
as a whole, the process is inveterately capricious. To in­
flict death through such a process is to inflict unconstitu­
tional cruel and unusual punishment within the funda­
mental historical concerns of the Eighth Amendment.9

II10

The continuation of arbitrariness in -post-Furman capital 
punishment schemes is not mere happenstance. The death 
penalty is too cruelly intolerable for our society to apply 
it regularly and even-handedly; and it is inherently too 
purposeless and irrational to be applied selectively on any 
reasoned, non-indivious basis. None of the justifications 
advanced to support the cruelty of killing a random smat­
tering of prisoners annually survives examination in the 
light of the realities of this insensate lottery; and none

9 These concerns are documented in the Brief for Petitioner in 
Fowler v. North Carolina, No. 73-7031, at pp. 26-45, and we do not 
repeat that documentation in the present brief.

10 This point incorporates by reference the Submissions made in 
petitioners’ briefs in Fowler v. North Carolina, No. 73-7031 and 
Jurek v. Texas, No. 75-5394.



24

begins, of course, to justify the killing of any particular 
human being while his indistinguishable counterparts are 
spared in numbers that attest to our collective abhorrence 
of what we are doing to an outcast few.

I

Introduction

In 1972, this Court held “that the imposition and carry­
ing out of the death penalty” in two Georgia cases “consti­
tute [d] cruel and unusual punishment in violation of the 
Eighth and Fourteenth Amendments.” Furman v. Georgia, 
supra, 408 U.S. at 239.11 Contemporaneously with that de­
cision, the Court summarily vacated death sentences in a 
number of other Georgia cases on the authority of Furman 
—sentences imposed under the pre-1969 sentencing system 
involved in the Furman ease itself,12 under the slightly 
different system created by the 1968 Criminal Code of 
Georgia,13 and under a bifurcated trial procedure enacted 
in 1970.14 The Georgia Supreme Court subsequently rec­
ognized that Furman had invalidated all of the State’s 
death penalty laws.15 16

11 The companion Georgia case of Jackson v. Georgia was decided 
by the same order.

12 Arkwright v. Georgia, 408 U.S. 936 (1972) ; Miller v. Georgia, 
408 U.S. 938 (1972); Walker v. Georgia, 408 U.S. 936 (1972); 
Cummings v. Georgia, 408 U.S. 935 (1972); Lee v. Georgia, 408 
U.S. 936 (1972); Manor v. Georgia, 408 U.S. 935 (1972); Park v. 
Georgia, 408 U.S. 935 (1972); Sullivan v. Georgia, 408 U.S. 935 
(1972) ; Thacker v. Georgia, 408 U.S. 936 (1972).

13 Henderson v. Georgia, 408 U.S. 938 (1972).
14 Jackson v. Georgia, 409 U.S. 1122 (1972); Williams v. Georgia,

408 U.S. 936 (1972).
16 See, e.g., Sullivan, et al. v. State, 229 Ga. 731, 194 S.E.2d 411 

(1972) ; Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972);



25

The Georgia Legislature reacted in 1973 by enacting a 
capital sentencing scheme which requires that one or more 
specified “aggravating circumstances” be found as a pre­
condition to the imposition of a death sentence.16 Georgia 
Laws 1973, p. 159, No. 74 (effective March 28, 1973). Af­
ter a jury or a judge renders a verdict or finding of guilty * 16

Massey v. State, 229 Ga. 846, 195 S.E.2d 28 (1972); Grantling v. 
State, 229 Ga. 746, 194 S.E.2d 405 (1972); Callahan v. State, 229 
Ga. 737, 194 S,E.2d 431 (1972); Sirmans v. State, 229 Ga. 743, 
194 S.E.2d 476 (1972) ; McCrary v. State, 229 Ga. 733, 194 S.E.2d 
480 (1972) ; Jackson v. State, 230 Ga. 181, 195 S.E.2d 921 (1973) ; 
Wilburn v. State, 230 Ga. 675, 198 S.E.2d 857 (1973). In Watson 
v. State, 229 Ga. 787,194 S.E.2d 407 (1972), the Court stated flatly 
that “the imposition of the death penalty under present Georgia 
statutes is unconstitutional.” 194 S.E.2d at 407.

16 No “aggravating circumstances” are required, however, to 
support a death sentence for the crimes of treason and aircraft hi­
jacking. The death penalty law's enacted in 1973 are set forth at 
pages 5-14 supra. Section 26-3102 was modified by the addition of 
the italicized passages:

“Capital offenses; jury verdict and sentence. Where, upon 
a trial by jury, a person is convicted of an offense which may 
be punishable by death, a sentence of death shall not be im­
posed unless the jury verdiet includes a finding of at least one 
statutory aggravating circumstance and a recommendation 
that such sentence be imposed. Where a statutory aggravating 
circumstance is found and a recommendation of death is 
made, the court shall sentence the defendant to death. Where 
a sentence of death is not recommended by the jury, the court 
shall sentence the defendant to imprisonment as provided by 
law. Unless the jury trying the ease makes a finding of at 
least one statutory aggravating circumstance and recommends 
the death sentence in its verdict, the court shall not sentence 
the defendant to death, provided that no such finding of statu­
tory aggravating circumstance shall be necessary in offenses of 
treason or aircraft hijacking. The provision of this section 
shall not affect a sentence when the case is tried without a jury 
or when the judge accepts a plea of guilty.”

Section 26-3102 and 27-2534.1 provided for consideration of aggra­
vating and mitigating circumstances, and §27-2534.1 (b) set forth 
some of the aggravating circumstances to be considered. Section 
27-2537 provided for appellate review of sentences of death. Sec­
tion 27-2528 dealt with sentencing following a plea of guilty to an 
offense punishable by death. *



26

or after a plea of guilty to the offenses of murder, armed 
robbery, rape, kidnapping, treason or aircraft hijacking,17 
a pre-sentence hearing is to be conducted before the jury 
or judge. At this hearing, “the jury or judge shall hear 
additional evidence in extenuation, mitigation and aggra­
vation of punishment, including the record of any prior 
criminal convictions and pleas of guilty or pleas of nolo 
contendere of the defendant, or the absence of such prior 
convictions and pleas.” Ga. Laws 1973, p. 162, Act. No, 74.18 
The State may present only such evidence in aggravation 
as it has made known in advance to the defendant. Ga. 
Laws 1973, p. 162, Act. No. 74.

The judge is to consider or to include in his instructions 
to the jury “any mitigating circumstances or aggravating 
circumstances otherwise authorized by law and . . . statu­
tory aggravating circumstances which may he supported 
by the evidence.” Ga. Code Ann. §27-2534.1 (b). The “stat­
utory aggravating circumstances” a re :

“(1) The offense of murder, rape, armed robbery, or 
kidnapping was committed by a person with a prior 
record of conviction for a capital felony, or the of­
fense of murder was committed by a person who has 
a substantial history of serious assaultive criminal 
convictions.

(2) The offense of murder, rape, armed robbery, or 
kidnapping was committed while the offender was en­
gaged in the commission of another capital felony, or

17 These crimes—and the crime of capital perjury, see former Ga. 
Code Ann. §26-2401 (1972)—carried a possible death penalty prior 
to the 1973 legislation; their definitions were not changed in 1973.

18 The statutory language governing proof of aggravating and 
mitigating circumstances at pre-sentence hearings in capital trials 
was not changed in 1973. Compare former Ga. Code. Ann. §27- 
2534 (1972).



27

aggravated battery, or the offense of murder was 
committed while the offender was engaged in the com­
mission of burglary or arson in the first degree.

(3) The offender by his act of murder, armed rob­
bery, or kidnapping knowingly created a great risk of 
death to more than one person in a public place by 
means of a weapon or device which would normally 
be hazardous to the lives of more than one person.

(4) The offender committed the offense of murder 
for himself or another, for the purpose of receiving 
money or any other thing of monetary value.

(5) The murder of a judicial officer, former judicial 
officer, district attorney or solicitor or former district 
attorney or solicitor during or because of the exercise 
of his official duty.

(6) The offender caused or directed another to com­
mit or committed murder as an agent or employee of 
another person.

(7) The offense of murder, rape, armed robbery, or 
kidnapping was outrageously or wantonly vile, hor­
rible or inhuman in that it involved torture, depravity 
of mind, or an aggravated battery to the victim.

(8) The offense of murder was committed against 
any peace officer, corrections employee or fireman 
while engaged in the performance of his official duties.

(9) The offense of murder was committed by a per­
son in, or who has escaped from, the lawful custody of 
a peace officer or place of lawful confinement.

(10 The murder was committed for the purpose of 
avoiding, interfering with, or preventing a lawful 
arrest or custody in a place of lawful confinement, of 
himself or another.”



28

Ibid. Additional “aggravating circumstances otherwise au­
thorized by law” are not identified. “Mitigating circum­
stances” are not enumerated or defined.19

The jury m ay—but need not—impose a death sentence 
when it finds beyond a reasonable doubt one “statutory 
aggravating circumstance.” Ga. Laws 1973, p. 162, Act. No. 
74. For to condemn a defendant, it must also make a “rec­
ommendation of death.” 20 Ga. Code Ann. §27-2534.1(e). 
See Ga. Code Ann. §26-3102.21

Provision is made for the filing of a standardized form 
“report” by the trial judge in capital cases where the death 
penalty is imposed and for direct automatic appeal to the 
Georgia Supreme Court. Ga. Code Ann. §27-2537. General 
guidelines for review by that court are provided,22 and the 
court is empowered to affirm the death sentence or to set it

19 The Act does, however, provide that evidence of the absence 
of prior criminal convictions or pleas may be heard at the penalty 
trial. Ga. Laws 1973, p. 162, Act No. 74.

20 See pages 33-34, infra.
21 See note 16, supra.
22 The Court is directed to consider “the punishment as well as 

any errors enumerated by way of appeal” in a case where a death 
sentence has been imposed, and to determine:

“ (1) Whether the sentence of death was imposed under the 
influence of passion, prejudice, or any other arbitrary factor, 
and

(2) Whether, in cases other than treason or aircraft hijack­
ing, the evidence supports the jury’s or judge’s finding of a 
statutory aggravating circumstance as enumerated in Code sec­
tion 27-2534.1 (b), and

(3) Whether the sentence of death is excessive or dispro­
portionate to the penalty imposed in similar cases, considering 
both the crime and the defendant.”

Ga. Code Ann, §27-2537 (c). If the court affirms a death sentence, 
it “shall include in its decision a reference to those similar cases 
which it took into consideration.” Ga. Code Ann. §27-2537{e).



29

aside and remand the case for resentencing. Ibid. Execu­
tive discretion to grant or deny clemency in cases where a 
death sentence has been imposed remains unregulated.

In the following Part II  we will establish, through an 
analysis of the unquestionably discretionary procedures 
by which Georgia capital defendants are still prosecuted 
and sentenced, that the constitutional infirmities condemned 
in Furman v. Georgia remain. Cf. Lane v. Wilson, 307 U.S. 
268, 275 (1938). In Part III  we will address the question 
whether the execution of a human being who has been con­
demned through such procedures can be thought consistent 
with Eighth Amendment standards of decency.

II

The Arbitrary Infliction of Death

A. At the Pre-Sentence Hearing.

1. Georgia’s 1973 Death Penalty Legislation Is Explicitly 
Discretionary.

We start with the observation that Georgia’s post-Fur­
man capital sentencing procedure remains avowedly dis­
cretionary. In Coley v. State, 231 Ga. 829, 204 S.E.2d 612 
(1974), the Supreme Court of Georgia addressed the consti­
tutionality of the 1973 death penalty laws, and said:

“The essential question is not whether our new death 
statute permits the use of some discretion, because ad­
mittedly it does, but, rather, whether the discretion to 
be exercised is controlled by clear and objective stan­
dards so as to produce non-discriminatory application. 
After all, some discretion is inherent in any system of 
justice, from arrest to final review.”

Id. at 615. The Court concluded that “the system of dis­
pensation of the death penalty provided by the statute does



30

not offend the principles of decision of the U.S. Supreme 
Court in Furman and Ja ckso n id . at 616, because:

“ [f]irst, the new statute substantially narrows and 
guides the discretion of the sentencing authority to 
impose the death penalty and allows it only for the 
most outrageous crimes and those offenses against 
persons who place themselves in great danger as pub­
lic servants. In addition, the new statute provides 
for automatic and swift appellate review to insure 
that the death penalty will not be carried out unless 
the evidence supports the finding of one of the ser­
ious crimes specified in the statute. The statute also 
requires comparative sentencing so that if the death 
penalty is only rarely imposed for an act or it is 
substantially out of line with sentences imposed for 
other acts it will be set aside as excessive. And, 
finally, the statute requires this court to make cer­
tain the record does not indicate that arbitrariness 
or discrimination was used in the imposition of the 
death sentence.”

The following sections demonstrate, however, that sen­
tencing discretion is neither confined by the provisions of 
the new statute nor regularized by the process of appel­
late re-evaluation.

2. The Consideration of Aggravating and Mitigating Cir­
cumstances Does Not Control Arbitrariness in  the 
Georgia Capital Sentencing Process.

The process of considering “aggravating” and “mitigat­
ing” circumstances does not—and was not intended to— 
confine the unfettered power of the sentencer to condemn 
or spare any capital defendant. This is clear for several
reasons.



31

a. The failure to identify circumstances under which a 
death penalty is precluded.

The statute does not preclude a death sentence in any 
potentially capital case. True, a statutory “aggravating 
circumstance” is legally required to be found before a 
defendant can be sentenced to die; and it is doubtless 
also true that most of the enumerated aggravating cir­
cumstances—despite their multiplication,23 imprecision24 
and breadth25—have some limits. But the reach of sub­

23 B.g. Ga. Code Ann. §27-2534.1 (b) (1) (the defendant had “a 
prior record of conviction for a capital felony . . .  or a substantial 
history of serious assaultive criminal convictions”) ; (2) (“the of­
fender was engaged in the commission of another capital felony, 
or aggravated battery, or . . . burglary or arson in the first de­
gree”) ; (3) (“The offender . . . knowingly created a great risk of 
death to more than one person in a public place by means of a 
weapon or device which would normally be hazardous to the lives 
of more than one person.”) ; (4) (the murder was committed “for 
the purpose of receiving . . . any . . . thing of monetary value.”) ; 
(6) (“The offender caused or directed another to commit murder 
or committed murder as an agent or employee of another person.”).

24 See pages 35-36, infra.
25 Consider, for example, Ga. Code Ann. §27,2534.1(b) (4) which 

makes it an aggravating circumstance that murder is committed 
“for the purpose of receiving money or any other thing of mone­
tary value.” This language may sound in contract-killing: at 
least that is the way the commentators have read the phraseology. 
Browning, The New Death Penalty Statutes: Perpetuating a 
Costly Myth, 9 Gonzaga L. Rev. 651, 700 n.209 (1974) ; Note, 
Discretion and the Constitutionality of the New Death Penalty 
Statutes, 87 Habv. L. Rev. 1690, 1701 n.72 (1974). But contract- 
killings in Georgia are already covered by Ga. Code Arm. §27.2534.1 
(b )(6 ); and the Georgia Supreme Court has affirmed findings of 
the aggravating circumstances of “monetary value” in cases such 
as petitioner’s, Gregg v. State, 233 Ga. 117, 210 S.E,2d 659, 667
(1974) , and Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258, 269
(1975) , which were assuredly not contract killings. Nor can sub­
section 27.2534.1(b) (4) be limited even to the ordinary sort of 
robbery-murder case in which the robber uses an offensive weapon 
to achieve his purpose, for those eases are covered by subsection 
27.2534.1(b) (2). The upshot is that no restriction remains avail­
able to limit the evident expansiveness of the words “for the pur­
pose of receiving . . . any . . . thing of monetary value.”



32

section (7), which authorizes a death penalty if the crime 
was:

“outrageously or wantonly vile, horrible or inhuman 
in that it involved torture, depravity of mind, or an 
aggravated battery to the victim”

is, on its face, limitless. Surely any capital crime could 
be found to involve “depravity of mind.” And surely any 
murder could be found to have involved an “aggravated 
battery to the victim.” 26 Subsection 27~2534.1(b) (2), which 
makes the concurrent commission of “another capital fel­
ony” an aggravating circumstance, functions similarly to 
aggravate virtually any rape, for the forcible detention 
and abduction which are usually necessary to the com­
pletion of the crime are sufficient to constitute kidnap­
ping, “another capital felony.” 27 Since aggravating cir-

26 “Aggravated battery” is statutorily defined as :
“maliciously caus[ing] . . . bodily harm to another by depriving
him of a member of his body, or by rendering a member of 
his body useless, or by seriously disfiguring his body or a mem­
ber thereof.”

Ga. Code Ann. §26-1305 (1972) (emphasis added). Any doubt 
about the breadth of “aggravated battery” is dispelled by Mitchell 
v. State, 234 Ga. 160, 214 S.E.2d 900 (1975), in which the same 
term from Ga. Code Ann. §27-2534.1 (b) (2) was held applicable to 
the shooting of two victims in a grocery store holdup. Cf. Professor 
Black’s comments on this aspect of the Georgia statute:

“Since Georgia law defines an ‘aggravated battery’ as a battery 
(i.e., attack on the person), which deprives the victim of a 
member, or of the use of a member, or disfigures him, the con­
cept is a preposterous one when applied to murder; either it 
is always present in murder, which deprives the victim of the 
use of all his members, or else it functions absurdly as an 
‘aggravating circumstance’ since it can make little difference 
to a dead man whether he can lift his right leg.”

B lack, Capital P unishment : The  I nevitability op Caprice and 
Mistake, 66 (1974).

27 Georgia Code Ann. §26-1311 (a) provides that “ [a] person 
commits kidnapping when he abducts or steals away any person



33

eumstances can be found in virtually any case of murder 
or rape,28 and since the presence of mitigating circum­
stances does not legally preclude a death sentence,29 the 
judge or jury predisposed—for whatever reason—to in­
flict capital punishment upon any particular defendant may 
essentially do so at will.

b. The failure to identify circumstances under which a 
sentence of death is warranted.

The discretion to decline to impose the death penalty 
in any capital case is absolute. For a death sentence can­
not be pronounced unless the jury not only finds a “stat­
utory” aggravating circumstance, but also “recommends 
the death sentence in its verdict.” Ga. Code Ann. §26-3102 
(1975 Supp.). Although one or more of the ten statutory 
aggravating circumstances may be present and acknowl­
edged, the fact-finder, whether it be judge or jury, can 
still decline to impose the death penalty. Ga, Laws 1973, 
p. 162, No. 74. Section 27-2534.1 (c) merely says that the 
death penalty shall not be imposed unless at least one of 
the statutory aggravating circumstances is present.30 Coley

without lawful authority or warrant and holds such person against 
his will.” Kidnapping is made capital when, inter alia, “the person 
kidnapped shall have received bodily injury”-—an element obvi­
ously made out in any rape case.

28 The term “torture” as used in subsection 27-2534.1 (b) (7) 
seems also to have no perceptible boundaries. In Floyd v. State, 
233 Ga. 280, 210 S.E.2d 810 (1974), the court affirmed a jury find­
ing that a robbery involved “torture” where the victims were each 
tied up and shot twice in the head, killing them both. Id. at 812.

29 See, e.g., Moore v. State, 233 Ga. 861, 213 S.E.2d 829, 832 
(1975), in which the trial court found some mitigating circum­
stances, the appellate court “considered” several more, and a death 
sentence was nonetheless imposed and affirmed.

30 Of course, it is possible that in some cases juries will not 
understand this and will believe that a death sentence must be 
imposed' when “aggravating circumstances” are found. See, e.g.,



34

v. State, 231 Ga. 829, 204 S.E.2d 612, 620 (1974) {opinion 
of Mr. Justice Gunter, concurring and dissenting).

The statute does not specify or define “mitigating cir­
cumstances,” and the sentencer is therefore free in any 
case to consider anything a mitigating factor which in­
spires mercy. There is obviously no case at all in which 
the sentencer might not conclude that some factual ele­
ment was present which entitled the defendant to a milder 
sentence than death. But let us assume, implausibly, that 
some case could be found in which literally nothing, no 
circumstance of the crime or criminal, could be found to 
speak against extinction. The sentencer may nevertheless— 
notwithstanding that it finds an aggravating circumstance 
or circumstances and no mitigating circumstances—choose 
to spare this defendant’s life.

Nowhere in the statute is there any “mandate [for] the 
[death] penalty in any particular class or kind of case 
(that is, legislative will is not frustrated if the penalty is 
never imposed).” Furman v. Georgia, supra, 408 U.S. at 
311 (concurring opinion of Mr. Justice White). Instead 
the statute baldly “delegates to judges and juries the deci­
sion as to those cases, if any, in which the penalty will 
be utilized.” Ibid.

Souse v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), where a con­
fused jury asked the court “what the difference is for life and 
death” (Transcript of Proceedings 621), and was recharged that 
“if you find that this aggravating circumstance existed . . . then 
you would be authorized to consider imposing a sentence of death 
. . . ” {id. at 622-623). The jury then returned a verdict saying 
“We, the jury, fix the punishment of the defendant at death on 
counts one and two, since the offense of murder was outrageously 
or wantonly vile and horrible and that it involved torture to the 
victim and depravity of mind.” (id. at 631, emphasis added).



35

c. The indeterminateness of the aggravating circum­
stances.

The particular “aggravating circumstances” specified in 
the statute are amorphous, intangible, elusive, and open to 
differing interpretations in like cases depending upon the 
subjective impressions or instincts of the sentencer. Con­
cepts such as a “substantial history of serious assaultive 
criminal convictions,” 6a. Code Ann. §27-2534.1 (b) (1), the 
creation of a “great risk of death to more than one per­
son,” Ga. Code Ann. §27-2534.1 (b) (3), and the use of a 
“weapon or device which would normally be hazardous to 
the lives of more than one person” Ga. Code Ann. §27-2534.1 
(b)(3), are incapable of precise interpretation or applica­
tion, and confer broad license upon particular judges and 
juries to define their content. As we have noted, reference 
to murders which are “outrageously or wantonly vile, hor­
rible or inhuman in that [they] . . . involved torture, de­
pravity of mind, or an aggravated battery to the victim,” 
Ga. Code Ann. §27-2534.1(b) (7), provides no direction at 
all.

“The best one can say is . . . the listed ‘aggravating 
circumstances’ are in part (and every part is vital, for 
only one need be ‘found’ to support a death sentence) 
exceedingly vague.”

Black, op. cit. supra note 26, at 66.

Moreover, the statutory list of aggravating circumstances 
is not exclusive. At least one “statutory aggravating cir­
cumstance” is required to be found in order to support a 
death sentence, Ga. Code Ann. §26-3102; but after one such 
circumstance has been found, the jury’s or the judge’s ulti­
mate life-or-death decision is to be made upon consideration 
not only of “any of the . . . statutory aggravating circum­



36

stances which may be supported by the evidence,” but also 
of “any . . . aggravating circumstances otherwise author­
ized by law.” Ga. Code Ann. §27-2534.1 (b). There is, in 
short, no limit to what particular juries or judges may 
choose to treat as “aggravating.” It is little wonder that 
the Georgia Supreme Court has characterized the capital 
sentencing decision as “the weighing of imponderables.” 
Prevatte v. State, 233 Ga. 929, 214 S,E.2d 365, 368 (1975).

d. The scope of the pre-sentence hearing.
There is also little limitation on the nature or the scope 

of judicial instruction, evidence, and argument that may 
be presented and considered at the pre-senteneing hear­
ing. We have just seen that the trial judge “shall in­
clude” in his instructions “any mitigating circumstances 
or aggravating circumstances otherwise authorized by law 
and any of the statutory aggravating circumstances which 
may be supported by the evidence.” Ga. Code Ann. §27- 
2534.1(b). The trial judge is also to give the jury such 
“statutory instructions” as he determines “to be war­
ranted by the evidence.” Ga. Code Ann. §27-2534.1 (c). He

“is thereby allowed, in these cases, to choose for con­
sideration mitigating or aggravating circumstances 
outside those listed in the Act, and, where a jury 
hears the trial, to include in his instructions refer­
ences to any such circumstances which he may con­
sider to be supported or warranted by the evidence 
and, possibly, which he may deem worthy of con­
sideration by the jury.” 31

31 Comment, Constitutional Law— Capital Punishment—Furman 
v. Georgia and Georgia’s Statutory Response, 24 Mercer L. Rev. 
891, 933 (1973) (original emphasis).



37

Evidence is nowise restricted:
“ ‘The bifurcated trial was created to withhold mat­

ters inadmissible on the issue of guilt or innocence from 
the jury until that issue has been determined. The 
statute is clear that the pre-sentence hearing is for 
additional evidence. . . .’

“In Williams v. State, 226 6a. 140(1) (173 S.E.2d 
182) (1970, a case which was retried on the question 
of sentence only, it was held that a jury could con­
sider the defendant’s ‘alibi’ to mitigate his sentence. 
. . . The 1974 Act, supra, did not change the evidence 
which would be admissible at such hearing. . . .

“. . . In Dudley v. State, 228 6a. 551, 561 (186 S.E.2d 
875) (1972), a majority of this court held that the 
issue to be decided at the pre-sentence hearing calls 
for different evidence from that on the trial which 
determines guilt or innocence. The Dudley decision 
held that evidence of general bad character could be 
admitted in those cases when the defendant had been 
notified prior to trial that such evidence would be 
presented.”

Brotvn v. State, 6a. Sup. Ct. No. 30362, decided December 
2, 1975, slip. op. at 5-6.

And argument is as unrestricted as evidence.32 The gen­
eral rule in 6eorgia is that “an attorney may make almost

32 The only restriction is that the prosecutor may not seek to 
diffuse the responsibility of the jury by mentioning such matters 
as the possibility of appellate review in the ease of a death sen­
tence or of future parole board action in the case of a life 
sentence. Prevatte v. State, 233 6a. 929, 214 S.E.2d 365 (1975); 
Tam,plin v. State, 235 Ga. 20, 218 S.E.2d 779, 782-783 (1975) 
(dictum). Even with regard to this rule, considerable latitude is 
allowed. Ibid.; Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975).



any form of argument he desires” ;33 and there is no doubt 
that this rule applies in death-sentencing hearings.34 In 
Mason v. State, Ga. Sup. Ct. No. 30338, decided January 
7, 1976, slip op. at 7, the court held that it was permissible 
for the district attorney to argue tha t: “ ‘we must keep 
our streets safe for society. This man has killed once be­
fore and if we let him live, he may get out on our streets 
and kill again. We must show to all people coming into 
this county that the citizens of this county will not put 
up with this kind of conduct.” In Chenault v. State, 234 
Ga. 216, 215 S.E.2d 223, 229 (1975), the district attorney 
was permitted to argue: “We can’t have these reporters 
writing that a life sentence is all you get in this county.” 
Obviously, these arguments have nothing to do with ag­
gravating and mitigating circumstances in the particular 
case before the jury. They are simply calls to make an 
example of the defendant, and they point up—just as they 
exploit—the jury’s unlimited discretionary power. The 
prosecutor in Coker v. State, 234 Ga. 555, 216 S.E.2d 782, 
796 (1975), summed up aptly: “The State of Georgia and 
you as citizens have the right to put someone to death. 
That’s what you’ve got to decide.” But

33 Walker v. State, 5 Ga. App. 606, 63 S.E. 142 (1908 ). See, e.g., 
Ramsey v. State, 232 Ga. 15, 205 S.E.2d 286 (1974) (prosecutor 
inveighed against a “rash” of crimes unattributed to the defen­
dant) ; Miller v. State, 226 Ga. 730, 177 S.E,2d 253 (1970) (pros­
ecutor called the defendant “a brute, beast, an animal, and a 
mad dog who did not deserve to live”) ; Patterson v. State, 124 
Ga. 408, 52 S.E. 534 (1905) (“unless you have the manhood to 
write it in your verdict, you should be exiled from the good county 
of Heard”).

34 The statute under which pre-sentence proceedings are con­
ducted in capital and noncapital eases does not prescribe differing 
rules for the two. Ga. Laws 1973, p. 162, No. 74. Nor did the 
latest version of the statute change the previous law regarding the 
scope of the matters that the jury might consider. See Brown v. 
State, Ga. Sup. Ct. No. 30362, decided December 2, 1975, slip op. 
at 5, quoted in text at page 37, supra.



39

“ [i]f the purpose of this Act is to strictly limit discre­
tion in sentencing in capital cases, one wonders what 
must be the purpose of such a wide-open allowance of 
evidence and arguments in mitigation and aggrava­
tion . . .  If the state desires to comport with [Furman]
. .. which indicated th a t . . . discretion might be greatly 
restricted by limiting considerations to specific, objec­
tive, statutorily-prescribed guidelines, why, then, 
should the hearing of arguments and evidence in miti­
gation and aggravation remain unrestricted!” 36

e. Prosecutorial and judicial discretion to avert the 
death penalty at the stage of the pre-sentence hearing.

In a subsequent section of this brief we shall discuss the 
broad discretion of the prosecutor to decline to press poten­
tially capital charges through to capital convictions. See 
pages 54-58 infra. But even after a conviction of a “cap­
ital” charge, the prosecutor may, with the approval of the 
trial judge, forego a pre-sentence hearing and acquiesce 
in a sentence of less than death. Jessen v. State, 234 Ga. 
791, 218 S.E.2d 52 (1975); Gaines v. State, 232 Ga. 727, 208 
S,E.2d 798 (1974). The use of this procedure has not been 
limited to cases in which aggravating circumstances were 
obviously absent. In Jones v. State, 233 Ga. 662, 212 
S.E.2d 832 (1975), for example, the prosecntion elected 
not to seek the death penalty following the defendants’ 
convictions of rape. These defendants had robbed their 
sixteen year-old victim, abducted her, and held her captive 
for a prolonged period, raping her repeatedly. Compare 
Coher v. State, 234 Ga. 555, 216 S.E.2d 782 (1975).

Similarly, a prosecutor has “discretion in deciding 
whether to ask the jury to impose the death penalty.”

85 Comment, Constitutional Law— Capital Punishment—Furman 
v. Georgia and Georgia’s Statutory Response, 24 Mercer L. Rev. 
891, 932 (1973) (original emphasis).



40

Moore v. State, 233 Ga. 861, 213 S.E. 829, 834 (1975) (con­
curring opinion of Mr. Justice Hill). For example, in 
Gaither v. State, 234 Ga. 465, 216 S.E.2d 324 (1975), a 
robbery-murder case, id. at 325, the prosecutor told the 
jury:

“we are not insisting on capital punishment. . . . I ’m 
going to recommend—and I am doing this for more 
than one reason, because I think the defendants should 
have substantially the same sentence in this case. I’m 
going to recommend to you that you sentence Mr. 
Gaither to life imprisonment on the murder charge.”

Gaither v. State, supra (Transcript of Proceedings 396). 
On the instruction of the court, the jury followed the prose­
cutor’s recommendation. Id. at 400, 405.

3. Appellate Reconsideration o f Death Sentences Merely 
Ratifies the Arbitrariness o f the Georgia Capital Sen­
tencing Process.

Although this Court, concurrently with Furman v. 
Georgia, and on its authority, reversed death sentences 
which had been reviewed by state appellate courts and 
affirmed on the express ground that the facts and circum­
stances warranted the extreme penalty,36 the Georgia Su~

36 See e.g. Alford v. Eyman, 408 U.S. 939 (1972) (see State v. 
Alford, 98 Ariz. 124, 40 P.2d 551, 557 (1965) • Ariz. Rev. Stat., 
§13-1717 (1956); Hurst v. Illinois, 408 U.S. 935 (1972) (see People 
v. Hurst, 42 111. 2d 217, 247 N.E. 2d 614 (1969)); Alvarez v. Ne­
braska, 408 U.S. 937 (1972) (see State v. Alvarez, 182 Neb. 358, 
154 N.W. 2d 746, 748 (1967) ; Neb. Rev. Stat., §29-2308 (1943)) ; 
Fesmire v. Oklahoma, 408 U.S. 935 (1972) (see Fesmire v. State, 
456 P.2d 573, 586-587 (Okla. Ct.Cr. App. 1969)); Phelan v. 
Brierly, 408 U.S. 939 (1972) (see Commonwealth v. Phelan, 427 
Pa. 265, 234 A.2d 540 (1967) ; compare Commonwealth v. Hough, 
358 Pa. 247, 56 A.2d 84, 85-86 (1948), with Commonwealth v. Ed­
wards, 380 Pa. 52, 110 A.2d 216, 217 (1955)). The Court reversed 
death sentences from these states even though these same state ap­
pellate courts had a regular and recent practice of reversing death



41

preme Court relied upon provisions for similar appellate 
review in differentiating current Georgia capital punish­
ment laws from those struck down in Furman:

“ [T]he new statute provides for automatic and swift 
appellate review to insure that the death penalty will 
not he carried out unless the evidence supports the 
finding of one of the serious crimes specified in the 
statute. The statute also requires comparative sen­
tencing so that if the death penalty is only rarely im­
posed for an act or it is substantially out of line with 
sentences imposed for other acts it will be set aside 
as excessive. And, finally, the statute requires this 
court to make certain the record does not indicate that 
arbitrariness or discrimination was used in the im­
position of the death sentence.”

Coley v. State, 231 Ga. 829, 204 S.E.2d 612, 616 (1974).37

sentences when such sentences were found to be unwarranted upon 
a consideration of aggravating and mitigating circumstances. See 
e.g. State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970); People 
v. Crews, 42 111. 2d 60, 244 N.E. 2d 593 (1969); State v. Hall, 176 
Neb. 295, 125 N.W. 2d 918 (1964) ; Lewis v. State, 451 P.2d 399 
(Okla. Ct. Crim. App, 1969) ; Commonwealth v. Green, 396 Pa. 
137, 151 A.2d 241 (1959).

61 The 1973 statute^ was not as innovative as this passage makes 
it sound. The Georgia courts have always had and exercised the 
power to reverse capital convictions and death sentences in cases 
which are rendered in trials tainted with passion and prejudice. 
See e.g. Collier v. State, 115 Ga. 80S, 42 S.E. 226 (1902): Myers 
v. State, 97 Ga. 76, 25 S.E. 252 (1895); Woolf oik v. State, 81 Ga. 
558, 8 S.E. 724 (1889); cf. Walker v. State, 132 Ga. App. 476, 
208 S.E. 2d 350 (1974); Robinson v. State, 6 Ga. App. 696, 65 
S.E. 792 (1909). And while the court has in the past declined to 
review the justifiability of legally authorized death sentences (see. 
e.g. Smithwick v. State, 199 Ga. 292, 34 S.E. 2d 28 (1945)), there 
is some Georgia precedent for the proposition that a criminal 
penalty can be invalidated as excessive, although not violative of 
any statutory limit. Brooks v. Sturdivant, 177 Ga. 514, 170 S E 
369 (1933).



42

These appellate safeguards, the court concluded, combined 
with the sentencing criteria of the statute (but see pages 
30-39 supra) to “meet the U.S. Supreme Court’s concern 
with arbitrariness.” Ibid. Yet upon closer examination of 
the review provisions themselves and of experience under 
them, it is evident that they have done nothing to curb 
the arbitrariness and discrimination inevitable under a 
death sentencing procedure as strewn with opportunities 
for whimsy and vindictiveness as Georgia’s.

a. Review limited to death eases.

The limited applicability of the appellate review pro­
vision severely restricts its capability to control arbitrari­
ness at the trial level. The Georgia Supreme Court may 
be able to vacate death sentences which it finds “exces­
sive”, but it cannot review the decisions of prosecutors, 
trial judges and juries not to sentence potentially capital 
offenders to death in cases indistinguishable from others 
in which death sentences have been imposed and are up­
held.38 The process through which a “capriciously selected

38 See, e.g., the cases listed in note 61, infra. The Georgia Su­
preme Court has acknowledged its limitations in this respect, but 
asserts that its function is only to insure that those death sen­
tences that are imposed are not freakishly unusual.

“As we view the court’s duty in light of the Furman and Jack- 
son cases and the statutory provisions designed by the Georgia 
legislature to meet the objections of those cases, this court is 
not required to determine that les's than a death sentence was 
never imposed in a case with some similar characteristics. On 
the contrary, we view it to be our duty under the similarity 
standard to assure that no death sentence is affirmed unless 
in similar cases throughout the state the death penalty has 
been imposed generally and not ‘wantonly and freakishly im­
posed’.”

Moore v. State, 233 Ga. 861, 213 S.E. 2d 829, 832 (1975).



43

random handful” 89 of defendants is chosen to he sent to 
their deaths obviously involves many decisions to avert 
the death penalty and only a few to impose it; and appel­
late review can only hope to affect the few.

“No amount of appellate review can change the fact 
that the primary consideration of whether a man shall 
live or die still lies in the discretion of the jury, and 
that, while one jury might sentence a man to death, 
another might sentence the same man to life imprison­
ment, despite the presence of one or more of the ag­
gravating circumstances. Thus, the fate of the de­
fendant is dependent on the whim of his jury.” 40

b. Review without principles of review.

The standards for appellate review themselves inject a 
further element of capriciousness into sentencing under 
the 1973 legislation. The task of divining the motivations 
behind any given death sentence under an open-ended 
statute such as Georgia’s seems well-nigh impossible. The 
breadth of the discretion given to sentencers hv the law— 
to find or to ignore any of the vaguely-worded “aggravat­
ing circumstances” or the unenumerated and unfathomable 
“mitigating circumstances,” and to refuse to sentence a 
defendant to death no matter what it finds—compound the 
inherent inability of an appellate court to detect the subtle 
but crucial atmospheric shadings of trials in which life is 
at stake, and make it altogether hopeless to suppose that 
the Georgia Supreme Court can discover the operation of 
“any . . . arbitrary factor” on sentencing determinations in 
any ease. Ga. Code Ann. §27-2537(c)(1). Certainly the

89 Furman v. Georgia, supra, 408 U.S. at 309-310 (concurring 
opinion of Mr. Justice Stewart).

_40 Brewster, The Georgia Death Penalty State—Is I t Constitu­
tional, Even After Revision?, 3 Ga. J. Cobb. (No. 1) 14, 19 (1974).



44

determination whether a death sentence is “excessive . . . 
considering both the crime and the defendant,” Ga. Code 
Ann. §27-2537(e)(3), constitutes a mere discretion to review 
discretion—little more than one additional opportunity to 
extend mercy to particular defendants who are thought 
deserving. Notably, but unsurprisingly, the Georgia Su­
preme Court has made no progress (indeed, it has made 
no effort) toward developing coherent or even articulate 
standards of appellate review. Instead it has, in most cases 
as in petitioner’s (see note 42, in fra ), simply asserted that 
a particular death sentence did or did not pass muster 
under the statutory criteria, and then appended to its 
opinion the statutorily-required list of “similar” cases it 
considered in reaching its conclusion.41 In no case has the 
court described the factual circumstances of cases cited in 
the statutorily-required list where (as is quite common) the 
appellate opinion does not disclose them; or explained why 
certain other cases were not considered; or undertaken to 
state how or why the facts of the case under review merited 
a harsher punishment than that imposed in other cases

41 The significance of the cases cited in support of a particular 
decision to affirm a death sentence is often elusive. In petitioner’s 
case for example, none of the cases listed provided any basis for 
the court’s novel conclusion that the death penalty had been infre­
quently imposed for robbery. Gregg v. State, 233 Ga. 117, 210 
S.E.2d 659, 667 (1974). In Moore v. State, 233 Ga. 861, 213 S.E. 
2d 829 (1975), the court cited 23 cases, all apparently involving 
felony murders, in support of its conclusion that the death sen­
tence in the case at bar (also a felony-murder) “was not ‘wantonly 
and freakishly imposed.’ ” Id. at 833. Of the 23, only 1 (peti­
tioner Gregg’s) was decided under the 1973 statute, and 8 were 
decided when Georgia had no death penalty (and thus involved 
mandatory life sentences). The remaining 14 cases were tried 
before Furman, 7 resulting in life sentences and 7 in death sen­
tences with no appreciable basis for the different outcomes. This 
grab-bag of cases could obvious’y be cited to support any result 
in any case with equal propriety. The list shows nothing other 
than exactly what Furman recognized: that Georgia felony-murder 
sentencing is random at best.



45

where equally aggravated crimes had received non-death 
sentences.42

Only three times has the Georgia Supreme Court gone 
beyond a ritual recital of the applicable statutory “stan­
dards” in reviewing a death sentence,43 and its state­
ments in those three eases have been little more enlighten­
ing than its silence in others. In Moore v. State, 233 Ga. 
861, 213 S,E.2d 829 (1975), the court said it had deter­
mined from examining past cases that

42 The usual litany is roughly that the court used in petitioner’s 
case:

“After considering both the crimes and the defendant and 
after comparing the evidence and the sentences in this case 
with those of previous murder case's, we are also of the opinion 
that these two sentences of death are not excessive or dispro­
portionate to the penalties imposed in similar cases which are 
hereto attached.”

Gregg v. State, 233 Ga. 117, 210 S.E.2d 659, 667 (1974). See also, 
e.g., Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900, 902 (1975); 
McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577, 583 (1974) • 
Floyd v. State, 233 Ga. 280, 210 S.E.2d 810, 814 (1974) ; Hooks 
v. State, 233 Ga. 149, 210 S.E.2d 668, 670 (1974), Eberheart V. 
State, 232 Ga. 247, 206 S.E. 2d 12, 18 (1974).

43 In Coley v. State, supra, the one ease in which the court 
vacated the death sentences of an appellant before it, two dissent­
ing Justices found in similar past cases a pattern of maximum 
sentencing for rape defendants with prior convictions, which 
thejr argued dictated that Coley’s death sentence should be affirmed. 
Id. at 618-619 (opinion of Mr. Justice Nichols). The majority 
undertook no such analysis, however, simply asserting that prior 
cases “indicate” that “similar factual situations and like aggra­
vating circumstances” had resulted only in life sentences in the 
past, 204 S.E.2d at 617, a standard of review that one concurring 
Justice called “a nebulous measurement that I am unable to under­
stand,” id. at 620 (opinion of Mr. Justice Gunter, concurring and 
dissenting).

Whatever “standard” was developed in Coley wus rendered even 
more “nebulous” by the Court’s decision in Coker v. State, 234 
Ga. 555, 216 S.E.2d 782 (1975), Coker, like Coley, involved a 
rape, robbery and abduction, little physical harm to the victim, 
and a defendant with a prior record. Yet Coker’s death sentence 
was affirmed.



46

“ [notwithstanding the fact that there have been cases 
in which robbery victims were murdered and the juries 
imposed life sentences . . . juries faced with similar 
factual situations have imposed death sentences. . . . 
Thus, the death sentence here was not ‘wantonly and 
freakishly imposed.’ ”

Id., 213 S.E.2d at 833.44 45 In both Jarrell v. State, 234 6a. 
410, 216 S.E,2d 258 (1975), and Tamplin v. State, 235 Ga. 
20, 218 S.E.2d 779 (1975), the court observed that in cases 
“where witnesses to [other crimes] . . . were killed, or an 
attempt was made to kill such witnesses, the death penalty 
has been imposed,” Tamplin v. State, supra, 218 S.E.2d 
at 784. The court cited 16 cases in its Appendix to Tamplin, 
all of which resulted in death sentences, and most of which 
did involve robbery or burglary-murders. It did not, how­
ever, cite any of the numerous similar murder cases which, 
both under pre-Furman law and under the 1973 Act, had 
resulted in life sentences instead.46

44 The court in Moore also suggested an additional reason for its 
decision by citing Pass v. State, 227 Ga, 730, 182 S.E.2d 779 (1971), 
a case in which “the murder took place in the victim’s home, as 
occurred in the case under consideration” and the jury imposed 
a death sentence. Moore v. State, supra, 213 S.E.2d at 833. But 
the two cases seem hardly comparable. In Pass the defendant 
killed two victims, apparently defenseless, and later bragged 
about it, see Pass v. State, supra, 182 S.E.2d at 784; in Moore the 
defendant shot a burglary victim who was shooting at him, and 
later showed considerable remorse and pled guilty. Moore v. State, 
supra, 213 S.E.2d at 832.

45 See, e.g., Zirkle v. State,----- Ga. ------ , 219 S.E.2d 389 (1975);
Lerch v. State, 234 Ga. 857, 218 S.E.2d 571 (1975); Jackson v. 
State, 234 Ga. 549, 216 S.E.2d 834 (1975) ; Leach v. State, 234 
Ga. 467, 216 S.E.2d 326 (1975) ; Hill v. State, 232 Ga. 800, 209 
S.E.2d 153 (1974); Dutton v. State, 228 Ga. 850, 188 S.E.2d 794 
(1972); Stevens v. State, 228 Ga. 621, 187 S.E.2d 281 (1972); 
Atkins v. State, 228 Ga. 578, 187 S.E.2d 182 (1972); Morris v. 
State, 228 Ga. 39, 184 S.E.2d 82 (1971).

In both Tamplin and Jarrell the court recited that an addi­
tional factor involved in its decision was that “ [t]he cold-blooded 
and callous nature” of the crime had been “condemned by death 
in other cases,” Jarrell v. State, supra, 216 S.E,2d at 270; Tamp-



47

c. Measurement with an arbitrary yardstick.
The Georgia Supreme Court’s exclusive reliance on cases 

that are appealed* 46 as the standard by which to determine 
whether a “sentence of death is excessive or disproportion­
ate to the penalty imposed in similar cases, considering 
both the crime and the defendant,” Ga. Code Ann. §27-2537 
(c) (3), manifestly provides no reliable guide to whether the 
death penalty is being uniformly imposed under similar 
factual circumstances. A comparative sample consisting 
only of cases appealed to the Georgia Supreme Court, is 
woefully distorted in two ways. First, cases are ignored 
which involve similar factual circumstances but were dis­
posed of by the various pre-conviction selective mechanisms 
described at pages 53-65 infra. Second, no account is taken 
of capital convictions for which a life sentence is imposed 
and which are not appealed. Both excluded groups of 
cases, of course, represent by definition prosecutions where 
death sentences were not imposed; so death-sentenced ap­
pellants before the Georgia Supreme Court must necessar­
ily play the deadly game against a stacked deck.47 The court 
altogether lacks the capacity to determine, from a skewed 
and meager sample of this sort, what penalties are reg­
lin v. State, supra, 218 S.E.2d at 784—a judgment highly subjec­
tive at best, and which also did little to distinguish these cases 
from others in which no death penalty had been imposed. See,
e.g., Stapleton v. S ta te ,----- Ga. -------■, 220 S.E,2d 269 (1975);
Zirkle v. Sta te ,----- G a.-------, 219 S.E.2d 389 (1975); Barker v.
State, 233 Ga. 781, 213 S.E.2d 624 (1975).

46 In Boss v. State, 283 Ga. 356, 211 S.E.2d 361 (1974), the court 
noted that nothing prevented it from “examining non-appealed 
cases and cases in which the defendant pleaded guilty to a lesser 
offense” in the course of its “independent review.” Id. at 359. But 
it did not explain how it proposed to become informed about such 
cases; and in Moore v. State, supra, where the appellant attempted 
to call to the court’s attention two unappealed cases allegedly 
similar to his, the court said that these cases “cannot be considered 
by this Court. . . .” Id. at 832.

47 See Brewster, The Georgia Death Penalty Statute-—Is I t  Con­
stitutional, Even After Revision?, 3 Ga. J. Core. (No. 1) 14, 19 
(1974), for inequities produced by this form of appellate review.



48

ularly and normally imposed in “similar cases,” Ga. Code 
Ann. §27-2537(c) (3).

But this is not the whole problem. For the Georgia 
Supreme Court, as explicitly authorized by statute,48 has 
persisted in comparing the death sentences before it with 
death sentences meted out under Georgia’s pre-Furman 
procedures49 50 51—that is, death sentences which were “wantonly 
and . . . freakishly imposed,” Furman v. Georgia, supra, 
408 U.S. at 310 (concurring opinion of Mr. Justice Stew­
art), at a time when “there [was] . . . no meaningful 
basis for distinguishing the few cases in which [the 
death penalty was] . . . imposed from the many cases 
in which it [was] . . . not,” id. at 313 (concurring opinion 
of Mr. Justice White), and when “the discretion of judges 
and juries in imposing the death penalty enable [d] the 
penalty to be selectively applied, feeding prejudices against 
the accused if he [was] . . . poor and despised, lacking 
political clout, or if he [was] . . .  a member of a suspect 
or unpopular minority,” id. at 255 (concurring opinion 
of Mr. Justice Douglas). A clearer case of an appeal 
from Paul Drunk to Paul Sober can hardly be imagined.60 
And of course, the system is self-perpetuating: as time 
passes, each new death sentence is approved by comparison 
with previous ones which were in turn approved as com­
parable to others Furman held cruel and unusual.61

48 See Ga. Code Ann. §27-2537 (f).
49 This is true even in the court’s most recent decisions. See, 

e.g., Mason v. State, Ga. Sup. Ct. No. 30338, decided January 7, 
1976, in which 12 of the 16 cases considered were pr e-Furman, 
some of them (e.g. Henderson v. State, 227 Ga. 68, 179 S.E.2d 
76 (1970), vacated 408 U.S. 938 (1972)) explicitly held unconsti­
tutional by this Court.

50 Cf. Lane v. Wilson, 307 U.S. 268 (1938).
51 For example, in petitioner Gregg’s case, all but one of the 

death-sentence cases cited by the Georgia Supreme Court were pre- 
Furman cases. See Gregg v. State, supra, 210 S.E.2d at 667. The 
exception is House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), 
which in turn was affirmed with exclusive reference to pr e-Furman 
cases. See House v. State, supra, 205 S.E.2d at 222.



49

These appellate review procedures have thus far resulted 
in the removal, “pursuant to a nebulous measurement,” 52 
of one inmate from the Georgia death row population.53 
In every other instance of sentencing review, the Georgia 
Supreme Court has affirmed the sentencer’s decision to 
condemn the defendant.* 63 64 Its role in the capital sentencing 
process clearly has not regularized and clearly cannot 
regularize the infliction of the punishment of death in 
Georgia.

4. The Results of the Georgia Sentencing P rocess: Caprice 
and Arbitrariness.

In sum,
“ [W]hat Georgia has done is to lay down a smoke­
screen of plenteous words, which, on hasty reading,

52 Coley v. State, 231 Ga. 829, 204 S.E.2d 612, 620 (1974) (opin­
ion of Mr. Justice Gunter, concurring in part and dissenting in 
part). But see note 43, supra.

63 Coley v. State, supra note.
64 Eierheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974); 

House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974); Gregg V. 
State, 233 Ga. 117, 210 S.E.2d 659 (1974); Hooks v. State, 233 Ga. 
149, 210 S.E.24 668 (1974) ; Floyd v. State, 283 Ga. 280, 210 
S,E,2d 810 (1974); Boss v. State, 233 Ga. 361, 211 S.E.2d 356 
(1974) ; McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 
(1974); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975) ; 
Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975) ; Chenault 
v. State, 234 Ga. 210, 215 S.E.2d 223 (1975); Jarrell v. State, 
234 Ga. 410, 216 S.E.2d 258 (1975) ; Coker v. State, 234 Ga. 555, 
216 S.E.2d 782 (1975); Tamplin v. State, 235 Ga. 20, 218 S.E.2d 
779 (1975) ; Mason v. State, Ga. Sup. Ct. (No. 30338, decided 
December 2, 1975). The court has continued, in the wake of peti­
tioner Gregg’s ease, to reverse death sentences for robbery on the 
ground that they are infrequently imposed; but in no case has it 
done so where the death sentence was the only one pronounced on 
a particular defendant. See Jarrell v. State, 234 Ga. 410, 216 
S.E.2d 258 (1975); Floyd v. State, 233 Ga. 280, 210 S.E.2d 810
(1974) . The court has also reversed three death sentences for
procedural error in the penalty phase. Prevatte v. State, 233 Ga. 
929, 214 S.E.2d 365 (1975) ; Jordan v. State, 233 Ga. 929, 214 
S.E.2d 365 (1975); Brown v. Sta te,----- G a.-------, 220 S.E.2d 922
(1975) .



50

mask the fact that exactly the same old unbridled jury 
discretion is there, if only the jury, guided by court 
and prosecutor, can grope its way through the verbal 
haze.” 66

For
“the primary consideration of whether a man shall 
live or die is still left to the bald discretion of the 
jury. I t is only after the decision that the verdict shall 
be death has been made, that the jury goes about the 
process of rationalizing away the caprice or arbitrari­
ness of their actions.” 66

And “ [n]o amount of appellate review” will serve, after 
the fact, to regularize the process.67

The inevitable result is that sentencing in Georgia re­
mains now, as it was at the time of Furman, irrational and 
arbitrary in the extreme. That it could be little else is 
evident, for history in this country has now shown that 
where a statutory system permits the death penalty to be 
“wantonly and . . . freakishly imposed” 68 it will be.69 We 
have previously noted some of the reasons why appellate 
reports cannot tell the full story—or any appreciable part 
of the story—of this lottery of life and death.60 But enough 
of the story appears in the Georgia appellate reports to 
establish the fact of capriciousness, if not its dimensions. 
The capital sentencing pattern that emerges is no pattern 
at all, the same kind of crazy-quilt of arbitrary and in­

66 Black, op. cit. supra note 26, at 65.
66 Brewster, The Georgia Death Penalty Statute—Is It Con­

stitutional, Even After Revisionf, 3 Ga. J. Coke. (No. 1) 14, 18 
(1974).

67 Id. at 19.
58 Furman v. Georgia, supra, 408 TJ.S. at 310 (concurring opinion 

of Mr. Justice Stewart).
69 See Part TIT of the Brief for Petitioner, Jurck v. Texas, No. 

75-5394.
60 See pages 42-43, supra.



51

consistent decision-making61 that was present at the time 
of Furman.™

#  *  #

61 Compare, e.g., Barrow v. State, 6a. Sup. Ct. No. 30322, de­
cided December 2, 1975 (defendant coldly shot victim to death 
in course of a grocery store robbery—death sentence), and Tamp- 
lin v. State, 235 Ga. 20, 218 S.E.2d 779 (1975) (defendant shot 
victim to death in course of grocery store robbery—death sen­
tence), with Thomas v. State, 233 Ga. 237, 210 S.E.2d 675 (1974) 
(defendant stabbed victim [16 times] to death in course of grocery
store robbery—life sentence), and Zirkle v. State, —— Ga. ------ ,
219 S.E,2d 389 (1975) (defendant coldly shot victim to death 
in gas station robbery—life sentence). Compare Prevatte v. State, 
233 Ga. 929, 214 S.E.2d 365 (1975) (street robbery in which two 
defendants shot and killed victim—death sentences), with Gaither 
v. State, 234 Ga. 465, 216 S.E.2d 324 (1975) (street robbery in 
which one of two defendants shot and killed victim—life sen­
tences), and Sims v. State, 234 Ga. 177, 214 S.E,2d 902 (1975) 
(street robbery in which defendant shot and killed witness while 
fleeing—life sentence), and Leach v. State, 234 Ga. 467, 216
S.E.2d 326 (1975) (robbery of taxi driver in which defendant 
shot and killed victim in order to prevent victim from fleeing-—- 
life sentence [see Transcript of Record 709-712]). Compare Che- 
nault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975) (defendant 
shot three victims without provocation, two died—death sentence)
with Stapleton v. State, -----  G a .---- -, 220 S.E.2d 269 (1975)
(defendant shot three victims without provocation, two died— 
life sentence). Compare Gregg v. State, 233 Ga. 117, 210 S.E.2d 
659 (1974) (defendant murdered two victims and stole their car
—death sentence), with Brannen v. State,----- Ga.------ , 220 S.E.2d
264 (1975) (defendant murdered two victims and stole their car 
—life sentence), and Lerch v. State, 234 Ga. 857, 218 S,E.2d 571 
(1975) (defendant and another brutally murdered victim of se­
cluded robbery-—life sentence [see Transcript of Record 10-30]). 
Compare Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974) and 
Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974) (co-perpe­
trators of kidnap-rape in which victim was badly beaten—death 
sentences), with Wood v. State, 234 Ga. 758, 218 S,E.2d 47 (1975) 
(rape in which victim was badly beaten—life sentence). Compare 
Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975) (rape/robberv/ 
kidnapping, victim not beaten—death sentence), and Coley v. 
State, 231 Ga. 829, 204 S.E,2d 612 (1974) (rape/robbery/kidnap­
ping, victim beaten but not seriously—death sentence), with Jones 
v. State, 233 Ga. 662, 212 S.E.2d 832 (1975) (rape involving rob­
bery and abduction, victim not beaten—life sentence), and Allen 
v. State, 233 Ga. 200, 210 S.E.2d 680 (1974) (rape/kidnapping, 
victim not beaten—life sentence).

62 At the time of Furman v. Georgia, several states had limita­
tions on the jury’s discretion to make the life-death choice and



52

Thus, despite the mandate of Furman v. Georgia, peti­
tioner remains simply one of “a capriciously selected ran­
dom handful upon whom the sentence of death has in fact 
been imposed,” 63 with “no meaningful basis for distinguish­
ing” the spared from the condemned.64 This case does not 
therefore necessitate resolution of the question whether, 
in the words of Chief Justice Burger’s Furman dissent, 
“ [tjhere is [any] . . . reason to believe that sentencing 
standards in any form will substantially alter the dis­
cretionary character of the [^re-Furman] . . . system of 
sentencing in capital cases.65 See also McGautha v. Cali­
fornia, 402 U.S. 183, 208 (1971); R oyal C ommission  on 
Capital P u n is h m e n t  1949-1953, R eport 174 (H.M.S.O. 
1953) [Cmd. 8932], For it is clear that

“ . . . the Georgia statutes involved in this case authorize 
nothing more and nothing less than the discretionary 
imposition of the death penalty by the fact-finder.” * 154

standards for the appropriate exercise of that discretion which 
were little, if any, less clear and confining than those in the present 
Georgia statutes. Death sentences from these states were never­
theless uniformly held unconstitutional. Davis v. Connecticut, 408 
U.S. 935 (1972) (see Conn. Gen. Stat. Ann., §53-10 (1967)); 
Moore v. Illinois, 408 U.S. 786 (1972) (see People v, Black, 367 
111. 209, 10 N.E.2d 801, 804 (1937); People v. Sullivan, 245 111. 
87, 177 N.E. 733 (1933); 111. Rev. Stat, c. 38, §1-7-(c) (1)); 
Alvarez v. Nebraska, 408 U.S. 937 (1972) (see Sundahl v. State,
154 Neb. 550, 48 N.W.2d 689, 704 (1951)); Billingsley v. New 
Jersey, 408 U.S. 934 (1972) (See N.J. Stat. Ann., §2A:113-4 
(1969); State v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963)); 
Duling v. Ohio, 408 U.S. 936 (1972) (See State v. Tudor, 154 
Ohio St. 249, 95 N.E.2d 285, 390 (1950); State v. Eaton, 19 Ohio 
St. 145, 249 N.E.2d 897 (1969)); Herron v. Tennessee, 408 U.S. 
937 (1972) (see Tenn. Code Ann., §39-2406 (1955); Woodruff 
v. State, 164 Tenn. 530, 51 S.W.2d 843, 847 (1932)).

63 Furman v. Georgia, supra, 408 U.S. at 309-310 (concurring 
opinion of Mr. Justice Stewart).

64Id. at 313 (concurring opinion of Mr. Justice White).
66 Id. at 401.



53

Coley v. State, supra, 204 S.E,2d at 620 (opinion of Mr. 
Justice Gunter, concurring and dissenting).

B. Before and After the Pre-Sentence Hearing
The 1973 Georgia capital punishment statute was set 

atop a system already riddled with opportunities for 
arbitrariness in the selection of those who are to live and 
those who are to die for “capital” crime in Georgia. Both 
William Henry Furman and petitioner Troy Leon Gregg 
were “capriciously selected” 66 to die not only by their 
respective sentencing juries, but by a process which, from 
start to deadly finish, is “pervaded, by discretion.” 67 The 
“large number of actors” 68 who decide whether or not a 
given defendant is “fit to live” 69 play their parts in 
Georgia, as elsewhere,70 from the inception of a “capital” 
prosecution to the eve of execution.

Both discretion and arbitrariness are inherent in un­
regulated prosecutorial charging and plea bargaining au­
thority—in raw exercises of sentencing choice under guise 
of degree-of-guilt determinations made by trial juries 
applying opaque and amorphous grading schemes to the 
gradeless question of life or death—and in the executive’s 
“prerogative of mercy” that kills where it does not alight. 
All of these have been discussed at length in the Brief for

66 Furman v. Georgia, swpra, 408 U.S. at 309-310 (concurring 
opinion of Mr, Justice Stewart).

67 Coley v. State, supra, 204 S.E.2d at 620 (opinion of Mr. Justice 
Gunter, concurring and dissenting).

68 Brief for the United States as Amicus Curiae in Fowler v. 
North Carolina, No. 73-7031, at 76.

69 Witherspoon v. Illinois, 391 U.S. 510, 521 n,2Q (1968).
70 See Parts III, respectively, of the Briefs for Petitioners in 

Roberts v. Louisiana, No. 75-5844, and Jurek v. Texas, No. 75-5394, 
and of the Brief of the NAACP Legal Defense and Educational 
Fund, Inc., as Amicus Curiae in Proffitt v. Florida, No. 75-5706.



54

Petitioner, Fowler v. North Carolina, at pp. 41-101 [here­
after cited as Petitioner’s Fowler Brief]. We will not 
burden the Court here with a repetition of that discussion, 
but will only outline the particular features of Georgia 
criminal law and procedure that implement the process of 
capricious selectivity which is described in its more general 
features in the Fowler brief.

1. Prosecutorial Charging Discretion.

The role of a Georgia district attorney is broadly dis­
cretionary.

“The whole proceeding, from the time the ease is laid 
down before him, where an indictment is demanded, 
until the rendition of the verdict, is under his direction, 
supervision and control . . .”

Hicks v. Brantley, 102 Ga. 264, 29 S.E. 459, 462 (1897).
The district attorney’s discretionary authority begins 

with the decision whether to prosecute and what charges to 
bring. Although the Georgia common-law tradition requires 
indictment by a grand jury in capital cases,71 the district 
attorney’s duty to “attend on the grand juries, advise them 
in relation to matters of law, and swear and examine 
witnesses before them,” Ga. Code Ann. §24-2908(2) (1971), 
places the charging decision effectively in his hands.

“The [district attorney] . . . is the official counselor of 
the grand jury. They look to him for advice and 
counsel in finding true bills, and their actions thereon 
are nearly always guided by him.”

Nichols v. State, 17 Ga. App. 593, 87 S.E. 817, 822 (1916). 
It is the prosecutor who “determine [s] whether or not to

n  Smith v. Strozier, 226 Ga. 283, 174 S.E.2d 417 (1970) (dic­
tum ); Webb v. Henlery, 209 Ga. 447, 74 S.E.2d 7 (1953).



55

commence a particular prosecution,” Hicks v. Brantley, 
supra, 29 S.E. at 462, and who “draws the bill of indict­
ment”—and thus determines what charges it will contain— 
if one is commenced. Ibid,; Scott v. State, 53 Ga. App. 
61, 185 S.E. 131, 135 (1936).

The district attorney has the discretion not only to 
initiate a prosecution, but also “to discontinue one already 
begun.” Hicks v. Brantley, supra, 29 S.E. at 462. He must 
obtain the consent of the court to enter a formal nolle 
prosequi72 (though standards governing that consent are 
nowhere specified)72 73—but a prosecution apparently may be 
informally abandoned “even without the concurrence of a 
judicial office.” Smith v. Embry, 103 Ga. App. 375, 119 
S.E,2d 45, 49 (1961) (dictum); cf. Waters v. Walkover 
Shoe Shop, 142 Ga. 137, 82 S.E. 537 (1914).

2. Plea Bargaining.

Most importantly, perhaps, a district attorney has “dis­
cretion in bargaining for a plea of guilty in exchange for 
a non-death sentence.” Moore v. State, 233 Ga. 861, 213 
S.E.2d 829, 834 (1975) (concurring opinion of Mr. Justice 
Hill).74 Though Georgia trial courts have power—itself

72 Ga. Code Ann. §27-1801 (1973); Edwards v. State, 121 Ga. 
590, 49 S.E. 674 (1905). A nolle prosequi is not a bar to further 
prosecution unless it is entered after the ease has been submitted 
to the jury. McGahee v. State, 133 Ga. App. 964, 213 S.E.2d 91 
(1975). A prosecutor may achieve the same result as a nolle 
prosequi by moving the court to place a case on the “dead docket/' 
See Underhill v. State, 129 Ga. App. 65, 198 S.E.2d 703 (1973).

73 I t seems unlikely that in most cases the consent of the court 
is anything more than a formality. “Ordinarily a motion to nolle 
pros, made by [a district attorney] is granted . . . Griffin v. 
State, 12 Ga. App. 615, 77 S.E. 1080, 1085 (1913).

74 Ga. Code Ann. §27-2528 (1975 Supp.) provides:
“ [a]ny person who has been indicted for an offense punishable 
by death may enter a plea of guilty at any time after his 
indictment, and the judge of the superior court having juris-



56

discretionary—to reject guilty pleas75 and are not bound 
by prosecutorial stipulations as to sentence,76 a district 
attorney’s “advice [is] generally accepted that a plea of 
guilty be received with a recommendation for [lesser] 
punishment.” Griffin v. State, supra, at 1085.

“Well-nigh any attorney representing one accused of 
crime would unhesitatingly accept an assurance from 
the [district attorney] . . . that if a plea of guilty with 
a recommendation would be entered the recommenda­
tion would be respected by the court.”

Ibid. Further, if a prosecutor’s recommendation of pun­
ishment is not accepted by the court, a guilty plea made 
in reliance on a representation that the court would take 
it may be withdrawn. Ballard v. State, 131 Ga. App. 847, 
207 S.E.2d 246 (1974); Holston v. State, 103 Ga. App. 373,

diction may, in his discretion, during term time or vacation, 
sentence such person to life imprisonment, or to any punish­
ment authorized by law for the offense named in the indict­
ment.”

No pre-sentence hearing before a jury is required in guilty plea 
cases. Ballard v. State, 131 Ga. App. 847, 207 S.E.2d 246 (1974). 
Instead, the presiding judge fixes the sentence, and may impose 
the death penalty or any other authorized penalty “in the exercise 
of his discretion.” Massey v. State, 220 Ga. 883, 142 S.E.2d 832, 
837 (1965); Moore v. State, 233 Ga. 861, 213 S.E.2d 829, 834 
(1975) (concurring opinion of Mr. Justice H ill). Before pro­
nouncing sentence the judge may hold a hearing, Hooks v. State, 
233 Ga. 149, 210 S.E.2d 668 (1974) ; and before pronouncing a 
death sentence he “must find one of the statutory' aggravating 
circumstances provided in section 27-2534.1 . . . except in cases 
of treason or aircraft hijacking.” Ga. Code Ann. §27-2528 (1975 
Supp.) But the court need not impose, or even consider, a death 
penalty in any case.

76 A guilty plea may or may not be accepted by the judge, “in 
his discretion.” McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 
577, 582 (1974); Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971).

76 Shearer v. State, 128 Ga. App. 809,198 S.E.2d 369, 370 (1973); 
Griffin v. State, supra, 77 S.E. at 1085.



57

119 S.E.2d 302, 304- (1961) (dictum); Rowland v. State, 72 
Ga. App. 793, 35 S.E.2d 372 (1945); Griffin v, State, supra.

Thus in fact, if not technically in law, Georgia prosecu­
tors have the power to assure that the court will impose a 
non-death sentence on a guilty plea, and they have a dis­
cretion to give or to withhold that assurance which is totally 
unfettered by the 1973 capital punishment statute or by any 
other significant restriction,77 It is the plea bargaining 
process that accounts for an estimated ninety percent of all 
criminal dispositions,78 and the prosecutor’s decision to 
engage in it is “probably the most widely significant choice 
separating the doomed from those who . . .  go to prison.” 79 
Yet Georgia law and practice leave that decision to indi­
vidual district attorneys, and provide no oversight, guid­
ance, or control to insure against inconsistency and arbi­
trariness in the plea bargaining policies of district attor­
neys generally or of any particular district attorney.

Further, as we have noted at pages 42-43 supra, Georgia’s 
appellate-review procedures create a multiplier effect 
through V'hich plea bargaining enhances the eapriciousness 
of the overall system in a compound fashion. Since life 
sentences received pursuant to plea bargains will seldom 
be appealed, this large group of capital-ease dispositions 
forms no part of the universe considered by the Georgia

77 See Thomason v. Caldwell, 229 Ga. 637, 194 S.E.24 112 (1972). 
The “consent verdict” procedure sometimes used in Georgia.—- 
whereby the defense and prosecution stipulate to a jury, waive 
all argument and evidentiary presentation, and ask a juror to 
sign, as foreman, a prepared verdict finding the defendant guilty 
but recommending mercy—provides an alternative to a guilty 
plea that may be even freer from judicial supervision and control. 
See Caldwell v. Paige, 230 Ga. 456, 197 S.E.2d 692 (1973).

78 P resident’s Commission on L aw E nforcement and the Ad­
ministration of J ustice, Task F orce Report : The  Courts 9 
(G.P.O. 1967).

79 B lack, op. cit. supra note 26 at 43. See also Petitioner’s 
Fowler Brief, at 53-61.



58

Supreme Court in its statutory sentence review. The in­
visibility of prosecutorial exercises of mercy thereby pre­
vents meaningful patterns of capital sentencing from be­
ing formed or enforced at any level of the process.

3, Ju ry  D iscretion.

The sentencing discretion expressly conferred upon trial 
juries by the 1973 Georgia capital punishment statutes, see 
pages 31-34 supra, is not the first or only means available to 
the jury to spare the defendant’s life in cases where, if 
otherwise disposed, it might consign him to die. At the first 
stage of Georgia’s bifurcated trial, the jury may also avert 
any possibility of a death sentence by convicting the de­
fendant of a lesser offense80 or by finding his conduct non- 
culpable, through the application of legal doctrines that 
supply an indeterminate “dispensing power [couched] . . . 
in a mystifying cloud of words.” 81

A Georgia trial judge must charge lesser included of­
fenses when they are established under “any view” of the 
evidence, Sims v. State, 203 Ga. 668, 47 S.E,2d 862 (1948), 
that is, “where, from the evidence or from the defendant’s 
statement at the trial, there is anything deducible which 
would tend to show that he was guilty of [the lesser offense]
. . . or which would be sufficient to raise a doubt as to which

80 Ga. Code Ann. §26-505 (1972) provides:
“An accused may be convicted of a crime included in a crime 

charged in the indictment, information, or accusation, A 
crime is so included when:

“ (a) I t is established by proof of the same or less than all 
the facts or a less culpable mental state than is required to 
establish the commission of the crime charged, or

“ (b) I t  differs from the crime charged only in the respect 
that a less serious injury or risk of injury to the same person, 
property, or public interest or a lesser kind of culpability 
suffices to establish its commission.”

81 Cakdgzo, Law and L iterature 101 (1931).



59

of these grades [of the offense] . . .  was committed.” Echols 
y . State, 46 Ga. 668, 168 S.E. 790, (1933) (emphasis in 
original), citing Reeves v. State, 22 Ga, App. 628, 97 S.E. 
115 (1918). So, “[i]f there be any evidence, however slight, 
as to whether the offense is murder or manslaughter, in­
structions as to both should be given to the jury.” Linder 
v. State, 132 Ga. App. 624, 208 S.E.2d 630, 631 (1974).82 
Trial judges are admonished to submit lessers, whether or 
not the defendant requests their submission, Banks v. State, 
227 Ga. 578, 182 S.E.2d 106 (1971), or even objects to it, 
Hobbs v. State, 134 Ga. App. 850, 216 S.E.2d 674 (1975); 
and even where the lessers are inconsistent with the de­
fendant’s version of the facts, Henderson v. State, 234 Ga. 
827, 218 S.E.2d 612 (1975). Lessers need not be submitted 
if there is no evidence to support them, Henderson v. State, 
227 Ga. 68, 179 S.E.2d 76 (1970): it was upon this theory 
that the Georgia Supreme Court sustained the trial judge’s 
refusal to submit manslaughter instructions to the jury at 
petitioner Gregg’s trial, Gregg v. State, 233 Ga. 117, 210 
S.E,2d 659, 663 (1974).

These rules operate in the context of a body of substan­
tive law that makes their general application highly specu­
lative. Georgia does not recognize degrees of murder, but 
defines this potentially capital crime in terms of striking 
breadth and imprecision:

“(a) A person commits murder when he unlawfully 
and with malice aforethought, either express or im­
plied, causes the death of another human being. Ex­
press malice is that deliberate itention unlawfully to

82 Both voluntary and involuntary manslaughter are lesser in­
cluded offenses of the crime of murder. Waller v. State 107 Ga. 
£PP- 809, 131 S.E.2d 111 (1963); Perry v. State, 78 Ga. App. 273

I °E 2d 4267(°19946)4 (1948) J L ** V" 74 Ga' App‘ 212> 39’



60

take away the life of a fellow creature, which is mani­
fested by external circumstances capable of proof. 
Malice shall be implied where no considerable provoca­
tion appears, and where all the circumstances of the 
killing show an abandoned and malignant heart.

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

Ga. Code Ann. §26-1101 (1972). Notwithstanding the mani­
fest inscrutability of the “malice” concept, see Leonard v. 
State, 113 Ga. 435, 66 S.E. 251 (1909), the practice of de­
fining it to the jury merely by reading its statutory defini­
tion has been approved. Bowen v. State, 225 Ga. 423, 169 
S.E.2d 322 (1969).

In many cases, the line between murder and manslaughter 
depends upon the presence or absence of “a sudden, violent, 
and irresistible passion resulting from serious provocation 
sufficient to excite such passion in a reasonable person” ; 
but a provoked killing is nonetheless murder if the jury 
finds there was “an interval between the provocation and 
the killing sufficient for the voice of reason and humanity 
to be heard.” 83 The administration of these opaque ele­
ments lies, in the first instance, with the trial judge who

83 Ga. Code Ann. §26-1102 (1972) provides:
“A person commits voluntary manslaughter when he causes the 
death of another human being, under circumstances which 
would otherwise be murder, if he acts solely as the result of a 
sudden, violent, and irresistible passion resulting from serious 
provocation sufficient to excite such passion in a reasonable 
person; however, if there should have been an interval between 
the provocation and the killing sufficient for the voice of 
reason and humanity to be heard, of which the jury in all cases 
shall be the judge, the killing shall be attributed to deliberate 
revenge and be punished as murder. A person convicted of 
voluntary manslaughter shall be punished by imprisonment 
for not less than one nor more than 20 years.



61

must decide whether the facts of the case present them; 
but if there is any evidence to support a provocation-and- 
passion charge, the ultimate determination is within the 
exclusive province of the jury. Linder v. State, 132 Ga. 
App. 624, 208 S.E.2d 630 (1974).84

Moreover, the 1968 Georgia Criminal Code altered the 
prior Georgia law relating to attempts and assaults,86 so 
that “ [a] person may be convicted of criminal attempt if 
the crime attempted was actually committed in pursuance 
of the attempt,” Ga. Code Ann. §26-1004 (1972), and “ [a] 
person may be convicted on [sic] an assault with intent to 
commit a crime if the crime intended was actually com­
mitted as a result of the assault,” Ga. Code Ann. §26-1303 
(197 2).85 Under the new provisions, apparently trial judges

84 Linder illustrates the extent of the jury’s discretion to find 
provocation wherever it wishes. There “the amount of provoca­
tion . . . was not shown, nor the length of cooling time between 
then and the time of the killing.” 208 S.E.2d at 631. Nonetheless, 
the Court of Appeals held that “these were all for the jury’s deter­
mination, and the jury’s province was to decide as to whether the 
offense be murder or manslaughter.” Ibid. See also, e.g., Robinson 
v. State, 109 Ga. 506, 34 S.E. 1017 (1900), where, though the 
Supreme Court believed “the truth of the ease” was of “a cold­
blooded and wanton murder” of a Black man by a White, id. at 
1018,

“ [tjhere was some little evidence, and a portion of the state­
ment, sufficiently bringing into the case the theory of mutual 
combat to authorize a charge on voluntary manslaughter, and 
a conviction of this offense at the hands of a jury who wished 
to lean strongly to the side of mercy. We therefore approve 
the charge on voluntary manslaughter, and, on the merits of 
the case, decline to disturb the jury’s finding. There was too 
much of righteousness in it for us to set it at naught.”

Ibid.
85 Ga. Code Ann. §27-2508, which was apparently not repealed 

by the 1968 Criminal Code, prohibits exactly what §§ 26-1004 and 
26-1303 allow, hut the Georgia Supreme Court has noted that the 
new statutes changed the old rule. Ward v. State, 231 Ga. 484,
202 S.E.2d 421 (1973); Jones v. Smith, 228 Ga. 648, 187 S.E.2d 
298 (1972).



62

are not required to charge on attempt and assault where a 
greater offense was consummated,86 hut are permitted to 
do so.87

Doctrines of justification submitted for the jury’s con­
sideration in Georgia murder cases also leave ample room 
for “response to sentiment under the guise of resolving 
issues of evidential doubt.” 88 Some such justifications are 
defined in impressionistic and moralistic terms by statute— 
like the justification of self-defense that was submitted to 
the jury at petitioner Gregg’s trial89—but Ga. Code Ann.

86 Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974); Ward 
v. State, 231 Ga. 484, 202 S.E.2d 421 (1973).

87 Of. Holcomb v. State, 230 Ga. 525, 198 S.E.2d 179 (1973). 
Holcomb held squarely that instructions on robbery by intimida­
tion were permitted but not required where all the evidence showed 
robbery by armed force, in view of Ga. Code Ann. §26-1902 (1972), 
which authorized conviction of that lesser offense. Holcomb was 
cited as primary authority in both Payne and Ward, note 86 supra. 
Consistently with Holcomb, the trial court in petitioner Gregg’s 
case instructed on robbery by intimidation (T. 432) even though 
the only evidence of robbery showed that it was committed by 
shooting Mr. Moore and Mr. Simmons to death.

88Kalven & Zeisel, The  A merican J ury 427 (1966).

89 T. 430-421. Ga. Code Ann. §26-901 (a) (1972) makes homi­
cide justifiable when the person committing it is justified in his use 
of force. Ga. Code Ann. §26-902 provides:

“ (a) A person is justified in threatening or using force against 
another when and to the extent that he reasonably believes 
that such threat or force is necessary to defend himself or a 
third person against such other’s imminent use of unlawful 
force; however, a person is justified in using force which is 
intended or likely to cause death or great bodily harm only 
if he reasonably believes that such force is necessary to pre­
vent death or great bodily injury to himself or a third person, 
or the commission of a forcible felony.

“ (b) A person is not justified in using force under the cir­
cumstances specified in paragraph (a) of this section if he: 
(1) initially provokes the use of force against himself with 
the intent to use such force as an excuse to inflict bodily 
harm upon the assailant; or (2) is attempting to commit,



§26-901 (f) (1972) also provides that homicide may he held 
justified “ [i]n all instances which stand upon the same

committing, or fleeing after the commission or attempted 
commission of a felony; or (3) was the aggressor or was 
engaged in a combat by agreement, unless he withdraws from 
the encounter and effectively communicates to such other per­
son his intent to do so and the other notwithstanding con­
tinues or threatens to continue the use of unlawful force.”

Thus, a jury evaluating a self-defense claim must first decide 
whether the defendant reasonably believed that he was in danger 
of death or great bodily injury (that is, “serious personal injury,” 
Williams v. State, 126 Ga. 454, 191 S.E.2d 100, 102 (1972)). The 
Georgia Supreme Court has held that “the reasonable fears of the 
defendant” are not equivalent to “the fears of a reasonable man,” 
and that it is the latter which establish the standard of conduct 
for justifiable homicide, Moore v. State, 228 Ga, 662, 187 S.E.2d 
277, 279 (1972); but the court has not explained the distinction 
between the erroneous and correct standards. In any event, “ ‘[i]n 
all . . . cases the motive with which the slayer acted is for deter­
mination by the jury; and if it be claimed that the homicide was 
committed, not in a spirit of revenge, but under the fears of a 
reasonable man, it is for the jury to decide whether or not the 
circumstances were sufficient to justify the existence of such fear.’ ” 
York y . State, 226 Ga. 281, 174 S.E.2d 418, 419 (1970), quoting 
Jarrard v. State, 206 Ga. 112, 55 S.E.2d 706, 709-710 (1949). 
“The standard of a reasonable man, by which the conduct of a 
particular person under given circumstances is to he judged, is 
one which the jury must determine from their own observation 
and their common knowledge and experience.” Fudge v. State, 
190 Ga. 340, 9 S.E.2d 259, 262 (1940).

Further subtle distinctions abound. The jury must, for example, 
distinguish between “provocation by threats,” which will neither 
justify nor reduce murder, and “threats accompanied by men­
aces,” which may justify it altogether. York v. State, supra, 174 
S.E.2d at 419, Jarrard v. State, supra, 55 S.E.2d at 709. It must 
determine whether the defendant provoked an incident with “the 
intent to use [the other’s response] . . .  as an excuse to inflict 
bodily injury” on him or merely “creates a necessity for the de­
ceased to defend himself,” Lundy v. State, 119 Ga. App, 585, 168 
S.E.2d 199, 201 (1969). In the latter case, the defendant’s use of 
force is justified if, hut only if, he “withdraws . . . and effectively 
communicates” his intent to do so. Ga. Code Ann §26-902(b) 
(1972) ; see Lundy v. State, supra. The jury must also determine 
whether the two parties engaged in battle with a “willingness, a 
readiness and an intention” to fight, Williams v. State, 232 Ga. 
203, 206 S.E.2d 37, 38 (1974), in which case the killing may not



64

footing of reason and justice as those enumerated in this 
Chapter.” * 90 And Georgia law relating to insanity as a 
criminal defense exhibits characteristic murkiness.91

Palpably, these various doctrines—theoretically requir­
ing factual determinations but realistically making those 
determinations both mysterious and “demeaningly trivial 
compared to the stakes” 92—invest trial juries with a broad 
range of optional outlets through which particular capital 
offenders may be permitted to escape even the risk of a 
death sentence if, in the jurors’ eyes, they do not deserve 
to die. In some but not all cases, the scope of the jury’s 
discretion in this regard depends upon an antecedent exer­
cise of the trial court’s authority to submit or to withhold 
the submission of lesser offenses or defenses. But it blinks 
reality to suppose that trial judges, any more than appel­
late judges, can regularly and uniformly avoid the tempta­
tion described by Mr. Justice Jackson: “to strain the

be justified but may be reduced to voluntary manslaughter under 
the doctrine of “mutual combat,” see Williams v. State, supra, 206 
S.E.2d at 38, Grant v. State, 120 Ga. App. 244, 170 S.E.2d 55, 56 
(1969).

90 See, e.g., Boss v. State, 135 Ga. App. 169, 217 S.E.2d 170 
(1975); Brown v. State, 228 Ga. 215, 184 S.E.2d 655 (1971).

91 See B lack, op. cit. supra note 26, at 50-55; Goldstein, The 
I nsanity D efense 44-46 (1967). In Georgia, insanity is not iso­
lated as an issue for separate jury determination, but in reaching 
its general verdict the jury must find beyond a reasonable doubt 
that the defendant knew right from wrong. Bevill v. State, 235 
Ga. 71, 218 S.E.2d 816 (1975). The defendant is only required 
to show to “the reasonable satisfaction of the jury,” id. at 818, 
that he lacked the requisite mental capacity. But what may “sat­
isfy” the jury or the law can vary widely: uncontradicted psychi­
atric testimony of medical psychosis will not necessarily suffice, 
see Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975), whereas 
“the [criminal] act itself may be so utterly senseless and abnormal 
as to furnish satisfactory proof of a diseased mind,” Brown v. 
State, 228 Ga. 215, 184 S.E.2d 655, 658 (1971).

92 Kalven & Zeisel, op. cit. supra note 88, at 448-449.



65

evidence and even, in close cases, the law” in order to give 
a man with his life at stake in a doubtful case “another 
chance.” Stein v. New York, 346 U.S. 156, 196 (1953). How 
great the strain will be depends, of course, upon the 
particular judge, the particular case, and why it is deemed 
doubtful. Here, once again, any hope of regularity in the 
life-or-death deciding process is delusive.

4. Executive Clemency.

The capital defendant who fails to escape the death 
penalty during the charging, plea bargaining, guilt-and- 
degree-determining, and sentencing processes is subject to 
a final lottery in which the Executive Department has an 
absolute discretion to spare his life or to permit his execu­
tion. The five member Board of Pardons and Paroles93 
has the authority to commute a death sentence, by a ma­
jority vote,94 “except in cases in which the Governor re­
fuses to suspend a sentence of death.” Georgia Const., 
Ann. §2-3011 (1972); Ga. Code Ann. §77-511 (1972). No 
direction is given to the Governor in the determination 
whether to suspend sentence, or to the members of the 
Board in the determination whether to commute a sen­
tence. I t is merely provided that the Governor and the 
Board communicate to the General Assembly each act of

93 Ga. Code Ann. §77-501 (1972). Appointments to the Board 
are “made by the Governor and shall be subject to the confirmation 
of the Senate.” Ga. Const. Ann. §2-3011 (1972).

94 The Georgia Constitution provides that “. . . in all cases a 
majority shall decide the action of the hoard.” Ga. Constitution 
Ann. art. V, §2-3011 (1972). Georgia Code Ann. §77-513 (1975 
Supp.) provides that “three members of . . . [the Board] may 
commute a death sentence to life imprisonment.” (Ga. Code Ann. 
§77-511 (1972), which has not been amended since the Board was 
increased from three to five members in 1973, Ga. Code Ann. 
§77-501 (1973), provides, inconsistently, that “the board by an 
affirmative vote of two of its members shall have the power to 
commute a sentence of death to one of life imprisonment.” )



66

clemency and the reasons therefor, Ga. Const. Ann. §2-3011 
(1972), and that commutations be made “by a written deci­
sion.” Ga. Code Ann. §77-513 (1975 Supp.). Courts of the 
State have “no jurisdiction” to review the arbitrary grant- 
ting or denial of executive clemency in a death ease. Parks 
v. State, 206 Ga. 675, 58 S.E.2d 142, 145 (1950).

In the eighteen years between 1946 and 1963, 43 death 
sentences were commuted in Georgia, while 146 were exe­
cuted.95 Thus the ranks of the condemned are further win­
nowed by the exercise of a power which, albeit merciful, 
is not and cannot be constrained by any bounds or prin­
ciples of regularity.

# *  #

The system we have just described is not an orderly 
one, even on paper. Obviously, it will be immeasurably 
more disorderly in the flesh. Its caprices and irregularities 
arise in part from the studied purpose of the Georgia leg­
islature to retain an arbitrary discretion in capital sen­
tencing. In another, perhaps preponderate part, they arise 
from the basic irrationality of the punishment which the 
system seeks to administer, and from the difficulty of pro­
viding for its administration in a society to which it is 
intolerable except in aberrant and unpredictable cases.96 
In still another part, the disorders of the system are those 
common to any administration of human justice.

But this system is designed to take life. It proposes to 
take the petitioner’s life. Whatever the precise sources of 
its deficiencies, they cannot be condoned upon the ground 
that they merely share a common human insufficiency for 
that purpose. They cannot be condoned on the ground that

95 Note, Executive Clemency in Capital Cases, 39 N.Y.IJ L Rev. 
136, 192 (1964).

96 See Part III  of the Brief for Petitioner in Jurek v. Texas, No. 
75-5394.



67

it is difficult to decide whom to kill. The difficulty of the 
decision is an adequate reason to forbear it. It is not an 
acceptable reason to make the decision to kill arbitrarily.

Furman v. Georgia held, at the very least, that arbi­
trarily inflicted sentences of death are cruel and unusual 
punishments. That holding condemns Georgia’s present 
capital sentencing procedures and petitioner Gregg’s sen­
tence of death.

Ill

The Excessive Cruelty o f  Death

The submissions made in Part III  of Petitioner’s Fowler 
Brief, at pp. 102-140, and in Part III  of the Brief for 
Petitioner, Jurek v. Texas, No. 75-5394, are fully applicable 
to death sentences inflicted under Louisiana law. Peti­
tioner respectfully urges their consideration by the Court.



68

CONCLUSION

The penalty of death imposed upon petitioner Troy Leon 
Gregg is a cruel and unusual punishment forbidden by the 
Eighth and Fourteenth Amendments. The judgment of the 
Supreme Court of Georgia should therefore be reversed 
insofar as it affirms his death sentence.

Respectfully submitted,

J ack Greenberg  
J am es M. N abrit, III 
P eggy C. D avis 
D avid E. K endall

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

A n th o n y  G. A msterdam

Stanford University Law School 
Stanford, California 94305

T im  F ord

2200 Smith Towner 
Seattle, Washington 98104

Attorneys for the N.A.A.C.P. Legal 
Defense and Educational Fund, Inc.



A P P E N D I X



la

APPENDIX

P ersons U nder S e n te n c e  of D ea th  in  t h e  
S tate of Georgia*

1. Boland Tamplin (black), sentenced to death for mur­
der, September 11, 1975, DeKalb County Super. Ct. 
aff’d, 235 Ga. 20, 218 S.E.2d 779 (1975).

2. James Spencer (black), sentenced to death for murder, 
July 15, 1975, Burke County Super. Ct., No. 1189 ap­
peal pending, Sup. Ct. of Georgia, No. 30609.

3. Billy Birt (black), sentenced to death for murder, 
June 19, 1975, Jefferson County Super. Ct. appeal 
pending, Sup. Ct. of Georgia, No. 30638.

4. Samuel Gibson (black), sentenced to death for murder, 
May 15,1975, Jones County Super. Ct., No. 3835 appeal 
pending, Sup. Ct. of Georgia, No. 30761.

5. Jill Shaw (white), sentenced to death for murder, May 
14, 1975, Jones County Super. Ct., No. 3835.

6. Grady Arnold (black), sentenced to death for murder, 
May 2, 1975, Fulton County Super. Ct., No. A-26437.

7. Kenneth Harris (white), sentenced to death for mur­
der, March 13, 1975, DeKalb County Super. Ct., No. 
17784.

8. William Moore (black), sentenced to death for murder, 
February 12, 1975, Jefferson County Super. Ct,, No.

* Transfer of death sentenced prisoners from county jails to the
Georgia State Prison at Reidsville is often considerably delayed.
This list, which includes inmates housed in the Georgia State
Prison at Reidsville and other inmates whose death sentences have
come to our attention, may therefore exclude a substantial pro­
portion of the Georgia death row population.



2a

74-6547 aff’d 233 Ga. 861, 213 S.E.2d 829 (1975) pend­
ing on petition for certiorari No. 74-6547.

9. Guy Mason (black), sentenced to death for murder, 
January 22, 1975, Baldwin County Super. Ct., No. 
28447 aff’d No. 30338, Sup. Ct. of Georgia, December 
2, 1975 (slip opinion).

10. Michael Berryhill (white), sentenced to death for mur­
der, January 9, 1975, Bartow County Super. Ct., No. 
32699 appeal pending, Sup. Ct. of Georgia, No. 30173.

11. George Street (black), sentenced to death for murder, 
January 8, 1975, Pierce County Super. Ct., No. 617 
appeal pending, Sup. Ct. of Georgia, No. 30644.

12. Alpha 0. Stephens (black), sentenced to death for mur­
der, November 17, 1974, Bleckley County Super. Ct. 
No. 6713.

13. Curfew Davis (black), sentenced to death for murder, 
November 12, 1974, Troup County Super. Ct., No. 124- 
620 appeal pending, Sup. Ct. of Georgia, No. 30636.

14. William Mitchell (black), sentenced to death for mur­
der, November 5, 1974, Worth County Super. Ct., No. 
aff’d 234 Ga. 160, 214 S.E.2d 900 (1975) pending on 
petition for certiorari, No. 75-5022.

15. Ehrlich Coher (white), sentenced to death for rape, 
October 18, 1974, Ware County Super. Ct., No. 5097 
aff’d 234 Ga. 555, 216 S.E.2d 782 (1975) pending on 
petition for certiorari, No. 75-5444.

16. Marcus Chenault (black), sentenced to death for mur­
der, September 12, 1974, Fulton County Super. Ct., 
No. A22379 aff’d 234 Ga. 216, 215 S.E.2d 223 (1975).

17. Willie Dobbs (black), sentenced to death for murder, 
May 22, 1974, Walker County Super. Ct., No. 8403 
appeal pending, Sup. Ct. of Georgia, No. 30453.



3a

18. Timothy McCorquodale (white), sentenced to death for 
murder, April 21, 1974, Fulton County Super. Ct., No. 
A-20205 aff’d 233 Ga. 369, 211 S.E.2d 570 (1974) 
pending on petition for certiorari, No. 74-6557.

19. Gary Floyd (white), sentenced to death for murder, 
April 10, 1974, Fulton County Super. Ct., No. A-19628 
aff’d 233 Ga. 280, 210 S.E.2d 810 (1974).

20. David Jarrell (white), sentenced to death for murder 
and kidnapping, March 14, 1974, Gwinnett County 
Super. Ct., No. 95107 aff’d 234 Ga. 410, 216 S.E.2d 
258 (1975) pending on petition for certiorari, No. 
74-6736.

21. Willie Ro.ss (black), sentenced to death for murder, 
March 13, 1974, Colquitt County Super. Ct., No. 51-71 
aff’d 233 Ga. 561, 211 S.E.2d 356 (1974).

22. Troy Gregg (white), sentenced to death for murder, 
February 8, 1974, Gwinnett County Super. Ct., No. 
9489 aff’d 233 Ga. 117, 210 S.E.2d 659 (1974) cert, 
granted 44 U.S.L.W. 3439, January 22, 1976.

23. Wayne Coleman (white), sentenced to death for mur­
der, January 18, 1974, Seminole County Super. Ct., 
No. 439.

24. George Dungee (black), sentenced to death for mur­
der, January 9, 1974, Seminole County Super Ct., 
No. 444.

25. Carl Isaacs (white), sentenced to death for murder, 
January 3, 1974, Seminole County Super. Ct., No. 449.

26. John Eherheart (black), sentenced to death for rape 
and kidnapping, December 2, 1973, Cook County Super. 
Ct., No. 28776, aff’d 232 Ga. 247, 206 S.E.2d 12 (1974), 
pending on petition for certiorari, No. 74-5154.



27. Jack House (white), sentenced to death for murder, 
July 11, 1973, Fulton County Super. Ct., No. CA-16814, 
aff’d 232 Ga. 140, 205 S.E.2d 217 (1974), 'pending on 
petition for certiorari, No. 74-5196.

28. John Hooks (black), sentenced to death for rape, De­
cember 10, 1973, Cook County Super. Ct., No. 9859, 
aff’d 233 Ga. 117, 210 S.E.2d 668 (1974), pending on 
petition for certiorari, No. 9859.

4a



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