Harris v. State Brief in Support of Petition for Writ of Certiorari

    6 5S,
b-r .,

ORAL ARGUMENT REQT]ESTED

JOIINNY EARRIS

vs.

STATE OF N.ABA}IA

Of Counsel

Jack Greenberg
James Nabrit, III
David KendeII
Peggy Davis
10 Columbus Circ1e
Suite 2030
New York, New York 10019

Anthony Amsterdam
Stanford Law School
Stanford, California

ST'PREI,TE COURS OP AI'ABNIA

APPEIJ,AIIT

APPEI.LEE

BRrEF rN SUPPORT OF PETTTTO!!

BRTEP OT APPELNT/ffi

WiIIiam Il. Allison, Jr-
Eleanore !t. Garber
AILISON, SOREPP & GARBER
3208 W. BroadwaY
Ipuisville, Kentucky 40211

W. Clinton Brown, Jr.
CRAI{PORD, BI"ACKSHER, PIGURES T BROWN

1407 Davis Avenue
tlobile, Alabama 36503

R. Diana Hicks
208 Park Building
5 N. Conception Street
uobile, Alabama 35602

ATTORNEYS TOR JOHNNY HARRIS

94 305



I --: t
.l TABLE OF CONTENTS

?ABLE OP AUTHORITIES

STATEI"IENT OT THE CASE

STA}IDARD IS REQUIRED FOR
\IE ASSTSTANCE OF COUNSEL

RENDER]NG
IN CAPITAL

Paqe

i

ix
xi
xiv

xvI

xv

xv

xvi

I. HIGHER
ETFECTI
CASES

THIS COURT SHOULD ADOPT A HIGHER TEST FOR
JUDGING EFTECTIVENESS OF COTINSEL IN
CR]}IINAL CASES

The Decision BeLow

A. History of the "Farce and Mockery"
Star,dard: The Constitutional Doctrine
on Which It l,las Based Has Been
Superceded .

B. Most Federa! Circuit Courts and State
AppelIate Courts View }4cl^lann v. Richardson
al-uotaing That the "R@
or "Normal Competency" Standard Is Now
Mandated by the Pederal Constitution

C. This Court In fts Reasoning Has ImpJ-icitly
Rejected the Parce and Mockery Test

D- The Facts and the Record Make This the
Appropri-ate Case in h'hich to Overrule
the Outdated Standard

rHE LEGAL REPRESENTATION AFFORDED JOHNNY
HARRIS BY H]S COURT-APPOINTED LA\.NTERS DID
NOT YEET ANY LEGAL STANDARD USED IN DETERMIN_
ING CO}.PETENCY OF COI.INSEL AND THE GUILTY
PLEAS VJERE tlOT VOLUNTARILY OR KNOI'IINGLY I'IADE

II. SPECIFIC INSTANCES OF INEFFECTIVE
ASSISTATICE OP COUNSEL

A. Prelimj-nary Hearing

B. Consultation With the Client

C. Pretrial Motions Concerning
l'Jarrantless Arrests, l^larrantless
Search and Seizure, Pre-Indictment
Line-Up, State's Exculpatory Evidence. .

D. Investiqation of State's Case. .

E. Preparing the Defense Case

III. THE DECISION TO PLEAD GUILTY, APRIL 5, 197I.

ARGUI'IENT

xviii

xx

xxiii

xxv

I.

1

1

II.

I3



A. Johnny Harris

Paoe

13

15

26

B. Specific Instances of
Assistance of Counsel

Ine ffective

C. The Guilty Plea Was Neither Knowingly
Nor Voluntarily Made

III. THE PROPER DEGREE OR WEIGHT OP EVIDENCE REQUIRED
TO PRO\IE THE ALLEGATIONS OF THIS PETITION FOR
WRIT OP ER.ROR CORAM NOBIS SHOULD BE THE "PRE_
PONDERANCE OF EVIDENCE'' . 29

IV. TtlE COURT BELOI,i ERRED IN TIPHOLDING THE TRIAL
COURT'S RETUSAL TO ALLOI.J PETITIONER TO
OBTAIN AND PUT ON EVIDENCE IfHICH i^I}.S
PROPERIY I{ITHIN THE SCOPE OF CORAM }IOBIS
INQUIRY IN AI,ABAIVIA AND THAT IfAS PROBATIVE OF
INNOCENCE AND I}JCOMPETENCY OF COUNSEL 32

V. THE PROCEEDINGS SUPROUNDING THE TAKING OF
APPELLANT'S GUILTY PLEA i.]ERE NOT RECORDED
IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL 42

\rI. THIS COURT SHOULD REVIEW TT:E TRIAL COURT'S
FINDINGS OF EFFECTIVENESS .I.ND COITPETENCY
OF COT]NSEL BASED ON EVIDiNCE NOT IN THE
RECORD 43

\nr. THE DEI'NIAI, OF PUNDS FOP. INVESTIGATION AND
PAYI'IENT OF COLINSEL VIOLA?ED APPELLA:'NT'S
SIXTH, Ef GH?H AND FOURTEE^"TII Al'1Err-Dl"1ENT
CONSTITUTTOiiAL RIGHTS

VIII. THIS COURT SHOULD REVIEW WI{ETHER LACK
OF SUFFICIEI,]T NOTICE OF ?t{E HEARf}IG h'AS
PREJUDICIAI AND DENIED PETITIONER HIS
RTGHT TO A FULL AND FAIR HEARING AND DUE
PROCESS OF LAW . . 47

IX. THIS COURT SHOULD REVIEW If}iETHER JOHNNY .
HARRIS I{AS DENIED A TAIR HEARING I{HEN ?HE
COURT DENIED HARRIS ACCESS TO EXCULPATORY
EVIDENCE

X. THE COURT BELOW ERRED IN T'PHOLDING THE
TRIAI COURT'S RULING. EXCLUDING CP.OSS
EXAMTNATION OF I.{ATTE]IS TF}iDI}'JG ?O II.]DICATE
BIAS OF A CRITICAL WITNESS AND IN REFUSING
TO AILOif PETITIONER TO OBTAIN AND PU? ON
OTHER EVTDENCE PROBATIVE OF THE CREDIBILITY
OP PETITTONER, S COL'NSEL

CONCLUSION

REQUEST FOR IEAVT TO FILE BRIEF I]i P,EPLY TO APPELLEE'S
, BRTEF REQUEST FOR OR.AL ARGUJ{ENT, A'D REQUEST FOR I',IORE
i TIME POR'ORAL ARGUI\IENT THAN AILOIITED BY RULE 7

45

49

5I

55

56

CERTIFICATE OF SERVICE

I1

56



t,l

Baggett v. State, 47 AIa. App. 299, 253 So.2d 367
(1973)

'Beaslev v. United States, 491 F.2d 687 (6th Cir.,
L97 4l

Berry v. State , I,liss. , 34 5 So . 2d 613 (Mi-ss . , l-977)

Betts v. Bradv, 316 U.S. 455, 52 S.Ct. L252, 86
L.Ed. 1595 (t942)

Bonnds v. Smith, 430 U.S. 817 (L977)

Boykin v. Alabama, 395 U.S. 238 (1959) 42

Brady v. Marvland, 373 U.S. 83, 10 L.Ed.2d 215,
83 S.Cr. 1r94 (r953)

Brown v. State, 250 A1a. !44, 35 So.2d 518

Browninq v. State, AIa. App., 325 So.2d 778 (1975)

Bruce v. United States, 125 U.s. App. D.C. 336. 319

TABLE OF AUTHORITIES

CASES

Argo v. State, 43 AIa. App. 564, 195 So.2d
--------------ym (197I) cert. denied 280 Ala.

707, 195 So.2d 909, cert. denied,
389 U.S. 855

Baxter v. Rose, Tenn. , 523 S.W.2d 930 (Tenn.,1975)

Colson v. Smith, 438 F.2d 1075 (5th Cir., 1971)

Commonwealth v. Curges, Pa. , 357 A.2d 59f (Pa., 1975)

Commonwealth v. Hillman, Pd. , 357 A.2d 227 (Pa., 1976)

Comrnonwealth v. Saferain, I4ass., 315 N.E.2d 878

Cooks v. United States, 46L F.2d 530, CA 5 (L912)

Cooper v. Fitzharris, 551 F.2d Ll62 (C.a. 9, 1977)

Cooper v. State, A1a. App. 297 So.2d 169 (1974)

Dennis v. United States, 384 U.S. 855

Page

32

6,7

2,)

3 ,5 ,6 ,23

7

4, 17, I8

45

5l

10

17,19

F.2d 113 (1967) 3,5

@ 52 AIa. App. 348, 292 so.2d 463 (1974r. 29

Burns v. Afabama, 377 F.2d 233 (5th Cir., 1967) 39

Ege-h_J_:__Sta!er FIa., 209 So.2d 696 (FIa., 1968)

Coleman v. a];rlenre- 399 U. S. 1, 26 L. Ed. 2d 387,
ffirggg (1970)

Co1es v. Peyton, 389 f.2d 224 (4th Cir., 1958)

18

16

18,33,35

I5

7

19

7

23

4 ,5 ,6 ,33

42

iii

49



It

I^le lch,
(r94s)

ExParte Taylor , 249 A]-a. 667 , 32 So.2d 659 (1941) ,

---------EFd, Taylor v. Alabama, 335 U.S. 252,
92-T:sa. rg3t-Emrars (1e47)

ExParte l,lells, 292 A]-a. 256, 292 So.2d 47L, 473 (1973)

CASES

80 U.S. App. D.C. 6, 148 r.2d 667

Dixon v. Hopper, 407 F.s. 58 (1"1.D. GB., L976)

ExParte Bratchett, Texas, 5I3 S.1l.2d 851 (1974)

ExParte Clark, 171 So.2d 473 (1965)

ExParte Wilson, 275 ALa. 439, 155 So.2d 611 (1963)

Ex Rel Darcy v. Handy, 203 F.2d 407 (C.A. 3, 1953)

Freeland v. State, 43 AIa. App. 406, 191 So.2d
re66)
Gibson v. Jackson, 443 F.Supp. 239 (M.D. Ga., 1971)

Gideon v. I^lainright , 372 u.S. 335, 835 S.Ct. 792,
9 L.Ed.2d 799 (1963)

Green v. Warden, I':d., 238 A.2d 920 (1968)

3

23

7

39

32

52

39

Page

4

32,34

46

45

33

1(

5 r 15,17

Gregg v. Georgia, 482 LI .S. l-53, 49 L.Ed.2d
re.2909 (1975)

Hanr-ilton v. Alabama,368 U.S.52 (1961)

8s9,

I

7

7

19

46

30

Harris v. Towers, 405 F.Supp. 497 (p. DeI., 1974)

Isyola v. State, 340 A.2d 844

Johns v. Perini, 440 ?.2d 577

Johnson v. Avery, 393 U.S. 483 (1969)

Johnson v. Zerbst, 304 U.S. 458 (1937)

Jones v. Huff, 80 U.S. App. D.C. 254,152 F.2A 14

-----rl97s )

Herring v. Estel1e, 49L P.2d

In Re Bousley, Vt. , 292 A.2d

In Re l,iilliams, a.50 P.2d 984

125 (5th Cir., 1974)

249 (Vr., ).972)

(Ca1if. , 1969)

(Delaware, I975)

(5th Cir., 1971)

App., I9741,

r970)

, 1974)

1960)

Xearley v. State, 293 So.2d 322 (Ala.

Xing v. Beto, 429 F.zd 22I (5th Cir.,

L€e v. Hopper, 499 T.2d 458 (5th Cir.

Lloyd v. State, !70 N.E.2d 904 (Ind.,

L7

I9

26

18

Lv



,t

CASES

Love v. Ilississippi, !4iss. , 221 So.2d 92 (1969)

I'lcMann v. Richardson, 390 U. S. 759 , 90 S. Ct.
re.Ed.2d 7G3 (1970)

McMullian v. State, 292 ALa. 248, 292 So.2d 129 (1973)

McQueen v. Swenson, 498 F.2d 207 (8th Cir., 1974)

Marzullo v. State of Maryland, 561 F.2d 542 (4th Cir.,

Moore v. United States, 432 F.2d 730 (3rd Cir., 1970)

Page

43

5 ,7 ,14 ,37

52

18

3r5

5,6 r20,
2L ,34

6

7

52

Moran v. Hogan, 494 F.zd

Nelson v. State, Mo. , 531

L220 (Ist Cir., 1974)

s.w.2d 589 (1967)

App. 340, 29 So. 353 (1947)Newton v. State, 32 AIa.

O'Ma11ey v. United States, 285 P.2d 733 (5th Cir.,

People v. Gonza1es, Colo. , 543 P.2d 72 (coIo., 1975)

PeopIe v. Strodder, l'lich. , 229 N.I'I .2d 3 (Mich. ,T
Pj-neda v. Bailey, 340 F.2d 886 (5th Cir. , 1968)

Pinnell v. Cautron, 540 F.2d 938 (8th Cir., 1975)

Pittman v. State, 50 Ala. App. 712, 282 So.2d
f3zTle73)

Powell v. Alabama, 287 U.S.
re. ss (1932)

45, 77 L.E. 142,

Reece v. Georgia, 350 U.S. 85 (1955)

Rickard v. State, 44 AIa. App. 281, 207 So.2d 422

Risher v. State, 523 P.2d 421 (Alaska, 1974)

Roberts v. LaVall-ee, 389 U. S. 40 (196 7)

4

6

I8

Robinson v. State, 53 AIa. App.re
Rook v. Cupp, Or. App. 526 P.2d

Root v. Cunningham, 344 F.2d I

145, 298 So.2d 75

60s (1974)

(4th Cir., 1965)

39

L4,18,25 ,
2'l ,28 ,46

24

32

6

45

35

7

Scott v. United States,
m6T9

138 U.S. App. D.C. 339,
(1970) 3,5

,i

t.

il
I

lr
l,



CASES

Seibert v. State, 343 So.2d 787 (A1a. , 197'1)

Smallwood v. Warden, 205 F.Supp. 325 (o. Md., 1962)

L.Ed.2d 1450,Speiser v. RandaII, 357 U.S. 513, 2
r332 (19s8)

State v. irrCerson, 285 A.2d 234 (N,J., 1971)

State v. Baker, 108 So.2d 361 (1959)

State v. Bibby, 47 AIa. App. 240, 252 So.2d 662

-_-___--_G971)State v. Clark, 355 A.2d 1157, Conn. , L976

State v. Dee, 218 N.l'f.2d 561 (Iowa, L974)

State v. Desroches, 293 A.2d 913 (R.I., L912)

State v. Goode, S.D. , 177 N.w.2d 733 (1969)

State v. Gregg , 221 N.I'J.2d 793 (N. D. , 1974)

State v. Harper, l'lis., 57 Wiss.2d 543,205 N.vl .2d

State v. Hester, 341 N.E.2d 304 (Ohio, ]-9'14)

State v. Kahdewai, 50I P.2d 977 (Haw., L912)

State v. Leadinghorse, 222 N.W.2d 573 (Neb., 1974)

State v. l.lcCarthy , 298 A.2d 740 (N.H. , 1972)

State v. !.lerchant, Md. , 271 A.2d 752 (Md., 1970)

State v. M),ers, I"lash., 545 P.2d 538 (1976)

State v. Sinclair , 236 A.2d 66 (Maine , 1967)

State v. Thomas, W. V3. , 203 S .8.2d 445 (19?4)

State v. tucker, 539 P.2d 555 (1975)

Tamplin v. State, 218 S.E.2d 179 (Ga., 1975)

Taylor v. Stare, 291 AIa. 156, 287 So.2d 901 (1973),

- 
cerEl denied, 415 U.S. 945

Tollett v. Henderson, 411 U.S. 258, 36 L.Ed.2d 235,
re602 (1973)

Paqe

32

2A

30

t7

27

?o

5

1

1

25

7

1

Trammel v. State, 166 Ala. 589, 166

United States v. Cobb, 27I F. SuPP.

So.2d 4l-7 (1964)

159 (S.O.N.Y., 1967)

7

1,8,9,18,
40

36

l-r4

49

\/I



l.l

CASES

United States v. DeCoster, 159 U.s. App. D.C. 326,
19 73)

Paqe

J.13r6r7,
33

United States v. DiIeIa, 35A F.2d 584 (C.A. 7,1955) 4

U.S. Ex ReI Green v. Rundle,326 F.Supp 456 (8.D. Pa.,
23

'U.S. Ex Rel Kimbrouqh v. Rundle, 293 f,SuPp, 839
17 ,L8,23

tlnited States v. Gleason, 255 F.Supp 880 (S.D.N.Y.)
{9

Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969) 29

Von I'Ioltke v. GiIIier, 332 U.S. 708, 92 L.E. 309,
re6 (1948) 14

I,lade v. United States, 388 U. S. 218, 87 S.Ct. ]1926 ,ffisg (re67) 4

Wainriqht v. Sykes, _ U.S. _, 97 S.Ct. 2497 ,re2d-s-f?_ 8

. Walcott v. State , 263 So.2d 1?8 42

Vlalker v. Ca]dwell, 475 P.2d 213 (5th cir., 1973) 18,20

Weatherall v. State, L242 N.w.2d 220 (l{isc., 1975) '?

West v. Louisiana, 478 F.2d 1025 (5th Cir., 1973) 1.8

White v. State, 43 AIa. App. 535, I95 So.2d 542 (!967) 33

Williams v. Beto, 354 I'.2d 598 (5th Cir., 1965)

Williams v. Dutton, 400 P.zd 797 (5th Cir., 1968) 49

Williams v. State, 335 So.2d 249 (1975) 35

I^tilliams v. I\*omey, 5I0 F.2d. 634 (7th Cir., 1975) 5,5,If

Woodson v. North CaroLina, 428 U.S. 280 (1975) 46

I,Ioodward v. State, 42 A1a. App. 552, 171 So.2d, 462rc 32

I

I

I

i

t.
:

i
t'

:'

I'
I

ti
ti
l:
ii
tl

!l

val



OTHER AUTHORITIES

American Bar Association, Projects on Standards
for Criminal Justice,"stanCards Relating
to Defense Punction," laffi oraft,-f9'7Tl-

Paqe

7

American Bar Association,nstandards Relating to
Post Conviction FemEAlesri- (ApProvea DEaf t,
E'5E')

Beaney, "!he Right-TEtuFe," Counsel: Past, Present and
Va. u-nev- r-TsO-Ti--965f 

-

30

15

32

to
T9

39

39

29,30

15.4 0

15

8 ,12 t14 , 4g

3,4,5,45

5 ,12 ,14 ,45 ,
48

45

Burger, "The SPecial Ski1ls of lgvesgay.," 42
-TordEErn r,. FEv.-72?- (19f31--

Cates, "Post Conviction Remedies," 28 AIa. Lawyer,--25;--tI9671-

Note, "Effective Assistance of Counsel for the
"76-EE;t. L. Rev.

t434 (196s)

Note, "The tlrit of Error Coram Nobis in

-2-Ef;. 
- l,aw nev. -ZET- (19501- -

I'ial-tz, "Irud.glgs-y. of Trial Defense RePresenlation
as-E--CrounE foi Post-Con\ric'"ion Ref ief
in erimffiET casesI59-ll.t;. u.c. Rev
zEe--E96Zl-

STATUTES

Alabama Rules Civil Procedure, 26b

Draft, Proposed Rule 32, A.R.C.P.

Title L5, Section 318 Ala. Code (1958)

Titl-e 13, Section 5-37 Ala. Code (1975)

U.S. Constitution, Pj-fth Amendment

U.S. Constitution, Sixth Amendment

U.S. Constitution, Eighth AmenCment

U. S. Constitution, Pourteenth Amendment

Alabama, "

viii



STATEMNNT OF CASE

NA"URE OP THE CASE.

This is the appeal of the denial of five Petitions for
Writ of Error Coram Nobis from the Court of Criminal Appeals of
Alabama in which the Appellant alleged among other things that
his court-appointed counsel provided him with ineffective assis-,-

ance of counsel.

COURSE OT' PROCEEDINGS.

Johnny Harris was indicted by the October 1970 Session

of the Grand Jury of Jefferson County, Alabama on four counts of
robbery, Case Nos. 21835 (n. 724), 21837 (n. 822), 21838 (8. B6't),

21839 (R. 9I2), and one charge of rape, Case No. 21836 (n. 176).

His trial was set for Apri).5, 1971, but on that day he allegedly

plead guilty to all the counts of the indictments (n. 726, 778 ,

859, 914), and r.ras sentenced to five consecutive life sentences

(n. 728, 780, 825, 971, 915).

In 1973, Appellant filed a Pro Se Petition for Writ of

Error Coram Nobis in the trial court (n. 765), and on May 4, )-973,

the tria] court, without hearing, granted the State's motion to

dj-srniss (n. 765) . eppetf ant vras 
- indicted on Aprit 2 , 1974 ,

found guilty and sentenced to death on February 24, 1975, and he

appealed said judgrroent and sentence-

On February 17, L978, Appellant filed five Petitions

for Writ of Error Coram Nobis in the original trial court (n. 729,

'1 82, 829, 872, 9I7), attacking his guilty pleas. On the same day,

he moved for appointment of counsel and for a stay of execution

which was denied by the trial judge (R. 745,195,840, 885, 930).

l"larch 21, 1978, Appellant amended his f ive Petitions

for Writ of Error Coram Nobis (n. 74€,, '796, 841, 885, 931) . In

his Petitions and Amended Petitions, Appellant alleged that his

I

ix



lr

court-aPpointed counsel provided him with ineffective assistance
of counsel.

Appellant filed with the trial court a Motion for
Punds for rnvestigative and Hearing purposes, Etc. (n. 749, 79g,

843, 888, 933), which was overruled by the trial judge. The

State filed a Motion to Dismiss (R. 753,803, 949,993, 939).

Appellant filed a lbtion to Set cause for Hearing (R. iss, g05,

850, 895, 940), which was denied by the trial judge.

Appellant issued numerous subpoinas and subpoena duces

tecum. On March 31, 1978, and April 3, 197g, the lower court
held a discovery hearing on said requests many of which were

denied. The actual hearing on the petitions for l.lrit of Error
coram Nobis was helo on April 6 and April 7, Aprir 10, Aprir 11,

and April 12, 1978.

DISPOSITIOI.i

On April 19, 1978, the trial judge issued a Decree

denying all five of Appeltant's petitions for Error coram Nobis

(R. 764,810, 855, 900, 945). Appe]lant filed a Notice of Appeal

to the Alabama court of criminal Appeals of the Decree denying

the Petitions for 1{rit of Error Coram Nobis (n. 9Af). On

October 31, 1978, the Alabama Court of Crimi.nal Appeals upheld

the trial court's denial of Appellant's petitions for I^Jrit of
Error Coram llobis. Appellant's Application for Rehearing and

his Additionar and corrected statement of Facts were denied on

November 21, 1978. Appellant then petitioned this court for a

Writ of Certiorari to the Court of Criminal Appea1s, and sub-

:rritted his Additional and corrected statement of Facts pursuant

to A.R.A.P. Rule 39 Section K.

,X
I''I
I



I.

STA?EI'IEN? OF THE ISSIIES

SHOULD THTS COURT O\ERRULE THE "FARCE AND MOCKERY"
STANDARD AND ADOPT A HIGHER ST}NDARD FOR JUDGING
EFFECTIVENESS OF DEFENSE COI'NSEL WHEN ?HE UNITED STATES
SUPREI'IE COURT, AT LEAST EIGHT PEDERAL CIRCUIT COURTS
A]{D A MAJORI?Y OF STATE COURTS NOW HOLD SOI.IE FORM OF
THE "REASONABLY EFFECTI\IE'' STA]IDARD TO BE THE I'IINII,1UM
LEVEL OF COI'@ETENCY }.IANDATED BY THE SIXTH AND FOURTEENTH
A}IENDI-,1ENTS TO THE UNITED STATES CONSTITUTION?

Mcl'lann v. Richardson, 397 U.S. 759, 90 S.Ct. L44)-,
ffie70) .

159 U.S. App. D.C. 326,

r.2d 730 (3rd Cir.,

Uarzullo v. Maryland, 561 F.2d 540 (4th Cir.,
t977)

Herrinq v. Este11e, 491 F.2d 125 (5th Cir., 1974).

Beasley r,. United States, 491 F.2d 687 (6th Cir.,

l,lj-l1iams v. lvomey, 510 P.2d 634 (7th Cir., 1975)

Pinnel-I r'. Cautron, 540 F.2d 938 (8th Cir. , 1976) .

Cooper v. Pitzharris, 551 F.2d 1t62 (9th Cir., 197'1)

Tavlor v. stare,2gLAla. 756,281 so.2d 901 (1973)
cert. denieC, 416 U.S. 945.

DID THE LEGAL REPRESENTATION AFPORDED JOI{NNY HARRIS I'4EET
ANY LEGAL STANDARD USED IN DETER TNING COI"IPETENCY OF
COUNSEL AND COULD THE GUILTY PLEAS HA\TE BEEI,I VOLUNTARILY
OR KNOWINGLY MADE?

Powe1l v. Alabama, 287 U.S. 45 (I932).

II.

Taylor v. State,287 So.2d 901 (1973).

Colson v. Smith, 438 F.2d 1075 (5th Cir., l97l).

Ring v. Beto, 429 F.2d 221 (5th Cir., 1970).

Herring v. Estelle, 491 F.2d I25 (5th Cir., L974).

Broming v. State, 326 So.2d 778 (AIa. Appl, 1975)

III. DID TI]E COURT BELOW ERR IN HOLDTNG PETITIONER TO A DEGRXE
OF PROOF THAT IS NO LONGER ACCEPT.T\BLE Ir-\ POST-CONVICTION
PROCEEDINGS ACCORDING TO TIIE COI.I].1ITTEE OT' THIS COURT I.THICH
DRAFTED ?i]E PROPOSED AIABAI'1A RULES 09 CRI}II}iAL PROCEDURE,
THE AIABA!.1A LAW INSTITUTE OR THE AI\JERICAN BAR ASSOCIATION?

Note, 39 Alabama Lawyer 170, Apri1, 1978.

United States v. Decoster,na:m
Iroore v. United States , 432

x1



Draft, Proposed Rufe 32, A.R.C.P

American Bar Association, Standaris F,elatinq to
Post-Conviction Remedies, (Approvec Draft,

Spelser v. Randa1l, 357 U.S. 513 (1958).

IV. DID THE COURT BELOW ERR IN UPHOLDING TI]E TRIA], COURT'S
REFUSAL TO AILOI,J PETITTONER TO OBTAIN }.liD PU! ON EVIDE}ICE
WHICH I^IAS PROPERLY hIITHTN THE SCOPE OF CO?JJ.I iiOBIS ]\*QUIRY
]N ALABAI'IA A}iD THA.T WAS PROBATIVE OF INNOCENCE AND
INCOI',IPETENCY OF COT]I\SEL?

Sej-bert v. State, 343 So.2d 787 (AIa. , l-977) .

Hamilton v. Alabama, 368 u.s. s2 (1961) .

App. 535, 195 So.2d 542 (1967)

432 F.2d 130 (3rd Cir., 1970).

White v. State, 43 A1a.

Moore v. United States,

Brady v. Mary1and, 373 U.S. 83, 10 L.Ed.2d 215,
83 S.Cr. 1194 (1963).

State v. Bibby, 47 Ala App. 240 , 252 So -2C 662 (1971-)

V. WAS PETITIONER DEPRIVED OF HIS RIGHT T'O .q TAIR TRIAL I,.iIiEN
THE PROCEEDI}IGS SLTRR.OLND]NG THE TAKI}IG OF TI]E GUILTY PLL\S
WERE NOT RECORDED?

cooper v. State,297 So.2d 169 (Ala. }.pp., 1974).

Boykin v. Alabama, 395 U.S. 238 (1968).

VI. DTD THE TRIAL COURT ABUSE ITS DISCRX?iO}i I,;},EN IT BASED
PINDTNGS OF EFFECTIVENESS AND CO},1PETE}:CY O:i EVTDENCE NO?
IN THE RECORD?

Love v. l.lississippi , 221 So.2d 92 (l'!-iss. , 1959)

VII. DID THE DE}IIAL OF FUNDS FOR I}iVESTIGA?IO\ AND PAYI\ENT OF
CoLTNSEL VIOL!_TE PETITIONER'S STXTH, Eict:?i AND FOURTEE:i!H
AMEND},IENT CONSTITUTIONAL RIGHTS?

Gregg v. Georgia, 428 U.S. 153, 49 L.EC-2d 859,
96 s.cr. 2909 (1976).

Bounds v. Smith, 430 U.S. 817 (L9i71,.

VIII. DID LACK OF SUFFICIENT NOTICE OF THE I.:;;PT:iG DENY TO
PETITIO]'IER HIS RIGHT TO A FULL AND FAIP. HE;RI}]G A\'ID DTE
PROCESS OF I,AI.i?

IX, WAS PETITIONER DENIED A FAIR HEARING I.;H::i ?H5 COURT DSNIED
HIM ACCESS 1'13 EXCULPI\?ORY EVIDENCE?

Dennis v. united states, 384 u.s. 855.

x11



United States v. Cobb, 271 F.Supp. 159 (S.D.N.Y.,r
X. DID THE COURT BELOI^I ERR IN UPHOLDII{G THE TRIAL COURT'S

RLILING EXCLUDING CROSS EX.AJ/TINATION Of' IGTTERS TENDING ?O
TNDICATE THE BTAS OF A CP.ITICAL IVITIiESS A)iD IN REPUSII.]G
TO ALLOW EVIDE:'TCE PR,OBATIVE OF Ti]E CRXDIBILITY OF
PETITIONER, S TRIA]- COTINSEL?

ExParte I'ie1ls , 292 A]-a. 256, 292 So.2d 471 (f 973) .

Nevrton v. State, 32 AIa. App. 340,29 So. 353 (1947).

x111



ADDTT]ONAL AND CORRECTED
S?A?EI'TENT OF FACTS

The following additional and corrected statement of

facts was su-bi',i-itted to the F-labama Court of Crirninal Appeals as

part of Appellant's application for rehearing and is subnritteC

herein, pursuant to Rule 39, Sec. K, A.R.A.P.

HIGHER STAND}.R,D IS RTQUIRED POR R.ENDERING
EFIECTIV:E ASSISTAI.iCE OF COLTNSEL IN CAPI?AI
elsEs iN l:,;qsAr/!q.- - 

-
' There is substantial and uncontroverted testimony in

tle record by e>ioerts on Afabama criminal practice indicaiing

that a higher stanoard of representation is oemanded of at'.orneys

defending capj-taI cases than in other cases. Judge Wallace

Gibson, Tenth Jucicial Circuit of Alabama testified that i-n

ALabama practice dea-.h penalty cases are "alrnost always" fought

harder tj:an other cases; that an attorney "puts -uhe €x'urE ef fort

in" when a man's life is at stake (n. ?00). Alabama Attorne),

Ralph Knowles, who has defended between 400-500 felony cases in

F.labama and leciured to attorneys throughout the south on criminal

trial preparatj-on staied that attorneys are helC --o a hi-oher

standard of representation in death penalty cases than in other

cases (R. 440). Attorney L. Drew Redden, past PrLsident o: 
"he

Alabama Bar Association, member of the Board of Trustees of the

Alabama Law Scnool Foundation, testifying in behalf of Appellant,

acknowledgec that in his representation of between ?5 to iC0

capital cases in Alabama (R. 355) he has plead only two clients

to life sentences (R. 385). Georgia criminal Attorney |t:-1l-aro

Farmer, who is national-ly\ kno'*n, for his work in iefenoing capi-'aI

cases throughout the south testified that there are different

standards or criteria for representaLion on capitaf cases than

for less sericus cases (n. 339). Such criterja includes

extensive experience in trial and appellate practice (n. 338-310),

I.

t:
ll
t:

li
ll
I

I

l.
:

I

x].v



':
,:i

,;thoroughness of investigation and lega1 research (R. 340, 356),
.l

ii ana al ongoing, continuous ref ationship between a-,torney and
t.
client (R. 357). Attorney Farmer emphasizec tha-, persons out of

li
ll
liLaw school only a few years should no'. be assignei. to capital
,:.
;,cases b1, themselves (R. 340).
;l

rlrl-
ii II. SPECIFIC II'NSTA}.ICES OI INEFIECTM ASSISTAITCE
I. OP COLTNSEL CONTR.IBU?ING ?O i. PLEA OF GUILTY
'. l.lilICH WAS Lil,lINFOR.ltED iiiD INVOLUN-TA?Y-
ii'
i!

il

il
il
ii According to the jail records, the attorney appointed
i:
;'to represent Johnny Harris at his pre)-iminary hearing on all five
ir

: capital iniictment.s never consulted ,;i-,h his client, uho was

iincarce:a'.ec without bond at the Jeif erson County, -t-labama jai-1,

f rom the time of his appoin'"men'u, o;r .A.ugus', 31, f 970, r:rtil the

date of the prelirr-inary hearing on Sep'"enrber 1, 1 , \9-i 0 (R. ]70,

lestimony of Warden LioneI Bragen, E>:. C, D. L:). According to
:

Harris' r:ncontradicted testimony, his atto:ley consul-;eC with him

, for only 15 rninutes cn September 11, 1970, before the scheduled
i:

,prelininary hearing (R- 652 , 653) . liis atrorney '-es'srf ied that
rl

:,he made no notes in his file inCicating thai Harris ever agreeo
t:

.to waive his right to a prelimj-nary hearinc (Prince, R. 181).

i,Orr", the criminal- docket shee-gs showei -'hat ther. ,.'u= no signature

by }lr. liarris irr -'he slot where the waiver of the prel-i-rninary

hearing is supposed to appear (n. 68, Ex. 2-5\. One of Appellant's

subsequen" attorneys, uppoina.U to represent him at his trial in

Circuit Cour-u testif ieC from the notes in his file that 1.1r. Harris

had beer so upset about what happened at the time of ris prelimi-

nary hearing that he hai brought the matte: up at the first

attorne),-c11ent interview ang regues-'ed that the attorney look

into getting him a prelir.rinary hearing (Garrett, R. 1E1, 485) -

The attorney appoin"ed to represent liarris at the pre)-iminary

hearlng '.estified at Appellant's coram nobis hearing rhat he
,"didn't have nuch criminal practj-ce" (n. 107) .

A. Preliminary Hearing

xv



l{aiver of Preliminarv Iiearino in a

llot EftIfn-ElrE-Ta.",ce oT competencE
ar-aPan,a .. -r-.Ofne" S .

-

CaDital- Case
Demaraed of

Attorney Ralph Knowles testi f j-ed, u'regui-voca1ly, that

it woulo not be within the range of competence expected of

criminal defense attorneys in LlabanE .co 'dEive a preliminary

hearing where a defendant was charged with five capital offenses

(R. 413). lie enphasized that aI] at',orneys practicing in Alabama

Are aware of the importance of a preliminary hearing as the most

irnportant discovery device avaiLable in this state, as noted in

United States Supreme Court Justice Black's coriments in Colemarr

v. 4labama (R. 411) . Attorney l(now}es adCei that access to the

District Atior-ne)r's f iles is no substitute f or a creliminary

hearing, particularIl, when the evicence -,o be presen'.ed at the

hearing involves the allegec eye-witness iien',ifica-.ron of a

suspect (n. 136). Alabaina Aitornev Rodericil tseCcou, .]r. testifiei'

that he had never waived a prelirainary hearing on a rape case anC

-ehat he consicered a preliminary hearing in Ll-abana to be the

most important. phase of the trial, with the excep--icn of the

verdict (R. 707). Attorney Robert Escale, a veteian of 24 years

of practice in Birmingham, A1abana couLo recall no :-nstance where

he hac ever r"'aiveC a preliminary hearing in a capi-ia1 case (n. 71)

Idaiver of Prel-iminar), Hearing Tenis to U:iiermrne
a oerenEEntTS-EEIlf t.,' ."olGlie Tnfornec Dec]=lo;-
as -"o a lrea.

A'.tornev Redden testif ied to the ir,rportance of the rofe

to a oefencant r-n -uh€ discovery and pre-

358). Attornev Kno'*les ',es-.ified ',hat

llows the ierencan-u to unierstand what

(4. 412). .i.t',ornev Bediow iestlfiec

ived a prelini;iary hearing in five capi^.al

client a iisservice (n. 7I1).

of a preliininar-r, hearing

paration of errj-ience (n.

the preliminar."* hearing

the State's case will be

that an1' aitorney who wa

cases woulc be ooino his

B. Consul-ta',ion hri th '"he Client

.}}sent from the Court of CrirninaJ

Lhe proven fact that the attorney appointec

-tppeals' oecision 1s

to reDre sent Ilarri s

xv]-



!.
i.

i
t.
il

I

l:

li

on three of his capital cases at trial,, incl,uCing the raPe case,

never once consulted with his client at the jail from the day he

'ras f irst appointed on November 24, l-970, to the Cate of trial

on .Lpril 6, 197I. ?he jaiL recoris introCuced into evidence

shorpeo that Harris was contj-nua1Iy incarcerated at the jail from

the time he was arrestedlrr,'"iI after his afleged trial on Apri} 5,

1971 (R.. f53, Ex. C, D). The speciaf visitors'1ists of the city

jail for the dates of .A.ugust 1, 1970, through Aprii- 30, 1971, were

introduced into erridence (n. 162, Ex. A-3) . The jail warden

testifieo that "special trisi"ors" to the jail included aIt

attorneys, m.inisters anC probation of ficers (n. 154). He sta'.ei

that it was the rule in l-9?0 ald 1971 that all special visitors

rnust sigirr in and si-gn out on the special visitors lisLs and

desig:rate thej-r visitors (R. 154). The waroen's records shoueo

no entry of '"he name of Harris' cour-L-appointed at'rorney, Louis

Scholl, as a visitor to Harris or to any crininal oefendan'. a-'

the jail at any tine between the ia'-e of his appointment on

Novenber 24, !910, anc April 6, 1971 (R. 169-173, Ex. A-3).

A1 -.hough Actorney Scho1l initiall)'"es-"ified chat he did visj--.

Harris at the jail, he la'.er acknouledged, wiren conf ron-Leo b-v rhe

originai- special vis j.tors ros'.er, --hat the records " speak fo=

tl:ernselves" (R. 214) .

The warrlen's special r;isitors' l-ists further showei rhat

no attorney consulted Hi'-h Johnny Harris at the 3ai1 from }{arcn 23

197!, 
"o 

April 6, 197I, t-he entire l5-day period prior to lr,arris'

scheiulei trial (Ex. D, A-3). Attorney lvrilton Garrett, appoi::ted

to represen'. Harris on tuo of his capital charges testified trat

Harris hai written to him on at l-east two occasicns requesting

thai he, Garrett, bring i-ttorney Scholl uitn him to the 3ai1, so

tla-. he could consuf t r^'ith bo"h of his attorneys (n. 506) -

Attorney Garrett sta'"ed -.hat ALtorney -scholl never did 9o \.'i-th him

to visiL Harris at iJre jail (n. 507). I'tr. Scho11 testifieC, tuice

xvL l



"I. didn't take

Scholl stated

(n. 224).

Legal exPer-'s caLled at Appellant's coraril nobis hearrng

agreedthatcon*'inuousat}uorney-c].ientconsultationisinherent}y

importantinrenderingeffectiveassistanceofcor:::se1(SeeJuCqe

Gibson, R. 697) i (A-'torney Bedoor^" R' ?05) ; (Attorney Redden '

n.. 382); (Attorney Farmer' R' 35?); (Attorney Knowles' R' 431) '

Attorney Farmer testified that he could not i;nagine that an

attor,ney coulc cornpetenily represen-' a client or competently

advise him about a plea decision if he only had one conversation

witht}reclientbetweent}retimehecameonthecaseandthetime
ti

it was disposed or, pariicularly if -'he one conference took

place :.n the co'Jrtroo:n (R' 357-359) ' A"torne)- tseddow could not

,reca}I a singte insta:rce in his entire career of- 21 years where

a c}ient of his \,aS incarceratec in jail on a capi."al felony

' charge and ne never visited that client in jai)- (n' 705) '

c. Pretrial l'lotions Concerning Harr3niles:-AI-!+:'
ffieEE-EEEfc'n a;E Se I zure-, Pre- ]nclc-"men-'

,, The Court of Appeals n'ade a specif ic finding in its
i,- :al-: opinion that "none of appellan!'s exPer-Ls could be unequrvo<

i*t.r., asked whether it v-as outsiie -,he range of competence }n

.criminafcasesnottofilepretria]-motions''(opinion,4-5).?his

f inding is su-bstantJ-aI)'y incorrect based on the record' There

lJaSuncont.radictedtes--imonyatthecoralnnobishearingthat

Johnny Harris was arresied on Lugust 11' 19?0' without a warrant

(R. 646) t -uha'. su-bsequent to that drre s-u' police '"ook his picture

seized personal itens tha-' he was carrying and placeo him in a

line-up (R- 641 , 548, Ex' 12) ' one of Flarris' "ria1 
attorneys

alsotestifiedfronhisno"est':iatliarrishad-"ofdhimpolice

officers hai pictures of him a" the line-up (R" 501) ' The record

is clear ihat neiiher attorney iiled any suppression motions to

any crap off" Johnny Harris (n' 219)' Attorney

-'ha" he was going to be the chief trial counsel

rl
lt
lili
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:

tr

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xv1lt



determine t.le legality of the arrest or the admissibility of the
'fruits of that arrest, 8.g., the pictures or the alleged ioenti-

fication made at tJ.e line-up (n. 501). Nor were any 1egaI re-

search menoranda prepared (R. 510, R. 230). Attorney Ralpir

Knowles testified that given the facts of a warran-.l-ess arres'u,

photographs being taken as a result of thac arrest which were

subseguently used in a photo display and shornnr to an alleged

victim of a crime for identification, and a line-up being con-

ducted as a result of the same arrest at which an iden-'ification

was made, t-}.ese issues should certainly be raised with a proper

motion to suppress (n. 415). Attorney Knowles stated f1at1y 
"hat

an attorney perforning wi-'hin the range of competence dema:roec of

attorneys in crj-ninal cases woulc raise these issues by motion j"n

a capital case (n. 115) " as soon af ter j-ndictment as possrbLe''

(R. 417) . (Emphasis added. ) Knowles stateC enphati-cal1y, tha-, in

a capi',aI case, 
"hese 

issues "wou1d have to be raised by an

app;opriate motion" (R. 415).

One of Harris' trial- attorneys 'uestif ied tha" the

warrantl-ess search by police of Appellant's home ani seizu:e of

certain iterns had "raiseC questions" in his mind about the legality

of the search (R. 500) but neither a'.torney fileo_ any mo-uion to

suppress any of the seized :-tems (R. 500) . Commen-,ing on -uhe

failure of a trial attorney to fife a motion to suppress such

iiens, A-'torney l(nowles stated, "If he were faced with a -.:ial

in a capital case or case even rnuch less serious than that,

certainly, @mitting to f i1e suppression rnotionsJ uould no-' be

within -"]re range oj normal compe"ence as recognizei by at"ornelrs

that I know who practice criminal law" (n. 415). (Einphasis adied.)

Similarly, Attorney Farmer testifiei that an attorney who failec

to file motions arou:rd the arres'u situation "would not be reDre-

senting his client effectively" (n. 341). Farmer further stated

that, " Unoues-"iona-bi-v, " determina*"ion of the legali'"y of the

identification proceoure "should be hancled, in m1' opinion,

xax



Pretrial . . . and in the presence of the cJient., -,o let the
I'client ulderstand t.he truthful-ness and have confiience in the

:: process" (R. 346-347) (Emphasis addeC) . AIso, Alabama Cons*ui-

tutional Law Professor Larry Yack1e agreed that in ins'uances of I

uarrantless arrests and searches a:nd seizures, an a--torney within '

I the range of competence demanded of attorneys in criminal cases

would raise the constitutional-rty of these acts by mo'"ion (n. 416-

449) .

Testifying that he has filed suppression notions "in a

Pretty high percentage of the cases" j.n state court in recent 
i

I

years (n. 403) , Lttorney Redgen indicated -'ha-. if he were shown

a prosecutor's file anC if any guestions we:e raiseo from reading

the fi1e, he would file discovery or suppressicn motions (n. 405).

lmportance oE Pret.r:a1 Suppression
Determina-'ro::s in Evaiua-!1nc Plea Decrsi-ons

Attornel' Xnor"'Ies s.'a-.eo unequivoca)-l-1' tnat an attorne]r.

couio certainly not aiequately advise a cli€rr-u i€cEicing a poss!.51e

plea if there were serious questions as to what. evic,ence was

going to be acmissible at trial (R. 119). Iie emprasizec the need

to fino out whether a suppress:-on motion was going to be granted,

not only prior to a trial date, but pri,or to the tine of entering

a final plea bargai:ring session (R. 119). A"torney Farner tes"i-

fied that in deteririni.ng whether or not'Lo change a p1ea, a clien"

neecs to be aware of -.ne Iaw, of technical oefenses availabl-e 
"o

hj-m (R.. 356) . Attorne)zs Redoen, Knowles, Farmer ani Prof essor

Yackle each testif:ec to the in-portance of raising "Brady" motions,

especially in 1970-]971, to get any exculpatory evioence known to

the state (a. 315, 41L, 349-350, 450).

D. f nves-,ioation of State's Case

The Cour-, of Cri:irina). Appeals rnade a finiing, in its

opinion, t'hat t.he bulk of Atto:ney Garrett's fnvesti-cative efforts

rela'"ed to the rape charge and'.hat the emphasis ne placed upon

xx



that case could be explained by the fact that the rape charge vras

to be tried first (Opinion, 3-4). The uncontraiic"ed fact,

however, is that on April 5, l91)- , both of M:r. iiarris' a;torneys

annor:nced that they were ready for trial on alL five capital

cases (R. 581-, 582) . It is not cl-ear from the :ecord h'het5er

either ettorney knew before April 5, 1971, the iate tha" i;:e jury

cards were drawn, that the rape charge actually would be triec

first. ft is unrnistakeably cfear, however, that final plea

negotiations on al-1 five capital cases took place on April 5,

1971, the scheduled date of the first trial.

ft is uncontradicted fac-' that neiihe: attornev ever

intervieweC alleged robbery victirn, Janice Sue 5est (soLe corn-

plaining witness in one,of the capital cases), in person (R. 515)

The only attorney who ever visited Mr. Harris ai the jail had no

notes in his file of Ciscussino with M:. Harris his whereabouts

on the Cate of August 4, 1970, the date of 
"he 

allegeC Bes'.

robbery (R. 518). iij-s fiLe contained no notes on any inves--j.ca-

tion of the Best robbery (R. 515).

Clyde Eddie Blaylock was 
"he 

allegec t'i-c-'im :n '-r"'o cf

the capital charges facing lir. Harris: a robberl' aj-legei :o have

occurred on July 29, l-970, and a second robberl' allegec '.o have

occurred on August 9, 1970. Attorney l'a-ilton Ga::e!t couii not.

recall what the defense was going to be to the jirs-u Blay1ock

robbery (n. 590). He stated:. "I don't recall spenging a great

deal of time on that particular matter (R. 59i) . He est:r:a-'ei

Lha-' he spent one hour at most on -.he two Blaylock capi;a1 cases

(n. 626) . Attorney Scholl did not investigate rhe cases al'-hcuqh

he was the attorney appointei on both ts1aylock cases.

Attorney Garre-'t tesiified initially ;nat he hao per-

sonal-1r, interviewec Blaylock (n. 5 32 ) . iie stated -uhar cer"ain

S-ud-u€D€DtS in guoiaticn mar].:s on an in'"erview sneet markei

"81a1,1O"i." in hiS f ile were BlaylOck' S eXaci S*.aterilenis civen tO

xx]



hia in person (n. 533, 534). However, when it was brought to his

attention that each of ihe statements in guotations on the inter-

view sheet were identical to quotations of B1aylock reported in

a 3irmi.ngham newspaper clipping, dated August 19, 1970 (Ex. A-2),

'slre at+uorne], agrreei that he may have gotten the "tsIay1ock state-

ren"s" frorn the neh'spaper article rather than an rnterview (R. 538)

31ayIock's o'*'n crinuinal recoro was never i-nvestigated (B1av1ock's

:,record was aomitted into evidence at the coram nobis hearing) (n.
:

',151, Ex. Z). The investigati-nE attorney never investigated
lr.,:uhether Blaylock had a motive for charging l.tr. Harris with the

robberies (R. 543) although it was known that Huoson Oil Company,

r^'here Blaylock worked, was right near the neighborhood which

Earris' farn-i).y integrated, when they movei to Payette Avenuel

Bi-aingham, in Marcn, f970 (n. 643, 570, 543)-

Neither attorney haC any""hing in their files concerninq

any interview with, or attempt to interview, the alleEeo rape

vic'.im (R.. 519, R. 25I) . i.t most, one attorney tnought he

recalfed talking to the alleged victim in the ante-room of the

courtroom on the day of trial in the Presence of her mother (R.520)

Not only did Appellant's appointec cou:rse1 not subPoena

-.he medical report on the rape victirn, as noLed b1'this Court in

its findings (opinion, 5), but the record is clear that cor:rrseI

never even investigated the meCical rePort (n. 522) . The attorney

co:rcucting inves'"igation on lhe case did not even know the alleged

vic-.i-m was exarnined by a phlrsician (R. 522l' even -'hough the

r^'i--nesses lis'-ed on the State's subpoena list for I'ir. Harris'

t=ial incluoec tne nane of Dr. Ruool-f I'iintz (n. 2L-7). The

investigatin-o at-Lorney'uestified that he was uIau'are the alleged

rape victin hao reiatives on the Birmingham PoLice Force (n. 527).
Appe 11a te

The/ Court i-n its f indings i-qnoreC the tesiimony of

e>,-=erie;rced Alabana practitioners, Attorneys ReCien and Beddow

a:c Judge Gibson who each underscored the inporta:rce of obtaininq

xx]. t-

I



ana investigating neCicaL reports of an allegeo rape victin (n-

699, 710). Attorney Redden took care to explaj-n -,hat even where

the defense to rape is a1ibi, i" is importan'. to exar,r.ine the

medical evidence of rppe, as the evidence nay affect the c:eci-

bility of all the testimony of the alleged vic-,im (n. 400-101).

380,

Attorney Reoden further testified tha-. an obviousll'

important facet of representa-,ion in crimina'] cases is the "e'fort

io interview witnesses, both those presumed to be hostile anc

Lhose identified as being perhaps friendly" (R. 370) (Emphasis

added). .p-ttorney I(no,*les testified that "the firs" thing a:r

attorney would do" in representing a person clrarged with a

serious felony is interview as many witnesses as possible,

particularly, those nwho may be neutral or hostj-Ie" (n. 430).

E. Precarinc the Defense Case

Neither the trial court nor the Court of Criininal-
.

Appeals made any f indings concerning cou-rrselr s so-ca11eC " r::vesti-

gation" of l.'1r. Earris' alibi cefense, or hou accurately the

' results of that " investigation " was reportei to H:. i-larris .

.F.ttorney lLilton Garrett testif ied f rorn his notes that Y,r. !.a=rj-s

ifr.a told him during --he first attorne)r-clien-' interview'"]-.at he

,l fr"a been with -,hree relatives, whom he namei, froi,r approx:.;a--eIy'

?:15 P.11. uxtil 11:45 P.M. or 12:15 A.11. on -.i'i€ evening of

, August 9, 1970, when the rape anC two of the robberies a1).egec1y
I

occurred (n. 545). The four, incJuding iiarrls, were, acco=iing

to what AppeIlant told lttr. Garrett, out' drinking and playi::c pooL
I

at three beer joints, located within a several block racius::t an

area between I'liof ield and Bessemer, Alabana (a. 550, 551, 555) .

The four men went back and forth alnong the trree places all

evening. Attorney Garrett testifiei that his no-"es saii tlie

alleged robbery and rape on August 9, 1970, occurrei at app=oxi-

mately 10:20 P.11. (n. 546), and that the enti:e incident occurred

betr+een one-half hour and one hour's time (n. 547).

xxJ.l r



Attorney carrett testified fron his notes that he had

interviewed both co-or^'rers of one of the beer est.abfishments

(n. 555), anC the owner of a second beer jornt (R. 558) that

Harris told him he haC visited. Garrett's case file notes reflect

that aII three basically corroborated the alibi in all material-

respects (n. 556, 551, 558, 559, 556). Garrett. al-so testifiec

that he interviewei Harris' wife, whose s',or)' a', -.he first of two

interviews indicated no iiscrepancies (R. 560), ani. Harris'

brother-in-Law, one of the persons Harris had spent the evening

with. Harris ' bro'-her-in- Iaw, in an intervier+ on January 8 , 19 71 ,

gave a statement which su-i:stantia.1ly co:roboratei Harris' alibi

(n. 562-564) . A-.torney Garrett testif iec -"hat he never. couf i.

find the other two persons Harrj-s anc his broihe:-in-Iaw had been

with that evening (n. 566). Garrett 
"es;iiiec 

that at that point,

he had five alibis for l1r. Harris thar:-n no riajcr areas were

there significant ciscrepancies (n. 556, 557).

A-ttorne), Garret-u stated -,hat on one other occasion *'hen

he interviewed for:: of Harris' ref a-,ives togeiher (n. 567) ,

including Harris' wife and brothe:-in-1a*, t.here 'vias a time iis-

crepanc]r. On this one occasion, t}ree reLatives, i-ncludino

Harris' wif e and bro',her-in-1aw, -uo1C Garrett '"ha'- ilarris haC

arrived home aror:ni l-0:00, instead of l-ater as e\tryone else had

said (R. 571). The fourth relative Cii. not contradict Earris'

testimony in any najor respect. P-LI concurrei, even on this

occasion, however, as to the persons Harris xas';ith and where

they rvere curing rocsi of the evening (r. 574, 578) . Garrett

testif ieo that he never went back to try to reso] ve the conf li c-.s

in the statemen-us ilarris' wife and her brozher hac given on th'o

other interviews (P.. 575 ) . Garret'. 1a:er, aqain, agreed his

case notes showei he had ootten substantial- corrooora-"ion of L]-re

alibi froi-u no less --han f ive persons, \r.;'ten eacn uas interviewed

alone (n. 578).

i

I'1

I

xx].v



ver despite the relative strenEth of the alibi defense4LL, uErIr'4ue

according to Garrett's original notes, he acknowleCgeC at the

coram nobis hearing that he told Harris his interviews revealed

Harris had five Cifferent alibis, that no twc Persons *.o1d t]te

same story (n. 608, 535). Ile aLso reporteCly had info:-ned

co-counsel Scholl that he had interviewed each of liarris'

witnesses and "no two of them agreed" (R. 220).

III. The Decision ?o PleaC
- ----EE;i1-6,-f977

Gui Lty ,

I

I ' The testimony is uncontroverted that on April 5, f971,

vhen the jury caris were drawn in court in the presence of

Appellant anC his counsel (R. 11, Court reporter) and his cor:nsel

announced that the)' 'were ready for trial on all five cases (R- 5El

582) and again when AppeLlant came to court on the morning of

April 6, 1971, joh;ny Harris sti]l wanted to have a 
"rial 

(R. 561)

No hlitnesses in Court

The Couri of Crimrnal Appea)-s round that APPeIlant's

testimony ihat no r.'itnesses were in court on the day of trial

(n. 565) contradictec the testimony of both Attornel,s scholl- ani

Garrett. Attorney Scholl's testimony that oefense wi-"rresses were

in court tsc'uudlly con--ains contragictions within his ou'n state-

ments. He states E'u oD€ point, "'-he people we brbught to court

filled five or six pews" (R. 248-249) . In the next breath he

states that he iign't know if these people \{ere witnesses (R- 249)

This ]ast obserr:a',ion is the logical one in light of the prior

uncontradicted testimony of counsel that only Attorney Garrett

ever interviewed. or rnet the alibi witnesses (n. 220) - Then I1r.

Scholl reverts back to his forrirer position and says, "\'ie had

over half a dozen wno were willing'Lo stanC up and s\rear Johany

Harris was somewhere else" (n. 249) -

It is uncontradicteC fact tha'" no *itnesses hac been

subpoenaed to t:i.a)- by either a'utorney (n. 215, 24-l , SchoLl;

xxv



R. 585, Garrett). Technically, '.hat sas "Scho11's responsibility,

Attorne)' Garrett tes-,if iei (n. 586). It. Scho11 testifiea that

his office cid no', seni out notrces --o any r.'J.',nesses to appear at

trial- (e. 29'1 ) . "Iiilton was going 'gc do -'ha-'," said Attorney

Scholl (". 297).

Attorney Garrett himsel-f acknowLedgeo that' several

alibi ui--resses \rere not in court; he -"€s-gifi-ed that the ihree

sal-oon keepers were on "stand-by" (R. 589). Attorney Garrett

did state, however, that he knew ilarris' family was present

because he had infor-:ned them of the triaL date j-n Person during

some o' his "late visits" at -'heir hc;ie (n. 584) (Emphasis aodei) .

Documentarv evide:rce avaif able entj-re1y supporrs l'1r. Harris'

testimcny'iDa-u none of his','ritnesses;ere in cour'. on the Cay of

trial-. ?he Court oocke-" sheets incrca-,ed tha-" there was a consent

docket on tebruarl'19, 1971, ani i'"'*-as on thai. iate that -"he

trial uas first set for April 6,1971- (f. 254). Attorney Garrettl

fi'ie notes reveaL that cn February 8, \971, iI iays before the

trial iace was even set, he got a long Cistance telephone call

from iiar=is' wif e in Mobif e, Alabare, 'i nforning hiin -.hat all- of

Harris' =airrily hac movec to I'lobile, .l-ia.cama (n. 588, 589; Ex. .1.-l-b,

A-1-2) . ]r':=. Garrett's alleged persor-al visit to the Harris

famill'ho;ne after the irial daie hai.ceen set would J-ikely have

had -'o occur in l.lcbile if he were to communicaie wi-.h the fanrily

about ;:]re i;iuninen'- -.riaL.

The alibi witnesses incluied Lhe three saloon keepers

and -"r+o ner$ers o j Harris' f ani1y, his brother-i n-law ano his

uife. lr'-:. Garret'"rs -uestir,ronlt 15--- -'ie saloon )"eepers were not

preseni in cor:rt co:roborates }lr. F-a:ris' 
"estimony. 

l'1r.

Garre-"--'s iire nc'-es, showing the fa::,:J-y hai. lncvei to.l'lobi1e,

bears oui Harris' assertj-on that on --.:e day of trial-, " I diin't

have nc::e of Lhen, here" (n. 665).

c

i

I

Crecibili*.), of .A--"torney Schcr:' s

The Cour'" of Criminal AP2ea)-s

to atrach importart weiqht to Attorney

Te s tinony

in i'.s f indings appears

Scholl's testimony that



'Mr. Harris told him he wished to plead guilty because the State
I

::had hirn cold on three cases. The appellate court noted elsewhere
l

;:in its opinion that Attorney Scholl's memory of imPortant facets

l. of fri. representation was extrenrely vague (opinion , 6) . The
t;

li court should additionally noie that l./,r. Scholl's memory of the
:.
i entire period of time during which he represented cl-ients on

Icriminal cases \,ras so vague that whiLe he could remember that he

l; iiad plead other clients guilty, he '"estified that he could not
il
ti .
ji er"n remember the name of a single one (n. 292) . Yet, without
li
l:any notes in his file, he testified to a verbatim recollection
I
i;of his anC Attorney Garrett's and Mr. Harris' discussion about
i.

, tf,e plea arri the Court's taking of the pleas from l't. Harris

,, (R. 292, 257-292) .

Appe 1 1 ate
Attorney Scholl testifieo, also, as the,/ Cou:t has

noted, tha-" the only reason he had only 7 pages in his file was

that he had lost most of his aIIegeo work proCuct (n. 184). He

testifieC during the coram nobj-s hearing that materials he used

at triaL were what was lost (n. 301); the only things in the

file were things he woulC not use at trial (n. 301) . He

acknowledgeo, however, ihat it was his practice'.o use jury venire

lists at trial (n. 302). The jury venire l-ist had somehow got-Len

back in his f il-e (R. 3Ol-) . He then test.if iei that -'.he file he

had with him was the original foloer and that it hao been thicker

ar one time (n. 303). Under cross-e>:aninatj,on, he acknowledged,

however, that there had never been a new- crease mark maoe on the

manila file folCer, which at one time had a11egec1y contained

all his papers on three capital felony cases (R. 305). The most

remarkable testimony produced at the entire 6-day coram nobis

hearing was tha-. the a.itornel'who nLt'er "took any crap off"

Johnny Harris, who, at best, consuLted with him on11' once betueen

his date of appoin'.irr€Dt and the -"ir,re of 
"rial, 

who had to send

himself a wi-unesS su-bpoena form in oroer to reminc himself to

xxv]. l-



:show up at Harris' trial (R. ]-'92, 193), could reinenrber seven
ll
years Later, L,ithout &D)/ Do'u€s, Harrist exact s'"atement to him

j about his reasons for taking a p1ea.
I
il

1l Credibility of Johnny Harris' Testimony
it

ll as the Cor:rt of Criminal Appeals noted, Appellant
ti

iia""aified that his attorneys' inadequate inves-"igation and

ir
]. preparation so narrowed his alternatives that he was coerced
:i
:i.
i into pleading guilty (opinion , '1),
il '
i,
lr
!;
t:
it
t,
li
li

I

Conclusion '

risurrounding Harris' reasons for pleading guilty, pafing par-'icular
!'

attentj-on to 
"he 

fo1).owing facts supported by docurnentary evidence

'. and/or uncontradicted testimony :

1) Harris had no opPor"rmity to obtain any first-ha::C
i

lknowledge of the S-"ate's case since his preliminary hearing had

been rvaivei..

2) Harris haC no meaningful consultation with the

, attorney who represented hin on three of his capita1 charges,
:

incf uCing rape, and \.ras to be his chief triaL attorney, as the

,. attorney never visi-'ed him at the jail.
l;

l, 3) Harris was not prepared by his attorneys for hi s

, or.rn 
"ria], 

a fact born out by the jail recorCs which showed no

attorney visited him t.he en-"ire 15 days before triai--
ri

'. 4) Harris \ras rePresen"ed by inexperienceC attorneys

who had been in practice for only 3 years (Attorney Garrett,
,

' R. 4 55) and 1 years (Attorney Sc!ro1I , R. 183) , respectirrely.

5) Harris had no way of knor+ing whac evicence rvould

be admissible against him at trial I as no pretrial suppression

hearings were ever held

6) Harris had no knowledge of -'he f ac--s surrounding

any of the alleged victims since neither attorney had interviewed

them prior to the date of trial, nor had they seen the medical

Appellant requests that this Court consider the eviience

., xxv].].l-



report of the allegec rape victim, nor had they checked criminal

records or police recoris concerning the alleged victirns.

7) The strength of his alibi defense had been sub-

stan',ially misrepresen',ed to him by his attorneys.

8) Harrj-s was incarcerated at the jai, 1 for the entire

period between arresi and his triaI, and was.totally depenCen'u

on counsel for aivice.

' 9) Harris r::rguestionably still wanted to 90 to trial

on April 6, 1971, -.]re cate of his first scheduled trial.

10) Ilarris sav, no family or other defense witnesses

in court on the iay of his trial and saw that his attorneys had

faiIeC to obtain witresses who were crucial rf he haC any chance

to be acguitted.

]I) Harris i.s a Bf ack man in F.fabama wiro uas charged

with the rape of a'*:rite woman and he faced -'he real possicility

of the electric chai.r.

In light of 
""re 

aborre realities of Johnny }iarris'

situation on April 5, 1971, all of which are facts supported by

either d.ocumen--ary er-icence and,/cr uncontradicted tesiimony,

this Couit shouli recoesi-der I't. Harris' testimony at his heari;rg,

where he explains in his own words the pressures which coercei

him to pleai g'ui1ty :c 
"he 

offenses charged:

l-1r, ilarris tesiifiec that immeCiately prior to the

time the jury was brought in,.on April 6, 197\, when he and hj-s

attorne)'s uere sit:irg at the table, that Attorney scholl nrade

the f ol" )-owing cor!-nen'. :

"He told rne he didn't see how he rvas going to win

the case when'.ie Court was ocing to take the h'trj-te

uoi:ran's wori over nine because I u'as Black and that he

dicn't have no i::--ention of bucking the system. Then

he acvised ;-ue io co ahead and take the D'.4. 's of fer

because if i iiir't I would o"herwise get the chair-"

( R. 687) .

xx].x



The Court Reporter's transcript showed. tha" followi::q

the gualifica'.ion of the jury, there was a pause in the pro-

' ceei.ings (n. 7'7). y.r. Harris stated -uhat Attorney Garrett a-.

'. tha-' point hai asked for an extension of 
"ime 

to have a confe=e::ce

, and it was granied (n. 6S8). 1,.r. Harris' tes-.inony of the cc:- 
l

ference on cross-examination is as foll-ows:

)lr. Iiarris: iie sai-d that he cii not have no alibi wi-tnesses

su-bpoenaed; lhat he realIy wasn't prepared to go tc

Court and Lhat he oid not really think I was goinE ;

to fight this all the way and that his best advice

to me was that I charge my plea and accept the D..I.-.'s ,

offerofone}ifesen..enceontherapechargeani

get the o'rher four oisinissei. " (R. 588-689).

y.r. Harr j-s tes"i f iei that it was durinE this oi scuc s:alr ,

when he fourd out thai the attorneys hacn't subpoenaed an), c. h.;-

wj-t:resses and had naoe no arrangements for trial- tha'" he ceciiec

tc change his plea (P.. 667) .

: Allison

. ilarris:

,

; P.Ilison

Harris:

Allison

Harris:

Allison

Har=is:

Ifere you then guilty of the charges? (n. 667) .

No, Sir, I chan_oed the plea on the rape case in

orCer to get the otner four disrnissed a::o to qet

arounC the death penalty. (n. 561).

liell, if you were innocent, you dior't harre anyt.ni:c

to L'orry about the cea'.h penalty.

Yes, I i,id.

lr'rat uas that? ( n. 661 ) .

I had proper rePresentation to worr1, about and I

ci-cx ' t have it -

lhy not?

I.'rr. Ga:rett and then Gic] hain't prepared anythi::g:

a:ri. cefinitely not I'ir. Scholl. So I say I oon'-. ha';e

a defense and an osfer has been made and if I doi':'=

take -,he life sentence, I could get the chair. ?:::s

xxx



don't mean I change my plea because f wasn't

innocent. I changed my plea because I didn't

have no choice. (n. 66'1) .

I

llri
I,

1i

I

t'
I

t.

I

il
I
ri't

xxx]-



I

THIS COUR? SHOULD ADOPT A HIGHER TEST FOR

JUDGING EFFECTI\IEI']ESS OF DEFENSE COIJNSqL
IN CRTMINAL CASES

The right to effective assistance of counsel is a

defendant's most furrdamental right "for it affects his ability

to assert any other right he may have." UniteC States v. Decoster,

159 U.S. App. D.C. 326, 487 F.2d IL9'7, 120I (1973). Petitioner

urges that the "farce / mockery" standard for attorney com-

petency, first enunciated in Trammel v. State, 276 AIa.689, 165

So.2d 417 (1954) and re-examined inconclusively in Taylor v.

State, 29IAIa ..:t56 , 287 So.2d 901- (]973) , now be explicitly

overruled. The "reasonably effective" or "normal competency"

test provides a more objective standard. the U::ited States

Supreme Court, at least eight federal circuit ccurts and most

state courts now hold some form of the "reasonabl.v effectiveness"

test to be the minimum level of competency mandated by the Sixth

and Pourteenth Amendments to the United States Constitution.

Because of thefacts and the record, this is a hrghly appropriate

case for review of -uhis issue by t.his Court.

The Decision Below

Conspicuousll, 35r"nt from the Court oi'Criminal Appeals

decision is any explicit finding that Petitioner actually re-

ceived competent advice or effective assistance of counsel.

The Court below was governed by t\ro tests inreaching its decision:

1) the "highly exacting," "clearly convincingn degree of proof

demanded in Alabama in a petition for writ of error coram nobis,

and 2) the l-enient "farce/mockery" test for de--ermining ade-
I

quacy of representation. It decided, essentiali-y, that Petitioner

was entitled to no relief as he had not fully a::o clearly con-

vinced the Court that his representation by cou:,sel- amounted to

a farce and mockery of justice.

-1



The Court stated at page 7 of its opinion:

This Court's determination with respect to
this particular allegation ftfrat petitioner was
ineffectively and incompetently represented by
counsel) speaks solely to the weight of the
testimony presented at the coram nobis hearing
and is not intended to be a statement relating in
any manner to the standards of conduct demanded
of attorneys in good standing with the State Bar
Association of the State of Alabama embodied in
the Code of Professional Responsibility, 293 AIa.
xxvrr.

On page 9, the Court affirmed the trial court's re-

liarrce on the farce/mockery test. It citeC numerous

rulings of its own as well as opinions of this court

for the standard. " CfJhe duty of counsel, retained

prior

as authority

or acoointed4

is to prevent the trial from being or appearing to be a farce or

mockery of justice.' Opinion, 9 (cites omitted; ernphasis original)

These statements vrhen read together indicate that the

Court of Criminal Appeals did not attempt to determine lvhether

Johnny Harris received reasonably adequate legal representation,

or representation considered within the range of competency

demanded by the state bar of Alabama, the Al-abama Constitution

and the U.S. Constitution. The Court apparently focused its

inguiry only on whether the proceedings were faii, not on whether

his attorneys were competent. It is precisely this approach to

the issue which has now been overwhelmingly rejected in federal

and state courts

A. HISTORY OF ?HE ''F}.RCE AND MOCKERY'' STANDARD:
THE CONS?TTUTTONAL lggrElNE ON ifHrCH 1T r,iAS

BASED HAS BEEN SUPERCEDED.

In attempting to determine whether the language of the

"farce and mockery"

clusory description,

reguire a denial of

test is a "mere metaphorical gloss, a con-

or a constitutional criterion which would

relief to a defendant whose attorney was

-2



ineffective and incompetent", 491 F.2d 687, 692, the Sixth Circuit

Court of Appeals in Beasley v. United States, 491 F.2d 587 (6th

Cir., 1914) noted at 692 that:

"Phrases often take on a life
Divorced from the context in which
born, they spawn new results based
tions of themselves, rather Lhem on
scrutiny of the actual- holding for
were a description. "

in the era when an accused tried in state court

tutional entitlement to counsel unless he could

of their own.
they were
on interpreta-
a close

v;hich they

The rejection by the District of Columbia Circuit

Court of Appeals of the farce/mockery standard is siginificant

and instructive because it was that Circuit which established

the test. See Bruce v. United States, 125 U.S. App. D.C. 336,

379 r.2d 113 (1967); scott v. United States, 138 U.S. App. D.c.

339, 421 F.2d 609 (1970); United States v. Decoster, supra.

The first major "ineffectiveness" cases in the District

of Col-umbia Circuit were Jones v. Huff, 80 U.S. App. D.C. 254,

152 F.2d 74 (1945) and Diggs v. i'Jelch, 80 U.S. App. D.C., 148

f'.2d 667 (1945). Applying a due process-funoamental fairness

approach, the Court held that the standard is whether cou:rsel's

incompetence rendered the trial- a "farce and a mockery." The

Diggs Court based j-ts ruling on the view that the Sixth A!:lendment

guaranteed no more than the formal appointmei:t of counsel. Thus,

the federal prisoner could ground his petition onJ-y on the Fifth

Amendment, which guaranteed a fair trial. It was to the guarantee

of a fair tria], not the Sixth Amendment that the " farce and

mockery" standard was originally applied. See Beasl-ey, suPra,

aL 694.

AIso, the "farce" standard began to be applied to

state proceedings, as the Fourth Circuit Court of Appeals explains

in l'larzuI1o v. S"ate of I1a::Y1and, 561 I'.2d,540, 542 (C-A. 1, 19'77)

had no consti-

satisfy the

a



l,

reguirements of Betts v. Brady, 315 U.S. 455, 62 S.Ct. L252,

85 L.Ed. 1595 (1942). That case compelled the accused to show

circumstances reni.ering the Lack of counsel so "offensive to

the common and fundamental- ideas of fairness and right" as to

deny him due process of l-aw. 316 U.S. at 473, 62 S.Ct. aE t262.

The "farce and mockery" standard gained wide acceptance,

€.9., Trammell v. State, A1a. , 166 So.2d 417 (1954),

_Ex Re1 Darcy v. Handy , 203 F.2a 407 (C.A. 3, 1953) , Sogt v.

Cunningham, 344 F.2d 1 (C.A. 4, 1965); Williams v. Beto, 354

F.2d 698 (C.A. 5, 1965); O'Malley v. United States, 285 F.2d 733

(C.A. 6 , 1961) ; United States v. Dilella , 354 P. 2d 584 (C.A. 7 ,

196s).

In the mid and late 1960's, however. two United States

Supreme Court decisions foretold a different standard for de-

termining cor:nsel-'s adeguacy. Gideon r'. Wainright, decided in

1963, 372 U.S. 335, 835 S.Ct. 792, 9 L.Ed.2d 799 (1963) over-

ruled Betts. l4ade v. United States, 388 U.S. 218,87 S.Ct. l-925,

18 L.Ed. 1199, handed down in 196'l, clearly implied that "effec-
tive assistance" ierives not only from the due process clause,

but from the Sixth Amendment's more stringent requirements.

As it became widell, recognized that "the purpose of Gideon was

not merely to supply criminal- defendants with warm bodies, but

rather to guarantee reasonabty conpetent representation, " Cooper

v. Fitzharris,55l P.2d 1162,1164 (C.e. 9, :-.9l7), the "farce

and mockery" stanCard came under increasing attack from promi-

nent co[unentators. See Beaney, "The Right to Cor:nsel: Past,

Present anC Future," 49 Va. L. Rev. 1150 (1963) ; i,laltz, "Inade-

guacy of Trial Defense Representation as a Ground for Post-

conviction Relief in Criminaf Cases," 59 Nw. U. L. Rev. 289

(1964); Note, "Effective Assistance of Counsel for the Indigent

Defendant, 78 Harv. L. Rev. 1434 (1965).

_4



In response, and recognizing that the right to counsel

guaranteed by tJle Constitution required not only the form but

also the substance of real representation, Cooper, supra at 1166,

the District of Columbia led the retreat from the " farce and

mockery" test in Bruce v. United States, !26 U.S. App. D.C. 336,

379 P.2d 113 (1967). In Scott v. United States, 138 U.S. App.

339, the Court decLared the standard no longer valid except as

a metaphor indicating that a criminal defendant had a heavy

burden to prove ineffectiveness. The primary constitutional basis

for overruling the farce standard was the recognition that the

right to effective assistance was grounced j-n the Sixth and

Fourteenth Aroendments, and not just the due process clause.

Thus, the focus of the inquiry was to be the effectiveness of

corrnsel rendered, not the "fairness" of the trial.

B. ]'JOST FEDERAL CIRCUIT COURTS AND S?ATE

APPELLAl'E COUP.TS VISli l'lcM.a:ili r'. F.ICIIARDSON
ES-nmf-N-c runr rHe :nEESOIESIY COTFETEFTT
OR "NOR}',AL ESFETE\*CY.' STIIIDAPD IS Noi{
}lANDATED BY THE FED:RAL CO]TSTITUTICN.

rn 1970, the Supreme Court of the Uni'"ed States handed

down its decision in ygt"tu"n 
". ni"hu.a*, 397 U..S. 759, 77Li

90 S.Ct. 1447,1449;25 L.Ed.2d 753 (1970) wherein the Court

held, within the context of a guilty p1ea, that the aCvice

rendered by an attorney must.be "within the range of competence

demanded of attorneys in criminal cases." Since the licl.iann

decj-sion, no fess than eight federal circuit courts have expressly

abandoned the "farce and mockery" and adopted ihe "reasonably

effective" or "normal competency" standard. See Moore rr. United

States , 432 F.2d 730 (C. A. 3, 1970) ; llarzullo v. St.ate of Mary-

land, 561 F.2d 540 (C.A. 4, 1977); Herrino r;. EsteIle, 491 F.2d

125 (C.A. 5, 1974); Beasle)'v. United States, 491 F.2d 587 (C.a.

6, 1914); I{i11iams v. Tvomey, 510 F.2d 634 (C.A. 7 , 1975) ;

-5



Pinnell v. Cautron, 540 F.2d 938 (C.A. 8, 1975); Cooper v.

Fitzharris, 551 F.2d LL52 (C.A. 9, 1977), United States v.

DeCoster, 159 U.S. App. D.C. 326, 487 r.2d 1197 (1973). (The

First Circuit has indicated its wj-1lingness to reconsider its

present use of the f arce /mockery s--a-::iard in the coniext of an

appropriate case, see Moran v. Ilogan, 494 F.2d 1220) (Ist Cir.,

t974).

Reasons articulated for i:he changed standard, in

addition to the recognition that the }1cl"lann stardard requires a

higher degree of advocacy, include the need for a more "meaning-

fuI", "objective" test. As the Sixtn Circuit stated in Beasley,

aL 592:

. The meaning of the Sixth Arnendment does
not vary with the sensibilities and
subjective judgrnents of va:l-ous courts. The
Iaw demands an objective e>pl-anation, so as to
ensure the even dispensa"ion of justice.

Other Courts reason that s-:nce the Courts hold members

of other professions (e.9., medicire) to a standard "eguivalent

to the exercise of customary skilIs at the time and p1ace, "

those served by the 1egaI professj-on are entitled to some Pro-

tection by a standard requiring representation tiiat is better

than a "farce. " See I'loore v. Unitei States, suPra, at 736;

Williams v. lVomey, supra, at 640.

An excelfent staie court a--:alysis of reasons to

abandon the "farce and mockery" staniard is found in Baxter v-

Rose, 523, S.I{.2d 930 (Tenn., 1975). See also the following

state appellate court decisions. State Courts which have adopted

a higher standard than the farce a-ni mockery test include Alaska,

Risher r,. State, 523 P.2C 421 (A1 aslla, 1914); Colorado, Peop]e v.

GonzaLes, 543 P.2d 72 (Co1o., 1975); Connecticut, Stqlg v. Clar]<,

(Conn., 1976); Delaware, Isyola v. S'*ate, 340 A.2C 844 (Oet., 1975) ;

6-



Georgia, Tamplin v. State, 218 S.E.2d 179 (1975); Hawaii, State

v. XahaLewai, 501 P.2d 977 (1972); fdaho, State v. Tucker, 539

P.2d 556 (1975) ; Iovra, State v. Dee, 2l-8 I{.hr.2d 561 (L974) ;

Maryland, Green v. hrarden, 238 A.2d 920 (1958); Maine, State v.

Sinc1air, 236 A.2d 66 (1967); Massachusetts, Commonwealth v.

Saferian, 315 N,E.2d 878 (1974) , l"lichigan, People v. Strodder,

229 N.W.2d 318 (1975) ; Ilississippi, Serry v. State, 345 So.2d

613 ()-977); I"lissouri, Nel-son v. State, 537 S.I.l.2d 689 (1967) ;

Nebraska, State v. Leadinghorse, 222 N.i{.2d 573 (I974); New

Hampshire, State v. McCarthy, 298 A.2d 740 (1972); North Dakota,

State v. Greqg, 221 N-W-2d 793 (I91 ); Ohio, State v. Hesier, 34L

N.E-2d 304; Oregon, Or. App. 526 P.2i 605 (I974); Pennsylvania,

Commonwealth v. Curoes, 357 A.2C 591 (1975); Rhode Island, State

v. Desroches, 293 A.2d 913 (1972); South Dakota, State v. Goode,

I71 N.hr.2d 733 (1969); Tennessee, Baxter t,. Rose, supra; Texas,

ExParte Bratchett, 513 S.I,l .2d 851 (L974) ; Vermont, In Re Bousf ey,

292 A.2d 249 (1972) i i.Jashington, State v. Iyers , 545 P.2d 538

(1976) ; I,{est Virginia, State v. Thornas, 203 S.E.2d 445 (1974);

Wisconsin, Weatherall v. State, 242 ll.w.2d 220 (1975).

Some Courts have recognizeC ;hat the "reasonably com-

petent" stanCard, although an improveii'ient , i s , by i- tsel f " only a

shorthand 1abel, and not subject to ready application." Decoster,

!]pIe, at. 1203. These Courts have aocpted or suggested the use

of the " 1egal prof ession ' s o\nm articul-ated standards , " the A. B. A.

Standards for the Defense Fr:nction, Araerican Bar Association

Project on Standards for Criminal Just:.ce, "standards Relating

to the Defense Function" (App. Draft, 1971). Among the Courts

which have adopted or endorsed the A-8.A. Standards as guidelines

are DeCoster v. Unj-teC States, suPra; State r'. Harlrer, 57 \'Jis. 2d

543, 205 li.l{.2d 1 (I973); Baxter r'. Rcse, suPra. These Courts

have taken seriously the following acncnition of .t'lcIiann, supl:a,

aL 77I:

-7



" CO f the right to cor:nse1 guaranteed by the

Consitution is to serve its purpose, defendants

cannot be left to the mercies of incompetent

courrsel, and judges should strive to main-

tain proper standards of performance by attorneys

whoarerepresentingdefendantsincrimj-na].cases

in their courts. "

In stark contrast, united states suprerne court Justice

Brennan has stated:

". the so cal]ed 'mockeryt test ' abdicates

any judicial supervision over attorney performance

so long as the attorne)a does not make a farce of

the trial. " I{ainright v. Sykes , U' S' ,

97 S.Ct. 2497,53 L.Ed.2d 594, aL 52'l fn' f6,

Brennan, J. dissenting'

THIS COURT IN ITS REASONING HAS I]'?LICITLY
REJECTED THE FARCE AI'ID I'iOCKERY TEST.

This court previously re-analyzed the standards for

attorney competency in Taylor v' State, 9!PI9, and did not

explicitly overrule the farce standard. AIl of'the non-Alabaina

cases cited in that case as adhering to the "mockery of justice"

rule have, in the five years since Taylor was decided, been over-

ruled.

A)-though the court did not expressly abandon the "farce"

rule in Ta)'Iot, it implicitly rejected it irr substance' The

decision laid the groundwork for overrulj-ng the "farce" standard

by stating that the concept of "effectiveness is part of Sixth

Amendment's guaranty", rd. at 904. Grappling r^ith the problem

of defining "ineffectiveness" the court cited r';ith apparent

approrzal the A'B.4. Standards, Id' at 905' The A'B'A Defense

c.

-8



Function Standards specifically reguire that counsel must confer

with the defendant without delay and as often as necessary to

obtain matters of defense; discuss completely potential strategies

and tactical choices with his client; promptly advise his client

of his rights and take all necessary actions to preserve them and

.conduct appropriate investigations, both factual and Iega1. ABA

Defense Function, pp. 153-70.

Most significant, this Court then applied the ABA

guidelines to the facts in Taylor. The "attorney made a thorough

investigation of the facts in the case." Id. 903. He discovered

the scientific evidence. Id. at 903. He consul-ted with his

client. IC. at 904. He analyzed the lavr. Id. at 905. "Counse1

did all that was required of him." Id., 905. In Taylor, this

Court made specifj-c findings concerning specific aspects of

representation and ruled on that basis that Taylor had been

effectively represented.

The substance of this Court's analysis in Taylor is in

stark contrast to the Court of Appeals' decision in the instant

case. Here, the Court belovr merely ruled that Johnny Harris Cid

not prove that his representation rendered the p=oceedings a

mockery

D. THE FACTS AND THE RECORD I'IAKE THIS THE
appnopnrerr casr ru ilH:clt to ovrnnulr

The evidence, much of which is uncontradicted, and

all of which is amply supported, shows numerous specific instances

of ineffective assistance of counsel. A preliminary hearing had

been waived on five capital offenses and neither petitioner nor

his counse] had any opportunity to obtain first-hand knorvledge of

the state's "case-" Petitioner's chief trial attorney, and the

attornel, appointed Lo represent him on three of his capital

charges, including the rape charge, provided no meaningful con-

sultation and never visited him at the jail where he was

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incarcerated from the day of his arrest until trial. Despite the

uncontradicted facts of a warrantless arrest' a warrantless

search and a line-up, no Pre-trial or SupPression mctions were

ever filed. Harris' attorneys did not personalfy interview any

of the atleged victims prior to the day of tria1. They never

attempted to investigate the medical evidence in the rape case

which would have shown absence of any force. Such information

could have provided the basis for an additional defense.

Although cursory j-nterviews of alibi witnesses were

conducted, the strength and substance of the alibi defense rvas

substantially ndsrepresented to Petitioner. None of Johnny

Harris' alibi witnesses were subpoenaed to Court, and according

to the clear weight of the evidence, none appeared in court on

the day of trial.

The record in this case includes substantial testimony

of seasonecl Alabama attorneys whose practical experietrce and wide

contacts with the membership of the Bar of this state makes

them appropriate delineators of the range of competeDc1l arrd

effectiveness normally expected of criminal defense counsel in

Alabama. The testimony of Attorney L. Drew Redden that it is

always important to investigate medical evidence in a rape case,

even if it is discarded later as a trial tactic (as well as his

assertionS that "hostile" wi.tnesses should be interviewed), should

be taken as guidelines for minimal standards in defending a

rape case. Attorney Roderick Beddorv, Jr.ts comments regarding

the vital importance in Alabama of a preliminary hearing, echoed

by no less than three other experts, should be considered by 
I

thj-scourtindeterrniningrvhethercounSe1defendin9amanon

five capital c)-:arges acted inef fectively in waiving the pre-

liminary hearing or merely made a discretionar)r choice of trial

tactics.

-10-



Attorney Ralph Knowles' testimony that failure to fir_e
suppression motions on the facts of this case rendered counsel,s
performance below the minimar competence that is expected in
Alabama is entitred to some weight not only because of the
attorney's significant experience in handling felony cases but
because of his wide contacts with and knorvledge of the Alabama
Bar generally. similarly, see the testimony of Attorney Mir-r-ard
Farmer on these points.

Petitioner's experts were unanimous in recognizing that
freguent attorney-crient consu]tation is inherentry important
to developing appropriate defenses, and prorri.ing sufficient
information to a client so that he can make an informed qecision
about a pIea.

The ABA standards for the defense function are readily
applicable to the record of this case. petitioner's cou.:rsel-

met none of the ABA's minimal requirements.

Judging co,nse1,s performance using the ABA guidelines,
it is inconceivable that Johnny Harris could have made an informed
and voruntary decision when he pread guilty. The ABA gurdelines
taken together with the expert testimony in the record lead to
one irrefutable conclusioyr: Johnny Harris was deprived of his
fundamental right to effective assistance of counsel.

overruling its prior rur.e that a petitioner, in order
to show that his constitutional right to assistance of cor:rrsel

had been denied must prove that his trial was a sham or nockery,
the seventh circuit court of Appeals stated in l,Iilriams \,. T\r,ome|

supra at 540:

The Constitution, unlike the judicial oath doesnot go as far as to promise equal justice to thepoor and to the rich. yet it does not leave thepoor to a representation which is i:r any aspect _
pretrial, inrresl-igatory, trial or otherwise _

-11 _



shockingly inferior to hrhat may be expected of
the prosecution's representation. Whil.e a
eriminal trial is not a game in which the
participants are expected to enter the ring
with a near match in skills, neither is it a
sacrifice of unarmed prisoners to gladiators.
The crirrinal defendant, whether represented by
his chosen cor:nsel. or a public agency, or a
court appointed lawyer, has the constitutional
right to an advocate whose performance meets a
rninimum professional standard.

In 1971, Johnny Harris, an indigent, faced five capital

felony charges. ?o deterrnine, as the Courts below have done,

that l!r. Harris was entitled to no relief as long as his rePre-

sentation was not a farce and a nnckery is to deny that the

Sixth and Fourteenth Amendments to the U.S. Constitution guarantee

substance as well as form.

lr



II

THE LEGAL REPRESENTATION AFF'ORDED JOHNNY HARRIS
BY HIS COURT-APPOII.ITED L.ITTYEPS DID I.]OT ]'IEET ANY
LEGAL STANDIRD USED fN DETERI'IINING COI''PETENCY OF
COUNSEL AND THE GUILTY PLE)-S lrrERE IIOT VOLUNTARILY
OR KNOITTINGLY }IADE.

A. JOHNNY HARRTS.

On April 5, 1971, Johnny Harris went to court fully

expecting to have a trial on the charges against him. At court

that day he saw that his court-apPointed attorneys were not

prepared to present a defense for him and additionally they

pressured him into accepting an alleged "deal" offered by the

District Attorney. Bel-ieving that because attorneys Scho}l and

Garrett had not effectively prepared a defense for him, that

they were not ready to effectively represent him at a trial, and

believing that because their lack of preparation, consultation,

and investigation might very well lead a jury to sentence hi-m to

death, he entered a guilty plea to the rape charge in exchange

for a life sentence and the Cismissal of the four robbery charges

When he left court on April 6, 19'11, he had received five con-

secutive life sentences.

The standard that attorneys Scholl and Garrett should

be held to in determining whether their professional assistance

complied with constitutional reguirements must not be lowered by

the fact that Johnny Harris finally entered a guilty Plea. The

attorneys had to prepare Harris'defenses as if all five cases

were going to be tried. The voir dire of jury had even commenced

before Harris finally broke down and plead guilty. Harris'

court-appointed attorneys had a cLear responsibility to be pre-

pared on April 6, 197I, to try whichever capital felony the

State was going forward rvith that day even though Harris eventu-

a1ly plead guilty. As early as 1948, the Supreme Court, speaking

through Justice BIack, declared,

- 13 -



"An accused is entitled to rely upon his courrsel

to make an independent examination of the facts,

circumstances, pleadings and laws involved and

then to offer his informed opinion as to what

plea should be entered. "

von Moltke v. Git1ier, 332 U.S. 780, 721 (1948) -

Starting with the historic and landmark case of

Powell v. Alabama, 287 v.S. 45 (1932), (See also, 22A Al.a. 524,

Chief Justice Anderson dissent), the United States Supreme Court

began defining the reguiremenLs of the sixth and Fourteenth

Amendments' guarantee of the right to effective assistance of

counsel. fhere the Court stated:

"In a capital case, where a defendant is unabfe
to employ counsef it is the duty of the
court . . to assign counsel for him as a
necessary requisite of due Process of lar'r; and
that duty is not discharged b1' -rt assignment at
such time or under such circumstances as to Pre-
clude the givirrg of effective aid in the pre-
paration and trial of the case- " Pot"el-l, suPra,
at p. 7L. "The record inoicates IEEE-TIE-EIpEr-

:" :" . :i" ;il:il, etn=,o*:8.'ll" 6l'10u 
s an d ac ti ve

With the expansion of Lhe right to counsel,increased responsi-

bilities have been placed on attorneys. This is-even more true

in situations of a guiltY P1ea.

In I'lct'lann v. Richardson, 397 U.S' 159, the Supreme

court timited the manner in which a guilty plea could be

collaterally challenged solely to the question of the effective

assistance of the defense attorney. McMann, supra, p. 1449. But

in limiting the attacks on such a pIea, the Supreme Court clearly

defined a standard that criminaf attornel's shoufd be held to in

giving their assistance. That test is whether the representation

given the defendant by the attorney "was within the range of 
I

competerrce demanded of attorne)'s in criminal cases

!_lrPrg, p. 1449.
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. " Mcl.lann,



The fifth Circuit Court of Appeals has stated in

Herring v. Estelle, 491 F.2d 125 (1974), that "Since 1960 we

have applied the reasonabLy effective assistance standard

at p. !2'7, and that whether the proceedings were a farce or

mockery,

"is but one criterion for determj-ning if an

accused has received the constitutionally

reguired minimum representation." At p. 128

In a case very similar to the present situation,a defendant

resisted pteading guilty until the day of trial when his attorney

finally convinced him to change his p1ea. Colson rz. Smith, 438

F.2d 1075 (5th Cir. , l-97I) . The Fifth Circuit ruled ineffective

assistance of cor.rnsel.

Increased demands and greater specialization has

caught many attor-ne)rs unPrepared to try serious criminal cases.

Chief Justice i,,larren Burger has stated that "from one-third to

one-half of the lawyers who appear in serious cases are not

rea11y qualified to renCer fully adeguate representation." 42

Fordham L.R. 227, 23A (1973), "The Special Skills of Advocacy."

The State of Alabama has responded r:o these increased

burdens placed on attorneys by the legisl.ature enacting Title 15

S 318 Ala. Code (1958) whereby appointed counsel wouLd be paid

S100 for fees and expenses. AdditionaIly, the Alabama Legislature,

recognizing the immense difficulty in undertaking the task of

representing an indigent faced with a capital crime enacted

Title 13 E 5-37 AIa. Code (1975) , which requires that any atiorney

appointed to represent such an indigent defendant must have five

(5) years experience as a lawyer. If Title 13 S 5-37 Ala. Coce

(1975) had been in effect in 1970, attorneys Scholl and Garrett

would not have been qualified to represent Johnny Harris because

of their lack of experience

-15 -



SPECfFIC I}JSTANCES
Of COtltrtSCL

OF INEPFECTIVE ASSISTANCE

An examination of the entire record and of the totality

of the circumstances will clearly show that the attorneys appoint-

ed to represent Harris did not girre effective assj-stance of

counsel.

1. Lack of Prel-iminary Hearing.

Standing al-one, the waiver of a preliminary hearing by

Attorney John Prince against the wishes of the defendant would

not constitute inadeguate representatio:r. But in the context of

the many failures of Harrisr attorneys and the fact that ilarris

was charged with five capital fel-oriies, it was an important

waiver of his rights. Attorneys Beddow, Redden, Esdale and

Knowles testified to the importance and val-ue of a preliminary

hearing in Alabama. In Co]ernan v. Alabama, 90 S.Ct. 1999 (1970) ,

the Supreme Court ruled tha-u the prelimi-nar), hearing in Alabama

was "A critical stage" of the State's criminaL proceedings and

set forth the need for counsel at such hearings.

At the prelirninary hearing weaknesses in the State's

case may be exposed and charges dropped. Preserva+-ion of favor-

able or impeachabfe testimony can be obtained. Discorzery of the

State's case can be made and bail- restrictions can be fought. It

is aLso an opportunity for the defendant to see witat the State

has against him. Justice Black, concurring in Coleman, stated:

" . every attorney with experience in repre-

senting criminal defendants in . Afabama knovrs

*- sometimes from sad experience -- that adequate

representation reguires that counsel be present at

the preliminary to protect the interes-us of his

client. "

Coleman v. Alabama, supra, at p. 2005.

B

- 15-



2. Lack of ALtorney-Client Consultation.

The 1aw is novr clear that. if an attorneir is appointed

to represent a defendant only on the day of trial a prima facie

case is nade out of inef fective assistance of co.-nse1. Brorvning

v. State, 326 So.2d 778 (AIa. Ct. Crim. App., 1975), Kearley v.

State, 293 So.2d 322 (AIa. Ct. Crim. App., 1974), State v.

Anderson , 285 A.zd 234 (N. J. , f 971) , U. S. ExRel Ki:nbrough v.

Rund1e, 293 F.S. 839 (D.C.E.D. Pa., 1958) , Herriig rr. Estell-e,

191 F.2d 125 (5th Cir., 1974). There is no time for investigation

consul-tation or research into legal guestions if counsel is

expected t.o tr), a case the day he is appointed.

"The appearance of unprepared counsel particul-arJ-y

in a serious fel-ony case as here, might be con-

strued to be the equivalent of no cor:nse1 at all

.-t'

Bror^':ning v. State, supra, dt p. 780.

I-oUIS SCi]OLL.

.}rr attorney who is appointed several mcn-.hs before the

trial date but who Coes no pre-triaI investigaiion, has no con-

sultation vrith his client or conducts no researci into possible

Iegal issues is the eguivalent of no counse] at all. The record

is clear -.hat attorney Scho}l, and he a1one, was appointed by

Circuit Judae h'aLlace Gibson to defend Johnny Harris against the

charges of the rape of Anne i.Jailes, Case No. 21835, the robbery

of Clyde Eodie Blaylock, Case No. 21835, and anoiher robbery of

Clyde EdCie B1a1,lock , Case No. 2L837. Contrar), io lir . Schol1 ' s

testimony at the coram nobis hearing, the overv,'helning evidence

is that even though he was chief trial counsel,:e never con-

ducted a:'ly meaningful consultation with Johnny Harris and only

saw I;arrLs the day of his arraignment, and the i,a1'of April 5,

197f, when the jury was chosen. The Jefferson Cor:nty Jail

- 17-



records, Mr. Scholl's seven-page fiIe, Mr. Garrett's testimony

that Harris wanted a meeLing together with scholr and Garrett
but it never happened, and Johnny Harris' testinrony aII confirm

t}le obvious that scholl did not consul-t with Harris about the

three capital felonies he had been dppoj-nted on. The seven-page

.file of attorney Scho11's "is an eloquent testament to the

quality of representation by his counsel." i{alker v. Caldwell,

476 E.2d 213, 223 (5th Cir., 1973).

Meaningful and not perfunctory consultation by an

attorney appointed to represent an indigent defendant facing
three capital charges is constitutional]y mandated. Taylor rz.

State, supra, at pp. gO4, 905; Bror*ning v. State, supra, at 119;

U.S. ExRel Kimbrough v. Rundle, supra, at p.842; Lloyd rr. State,
170 N.E.2d 904 (Ind., 1960); Coles v. Peyton, 389 F.Zd 224,226
(4th Cir., 1958); I'lcQueen r'. Sr,'zenson, 498 ?.2d 207, 215 (Sth Cir.
l9'14); Bush v. State , 209 So. 2d 695, 697 (Fla. , 1968) ; Irrest v.

Louisiana, 418 f.2d 1026 (5th Cir., 1973); Powell v. Alabama,

supra, at 57. Pinei.a v. Bailey,

I,lal-ker rr. Cal-dwel-1 , 416 t.2d 213

340 F.2d 886 (5th Cir. , 1968) ;

(5th.Cir. , 1973) .

MTLTOI{ GARRETT.

Attorney Garrett rvas specifically and only appointed to
represent Johnny Harris on Case No. 21838, robbery of Janice Sue

Best, and Case No. 21839, rob))ery of Lnne I^laiLes. Mr. Garrett

had several ineetings with Mr. Harris at the jail where he was in-

carcerated under no bond for eight months before his trial. At

most, the total amount of time Mr. Garrett spent with I,1r. Harris

was approximately four-and-a-ha1f hours, according to the jail

records of those visits. During the crucial period immediately

before trial, the last visit he received rvas 15 days before his

trial.

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3. I,ack of Investigation Into and the Filing of
E\rppression l{otions Concerning the LegaLity
of the Warrantless Arrest, tm
erzure, the Lj-ne-up, uest ior "Bra

ert a

Everyone, j-ncluding the record of the 1970-71 proceed-

ings, agrees that none of the court-appointed attorneys filed any

pre-tria1 motions even though there had been a warrantless arrest
a warrantless search and seizure of the Appelrant's dwerLing and

belongings, and a line-up.

MIL"ON GARRETT.

At best, attorney Garrett considered atLempting to get

a preliminary hearing for Mr. Harr.is, and he consi-dered filrng a

motion to suppress the items seized at Harris, house. He had

been told by the Appellant that the police hao photos of him at
the line-up. But none of these areas \t,er€ pursued by motion and

a reguested hearing. Al-so there u/as no verification of any lega1

research into any of these areas by Mr. Garrett's file or Mr.

Scho1l's seven-page fi1e.

In Commonwealth v. HilLman, 351 A.2d 227| the Supreme

court of Pennsyrvania held it was ineffective of counsel for the

attorney to fail- to pursue the issue of the line-'up identification
when it was brought to his attention it might further his clientrs

defense- In King v. Beto, 429 F.2d 221 (5th Cir., I97O), where

another defense attorney had "lost" his notes pertaining to the

defense, the District Court chose to discredit much of the State's

testimony. There a defendant, charged with heroin possession,

lras passed among three attorneys. One of the three defense 
l

attorneys had a file consisting of one pa9e, and no nroLion to 
i

suppress had been filed. It was ruled there had been ineffective

assistance of counsel-. King v. Beto, supra. See also, In re

Williams, 460 P.2d 984 (Calif., 1969), where a possible }ega1 
,

_ 19_



defense was not researched. Wa1ker r'. Caldwe11, supra, where

there was no recorC of the guilty plea proceedings, no investi-

gation or consultation and no motion to suPpress filed. Moore

v. United States, 432 F.2d.730 (3rd Cir., 1970), where the public

defenders office made no effort to investigate a Line-up.

LOUIS SCHOLL.

Attorney Scholl testified tlrat the only special plea or

nrotion filed in the case was a not guilty plea entered at

arraignment. At best, there was manifest confusion between

attorneys Scholl and Garrett as to who was resPonsible for this

area of case preparation bui a more Probable concLusion is that

neither took on responsibility.

4. Lack of Investigation Into the State's Case.

}i.TLTON GARRETT.

Specifically appointeC on the Case No. 21838 robber)r of

Janice Sue Best, at the most, attorney Garrett thouqht he might

have interviewed her over the phone, but his file contained no

verification on this half-hearted effort towarCs investigation.

There is no evidence whatsoever of what the defe4se vras going to

be to this robbery.

Concerning the other case he was appoi::ted on, Case No'

2L839, robbery of lrnne lrrailes, at best he interviev"ed the alleged

victim outside the courtroom the day of the suppcsed triaf anfl

while her mother h'as present at all times. There was no investi-

gation in-,o the medical evidence of the alleged rape' There was

no inquir), into the alleged rape victim's reputation or back-

ground. Garrett Cid work on the B1ar,l-ock robberl'case that he was

not appcinted on. He read in the newspaper what Blaylock said

about the robberies, but there was no check into Blayfock's

criminal record. He nade no i-nvestigation into possible motive

for the arrest.

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LOUIS SCHOLL.

Attorney Scholl was supposed to talk to the District

Attorney's office about the evidence against l'1r. Harris, but if

he did that he never pursued any inforrnation that he obtained from

them. Ile did not attempt to interview the a11e9ed rape victim or

check into the medical records.

ThetokeneffortofattorneysGarrettandScholfto

learn about the evidence against Harris can in no way satisfy the

constitutional mandate when a defendant is charged with five

capital felonies. It must be remembered that Garrett and Scholl

announced "Ready" on all five charges on April 5, 1971'

"The exercise of the utmost ski1l during the

trial is not enough if counsel has neglected

the necessary investigation and preparation

of the case or failed to inierview essentia]

witnesses or to arrange for their attendance.''

Moore v. United States, 432 F.2d 730, 739

(c.A. 3, 1970) .

The case with the "heat" on it and the case the state

chose to try first v;as case No. 21836, the alleged rape of Anne

I,lailes, a white woman. An alibi defense would have been, if

believed by the jury, a val-id defense' Unfortunately, the

attorneys so misrepresented .to Mt. Harris the information their

half-hearted investigation had turned up concerning his alibi

that their assistance \'ras virtually worthLess. Another iefense

to the charge of rape would have been consent, but no effort vras

madebl,eitherattorneytopursuethisavenueofdefense.This

failure r','as inef fectirre assistance of counse]'

21



ll-isrecresentation of and Lack of
Preca:ation of the Defense.

LOUIS SC:JCI,L.

Attorney Scholl- as chief trial attorney never investi-

gated possible defenses in the cases he was appointed on because

he said Garrett was going to do that (n. 220). Even if Garrett
-had adequately precared the cases for Scholl to try, which he

didnrt, there is still no way that Schol-I or even the best

criminal trial lar"1,e-r coul-d have been an ef fective trial advocate

for a defendant charged with five capital felonies.

MILTON G1P-D€?T.

The best argument of the State that Harris received

adequate represen-i=tion was the allegation that attorney Garrett

investigated Harris' alibi defense. But thaL minimal effort put

forth was so poorly.' and incompetently done that Garrett ccn-

pletely ntisreprese::tei what the alibi rvitnesses said when lre

talked to his clie:t. Garrett testified that he talked to five

people who verified iiarris' alibi on the night of the rape-

robbery and their s-'atements to him had no significant discrepan-

cies (n. 566, 567). Yet when he went to see Harr:is to inforrn him

of his investigat:cl into the alibi, he told liarris, "I've got

you about five alipis" (n. 608), meaning five different alibis.

Garrett a11eged1y -.cid Scholl that "unfortunately no two of them

(aIibi rvitnesses) ag:eed" (R. 220) . Garrett admitted that five

people supporteC ilarris' alibi, but rvhen the statements of two

alibi witnesses char:ged in regard to the time Harris arrirzed

home, Garrett must iave believed Harris' defense had collapsed

because of what he '-::en stated to Harris and Schol]. Garrett

made no further eiic:t to reconcile the different statemenis

made by tv,,o of the al-ibi witnesses even though he was interview-

ing thern some fj-ve rpn-uhs after the incident had happened. When

5.

i

tl

I

- 22-



Harris did not receive accurate or correct advice as to the

strength of his alibi defense, he was not able to exercise in-

dependent, voluntary, knowing, intelligent, and good judgurent in
making his decision to plead guilty.

". significant misleadj-ng statements of

counsel can rise to the level of denial of due

process of Law and result in a vitiation of the

judicial proceedings because of the ineffective

assistance of counse1. "

Cooks v. U.S., 461 P.2d 530,532 (5th Cir., L972).

Because Harrisr attorneys did not diligently or

vigorously pursue preparing his alibi defense, their actions were

no Cifferent tha:r if they had ignored the names of al-ibi wit-

nesses ilarris gave then. The result v,'as the sane. Courts have

not hesitated to hold that there was ineffectir:e assistance of

cor:nsel when defense counsel have failed to adeguately inrresti-
gate and prepare alibi witnesses.

In Johns v. Perini, 440 F.2d 577 (6th Cir., 1971), the

Sixth Circuit Court of Appeals vacated a conviction when the

defense attornel, failed to introduce into evidenc'e employrnent

records that suppo:'ted the a1ibi. See also, BeasLey v. U.S.,

491 F.2d 687 , 69I (5-'h Cir., 1974), (rr'here alibi witnesses Cied

havingi not been int.erviewed by defense attorney). In U.S. ExReI

Green v. Rund1e, 325 F-S. 456 (E.D. Pd., ]971), the Court granted

a defendant a new trial based on his court-appointed attorneys'

ineffectiveness because they had not investigated Lhe aLibi

defense. In Dixon \,. Hopper,407 F.S.58 (11.D. Gts.,1976), alibi

witnesses were neither interviewed nor call-ed to testify, and

this failure along w:-th others constituted inadequate represenat-

tion.

- 23-



Defense counsel must investigate all apparently sub-

stantial defenses available to the defendant and must assert them

in a proper and timely manner. Reece v. Georgia, 350 U.S. 85

(1955). Even if I'1r. Harris told his appointed attorneys his

defense to the rape charge was a1ibi, that diC not relieve them

of their professional responsibility of investigating other

possible defenses to the charge and so informing their client.

Only then would he be in a knowledgeable position in which to

determine tvhat defense to use. But he v/as never given such

assistance.

"Counse1 must conduct appropriate investigations,

both factual and Iegal, to determine if matters

of defense can be developed, and to alfow himself

enough time for reflection and preparation for

tria1. "

Coles v. Peyton, 389 E.2d 224,226 (4th Cir., 1968)

See afso, Americal Bar Association, Canons of Professional

Ethics, Canon 5.

In Coles v. Peyton, supra, the appointed counsel were

unaleare that the prosecutrix had been examined meCically or that

there \{as a medical report. Additionally, there was no investi-

gation into the reputation of the woman. The Court stated,

". some inquiry should have been made to as-
certain if the prosecutrix were medica111, examj-ned,
not only because tire report which was in existence
woul-d be proof supporting a lack of penetration,
but also because the report disclosed the identi-'y
of the medical examiners from whom inquiry could
be made as to whether their exarnination disclosec
the presence or absence of signs of phyrsjgal rzio-
lence on the person of the prosecutrix with iLs
direc-" relevance to the guestion of consent. "
Coles v. Peyton, supra, at p. 227.

In Smal lwood r'. ltrarden , 2 0 5 F. S .

of the failures of the

failed to investigaLe

defense attorney was

the reputation of the

325 (D.l'1d., 1962), one

that in a rape case he

prosecution witness.

-24-



This was one of the failures that led to a holding of ineffective

assistance. Likewise, in Harris v. Towers, 405 F.S. 497 (D.Del.,

1974), even though the attorney interviewed the exarnining phy-

sician and reviewed the medical reports in a rape case, the fact

that the attorney did not pursue this possible line of defense

contributed to the judgment of ineffective assistance of counsel.

See also, State. v. l'lerchant, 211 A.2d 752 (Md., 1970) , where

because the attorneys disbelieved the defendant's defense of

consent to rape they didn't pursue this defense or investigate

into the reputation of the prosecutrix. The Court held ineffec-

tive assistance.

Of crucial importance was the medical report in the

rape case. That report that Harris' court-appoinied attorneys

never bothered to revi-ew in 1971 and that the lorver court triaL

judge refused to a1Iow Appellant official access to fails to show

any evidence of forced intercourse. The report states there were

no "lacerations," "bruises," or "lesions" on the v)oman's body.

6.. Lack of Adequate Preparation for Trial.

On April 5, J.9'71, Garrett and Scholl announced to the

Court they were ready to try a1I firre cases. This statement was

made erren though no further investigation or preparation had been

done into l.tr. Harris' "five aIibis, " Giving a.ttorneys Garrett and

Scholl' s remarkable testimony more creCibility than it deserrres

for the sake of argument, at most, four hours had been spent in

defense preparation on the Best robbery. T\^ro hours were spent on

the B1a1,1ock robberies. The rape victim had not been interviewed

nor had the medical report been examined. Neither of }larris'

attorneys had seen him since l,larch 23, 1971 (n. l-'1 2), and nei'"her

of the attorneys coul-d recall if Harris was going to take the

stand in his defense. As the Supreme Court stated in Powell v.

-25-



Ala-bama, supra, "it is not enough to assune that counsel

exercised their best judgment in proceeding to trial without

preparation." at p. 58.

There is no dispute and the record is clear that no

defense witnesses were subpoenaed to tria1. Johnny Harris testi-

fied that none of his wilnesses r',,ere in Court (R. 665) . Scholl

- testified defense witnesses vrere there but how he knew that,

since he had not interviewed or met them, is unexplained.

Garrett testified that Harris' fami11, was in Court, Yet his own

file indicates the family moved to Mobile in February, L97L.

Harris' attorneys stated that as a tactical maneut,er they did

not subpoena rvitnesses to court because then the State woufd

knor.r who their witnesses were going to be. If that be true, and

it must be seriously guestj-oned, they did not use such tactics

against the State and thereby interrziew the witnesses the State

had subpoenaed for trial, such as the aI)-eged rape victim and

Dr. Rudolph }lj.ntz, the examining ph1'sician.

THE GUILTY PLEA WAS NEITIIER i(NOI{I1iGLY
NOR VOLUNTARILY MADE.

The Appellant contends that the "shortcomings in (his

court-appointed attorneys') representation .'so distorted the

alternatives avai }able to (him) that his pleas lacked the re-

guisite cognition." Lee v. Hopper, 499 F.2d 45E, 462 (5th Cir.,

Ig74). On April 5, tg'| I, in spite of his attornel's' Lack of

preparation, consultation with him and investigation, he still

wanted to put the State to the test of a trial.

As a black man, he stood facing a charge, rape of a

white h'onan, that has an infamous history in the South. The

pressures that v.'ere on him surrou:rded by a white legal s)'stem are

knov,'n only to the black men facing the same situation -- the

Scottsboro Boys (although at least they could gather strength

I

i
i

!

!

i

- 26-



from one another), Wi1lie McGee of Mississippi, and more recently,
Thomas lJansley of Virginia and Wi1lie Burnett of Kentucky. Of

course, the electric chair was a real alternative in 1971.

The reality of Johnny Harris' situation on April 6,

L971, did not allow him to be a free agent to plead guilty. Our

Iegislatures and civil courts have developed compensating doctrines

in the field of consumer 1aw where grossly one-sided agreements

are often extracted from iII-informed purchasers with little

bargaining power. See State v. Baker, 108 So.2d 351 (1959) and

?itIe 15, S 253 Ala. Code (1940). "Contracts of adhesion" are

readily invalidated. This court should not put its stamp of

approval on this "deal" between the State with aII its resources

and an rrninformed, powerless, and unrepresented defendant.

The action condemned by the Supreme Court in Powell- v.

Alabama, supra, was that in appointing the entire Scottsboro Ear

to represent all the defendants, until the date of trial no law-

yer was specifically responsible for any specific case. During

". the most critical period of the proceedings

against these defendants, that is to say, from the

time of their arraignment until the beqinning of

their trial, when consultation, thorough going

investigation and preparation were vitally irn-

portant, the defendants did not have the aid of

counsel in any real sense, although they were as

much entitled to such aid during that period as at

the trial itself. "

Powell v. Alabama, suDra, at p. 57.

So that there roould be no question as to rvhich attorney

was responsible for which cases, Judge Gibson specifical-Iy in his

letter of appoirttment designated what cases each attorney was

- 27-



responsible for. The so-caLled informal agreement, that surfaces

soine seven years afLer the fact, between attorneys Garrett and

Scholl \.ras never authorized by any court or agreed to by the

defendant. If there was such an agreement, and that must be

seriously questioned, it containeC within it the evils condeinned

by Powell v. Alabama, supra, p. 55. l{hich attorney had the

responsi-bility to see that the alibi witnesses were at court the

day of trial? (n. 586, Garrett; R. 297, scholl). whose responsi-

bility was it to handle the technical and research matters that

nr-iEht arise during pre-tria1 preparation: (R. 505, Garrett; R.

227 , 230, Scholl-) .

The coattaif s of l.tilton Garrett's hal-f-hearted,

inconplete investigation over the telephone and bv reading ne\.rs-

paper accounts are not wide enough for either Garrett or Scholl

to ride on. The special- visitor records of the Jefferson Cou:rty

Jail, Scho'Il 's seven-page fiJ-e, the original trial record, and

Garrett's file vividly and conclusively point to the only con-

clusion that Johnny Harris' attorneys Cid not give to hin the

effective assistance of cor:nsel that he was constitutionally

entitled in Cases No. 21835,21835,21837,21838, and 21839, and

he rnust be given a new trial and the opportunity to prove his

i-nnocence on these charges.

-28



ITI

THE PROPER DEGREE OR trErGHT OF EVIDENCE
REOUiRN

THIS PETITION FOR hTRIT OF ERROR COP3J.l NOBTS
sHouin

This court should reverse the court below for holding
that the degree of proof required of petitioner is the',highest
used in any civiJ- action." Opinion, 9. The Court of Appeals,

adhering to prior rulings of this court, €.9. Vincent v. stater
284 Ala- 242, 224 so.2d 601 (19G9), and its o\dr precedentsr €.9.
Burden v. State, 52 Ala. App. 348, 350, 292 So.2d 463, 465 (\g-74)

helc petitioner to a burden of proof so harsh in degree that it
is no longer acceptable to the cor.imitlee appointec by this court
to draft the new Proposed Alabama Rules of criminar procedure, or
the Alabama Law rnstitute, or the American Bar Association.

The Court of Cr'iminal Appeals held that "appellant !:as

failed to carr), the very hearry burden of proof demanded in a

petition for writ of error coram nobis. (opini-on, 7i emphasis

is original.) The court stated that a petitioner has the burden

of " f uI11,, clearly and satisfactorily,' proving the allega-"ions,
and that the degree of proof reguired is "highly exacting as to
proof of facts and always more than reasonabl-y satisfying. "

PF.OPOSED ALABAYA RULES OF CF.II,{I]]AL PRCCEDURT
REQUIRE THE t{Op€ LE:iIFNT ,,pR-EpC)NDEnai.rce o,.trs@rE@. -

The proposed Alabama Rules of Criminal procedure, now

receiving final consideration before this court before adoption,
were drafted by a committee appointed by this Court. The

Com:irentary accompanying the proposed Rufes was prepared by the

Alabana Law rnstitute. Before wri.ting its draft, the committee

exarnined and studied the Federa] Rules of criminal procedure, the

uniforrn Rules as we1l as rul-es from a r.;ioe varrety of other states,
39 Alabama Lawyer 170, Apri1, 1978, "The present Alabama practice

was generally followed r,Lrrl-ess there \{ere verv sLrong reasorrs for
changing." Alabama Law1zs5, fd. at 170. ,

- ,o -

'iI
I



One of the changes is proposed RuIe 32, a unitary Post-

conviction remedy combining habeas corpus and coram nobis pro-

ceedings. Under Proposed RuLe 32.7(c), "the petitioner shalL have

the burden of proving the allegations of fact by a preponderance

of the evidence. Lf. a constitutional defect is proven, the

district attorney shall have the burden of proving that the defect

was harmless." Draft, Proposed Rule 32, 5/l/77. The Comment to

the proposed rule states: "section (c) contains the generally

applicable standards governing burden of proof."

The proposed rule follows exactly Remedy E 4.6 (d) of

the American Bar Association Standards Rel-ating to Post-Conviction

Remedies (Approved Draft, 1968). 1n approving the preponderance

of the evidence " formula" for the weight of evidence required of

a petiLioner in post-conviction proceedings,the American Bar

Association recognized that proper.proced.ural requirements re-

garding issues such as degree of proof are a vital- aspect of

fair post-conviction proceedings.

"To experj-enced lawyers, it is commonplace tha+-
the outcome of a fawsuit - and hence the rrindication
of tegal rights - depends more often on how tlle
factfinder appraises the facts than on a Cisputed
construction of a statute or interpretat;on of a
line of precedents. Thus the procedures by which
the facts of this case are determined assume an
importance fu1ly as great as the valii:t1z of the
substantirre rule of law to be applied. AnC the
more important the rights at stake, the more irn-
portant must be the proceduraL safeguard's surround-
ing those rights In all kinds of litigation
it is plain that where the burden of proof lies may
be decisive of the outcome.
Speiser v. Randalt, 357 LI.S. 513, 520-21, 525 2 L.Ed.2d
Iare2 (1958), cited in F.BA, Post
Conviction Rerred.ies, supra g 4.6, Commentaiyl

The United States Supreme Court 
,approved 

the

ponderance of the evidence" Cegree of proof for Federal

corpus petitioners in Johnson v. Zerbst, 304 U.S. 458 (

"pre-

habeas

1937).

- 30 -





As this Court is now at the point of abandoning the

oId, extremely harsh degree of proof for al-l petitioners seeking

posL-con\riction relief, Petitioner should not be denied relief

on the basis of a rule now widely recognized as being unfair,

urrjust and unpalatable.

-31 -



IV

THE COURT BELOTI ERRED IN UPHOLDI}.]G THE
TRIAL COURT'S REFUSAL TO ALLOI.] PETITIO}iER
TO OBTA]N A}]D PUT ON E\/IDEIiCE I.THICII I,iAS

pnopeRiy r:rrie
INQUfRY I\: ALABAI'iA AIJD THAT 'l.lAS PROBATIVE
OF IMiOCENCE AND II\ICOI.IPETENCY OF COUNSEL

' Proof of Innocence, Yqljd Defense or prejudice Has
c,"r,eru[v ESSI lgfg Ig !9 @ gE

' Proof in Alabama Coram Nobis proceedings.

For over 30 years, apperlate courts in Alabama have
rured that the pleacing and proving of innocence or a var-id
defense is a reguired eLement of proof on coram nobis. See cates,
"Post Conviction Remedies," 2g A1a. Lawyer, 257, 266 (1961);
ExParte Taylor, 249 AIa. G6j, 32 So.2d 659 (tg1:.) , aff ,d, ?ayl-or
v. Alabama, 335 U.S. 252, 92 L.Ed,. l_935, 6B S.Ct. ]415 (1g47).
In Seibert v. State, 343 So.2d 7g7, 7gg, (Igi7), this Court
recentllr re-affirmed the

"wer-1 established principal that to be entitl,ed to
the writ fof coram nobis] the petitioner must aver
and prove tha'r he was innocent of the crimes for
which he stands convicted.,, (Emphasis is in original)

There is no apparent exception to this requirement for
those seeking to set aside a judgznent entered after a plea of
guilty. Among the cases citec as authority in seibert for the
valid defense requireinent are i,loodward v. state , 42 Ara. App . 552,
171 So.2d 452 (1965); Argo v. State, 43 A1a. App.564, 195 So.2d
901 (1971) Ccert. denied, 280 A1a.707, 195 so.2d 909, cert.den.,
389 u's' 865, 88 s.ct. r29,19 L.Ed. 2d r3o and Ric\erd v. state,

,44 AIa. App. 28r, 207 so.2d 422. rn each of these cases the remedy
I'

of coran nobis was sought subsequent to a guilty p1ea. see also,
Burden r,. State, 52 Ala. App. 34g, 2g2 So.2d 643 (1974); Baggett
v. state, 47 Ara. App. 2gg,253 so.2d 367,36g (1g73); and Free]and

,v. State, 43 Ala. F.pp. 106, I91 So. 2d 245 (1966) .
il
i

ti

{i

ii

-32-



An unsettled guestion in the ALabama appellate courts is
whether a petitioner is reguired to prove innocence or prejudice

if the gravarnen of his claim for coram nobis relief is that he was

deprived of the effective assistance of counsel. In Hamil.ton v.

Alabama, 368 U.S. 52 (1961), the tinited States Supreme Court held

lhat the Alabama court erred in denying coram nobis to petitioner

who had not been represented by counsel at his arraignment even

though he had not proved resulting prejudice. "When one pleads to
a capital charge without benefit of counsel, we do not stop to

determine whether prejudice resulted. " Id. at 55.

Since the Court in Hamilton eliminated the requirement of
proof of prejudice by lack of counsel, t)re Alabama Court of Appeals

in lr'hite v. State, 43 A1a. App. 535 , 537; 195 So.2d 542, 544 (1967)

removed the need to "aIlege and prove a valid defense if it

is proved that counsel did not attend defendant. " The issue which

has never been decideC in this court is vrhether there is any

significant difference, for the purpose of pleading and proof

reguirenents, between a case in which counsel was absent and one

in which, althouch counsel was present, his performance v.ras below

that which was ccns-uitutionally required. Petitio:rer submits that

the Court should first adopt a more objective test for determining

effectiveness anc aiequacy of counsel (See Part I) and then, where

it reaches a concLusion that a petitioner has carried his burden

of estabLishing ineffectiveness of counsel, it should grant reLief

regardless of the presence or absence of prejudice. ?his position

is argued persuasively in Cooper v. Fitzharris, supra, at 1164-

1165. In United S'iates v. Decoster, supra, aL 1204, and Coles v.

Peyton I supra, a-, 226 , the courts have held that once petitioner

has rnet his burden of sho\.ring inef fectiveness of counsel , the

burden then shifts to the government to show prejudi-ce. In the

instant case, the court clearly erred in narrowing the scope of

-33-



the inquiry by precluding petitioner from putting on evidence

highly probative of an element of his case v,'hich may still be

essential in Alabama.

Proof of fnnocence is ImPortant in Determining
Inconpetency of Counsel

ven if petitioner is not reguired to prove innocence

once he has met his burden of proving ineffectiveness of counsel,

petitioner nevertheless ought to have had the opportunity to put

on available evidence probative of defenses available to him. The

evidence at issue (see bel-ow) was probative of critical omissions

of counsel and of cause and effect between misconduct of counsel

and the p1ea, as petitioner was wholly dependent on counsel-'s

i-nformation and aovi-ce in deciding whether to plead guilty. As

the Court statec in l,loore t,. United States, supra at '1 3'l:

. Cf) he ultimate issue is not whether a defencartt

was prejuiiced by his courrs€i's acL or omission but

whether counsel's performance was at the leveL of

normal competency. That the client was prejudiced

by a failure in perforrnance is of course evidentiary

on the issue.

Cf Freeland v. Sta-,e, 43 AIa. App. 406, 19] So.2d 245 (1966)

A. Quashlng of the Subpoena for MeCical Records of
EEe-EIfEqEE nape victfn rr'as piEJuEfEial-srror-
anc i-:use of Jqsrc:.el Discretion.

trial court improperly quashed Petitioner's subpoena

to produce the Birningham University Hospital nedical
The

Cuces tecun

reports of ihe alleged rape yictim, ruling that such evidence was

not within the g:rview of a writ for error coram nobis (R. 113) .

Petitioner's at'-orney made an avor..'al into the record stating that

the nedica] reccrcs v.'ould sho'",' absence of any forcible ravishment,

bruises, or lacerations of the alleged victim (n. 116). Cou:rse1

- 34 -



for petitioner argued that facts tending to prove innocence that

should have been uncovered by competent attorneys and were not

uncovered and that were unknown to petitioner or the Court at the

time of trial were properly within the scope of the hearing

(R. 11s-116).

Attorneys Redden and Beddow and Judge Gibson, alL

presently or in the past experienced criminal trial practitioners,

each testified to the importance of investigating medical reports

of an alleged rape victim (n. 380, 699, 710). Their testinony

indicates that this .inquiry is apparently the minimum effort

reguired for rendering effectual assistance of counsel j-n a rape

case in Alabarna. According to Attorne), Redden, such reports are

crucial even if the defense is alibi. Such reports cou}C indicate

no evidence of occurrence of rape, in which case, the client has

an additional- defense to consider. At the very Ieast, as -l-ttorney

Redden explained, the reports could raise serious questions about

the credibitity of the prosecuting witness. In Alabama, the

credibility of the prosecutrix in a rape case is of particular

importance, since no corroborative evidence other than the alleged

victim's is requi::ed for proof. Robinson v. Statq,53 A1a. App.

145, 298 So.2d 75 (l-974); r{ifliams v. Stare, 335 So.2d 219 (1976).

Failure to investigate medical evidence of an alleged raPe was

held to be reversible error by the Fourth Circuit Cou::t of Appeals

in Coles v. Peyton, supra/ discussed above.

In the instant case, Attorney Scho1l testified that he

couls not recall if anyone inspected the medical rePorts. Apparently

no one Cid inspect thern, as co-counsef Garrett testified that he

did not even know the aileged victim had been examined by a

physician! If counsel did not knovr wha-u the medical repor'-s

showed, clearly petitioner had no knowledge of their existence or 
i

contents because, being incarcerated from the date of arrest until

I

:

-35-



trial, he was totally dependent on counsef to investigate the

facts. Consequently, it was prejudicial error for the trial court

to exclude evidence which would not only have been probative of

innocence but which, if known to petitioner at the tirne of trial,

coul-C have affectei his decision to plead guilty, and which,

additionally, certainly would have been procative of the issue of

competency of his counsel.

f t l.las Preiudicial- Error to Refuse to Allow
p e tl[fo n e ;-T o- oEE a i;--E;fden ce r r om Df s E rf c t
ettornel, and-PoTfEe rfTes.

The Court refused to al1ow Petitioner to exainine any

materials including Grand Jury notes, witness statenents, scienti-

fic reports, radio runs, physical evidence, gun regisirations, or

other evidence contained in the files of the District Attornel' 61pfl

the Bj-rmingham Police Department, ru1j.ng, as in the case of the

medical reports, that such information was outside the scope of

inquiry on the instant petition. The ruling was an abuse of

judicial discretion as Petitioner had no other access, other than

through the powers of the Court to obtain materials, otherwise

unavailable which v;ere directly probative of the issues before

B.

the Court.

The

u. s. 258, 36

Court improperly relied on Toll-ett rr. Henderson , 4Il

L.EC.2d 235; 93 S.Ct. 1602 (1973) ; and l.icl"lann v.

Richardson, 397 U. S. 759, 25 L.Ed. 2d 53, 90 S.Ct. l-L-4L (1970)

(n. 38, 39) as authority for guashing subpoenas for production of

documents probative of Petitioner's innocence and incompetency of

counsel. The Court mistakenl-y consiCered that because those

cases s-.ood for the proposition that subsequent to a guilt1, plea

a petitioner could not raise independent cl-aims of cons'titutional

violations occurring pri-or to the plea, their hcliings settled

the question of allowinq discovery of State's files to petitioner

seeking further proof of incompetencl' by attorneys Garrett and

SchoI I .

-36-

ts



In ToL1ett, a defendant who had plead Euilty to first

degree murder challenged the constitutionality of the Grand Jury

that had indicteC him on a habeas corpus proceeding. The Court

ru1ed, there, that proof standing alone of the unconstitutionality

of Grand Jury selection vras insufficient to overturn judgment

following a plea of guilty; that a successful collateral attack

would have reguired petitioner to demonstrate, in addition, that

the advice of counsel was not "within the range of competence

demanded of attorneys in crintinal cases," citing }icMann v.

Richardson, supra, aL 77L. The Court then stated:

"CounseL's failure to evaluate properly facts

giving rise to a constitutional claim or his failure

properly to inform himself of facts that uould harre

shovJn the exisLence of a constitutj-onaI claim rnight,

in particular fact situations meet this standard of

proof. " 4 11 U. S. , at 267 .

In the instant case, no pre-trial motions had been filed

in advance of trial. Such motions would have incLuded so-cal-l-ed

"Brady " motions, Brady v. llaryl,and, 37 3 U. S. 8 3 , 10 L. Ed.2d 2L5 ,

83 S.Ct. 1194 (1963) reguiring the District Attorneyrs office to

turn over any evidence in its files e>lculpatory to petitioner.

In 1970 and 197L, it was petitioner's affirmative duty to reguest

such information formally by motion. (See expert's testimony,

R. 375, Ai-g, 450) . l,laterj-aIs in the State's f ife concerning the

rape victim couLd have contained evidence probative of petitioner's

innocence or available defenses. State Prosecutor Russell stated

at the coram nobis hearing that his fil-es did include a statement

by the alleged rape victim (n. 128), Grand Jury noies (R. I21),

and a statement by robber), victim, Clyde Eddie BIa1,]6.L (n. 127).

Si-nce Scho1l never intervier.,,ed the rape victim anc since Garrett,

-37-



at best interviewed her in somewhat less than auspicious circum-

stances, i.e., in the presence of her mother in the ante-room of

the courtroom on the day of trial, the District Attorney's file

contained the only written statement available by the prosecutrix,

and her statement may well have revealed avenues of investigation

which Garrett and Scho11 were derelict in uncovering.
*Similarly, counsel spent a total of one hour investi-

gating the tr',o B1aylock robberies. Inconsistencies in the state-

ment given by Blaylock to police and the alleged statement to

Garrett might have indicated additional defenses. Materials per-

taining to the State's evidence on the alleged robbery of Janice

Sue Best could have revealed defenses in a case where counsel

admittedly did practicaily no investigation. If such information

was contained in the State's fil-es and counsel had not adequately

sougl'rt the information and had conseguently failed to adrrise their

client properly, sucir material woul-d be enormously probative of

competency.

Additional).y, no motions \.rrere f iled by ScholI or Garrett

seeking to determine the legality of the vrarrantfess arrest, the

warrantless search of Petitioner's ]rome or the procedures nsed in

the line-up where Petitioner \.ras alleged).y identified by the

alleged rape victim. Because rrone of ihese discovery techniques

were utilizeC by counsel prior to Petitioner's !o-ca1Ied trial,

r. It deserved mention that following the Court's refusal
to aLlow petitioners to inspect the files of the Birmingharn Police
Department and the District Attorne\,, petitioner reguested the
Court to make an in camera inspection of the files and turn over
exculpatory materials to petitioner. Follor"ing in camera inspec-
tion, the Court deciined to turn over any materials, stating that
there rvas nothing exculpator]- "that would assist petitioner in the
hearing before us." (R. 514). Since the Court had improperly
narror+ed the scope of the hearing, ruling in effect -"hat evidence
of innocence l,.'as not before tl:e Court, the Court's ruling all-ows
no concl-usion that exculpatory erri-Cence on the issue of innocence
was not contained in the files.

- 38 -



Petitioner was denied the opportunity to determine whether he had

additional defenses, technical or otherwise or whether valuable

information existed that would have been useful in impeaching the

credibility of the State's rvitnesses, ff the files revealed

evidence of consti-tutional violations, they would certainly have

been probative of conpetency of counsel.

Mr. Scho1l testified that it was his responsibility to

discuss the State's case with the District Attorney. However, his

alleged notes coicerning this information and his no'ues of Grand

Jury testimony roere 1ost, according to Scholl. Because of the

lack of any pre-trial- discovery by Garrett and Schol1 (anc Attorney

Prince) and because the only alleged notes of the District Attor-

ney's fife were supposedly in Scholl's lost fiLe, Petitioner had

no opportunity or resource, during the coram nobis proceei,ing to

obtain and bring to the Court's attention evidence that rnay harre

indicated valid oefenses not known to counsel or himself at trial

which could have been knovrn had counsel competently and effective-

1y researched.and investigated the State's case.

Fi-les Discoverabfe Pursuant to
ALabama Rufes ot CrvrI Frocecure

District Attorney and Police Department files should have

been made available to counsel as part and parcel of Ciscovery

al-lowed pursuant to A.R.C.P. 26(b), available in independent civil

proceedings. Alabama coram nobis cases are replete with refer-

ences to the fact that appeltate courts have long considered the

reinedy "in the nature of a new civil suit," P.orr_.ar_E!"j9, 250

AIa. I44, 35 So.2d 518; "essentially civil in nature," ExIsIlg
i{ilson , 275 Al-a. 439, 155 So.2d 611 , 6L2 (1963) ; "an independent

civit proceeding," Pitt;nan v. State, 50 Ala. App. 712,282 So.2d

332, 333 (1973) . See a1so, ExPar-.e C1ark, 171 So.2d, 473 (1965);

2d 662, 664 (1971); Note252 So.State r,. Bibby, 47 l:,1a. App. 240,

"The li'rit of Error Coram Nobis in

285 (1950) ; Burns rr. Alabama, 377

Alabama," 2 Ala. Larv Rev. 281 ,

F.2d 233 (C.A. 5, 1967).

-39-



The Court Erred I'lhen It Quashed the SubPoena
for A11 Payment Voucirers of Attorneys SchoIl
and Garreit and Excluded Al1 Evidence Probative
of Acequacy of Fees to ProviCe Effective Assistance
of Cou:rse1 on Capital Cases.

Petitioner, through counsel, atternpted by subpoena

tecun to obtain the State Comptroller's payment vouchers for

duces

C.

all

court appointrnents of attorneys Scho11 and Garrett. Prom these

records, Petitionel's counseL explained, Petitioner could Ciscover

the names of each of the cases on which the two attornel's had been

appointed and thereupon examine the records and Cisposition of the

cases. ff the evidence shovred they did nothing on their court-

appointed cases but plead defendants guilty, that fact r+ould have

been highly probative of inconpetencl,. It woufd have also shown

the constraints j-nherent in representing PersonS on capital cases

under the terms of then existing Title f5, S 318 Afa. Code rvhich

prescribed a maximum of $100 to be paiC appcinted coutrsel for fees

ar:d expenses. The Court quashed the subpoer,a (R. 331).

The Court also refused to permit Attorney Redden to

testify on fees required to prorride adequate defense of perso;rs

charged with mul-tip1e capital fe1on1, charqes and, additionally,

refused to permit A-utorney Redcen to testify as to his expert

opinion whether an adequate investigation anC defense preparation

could be acconpLished within the f::amework of a provision of $100

for all fees and expenses (R. 387).

Both rulings were in error. As the P.labama supreme Court

stated in Taylor v. State, !!-pre,at 908, the standard of pro-

fessional legal service for court-appointed attorneys in crirninal

cases must be equal to that of the ordinariil'skilled attorne\' \t'ho

is privately retained- Both inguiries were inherently probative

of competency oi attorneys scholl and Garre'"t, generalfy, and

should have been al1owed.

I

l

I
i

i

I
I

l'
I

- 40 -



ar

tl

, D. The Court's Order Limitine The Scope of The
Eearffi-e-to-Tffi1ffi-f Tffi 6u$v-Tree- 

_

anE-EEEective Assistance of Counsel Improperly
fficfffi-Eiffiffio,!@
friEtce-pi56EEi6-6 r-ffi'offiil

From the Court's repeated rulings indicating he wouta not

consider evidence relating to matters not directly linked to the

validity of the guilty pleas, E.9., quashing of subpoenas of medi-

cal- reports, police fiLes, District Attorney fi1es, Grand Jury

notes, it was manifestly aPParent that an offer of direct testi-

mony by Mr. Harris' alibi witnesses would have been a futile

gesture. The narrow ruling which precluded such evidence as

alibis was an abuse of judicial discretion for the reasons stated'

earlier in this section and was prejudicial error.

- 41 -



Cr

tl
V

THE PROCEEDINGS SURROI.AIDING THE
TAXING OF APPELLANT'S GUILTY

PLEA WERE NOT RECORDED IN VIOLATION
OP HIS RIGHT TO A FATP. TR]AL

The plea of guilty on April 6, 1971, of }lr. Harris on the

five charges was not recorded by the court Reporter. The court
Reporter testified it was not the usual practice to record guilty
pleas (n. 80). I{ith there being no record of the proceedinos, it
is impossible to determine if the plea was made voluntarily or
knowingly. The Ireland Form (Court's Exhibit ,A', , R j26, 779,

869,914) is not sufficient and does not meet constitutional re-
quirements. cooper J. state , 2g'7 so.2d 16g (c.c.A. , LgTa) ;

I{al-cott v. State, 253 So.2d 178; Boykin v. Alabama, 395 U.S. 23g

(196e).

It is clear from appellant's

hearing that the guilty pleas were not

of a record of these proceedings, his

facie evidence that his pleas \.rere not

or knowingly made.

testimony at the coram nobis

validly made and for lack

testimony must be prima

voluntarily, intelligently

-42-



vr

rHIS COURT SHOULD REVIEW THE TRIAI
COURTI S FTNDINGS OF EFFECTI\IETT.ESS

AND COI'/TPETENCY OF COTINSEL BASED ON

EVIDEI']CE }iOT 11{ THE RECORD

The only finding of fact in the Trial Court's decree

regarding the competency and effectiveness of attorneys Scholl- and

Garrett in Johnny Harris' case was the following:

"This Court further finds that the coLlrt-
appointed attorneys, Honorable Louis Schol1
and Honorable }lilton Garrett \rere and are
competent and effective Cefense attorneys to
represent indigents in any jurisdiction.
Both of these attorneys have handled nunerous
crininal matters competently and effectfveTy
fn trrls court and tE?ITfve-ases G--;-l-cue.stioii
EEre are no exception." (n. 773) (Emphasis added.)

No evidence of attorney Scholl's or attorney Garrett's

legaI efforts in other proceedings before .Tudge Jasper had been

placed in the record on Johnny Harris' coram nobis proceeiing.

The Trial Court r,,/as not finding a fact r',ithin the recorc but rvas

reporting on its observations as a r..'itness in other proceedings.

Attorney Allison stated to the Court just before the

taking of testimony on April 6, 1978, "If his honor r.rould be a

witness about the prior proceedings as to what happened back in

1970, 197f , on lt1r. Harris' case, vre wou1d, of course, argue that

the Court would have to recuse il-sel-f . . " (n. 152) . ?he

Court, in this instance should have confined itself to matters i-n

the record, orr in the alternative, recused itsel-f if the Court

intended to base its findings, at least in part, on the per-

formances of attorneys Scho11 and Garrett that the Court had

witnesseC in proceedings outside the record.

In the case of Lcve rr. Ilississippi, 22I So.2d 92 (1969)

at 94, the Supreme Court of I.lississippi ruled that the chancery

court befor.'coul-d not deny a hearing on a coram nobis peiition on

the basis that the court "knew of his own knowledge," that

appellant's counsel had been effective and that there )rad been a

-43-



fqII and fair hearing at a lower Youth Court proceeding where

appel.Iant had been adjudicated a delinguent. The only way to

determine whether appellant had had effective assistance of

corursel, wouJ.d have been to make findings of facts based only in

the record following a hearing, the Mississippi Supreme Courtrs

trolding indicated

The Trial Court at no time during the proceedings stated

it was taking judicial notice that attorneys Scholl and Garrett

were competent and effective lawyers. As a general rule, a judge

carlnot take judicial notice of facts other than those within the

knowledge of the general public. It follows without guestion

that no cross-exalnina"ion was allowed on this statement by the

Tria1 Court. The Trial Court's decree vras strongly tain"ed by

this error.

-44



VII

THE DENIAI OF FIINDS FOR TN\TESTIGATION AND
PAYI'TENT OF COT]NSEL \IIOLATED APPELLANTI S

SIXTH, EIGHTH, AND FOURTEENTH AllEl'iDyrINf
CO\'STITUTIO}IAL RI G}i?S

Before tie coram nobis hearing, Appellant filed with

the lower court a Motion For Funds For Investigative and Hearing

Purposes and Por Payment of Counsel (P.. 748) (hereinafter Motion

For Funds). Said Motion was denied by the trial court (n. 4L,

813). The trial court even denied Appellant's Motion For

Appointment of Counsel (R. 739, 40) even though he was determineC

a pauper entitled to a free copy of the transcript of coram

nobis hearing.

As the Supreme Court has stated in Gregg rr. Georgia,

428 U.S. 153, 49 L.Ed.2d 859, 95 S.Ct. 2909 (1976) at L.Ed.2d

882 z

"When a defendant's life is at stake the court

has been particularly sensitive to insure that

every safeguard is observed. "

To insure that "every safeguard is observed" an indigent defendant

under sentence of death must be provided adequate funds to defend

himsel f.

The triaf court erred..in denying, on the merits,

Appellant's clair,r. Prisoners hat,e a fundamental constitutiona]

right of access to the courts to assert their consti"utional

claims. Bounds v. Snith, 430 U.S. 817,821 (1917). States must

not only eliminate barriers to access but must also "shoulder

affirmative obli-gations," 430 U.S., at 824, to insure that access

to the courts is meaningfrrl. Differences in access based upon

the financial circurnstances of a pri-soner, moreover, are

" repugnant to the Constitution. " Roberts v. La\za'l 1ee, 389 U. S.

40, 42 (1957). The state has refused Appellant meaningful access

b), failing to proviCe investigation and litigation expenses

AC 
-



without which his coram nobis bearing is and wilL be meaningLess

instead of meaningful as the Constitution reguires. Gibson v.

Jackson, 443 F. Supp. 239, 250 (Irt.D. GB., 1977). The defendants

rnay not argue tlrat rneaningful access does not extgnd to post-

conviction proceedings. The Supreme Court has made it clear
that states which have provided post-conviction proceedings must

conduct fuII and fair hearings, and for the "indigent as well as

for the affluent prisoner, post-conviction proceedings must be

more than a fortality. " Johlson v. Avery, 393 U.S. 483, 486 (1959).

ltoreover, because Appellant stands under sentence of
death, both the traditionally exacting standard of scrutiny of
claims in capital cases, EEe, e.g. Powell- v. Alabama,287 U.S. 45

(1932), and a "corresponding difference in the need for relia-
bility in the Cetermination that death is the appropriate punish-

ment, " Vloodson r'. North Caro1ina, 428 U. S. 280, 305 (1976) ,

compel the conclusion that Appellant should be afforded relief.

e

i

-46-



rl
VIII

THIS COURT SHOLILD REVIEW \.]HETHER
LACK OF SUFFICIEtiT NOTIqE OF THE

HEARING I.IA.S PREJUDICIAL AND DEI{IED
PETIIIONER HIS RIGHT TO A FULL A}iD
PAIR HEARTNG AI,r'D DUE PROCESS OF LAl{

The first "notice" that Mr. Harris' attorneys received

that a hearing on the coram nobis petition was scheduled I'larch 31,

1978, was a telephone call from Johnny Harris on Friday, I.tarch 24,

1978, who had just heard about the date on the prison radio (n. 4).

Mr. Harrisr attorney attempted, without success, several times

that day to contact the trial judge in order to determine whether

the hearing scheduled was to be on one or more of the motions or

civil subpoenas or discovery requests previously filed by Harris'

attorneys or on the merits (Deposition notices had been sent out

for the taking of depositions on l',ay 11 and 12, 1978). Failing to

obtain irny information regarding the maLters to be heard on

March 31, 1978, attorneys for I'1r. Harris departed for Bi rningham.

Attorneys had exactly four business da1,s ;o prepare for the

hearing. No rvritten notice of the hearing had been received by

the time cor:rsel Ieft for Birmingham on llarch 25, 1978 (R. 7).

On March 31, f978, the schedul-ed date of the hearing,

attorneys for Mr. Harris had not had sufficient time to file all

subpoenas for I.1r. Ilarris' witness,es (R. 7) . Several subpoenas

which were filed had not yet been served (n. 8). The State's

attorney had not filed an answer until March 27', 1978 (R. 8), and

I'1r. Harris' attorneys had not been served with a copl' (n. 8). 1,1r.

Harris' attorneys had no knowledge, therefore, of the issues

raised in Appellant's petition that the State intended to chal-ierrge.

l'tr. Harris was not brought from the Ho1man Prison Unit in Atmore

to Birmingham until the afternoon preceding }larch 31, 1978 (R. 34) ,

so his attorneys had had virtually no opportunity for consuLtation

with him and discussion of his witnesses or strategy (n. 34).

-4'1 -



It

Itisamatterofrecorde]ser,'hereinthisbriefthatMr.

Harris, attorneys \,rere denied access to the District Attornel'r5

files and files of the Birmingham Police Department. Additionally

the court on l.larch 3I, 1978, denied Mr. Harris funds to hire an

investigator. Both of these rulings of the Court' taken together

with the fact that since }ir.Harris had never had a trial, only

scant records of the entire proceedings existed' indicate the

impossibilityofadequatepreparationforthishearingonfour

days' notice. The Court did grant a continuance' allowing four

additional days before the taking of testimony on the merits' but

this short period of time was in no l'ray sufficieni for attorneys

to make adequate preparations for a coram nobis proceeding chal-

lengingthejudgmentsinfivecapitalfe].onies,wheretheultimate

sentences were to become an essentiaL eiement of the statu"e under

which Johnny Harris was subsequentll' convic-'ed and sentencec to

die in ihe electric chair.

Petitioner was dePrived of a fair

denial of adeguate time to prepare for the

also of due process of lar+ u:'rder the Fifth

ments to the United States Constitution'

hearing, bY the Court's

hearing and dePrived

and Fourteenth Amend-

- 96 -



tx

THIS COURT SHOULD REVTEW WHETI{ER
JOH}iN'Y HARRIS i"IAS DENIED A FAIR

EEARING WHEN THE COUR
HARRIS ACCESS TO EXCULPATOFJ EVIDET'*CE

Mr. Harris' attorne)'s at the corarn nobis hearing re-

quested they be allowed to inspect the District Attorney's files

and police investigatory files to examine the docunents for

evidence of Mr. Harris'innocer:ce of the crimes charged in 1970,

f971, and that the Trial Court order any exculpatory materials

turned over to appellant (n. 40'?). l.lhen this was denied, it was

requested that the lower court review the material in camera,

which the Court did. The Court subsequentll, reported that it had

reviewed the files and had found nothing e>:culpatory in either the

District Attorney's file or the police file "that woulc assist

petitioner in the hearing before us." (R. 514). In the jnstant

case, the appellant reguested the in camera inspection only as a

final alternatj.ve to the total denial of access to the files by

the Trial Court. The in camera inspection process is, at best, a

compromise between the total reliance on a prosecutor's benevolence

and a fishing expedition by the appellant. i{i1l-iams r'. Dutton,

400 P.2d 797 (5th Cir., 1968). However, courts have recognized

the lack of reliability of such a. process since -.he court is

r:sually less knorvledgeabte as to the reLevance of the possible

pieces of evidence independent of the entire fire of a defense

counsel. Dennis v. united States, 384 U.S. 855, 875 ( );

United States v. Cobb, 277 F. SuPP. 159 (S.o.N.Y., 1967); llnited
States \,. Gleason , 265 F. Supp. 880 (S. o.N.Y. , 7967) .

The instant case provides a vj-vid examp)-e of the inade-

quacy of such a compromise. As already discussed, the material

sought contained evidence r.rhich, when tied '"ogether Ni:h testi-

mony, eliclted or rvith other files already in the possession of

the appellant, would not onlir raise serious questions of the

-49



credibility of Mr. Harris' appointed counsel, but would also

relate directly to their competence and go to show the actual

innocence of appellant.

Based on the record, it is cfear that the Trial- Courtts

denial of these records to Mr. Iiarris erren after an in camera

inspection \{as an abuse of discretion and preSuoiced tire appel}ant,

thereby denying hirn a fair trial of the issues nor': before this

Court.

- 50 -



t,

t)
x

THE COURT BELOW ERRED IN TIPHOLDTTG THE

?RI.aJ COtiRT'S RULI]'IG EXCLUDIi\'G CF.OSS

EX?}1I!iATION OF I.IATTERS TE].IDI]'JG TO

al-ND Ill REFUSII{G TO ALLOh' PETI?IO^\ER TO

PROtsATI\E OF ?]]E CREDTBILITY OF

PE?ITIONER'S COLAISEL

The Trial Court abused its limited discretion and sub-

stantially prejudiced Petitioner by refusing to al}ov;' evidence

probatirre of the credibility of his trial attorneys. Although the

Court did not make speci.fic cornment on this issue raised in

Petitioner's appeal, the Court affirmed by stating, "l^lith respect

to the remaining issues raised on this appeal, we adopt the

opinion of the lower court as the cpinion of this Court." Opinion,

l-2.

A. The Trial Court's Refusal to Allovr Cross
Examination Exploring Possibfe Racial Bias
9E l!I9r".r I"-9
Court's Discretion ano f s In Conf lict irrith
*1"'-lgII"e'E-lgggslif

Attorney Scholl testif ied that l'tr. Harris exhibited

hostility toward Mr. ScholI from the outset of the attorney-client

relationship, commencing during the first occasion when I'1r. SchoIl

aIIegeily visited I',1r. Harris at the conference room at the jail

(n. 205). No one had ever exhib:ted as much hos'"ili-ty to him,

scholl s-uated (R. 204) . And, "l^lhen Harris was .hostile 
to me, I

v,,as hostile back. " His testimony continuefl, "there \r'dS d meeting

of the minds. I didn't take any craP off him" (R. 29)- Mr.

Scholl implied that the onus of responsibility for the alleged

break-dou'n of the attorney-client relationship v,'as on l'1r. Harris,

whose hostility vras a1legedly "i-mmediate" (R. 244). t'1r. ScholI

also testified, howerzer, that attorney Garrett had a good re-

lationshio rrrith Petitioner, and taht, he, scholl, had therefore

sugges-"ed thaL the two attorneys "use the I'1utt and Jef f routine"

with l'ir. Harris (n. 219) .

- 51 -



Counsel for Petitioner attempted to explore possible bias
on the part of Attorney Scholl toward 1"1r. Harris based on negative

attitutes toward Black peopre. The court sustainec objection to
t}re following question propounded: Did you live in an integrated
neighborhood in 1910? (n. 257). t{hen objection to this question

r"'as sustained, counser then put the folloi+ing questions into the

record: Did you ever have or have you had a Black secretary?
(n. 258) . Did your chifdren in 19'70 go to an integrated school?

(n. 259); Have you ever visited in a social h,ay a Black family?
(n. 259); Have Black people ever been to your home to visit?
(n. 259) ; Is the church that you attend integratei? (n. 259) ; Are

you a member of a country club that is integrated: (n. 25g). The

Court sustained the objections to each questions (p.. 258, 259) .

The Court should have allowed petitioner :o impeach Mr.

schorlrs testimony by showing, on guestioning of c.ttorney schorl,
that any hostility involr,ed rvas initiated by l1r. Scholl ano not

l1r. Harris. The guestioning migh-u also have suggested the degree

of any such bias.

In ExParte We11s, 292 Al-a. 255, 292 So.2C 471, 4"73 (1973) ,

thi-s Court stated:

*itn,illaill= j:o:lii"'3roE,::: il:;rl!?;;"'ij
develop bias is largely discretionary, r.,here
the rn'itness' testimon), is important ro ihe de-
termination of the issues being tried, -"here is
little, if any discretion in the trial juige to
disallorv cross e>;arninatiolt on matters which tend
to inclicate the bias of the witness. "

See. also, I'1cl'iul1ian v. State , 292 Ala. 248 , 292 So-2d 129 (1973)

In the earLier case of }ier.rton v. State, 32 A1a. App. 340, 29 So.

353, 355 (Lg47), the Court of Appeals noted that a;r adinission of

bias or iII will by a vri-"ness does not necessarilt,"cIose the door

to further cross to show b1'material and probative erridence the

e>:tent or cause of bias."

-s2-



In the instant case, Louis Scholl testifieC, in effect,

that it rvas I1r. Harris and not himself , rvho was responsible for

the attorney-client relationship which was highly unsatisfactory

and manifestly harmful to I.1r. Harris. Here, the Court r"as faced

with taking Schol1's version or Mr. Harris'; there was no other

erzidence available- This witness' testimony u'as crucial- and

clearly his bias toward Petitioner could have seriously affected

the quality of his representation. Petitioner was prejucj-ced by

the Court's ruling that probing into possible racial bias on the

part of I'1r. Harris was not all-owed.

B. Deprir,,ing Peiitioner of the Opportunit),to
Examine the Sta-ue's Fil-es Prerrentec Petitior:er
and the Court I'rom Adequately Assessing the
Credibili-'), of tlre A-uto::neys I Testiincn), The- -
The), HaC Discr.rssed -.he Case Full.v llith the
Police Of f icers Irrvolved.

Attorney }iilton Garrett testified that he was nct farril-iar

with any electronic surveil-Lance or 1-elephone taps in -.he case

(n. 528). Attorney A]l-ison directed the Court's attentio;r to the

fact that a Birmingham newspaper in l{arch, 1918, had ob-'ained

police recorCs anC inforrnation from the District Attornel"s

office relating to johnny Harris; 1970- 71 cases and poin--ed out

that a recently published story rerrealed that records given to

the Birmingl'iam reporter contained evidence of electronic taps on

telephones (R. 122). ff Attorneys ScholL and Garrett hac had

open access to the Dj-strict Attorney's filcs as they tes-'ified,

and if they had discussed the case fully with police officers as

they testified they had, surellr it woufd have come to thei-r

attention that electronic tapping of pirones had been Cone; and

that matter woul-d have been an important e\/ent +-o have inr,zestigated

I'1r. Scholf testif ied that his notes of Grand Jurl' 1"t91-

monv obtained from the District Attorney files rr'ere in h:s lost

file. The on11, possible corroboratirlg evidence ctf v,'hether he

- 53 -



I
?

ever saw the Grand Jury notes would be the fact of whether the

Grand Jr:ry notes were in the District Attorney's files.

The qredibility of the testimony of attorneys Scholl and

Garrett was a cr.itical asPect for the Court as iact finder in the

coram nobis proceeiing. Scholl and Garrett both testified that

they had seen the files and spoken with police officers. It was

an abuse of the Court's discretion not to have allowed Johnny

Harris' present attorneys to have examined these files in order to

determine if Scho11's and Garrett's testimony in this area could

have been truthful, Appellant Harris' case may have been injured

substantially by the Court's ruling on this matter. The fact that

these files could be examined by a Birmingham newsiaper rePorter

and not by Johnny liarris or his attorneys on a matter as critical

as this adds to the manifest unfairness of the Trial Court's

action and the error of the Court below in upholding these rulings

-54-



U
(

CONCLUSION

Because of the preceeding arguments, the Appellant

requests that this Honorable Court grant his Pelition for Writ

of Certiorari, reverse the ruling of the Alabama Court of Criminal-

Appeals, grant him his five petitions for I'Irit of Error Coram

Nobis, and grant hirr a new trial on the cases numbered 21835,

21836, 21837, 21838 and 21839.

/\
(\
RB€R

Of Counsel

Jack Greenberg
James }labrit, III
David Kendell
Peggy Davis
10 Columbus Circle
suire 2030
New York, New York 10019

Anthony Amsterdarn
Stanford Law School
Stanford, Californi-a 94305

ALLISON, SOREFF' t. GA

3208 I'r. Broadway
Louisville, Kentucky

W. Clint Brown, Jr.
1407 Davis Avenue
ltobile, Alabar,ra 35603

H. Diana Hicks
208 Park Building
5 N. Conception Street
Mobile, Alabama 36602

ATTOBNEYS FOR JOHNNY HARRTS

402]-].

Respectfully sublnitted,

--\ \tr-w..(

h'lLLIAM



Y,
- ^L

J REQUEST POR LEA\IE TO FILE BRIEP IN
REPLY TO APPELLEEIS BRTEF, REQUEST
FOR ORAL ARGUMENT, AND REQLEST FOR
MOI€ Trl'rE POR ORAL ARGUI'1E}iT THAN

ALLOWED BY RULE 7

Appellant

appellee's brief.

allowed more than

reguests leave to file a brief

He requests oral argument and

thirty minutes allowed by Rule

in reply to

that he be

't-

WTLLIAI'I H. ALLISON, JR.

CERTIPICATE OF SERVICE

I, WILLIA-I', H. ALLISON, JR. , certify that I have served a

copy of the foregoing brief on opposing counsel by mailing a copy

certif ied U. S. l.1ai1 to Honorable William hxley , Attorne)' General ,

2I0 Administration Buitding, Montgomery, Alabama, anC to Honorable

Earl l'lorgan, District Attorney, Tenth Judicial Circuit, Courthouse,

Birmingham, Alabama, this 19th day of December, 1978

$

-56-